Impact of Criminal Records on Visa Applications
Understanding Character Requirements – Visa Applications
Issue date: 18, November 2020.
Visa applications can be refused or cancelled if an Applicant (or Visa Holder) fails the Character Test under section 501 of the Migration Act. This can be a worrying dilemma facing Visa Applicants and Visa Holders, who have prior convictions or criminal records.
So, how does the Australian Immigration Legislation view this issue?
Under section 501 of the Migration Act, the Minister (or a delegate), has the power to either refuse to grant a visa or to cancel a visa if an Applicant does not pass the Character Test. When considering cancellation, the Minister will take into account two matters:
- whether or not a Visa Applicant or Visa Holder passes the character test; and
- if that Applicant does not pass the character test, whether to exercise this power to refuse to grant the visa or to cancel the visa.
The question to ask is what lies at the heart of this discretionary power?
Discretionary power is used to protect the Australian community. Australian courts have emphasised that the object of Australian immigration legislation is to regulate, in the national interest, non-citizens who enter and remain in Australia. To help achieve this outcome, the Minster has the power to determine who passes the character test.
Therefore, the Minister is responsible to protect the Australian community from criminal or other reprehensible conduct and to refuse to grant visas or to cancel visas held by non-citizens whose actions are abhorrent to the community. In other words, non-citizens who do such acts should not be allowed to enter or remain within Australian borders.
Where is the line between what is good or bad character?
Australian immigration legislation determines whether a person is not of a good character and regard must be given to the person’s past and present criminal conduct, or the person’s past and present general conduct. Unfortunately, Australian legislation does not define what is considered as good character.
However, Australian courts have defined ‘good character’ to mean enduring moral qualities in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. In other words, it is not a matter of someone having a good reputation or fame in the community. It is a matter of continuing performance according to moral principles.
In conclusion, if you have a criminal record or total of your convictions equals or exceeds 12 months, this will likely trigger the operation of the Minister’s power to refuse your visa or to cancel your visa. It will only be a matter of time for the Department to notify you of the intention to act. In doing so, the Department may provide you with an opportunity to provide reasons why your visa should not be cancelled. This is where expert immigration advice is available.
Served with a cancellation notice? Then be quick to act. Do not delay your response because a second chance may not be available.
Brett Slater Solicitors have experience and knowledge of the process. Our lawyers will assist you to draft well-presented submissions to support your case. Contact today to discuss your circumstances and what options you may have.
About the Author: experienced immigration lawyer with extensive knowledge of Australian immigration legislation, policy, and procedure. Represented numerous clients in AAT matters regarding character, with successful results.
