What is the Character Test?
The Character Test is a test listed in s 501(6) of the Migration Act. The person must not:
- Have a substantial criminal record
- Be convicted of an offence whilst in immigration detention
- Be convicted of escaping immigration detention
- Be associated with or be a member of a group, organization or person who has or is involved in criminal conduct
- Be involved in or have been convicted of people smuggling, human trafficking, war crimes, crime involving torture or slavery, grime of genocide etc.
- Be a person not of good character
- Be a person who is determined to be a risk to Australian community
- Have been convicted of sexually based offences involving a child
- Be assessed by ASIO as a risk to security
- Not subject of an Interpol notice where it would be reasonable to infer the person would present a risk to Australian community
Failure to Pass the Character Test
Character cancellation can be both discretionary or mandatory. Mandatory cancellation arises when the person has a substantial criminal record or convicted of sexual-based offences against children, and currently imprisoned. There are rights to request for a revocation but no rights to appeal this decision.
Nevertheless, regardless of the penalties of any criminal convictions, the person may still fail the character test if they are found to be a person not of good character. This is very general and is based on the person’s past and present criminal and general conduct.
Therefore, any person who has any criminal record should seek legal advice immediately to see whether their visa may be subject to cancellation. If the delegate has exercised a discretionary power, then there is a right to review at the Administrative Appeals Tribunal (AAT).
Time is of the essence! There are strict time limitations to every notice you receive so do not hesitate. Contact us now to discuss all your options and to act fast!
Some Statistics from the Department of Home Affairs
The Department of Home Affairs has been targeting visa cancellations in recent years. There has been a sharp increase in the number of character cancellations which affects any temporary or permanent resident. No matter how small the offence may be, once your visa has been cancelled, you can be removed from Australia immediately.