• To be granted temporary or permanent entry to Australia, whether you are the main applicant or an additional applicant on a visa application, you will need to pass the character test set out in the Migration Act 1958 (Cth).

    The character requirement forms part of the Public Interest Criterion (PIC) conditions which must be fulfilled prior to being granted entry. All visa applicants must demonstrate that they are of good character. The need for good character reflects ongoing national security concerns and aims to protect all citizens and residents of Australia.

    Applicants who fail the character test may have their visa refused or cancelled by the Minister for Immigration or the Department of Immigration and Border Protection.

    What is considered when determining “good character”?

     

    An applicant’s past and present criminal conduct along with their conduct in general is considered when determining good character. This means you are required to disclose information about your past conduct including any criminal convictions or charges, if applicable, and the refusal to grant, or the cancellation of, any previous visas. Failing the character test has resulted in many visas being cancelled over the past.

    What constitutes failure of the character test?

    An applicant will fail the character test on several grounds, including if:

    • he or she has a substantial criminal record;
    • he or she has been convicted of an offence either whilst in immigration detention, during an escape from immigration detention, or after having escaped from immigration detention but prior to being taken back to immigration detention;
    • there is a significant risk that the person will engage in criminal conduct (such as harassing, molesting, intimidating or stalking another person, or vilifying, inciting discord against a segment of the Australian community);
    • he or she belongs, used to belong to, or is associated with a group, organisation or person involved in criminal conduct;
    • he or she represents a danger to the Australian community.
    • having regard to the person’s past and present general criminal conduct, the person is judged not to be of good character.

    What is a ‘substantial criminal record’?

    For the purposes of the character test, a person will have a ‘substantial criminal record’ if the person:

    • has been sentenced to death or life imprisonment;
    • been sentenced to a term of imprisonment for at least 12 months or two or more terms of imprisonment, where the total of the terms is two years or more;
    • acquitted of an offence on grounds of unsoundness of mind or insanity and has been detained in a facility or institution; or
    • if the person has been found unfit to plead in relation to an offence but, on the evidence available, the Court has found that the person committed the offence and has therefore been detained in a facility or institution.

    What happens if I fail the character test?

    In some cases, the visa must be refused or cancelled and in other circumstances, the Minister or delegate may use discretion in making the decision to cancel a visa.

    The repercussions of having a substantial criminal record are severe. If the Minister for Immigration believes that a person has a substantial criminal record, then he or she will fail the character test and the visa must be cancelled.

    Where a person fails the character test in certain other circumstances, the Minister may exercise discretion as to whether the visa is to be cancelled. The factors to be considered will include the protection of the Australian community, the interests of any minor children likely to be affected by the decision, the impact on the visa holder’s family, community expectations and Australia’s
    international legal obligations. A person who has had their visa cancelled may be permanently excluded from entering Australia.

    The importance of legal experience

    Australia’s immigration laws are complex and there are various pathways and layers to navigate when considering the most appropriate visa type. Timing is crucial, and it is important to obtain legal advice, particularly if you need to disclose matters affecting the character test, for example a past criminal record.

    There are also strict procedural requirements for lodging a valid visa application. Essential criteria for each visa type must be met and supported by relevant documents. An experienced migration agent or immigration lawyer will ensure your visa application is lodged within the applicable time frame and that all information is included with your application.

    If you need to complete a visa application, re-apply for a visa, or have received a notice requiring a response from a Government authority, we recommend you seek assistance from a legal expert promptly.

    If you or someone you know wants more information or needs help or advice, please contact us on 02 9299 5815 or email info@brettslater.com.

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