Fact Sheet 79 - The Character Requirement
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All non-citizens, including sponsors of visa applicants and non-migrating family members seeking to enter or stay in Australia, must satisfy the character requirement set out in Section 501 of the Migration Act 1958.
The character requirement is usually linked to the class of visa being applied for through Public Interest Criterion (PIC) 4001. The test puts the onus on the person to show they are of good character.
The Migration Act 1958 contains powers that enable the Minister for Immigration and Citizenship or the Department of Immigration and Citizenship to refuse or cancel a visa on the basis that a person does not pass the character test.
Decisions to cancel or refuse visas on the basis of the character test are made after full consideration of all the circumstances of the case and with reference to Ministerial Direction 55. Where the minister personally makes a decision to refuse or cancel a person's visa, he or she is not bound by the ministerial direction.
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, harass, molest, intimidate or stalk another person in Australia, 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 a segment of that community.
See: Fact Sheet 78 - Controversial Visa Applicants
Substantial criminal records
A person is deemed to have a substantial criminal record if they have been:
- sentenced to either death or life imprisonment
- sentenced to a term of imprisonment for 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:
- 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, decision-makers will decide whether to refuse the application or sponsorship, or to cancel a visa. Exercise of this discretion will take into account a wide range of factors, including the protection of the Australian community, the person's ties to the Australian community, the best interests of any 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 such as the impact of visa refusal or cancellation on a person's family in Australia, any impact on Australian business interests, the impact on the Australian community if a visa were to not be refused or cancelled and any hardship the person may face if removed from Australia are also considered.
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, past and present criminal conduct or past and present general conduct is permanently excluded from Australia.
Appeals
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). Whereas, if a delegate of the minister either refuses or cancels a persons 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 to the AAT, an applicant may seek judicial review of the decision, if they believe the decision was not lawfully made
Further information
Further information is available on the department's website.
See: www.immi.gov.au
The department also operates a national general enquiries line.
Telephone: 131 881
Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.
Fact Sheet 79. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Last Reviewed January 2013.
© Commonwealth of Australia 2009.