In August 2015, close to 600 visa holders who had been convicted of violent crimes, drug trafficking and paedophilia were deported from Australia by Immigration Minister, Peter Dutton. This was at the heels of policies being passed in which non-citizens, including Permanent Residents, would imperatively lose their visas if they failed the character test. This is also true for Special Category Visa subclass 444 New Zealand citizens.
Section 501 of the Migration Act 1958
Regardless of which type of visa you are applying for; it is mandated that you inform the Department of Home Affairs of any criminal convictions whether made against you inside or outside of Australia. A criminal conviction also includes convictions which have been deemed ‘scrubbed’ from the official record or were ‘not recorded.’
You may also be required to provide police certificates as part of your assessment against the character test. Failing to comply may result to refusal or cancellation of your visa.
What is the character test?
To pass the character test, you need to prove that:
- You do not have any substantial criminal record; or
- You have never been convicted of fleeing from immigration detention or convicted for an infraction that you committed:
- while you were detained in immigration detention;
- during a breakout from immigration detention; or
- after a breakout, but before you were taken into immigration detention again; or
- You have never been a member of a group or organisation, or have ever associated with a person(s), group or organisation(s) which is reasonably suspected of being involved in criminal conduct; or
- You have never been nor are currently reasonably suspected by the Minister as being involved in people trafficking, a crime against humanity, mass extermination, a war crime, a crime involving slavery or torture, or a crime that is of significant international interest. This includes whether you have been imprisoned for such an infraction or not; or
- Your criminal or general behaviour, past and present, shows that you are completely of good character; or
- While you are in Australia, there is no risk that you would:
- be involved in criminal conduct;
- harass, molest, intimidate or stalk another person;
- slander a segment of the Australian community;
- provoke discord in the Australian community or in a part of it;
- be a danger to the community of Australia or a part of it; or
- You have never been convicted or proven guilty for one or more sexual offences involving a child; or
- You have never been subject to a negative security assessment by the Australian Security Intelligence Organisation (ASIO); or
- You have never been subject to an Interpol notice where you were suspected to be a direct or indirect danger to the Australian society, or any part of it.
What is a Substantial Criminal Record?
A substantial criminal record relies on the length of a sentence imposed by a court of law. It is irrelevant of the time actually spent in prison. You are considered to have a substantial criminal record if you have been:
- condemned to death or life imprisonment; or
- condemned to imprisonment of 12 months or more; or
- sentenced to two or more terms of imprisonment, totalling to 12 months or more (even if served together); or
- found by a court to not be qualified to plead regarding an offence committed which resulted in detention in an institution or facility.
Will my cancellation be permanent?
If you were removed or deported from Australia after your visa has been cancelled on character grounds, you will be permanently ruled out from being given another visa to enter Australia. This visa cancellation will prohibit you from applying for other visas to remain Australia, too.
Currently, there is no visa for those who were previously deported on character grounds to re-enter Australia.
Can I appeal the cancellation?
Cancellation of a visa under section 501 of the Migration Act 1958 is automatic through the operation of law. What that means is that non-citizens must apply to have their visa cancellation revoked by the Department of Home Affairs if they believe they should continue to reside in Australia.
Non-citizens must apply to have their visa cancellation revoked within 28 days from the date of the cancellation notice. They must then provide the Department of Home Affairs with documentary evidence which supports their reasons for having the cancellation revoked; such as close family ties in Australia, that the conviction was for a non-violence offence, or that they no longer pose an unacceptable risk to the Australian community.
If the request to have the visa cancellation revoked fails, the decision was made by a delegate of the Minister, and you are in Australia, you still have the right to have the decision reviewed by the Administrative Appeals Tribunal. If you are in Australia, you are given up to 9 days upon notification to appeal the decision.
If you are not in Australia and the decision was a refusal of a visa application, your sponsor or nominator will have a right to appeal on your behalf as they are in Australia. If you are outside of Australia, your sponsor or nominator is given 28 days.
The Tribunal will have 84 days to come up with a new resolution. If it does not, then the original decision to cancel or refuse the visa must be followed.
You may still seek judicial examination of the resolution if you feel that the decision was not lawfully decided.
The right to appeal is revoked if the Minister made the cancellation personally. It is mandatory to cancel your visa on the basis that you are currently serving a custodial sentence and have been sentenced to 12 months or more. Your right to appeal is also denied if you have been imprisoned of or were proven guilty of a sexually based crime involving a child.