In this Fact Sheet:
Everyone who wishes to enter or stay in Australia must satisfy the character requirement as set out in Section 501 of the Migration Act 1958 (the Act). This includes all non-citizens, sponsors of visa applicants and non-migrating family members seeking to enter or stay in Australia.
Entering or remaining in Australia is a privilege, and it is expected that non-citizens are, and have been, law-abiding. Visa holders must also continue to satisfy the character requirement.
Irrespective of which visa you apply for, you must advise the department if you have any criminal convictions inside or outside of Australia, and you may be asked to provide police certificates as part of your assessment against the character test. If you do not inform the department of your criminal history, your visa application may be refused or your visa cancelled.
The Minister for Immigration and Border Protection and the department have the power to refuse or cancel a visa on the basis that a person does not pass the character test. This power is discretionary, so if you do not pass the character test, it does not necessarily mean that your visa will be cancelled or refused.
Decisions to cancel or refuse visas on the basis of the character test are made after full consideration of all the circumstances of a case. As part of this process, visa holders and visa applicants are given an opportunity to respond to information that the department will use to decide whether or not to cancel or refuse their visa.
The character test
A person will not pass the character test where:
- they have a substantial criminal record
- they have been convicted of any offence that was committed while in immigration detention, during an escape from immigration detention, during a period where a person escaped from immigration detention, or if the person has been convicted of the offence of escaping from immigration detention
- they have, or have had, an association with an individual, group or organisation suspected of having been, or being, involved in criminal conduct
- having regard to the person's past and present criminal conduct, the person is found not to be of good character
- having regard to the person's past and present general conduct, the person is found to be not of good character
- there is a significant risk that the person will engage in criminal conduct in Australia; or harass, molest, intimidate or stalk another person in Australia; or vilify a segment of the Australian community; or incite discord in the Australian community or in a segment of that community; or represent a danger to the Australian community or to a segment of that community.
See: Fact Sheet 78 - Controversial Visa Applicants
Substantial criminal record
A substantial criminal record is based on the length of a sentence imposed by a court of law, rather than the time actually spent in prison.
For the purpose of the character test, a person is deemed to have a substantial criminal record if they have been:
- sentenced to death or life imprisonment
- sentenced to a term of imprisonment of 12 months or more
- sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more
- acquitted of an offence on the grounds of either unsoundness of mind or insanity and, as a result, the person has been detained in a facility or institution.
Conduct of persons in immigration detention
A person will not pass the character test if they receive a conviction of any kind, regardless of whether a prison sentence has been imposed:
- while they are in immigration detention
- during an escape from immigration detention
- during a period where a person had escaped from immigration detention
- if the person has been convicted of the offence of escaping from immigration detention.
See: Fact Sheet 82 - Immigration Detention
Discretionary powers and Ministerial Direction 55
When a person does not pass the character test, the minister or his delegate will decide whether or not to refuse the application or sponsorship, or to cancel a visa. When making this decision, a wide range of factors will be considered, including the protection of the Australian community, the person's ties to the Australian community, the best interests of any minor children in Australia who may be affected by a decision to refuse or cancel a person's visa, and Australia's international law obligations. Other factors are also considered, such as the impact of visa refusal or cancellation on a person's family in Australia, any impact on Australian business interests and the impact on the Australian community if a visa were to not be refused or cancelled.
The exercise of the discretion is guided by Ministerial Direction 55 made under section 499 of the Act.
See: Ministerial Direction 55 (818KB PDF file)
Exclusion from Australia
A person whose visa is cancelled on the grounds of either a substantial criminal record, or based wholly or in part on the person's criminal conduct or criminal and general conduct, will be permanently excluded from Australia.
Where the decision to refuse or cancel a visa is made by the minister personally, the person has no right of appeal to the Administrative Appeals Tribunal (AAT), except in very limited cases (certain protection visa applicants or protection visa holders). If a delegate of the minister either refuses or cancels a person's visa and the person is in Australia they will have a right to have the decision reviewed by the AAT. If they are not in Australia, they may also have a right to have the decision reviewed, for example, if they have either a sponsor or nominator in Australia.
Strict time limits apply on appeals to the AAT. Applicants in Australia seeking reviews of decisions must apply to the AAT within nine days of being notified of the decision.
For applicants outside Australia, the application for review must be lodged by a sponsor or nominator within 28 days of the day of being notified of the decision.
The AAT will be deemed to have confirmed the decision being reviewed if it does not make its own decision within 84 days of the date on which the applicant was notified of the original decision.
Whether or not there is an appeal avenue available to the AAT, an applicant may seek judicial review of the decision, if they believe the decision was not lawfully made.
Fact Sheet 79. Produced by the National Communications Branch, Department of Immigration and Border Protection, Canberra.
Last reviewed January 2014.