How does character assessment affect my visa application?

In Plain English

If the Minister thinks you might not pass the character test, they can refuse to grant you a visa or cancel one you already have. The character test looks at things like your criminal history, if you're associated with criminal groups, and if you pose a risk to the Australian community. If the Minister has information that suggests you might fail the character test, they usually have to give you a chance to comment on it before making a decision. However, in some cases, particularly those involving serious criminal offenses, the Minister must cancel your visa if you are currently imprisoned for that offence.

Detailed Explanation

Section 501 of the Migration Act 1958 outlines the circumstances under which the Minister may refuse or cancel a visa on character grounds.

  • Character Test: Subsection 501(6) defines the character test. A person does not pass the character test if, for example:

    • They have a substantial criminal record, as defined in subsection 501(7). This includes sentences of death, life imprisonment, or imprisonment for 12 months or more. The Migration Amendment (Character and General Visa Cancellation) Act 2014 amended the definition of "substantial criminal record" to include those sentenced to a total of 12 months imprisonment, reduced from the previous 2 years (item 1 and 13 of Schedule 1).
    • The Minister reasonably suspects the person has been or is a member of a group or organization involved in criminal conduct (paragraph 501(6)(b)).
    • The person's past and present conduct demonstrates they are not of good character (paragraph 501(6)(d)).
    • They have been convicted of sexually based offenses involving a child (paragraph 501(6)(e)).
    • They have been assessed by the Australian Security Intelligence Organisation (ASIO) to be a risk to security (paragraph 501(6)(g)).
    • Minister's Powers:
    • Under subsection 501(1), the Minister may refuse to grant a visa if the person does not satisfy them that they pass the character test. Natural justice applies in this case.
    • Under subsection 501(2), the Minister may cancel a visa if they reasonably suspect the person does not pass the character test, and the person does not satisfy the Minister that they do. Natural justice applies in this case.
    • Under subsection 501(3), the Minister may refuse to grant or cancel a visa if they reasonably suspect the person does not pass the character test and are satisfied that the refusal or cancellation is in the national interest. Natural justice does not apply in this case, and this power can only be exercised by the Minister personally (subsection 501(4)).
    • Under subsection 501(3A), the Minister must cancel a visa if the person does not pass the character test due to a substantial criminal record (sentence of death, life imprisonment, or imprisonment of 12 months or more) or sexually based offenses involving a child, and the person is serving a sentence of imprisonment for an offence against a law of the Commonwealth, a State, or a Territory.
    • Procedural Fairness:
    • Generally, when the Minister is considering refusing or cancelling a visa under subsections 501(1) or 501(2), the rules of natural justice apply. This means the person is given an opportunity to respond to the information that raises character concerns.
    • However, the rules of natural justice do not apply to decisions made personally by the Minister under subsection 501(3) where the decision is made in the national interest (subsection 501A(4)).
    • Important Considerations:
    • Sentences are considered even if a person has been pardoned, unless the pardon means the person is taken to have never been convicted of the offence (subsection 501(10)).
    • Conduct can amount to harassment or molestation even without violence (subsection 501(11)).