Following the issuance of an Apprehended Domestic Violence Order (ADVO) against our client and the imposition of a two-year good behaviour bond, our client faces the risk of having their visa denied due to an isolated error in judgment during a domestic altercation. The central issues at hand are whether our client can meet the character test requirements and whether the Minister should exercise discretion in their favour.
As required by s65 of the Migration Act, all applicants must either pass the character test stipulated in s501(6) or the Minister must decide not to refuse to grant a visa despite the person not satisfying the character test.
The Character Test
The character test involves an assessment of an individual’s past and present criminal conduct, overall behaviour, and the potential risk of future involvement in criminal activities.
Under section 501(6) of the Migration Act 1958, an applicant does not pass the character test if:
- They have a substantial criminal record, as defined under section 501(7).
- They are reasonably suspected of being involved in serious criminal conduct or have engaged in conduct that could pose a risk to the Australian community.
- The Minister assesses the applicant’s past and present criminal and general conduct and determines that they are not of good character.
A substantial criminal record, involvement in serious criminal conduct or posing a risk to the community can result in the refusal of a visa.
What if I do not pass the character test?
Ministerial Direction No. 110
In cases where an applicant has not passed the character test, the Minister has the discretion to refuse the visa application. However, this decision is not automatic and must consider a range of factors as outlined in Ministerial Direction No. 110, including:
This involves evaluating the nature and seriousness of the applicant’s conduct, as well as the potential risk of re-offending.
Consideration of whether the applicant’s conduct involved domestic violence.
The strength, nature and duration of the applicant’s connections to Australia.
The potential impact of the decision on any children residing in Australia.
The expectations of the Australian community regarding the applicant’s conduct and behaviour.
These factors guide the Minister in determining whether to exercise discretion and grant a visa despite the applicant’s failure to meet the character test.
In our client’s case, the issue stems from an isolated domestic violence incident, which was addressed through the issuance of an ADVO. While an ADVO does not equate to a criminal conviction, its presence may still influence the Minister’s discretionary decision-making process, potentially affecting the outcome of the visa application.
Turning over a new leaf
In light of the isolated nature of this incident, our client has demonstrated a strong commitment to self-improvement and to adhering to the legal orders that were implemented.
Following the altercation, our client has consistently prioritised the well-being of his family. His wife expressed:
“He put our family’s needs above everything else, even though it meant interrupting his professional commitments. His willingness to be there for my mother and me, and his patience and understanding throughout the process, reinforced how much he cares about my family’s well-being.”
As a result, with Brightstone Migration team’s professional advice and assistance, our client was granted a visa, having shown a genuine commitment to rehabilitation and fostering family harmony.
While the incident itself, though isolated, was not insignificant, it has highlighted his otherwise positive history and his longstanding contributions to the Australian community, including his membership with the CPA. Furthermore, the steps he has taken to avoid reoffending demonstrate a low risk of future criminal conduct, reinforcing his suitability for continued residence in Australia.
This article is based on real cases handled by immigration lawyers at Brightstone Migration. It was written and reviewed by Mei Guo, Partner Solicitor and Head of Immigration, to share practical insights and experience. The content is for reference only and does not constitute specific legal advice.
Last updated: 13/02/2025
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