Character requirement for Australian visas
Almost any Australia visa you apply for, you must be of good character as required by the Migration Act. This would apply to both temporary and permanent visas. Character under the Australian migration laws refers mostly to your criminal convictions and general behaviour rather than how nice you are as a person in reality.
This blog will explore what you need to know about the character test for your visa.
Character test requirements
The main reasons why you would fail the character requirement is any of the following apply to you:
- A substantial criminal record including 12 months sentence or in total for all your sentences (whether or not you spent any time in prison) or if you were not fit to plead or been acquitted based on insanity;
- If you have been convicted of escaping immigration detention or of an offence whilst in immigration detention, during or after an escape from immigration detention;
- Be part of a group or an organization or be associated with someone, group or organization that the government things is involved in criminal activities;
- If the government thinks that you are involved in any of serious international crimes such as people smuggling or trafficking, war crime, crime involving torture or slavery. No conviction is required to fail the character test under this point and only a reasonable suspicion by the Australian government is sufficient;
- your past and present criminal or general conduct;
- if there is a risk that you would participate in a crime in Australia or be a danger to the Australian community;
- if you have a conviction or been found guilty of any sexual offences involving a child;
- if the Australia Security Intelligence Organization ASIO is conducting an adverse security assessment against your name or if you are subject to an Interpol notice;
- You have a domestic violence order against you or been convicted of a domestic violence offence.
If I have a criminal record should I disclose it in my visa application?
Absolutely. You have to always include the truth in your application and disclose any criminal convictions you ever had in Australia or overseas. Do not assume that the Australian government is already aware of your criminal conviction and do not think that by not disclosing the government will approve your visa.
Make sure you mention any convictions, acquittals or convictions more than 10 years ago on your application. If you also have a criminal conviction, then you should get legal advice from a good immigration lawyer to explain to you how this may affect your visa application before you apply for your visa.
For most visas, the Australian government may ask you to provide a police clearance from any country you lived in for a total of 10 years or more since you turned 16 including Australia. You may also need to provide a certificate from any military you served in for more than 12 months in any country Military’s force.
Generally police clearances are only valid for 12 months unless you never visited that country again since the certificate was issued. There also certain requirements as to which police clearance you need to provide. For example, the police clearance from Australia must be a national police clearance covering all of Australia. You must also include all the names you have ever been known by or your certificate won’t be accepted.
Can my visa be refused if I have a criminal conviction?
The government will consider whether you pass the character test or not under the Migration Act. Having a criminal conviction in itself won’t make you fail the character test so it is possible to have a criminal conviction and still be granted an Australian visa.
Also if you do not pass the character test, the Australian government can still grant you the visa if you give them reasons why they should.
The case officer would usually consider the following points before making a decision on whether your visa should be refused based on character grounds:
- the protection of the Australian community
- the best interests of any children in Australia
- Australia’s international legal responsibilities
- the impact of visa refusal or cancellation on your family in Australia
- any impact on Australian business and community interests.
The Minister usually releases directions as to what the department should look at when making their decisions about character cases.
What if I become convicted after my visa is granted?
Any visa, including permanent visas, can be cancelled after it was granted based on character. Sometimes permanent residents have their visa cancelled many years after living in Australia including 20 and 30 years. The department will ask you first why they should not cancel your visa, unless it is a mandatory cancellation allowed by the Migration Act, by sending you a notice of intention to cancel that you must respond to.
Cancellations are not mandatory unless you have been sentenced to a term in prison for more than 12 months or been charged of a sexual offence involving a child even if you were discharged without conviction. You can ask the department to revoke the visa cancellation but they do not have to.
If your visa is cancelled, you may not be able to apply for further visas and you might be placed in immigration detention and be deported outside of Australia. If your visa is cancelled or about to be cancelled, you should contact an experienced immigration lawyer immediately for help.
Can I appeal a visa refusal or cancellation based on character grounds?
You can usually appeal the decision at the Administrative Appeals Tribunal but it depends on your own individual circumstance such as where you are at the time of refusal/ cancellation and which visa it is. There are usually strict timeframes of when to apply to review the application so make sure to check your rights and act immediately.
If you need help with any questions about criminal convictions or character issues and visas, do not hesitate to contact me for more information.
About the author
This article was written by Marial Lewis. Marial is an admitted lawyer in Australia and holds a double degree in Commerce and Law as well as a Master degree in Legal Practice. She was awarded John Gibson Young Migration Lawyer of the year award in 2020 and was a finalist in multiple awards in 2019 such as 30 under 30, the Rising Star of the year and the Suburban Lawyer of the year. To contact Marial Lewis, click here.
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