Character Requirements and the Section 501 Character Test
Most visa applications to enter or remain in Australia are subject to character requirements under Australian migration law. One of the key provisions is the character test under section 501 of the Migration Act 1958 (Cth).
If you have a criminal history, including previous charges, convictions, spent convictions or other adverse conduct, your history may be relevant to the assessment of whether you satisfy the character requirements for an Australian visa.
What is the Section 501 Character Test?
Australian immigration law places significant importance on the character of visa applicants. The character requirements are designed to protect the Australian community and to ensure that people granted visas do not pose an unacceptable risk to the community.
You may fail the Section 501 character test in a range of circumstances, including where you:
- Have a substantial criminal record, for example, a sentence of death, life imprisonment, a single term of imprisonment of 12 months or more, or two or more terms of imprisonment that together total 12 months or more;
- Are reasonably suspected of being associated with a person, group or organisation involved in criminal conduct;
- Have escaped from immigration detention, or committed an offence during or after such an escape;
- Have been convicted of, or found guilty of, one or more sexually based offences involving a child;
- Are, having regard to your past and present criminal or general conduct, considered not to be of good character, or are considered to present a risk of engaging in criminal conduct, harassing or intimidating others, or representing a danger to the Australian community, which can include conduct such as domestic or family violence, depending on the circumstances.
The Section 501 character test can involve more than simply looking at whether you have served a particular period of imprisonment, none of its grounds limit or affect the others, so a person can fail the test even where the “substantial criminal record” ground is not made out. The law allows other aspects of an applicant’s conduct, associations and circumstances to be considered.
A Criminal Record Does Not Automatically Mean You Will Fail
There is a common misconception that an applicant will pass the character test as long as they have not been sentenced to imprisonment for 12 months or more. This is not correct.
While a substantial criminal record is one of the grounds relevant to the character test, and a 12-month sentence is only one of several ways that ground can be triggered, it is not the only consideration, each ground operates independently of the others. A history of offending, repeated criminal conduct, or other serious adverse conduct may be relevant even where the applicant has not received a sentence of imprisonment of 12 months or more.
For this reason, each case needs to be considered according to the applicant’s individual circumstances, the nature and seriousness of the conduct, the applicable provisions of the Migration Act, and any other relevant considerations.
Character Requirements Can Continue to Matter After Visa Cancellation
Character issues do not necessarily end when a visa is cancelled. In some circumstances, including where a person is serving a full-time custodial sentence and the Minister is satisfied the person fails the character test because of a substantial criminal record or a child sex offence conviction or finding of guilt, cancellation is mandatory rather than discretionary.
Where a visa is cancelled on this basis, the person may make representations to the Minister, who may revoke the cancellation if satisfied either that the person passes the character test, or that there is another reason why the cancellation should be revoked. Rehabilitation, the circumstances of the offending, and the risk to the Australian community are examples of matters that can be relevant to that second limb, but the ultimate test is whichever of the two limbs is engaged.
Where a visa cancellation is subject to a revocation process, strict time limits may apply. It is therefore important to obtain professional advice promptly after receiving a visa cancellation notice.
If your visa has been cancelled on character grounds, do not assume that cancellation is the end of your options. Seek professional migration advice as soon as possible to determine whether you may be eligible to seek revocation and what steps may be available to you.
Strengthening of Australia's Character Requirements
Australia’s character requirements have undergone legislative change over the years, including measures affecting the consequences of serious criminal offending and other conduct. The application of the character provisions can be complex, particularly where an applicant has a criminal history, a previous visa cancellation, a history involving family violence or other adverse information.
Concerned About Your Character History?
If you have a criminal record, previous charges, a visa cancellation, a history involving family violence or other circumstances that may affect your character assessment, it is important to obtain professional advice before lodging a visa application or responding to a Department of Home Affairs request.
Our migration professionals can assess your circumstances, explain how the character requirements may apply to your case and advise you on the options available to you.
Book a consultation with us today to discuss your circumstances and obtain professional migration advice.