The character test & police check for Australian Migration Visa

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A visa may be refused or cancelled if a non-citizen does not satisfy the Minister or delegate that they pass the character test [The character test & police check for Australian Migration Visa ] under section 501 of the Migration Act 1958 (the Migration Act).

MIGRATION ACT 1958PART 9 — MISCELLANEOUS [s487ZI - s507]Division 2 cont - [s500A to s501J]

MIGRATION ACT 1958 - SECT 501
Refusal or cancellation of visa on character grounds

Decision of Minister or delegate--natural justice applies

(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test.

Decision of Minister--natural justice does not apply

(3) The Minister may:

(a) refuse to grant a visa to a person; or

(b) cancel a visa that has been granted to a person;

The character test is defined at section 501(6) of the Migration Act and comprises several limbs. If a non-citizen does not satisfy the Minister or delegate that they pass the character test, section 501 provides:

  • a discretionary power to refuse a visa (section 501(1)with notice by the Minister or delegate, or section 501(3) without notice in the national interest, by the Minister only)
  • a discretionary power to cancel a visa (section 501(2)with notice by the Minister or delegate, or section 501(3) without notice in the national interest, by the Minister only)
  • a mandatory cancellation provision (section 501(3A)by the Minister or delegate)

The Migration Act was amended by the Migration Amendment (Character and General Visa Cancellation) Act 2014 in December 2014. These changes:

  • strengthened the powers to refuse to grant or cancel a visa on character grounds
  • allowed the Minister to require a State or Territory agency to disclose to the Minister personal information about a non-citizen whose visa may be cancelled under section 501 (in certain circumstances)
  • introduced mandatory visa cancellation for certain non-citizens who do not pass the character test.

The mandatory cancellation and revocation framework requires that a non-citizen’s visa be cancelled if:

  • they are serving a full time sentence of imprisonment in a custodial institution for an offence committed against an Australian law, and
  • the Minister or delegate is satisfied that the non-citizen does not satisfy the character test due to the non‑citizen’s substantial criminal record or because they have been convicted, found guilty or had a charge proven for a sexually based crime involving a child.

The mandatory cancellation and revocation power effectively moves the provision of natural justice from before to after certain visa cancellations, while ensuring that non-citizens who pose a risk to the community remain in either criminal custody or immigration detention until any revocation application is decided, any judicial or merits review processes are finalised, or they are removed from Australia.

Each applicant must fill their own form. If the applicant answers ‘Yes’ to any of the question they must give all relevant details.  If the matter relates to a criminal conviction, provide:

  • the date and nature of the offence
  • full details of the sentence
  • dates of any period of imprisonment/detention.

Important information to note for all applicants:

Military certificates

You may need to provide a military certificate with your visa application. If we ask you for one, it will usually be when you served for more than 12 months in any country's military force.

A military certificate can be a letter from your commanding officer. It should say you have not been convicted of any criminal offence while in the military.

You may also need to provide a police certificate for every country you served in for over 12 months. This includes where you were stationed at a military base.

Police certificates

You may need to provide a police certificate (also called a penal clearance certificate) from every country you lived in. If we ask you for one, it will usually be if you are over 17 and lived in any of the listed countries, including Australia, for at least 12 months in the past 10 years.

Police certificates are valid for 12 months from the issue date. They must cover:

  • the time you turned 16 up to the issue date
    or
  • the whole time you were in the country

The police clearance certificate can be addressed to the Department of Immigration Australia or The Australian High Commission in Sri Lanka.

Mandatory cancellation

 By law, the Department must cancel your visa if you are serving a sentence in a prison full-time for an Australian crime, and you:

Have been sentenced to death, imprisonment for life or imprisonment for longer than a year .

Have been convicted of a sexually based crime involving a child by an Australian or foreign court.

Have had a charge proven for a sexually based crime involving a child, even if you were discharged without conviction.

Have been found guilty of a sexually based crime involving a child, even if you were discharged without conviction.

If we must cancel your visa, you have 28 days to request revocation of the cancellation.  Revocation of the cancellation decision would have the effect of restoring your visa.

Review a refusal or cancellation.

In certain cases, you may appeal to the AAT if we refuse or cancel your visa for failing to meet character requirements.

If a delegate of the Minister decides not to revoke the cancellation of your visa, you can apply for a review by the Administrative Appeals Tribunal (AAT).

If you are in Australia , appeals have strict time limits. You must apply in writing within the time specified by the Department in our decision notice.

You may seek judicial review if you believe the decision was not lawfully made.

Meeting the requirements

You may not pass the character requirements in some circumstances. These include if:

  • you have a substantial criminal record.
  • you have been convicted of escaping from immigration detention, or convicted for an offence that you committed:
    • while you were in immigration detention
    • during an escape from immigration detention
    • after an escape, but before you were taken into immigration detention again.
  • you are or have been a member of a group or organisation, or had or have an association with a person, group or organisation that the Minister reasonably suspects of being involved in criminal conduct.
  • the Minister reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether you have been convicted of such an offence.
  • your past and present criminal or general conduct shows that you are not of good character.
  • there is a risk that while you are in Australia you would:
    • engage in criminal conduct.
    • harass, molest, intimidate, or stalk another person.
    • vilify a segment of the Australian community.
    • incite discord in the Australian community or in a part of it
    • be a danger to the Australian community or a part of it.
  • you have been convicted, found guilty or had a charge proven for, one or more sexually based offences involving a child.
  • you are subject to an adverse security assessment by the Australian Security Intelligence Organisation
  • you are subject to an Interpol notice, from which it is reasonable to infer that you are a direct or indirect risk to the Australian community, or a segment of the Australian community.

When applying:

  • declare all criminal conduct you have engaged in
  • truthfully answer all questions
  • provide all requested information.

We consider all circumstances of a case. Even if you do not meet the character requirements, we, or the Minister for Home Affairs can choose to grant your visa.

If you are not completely honest about your criminal history, we may refuse your application.

Police check for Australian Migration

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