Fact Sheet 79 - The Character Requirement
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All non-citizens seeking to enter or stay in Australia must be assessed against the Character Requirement.
Visa applicants must therefore meet the character requirements defined in Section 501 of the Migration Act 1958. These requirements are usually linked to the class of visa being applied for through Public Interest Criteria (PIC) 4001.
Section 501 of the Act contains a character test to ensure that visa applicants and visa holders are of acceptable character. The test puts the onus on visa applicants, and visa holders, to show that they are of good character.
As well as being a tool to help assess the suitability of applicants to enter and stay in Australia, the test introduces discretionary powers to either refuse or cancel visas if a non-citizen fails the character test.
The character test
A person will fail the character test where:
- they have a substantial criminal record
- 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.
Discretionary powers
When a visa applicant or visa holder does not pass the character test, decision-makers will decide whether to refuse the application 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 expectations of the community, the best interest of any children under 18 years of age, as well as other considerations such as the non-citizen's links to Australia, and any relevant international law obligations.
The exercise of the discretion is guided by the Minister's direction made under section 499 of the Act.
Exclusion from Australia
A person whose visa is cancelled on the grounds of either a substantial criminal record, or past and present criminal 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).
Where a departmental officer either refuses or cancels the visa and the person is in Australia they will, in most cases, 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 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
Other possible refusals
A visa will be refused where the applicant is assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security.
Similarly, a visa will be refused where the applicant is determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australia:
- is, or would be, contrary to Australia's foreign policy interests, or
- may be directly or indirectly associated with the proliferation of weapons of mass destruction.
Further information is available on the department's web site.
See: www.immi.gov.au
The department also operates a national telephone service inquiry line.
Telephone: 131 881
Hours of operation: Monday to Friday from 9am to 4pm (recorded information available outside these hours) for the cost of a local call anywhere in Australia.
Fact Sheet 79. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Revised 30 January 2007.
© Commonwealth of Australia 2007.