If you have a Criminal Record at the time of applying to Australia, this does not automatically mean that you cannot be granted a visa. Furthermore, a criminal offence in Australia does not always mean that your visa will be cancelled. Learn more about this common misconception about the Character Test in Australia’s Migration Law.
What is the Character Test?
The character test is located in s 501 of the Migration Act 1958 (Cth). Section 501 enables visa applications to be refused if the applicant is not of good character. Visas that have already been granted can also be cancelled under this power.
Below is an excerpt from the legislation:
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
When does s 501 apply?
It is important to note that s 501 refers to ‘may refuse’ and ‘may cancel’. This means that case officers, known as ‘Delegates’ of the Minister for Immigration, have a discretion to exercise. After assessing the circumstances, and your submissions, they will decide whether to refuse your visa application or cancel your visa if it has already been granted.
However, the discretion is only enlivened once the above thresholds are met. That is, for visa applications, the person does not satisfy the character test (Section 501(1)). For visa cancellations, this means that the Minister ‘reasonably suspects’ the person does not pass the character test or does not satisfy the character test at all.
You may fail the character test if:
- You are suspected to be a member of or associated with a criminal group or person (Section 501(6)(b)(i)-(ii))
- Have been sentenced to a term of imprisonment of 12 months or more (Section 501(7)(c))
- Have been sentenced to multiple terms of imprisonment where the total length of those terms is 12 months or more (Section 501(7)(d))
- Have been acquitted of an offence on the grounds of unsoundness of mind or insanity (Section 501(7)(e))
- Having regard to both past and present conduct, the decision maker believes you are not of good character (Section 501(6)(c)
The above list is not exhaustive; more situations where a person may not pass the character test can be found in the legislation.
Once the discretion is enlivened, the Minister will consider the circumstances.
What factors will the Minister (or the Delegate) take into account?
As mentioned previously, in order to decide whether to cancel a visa or refuse a visa application, the decision maker will consider a number of factors. These factors are shown in the Ministerial Direction No. 65 which commenced in December 2014.
Direction No. 65 requires decision makers to consider:
For Visa Cancellation
- Factors include:
- The need to protect the Australian Community from harm and the concept that remaining in Australia is a privilege conferred in the expectation that non-citizens will abide by the law and not cause or threaten harm (Note 9.1(1)).
- The risk to the Australian community should the non-citizen commit further offences (Note 9.2(b)).
- Nature and seriousness of the criminal offence or conduct. Crimes committed against vulnerable members of the community are viewed seriously (Note 9.2(c)).
- The sentence imposed by the courts for the crime(s), frequency of offending and cumulative effect of repeated offending. (Note 9.2(e)-(g)).
For Visa Application Refusal
- Factors include:
- Protection of the Australian Community from harm, taking into account nature and seriousness of non-citizens’ conduct and risk to Australian community should further offences be committed (Note 11.1(1)(a)-(b))
- Nature and seriousness of the criminal conduct or serious conduct (Note 11.1.1)
- Considering whether the non-citizen represents an unacceptable risk of harm to the Australian community, with a low tolerance for risk, criminal and other serious conduct (Note 11.1.2(1)-(2)).
- Likelihood of individual re-offending or engaging in further criminal or other serious conduct including information from independent and authoritative sources (Note 11.3(b)).
- Impact of visa refusal on family members and ties to Australia (Note 12.2)
When considering these factors, decision makers will ‘weigh up’ the evidence and arguments in favour and against visa cancellation/refusal. If the evidence and arguments in favour of visa cancellation/refusal are outweighed by those against visa cancellation/refusal, then there may be a positive outcome.
These considerations are also taken into account by the Administrative Appeals Tribunal (AAT) when considering appeals from decision makers regarding s 501 cancellations, and it is important to also consider the case law in this area.
Having a criminal offence does not mean that your visa application will be automatically refused or that your visa will be cancelled. However, this highlights the importance of consulting a qualified registered migration agent for advice and representation from the very start.
The above information does not constitute immigration advice or assistance.