Publish Date: Dec 01, 2011
Australia, like many other nations, requires that visitors and people who are wishing to migrate are of good character as outlined in the Department of Immigration (the Department) policies. In making a determination on whether a person is fit for entry into the country, the Department applies a ‘character test’ which ultimately decides whether or not a person is granted permission to enter Australia.
The character test is applied to not only visitors or individuals who are seeking to migrate, but can also be applied to a visa sponsor who is not an Australian citizen. The requirements in making an assessment on whether a person fulfils the character test criteria are outlined in s 501 of the Migration Act (the Act).
The Minister for Immigration and Citizenship (the Minister) and a decision maker in the Department have the power to make a decision to grant or refuse a visa on character grounds on a case-by-case basis. It’s important to note, that the Minister or the Department have the authority to revoke a visa that has already been granted if it is later established that the person has failed the character test.
- the person has a substantial criminal record
- the person has an association with another individual, group or organisation whom the Minister reasonably believes has engaged in criminal conduct
- the person is likely to engage in criminal activities in Australia
- the person is likely to harass, stalk, or molest another person while in the country
- the person is likely to incite discord within the community, or a segment of the community within Australia
- the person represents a danger to the community, or a segment of that community by being likely to become involved in activities that are disruptive, violent or threatening.
An individual who is seeking entry into the country is not automatically disqualified from entry into Australia if they have been imprisoned in the past. When making an assessment to grant a person a visa that has been imprisoned overseas, is a discretionary power vested in both the Minister and the Department. However, a person who has a substantial criminal record will automatically be refused a visa and will be permanently denied entry into Australia if they:
In deciding to grant or refuse a person a visa, the overriding consideration for the Department is the wellbeing of the community. If there is a possibility that the community or individuals will face a danger from an applicant, the visa may be denied.
If a person is already in the country, and the decision is made to cancel the visa, they have no right of appeal if the Minister was the person that cancelled the visa. Alternatively, if a visa was cancelled by a decision maker within the Department, the person does have a right for the decision to be reviewed by the Administrative Appeals Tribunal (AAT). In appealing a visa cancellation, an application must be submitted within nine days of the decision, and If the AAT has not made a judgment within 84 days from the date of notification, this would signify that the original decision to cancel the visa has been upheld.
If you or someone you know has any visa related issue or question, please seek the appropriate legal advice.