The Character Test: What is ‘Good Character’?
When you combine Australian migration law and criminal offences, things can become complicated quickly. It is important to obtain legal advice that takes into consideration your visa status and any character issues.
What is the Character Test?
Australia requires all applicants for Australian visas to have good character. Everyone who holds temporary visas and permanent residence visas must be of good character.
What does it mean to be of ‘good character’? The test will apply to a person’s past and present conduct. If there is any criminal conduct, or criminal associations or memberships in a person’s past, this may impact their visa status. When the Department of Home Affairs considers a person’s character, it is referred to as the Character Test.
If someone fails the character test, their visa application may be refused. If they currently hold a visa and fail the test, their visa may be cancelled.
The notice provided, the test that applies to you, and the arguments that can be made in your favour are all impacted by your own circumstances. Most importantly, your prospect of success depends heavily on your individual circumstances.
Character is also considered for Australian citizenship applications.
I have received a Notice of Intention to Consider Cancellation? What should I do now?
Along with the Notice, you might have received a copy of your criminal record. It is important to check if the record is accurate.
You may have received a Notice of Intention to Consider Refusal, if you have applied for a visa.
Most importantly, get legal advice. It is important that you act quickly, as there are time-limits for your response. It is best to take action with appropriate legal guidance.
The most common basis for failing the character test is if you have a ‘substantial criminal record’. The definition of ‘substantial criminal record’ includes if you have been sentenced for a period of imprisonment of 12 months or more. This includes periods of imprisonment that are suspended. It also takes into account the total cumulative amount of all sentences. If you intend to appeal your conviction, it is important to notify the Department of Home Affairs.
When you are responding to the NOIC, you can make a statement. You can explain why you should be able to stay in Australia, and retain your visa status.
You can include a statement about your life and the circumstances surrounding any offences.
How does the Department of Home Affairs assess good character?
The Department of Home Affairs can consider several factors when deciding whether to cancel your visa. Even if you have failed the character test, there may be circumstances that the Department will consider allowing you to continue to stay in Australia.
The Department of Home Affairs will consider the risk to the Australian community if you were to stay in Australia. If you have been convicted of serious offences, the Department might consider it in the public interest to cancel or refuse your visa. They will also consider the consequences for you and your family if you were deported.
When considering the offences, the Department will consider the seriousness of the crime, and the risk that you might re-offend. They will also consider if you have lived in Australia for a long time prior to committing an offence. The Department is also required to consider Australia’s human rights obligations, including the Refugee Convention.
The Department of Home Affairs may also consider other factors. These might include a consideration of your family connections in Australia, (including relationships with your children in Australia) your level of health, and any hardship that might result if you were removed from Australia.
I’ve been charged with an offence. What does this mean for my visa?
Visa holders or applicants who are charged with or convicted of an offence may find themselves facing the cancellation or refusal of their visa on character grounds. This may also impact those who are otherwise suspected of being involved in conduct considered unacceptable.
Importantly, a conviction is not required for cancellation or refusal: simply being charged or being linked to criminal conduct is enough for an adverse decision to be made.
Since 2014, there have been vastly higher rates of visa cancellations in Australia. The character test provisions in s501 of the Migration Act are the primary reason for this increase. MSM Legal has seen an associated increase in the number of clients requesting assistance with this area of Australian migration law. Issues of natural justice have arisen in some recent cases.
It is important to get legal advice if you have been charged with an offence. The team at MSM Legal are skilled Australian migration lawyers, and have many years of experience in this field.
Our lawyers are familiar with the impact a criminal charge can have on someone’s visa status. We can help you with the implications for your migration status. MSM Legal frequently works with criminal lawyers to coordinate legal strategies for clients facing criminal charges and immigration issues.
MSM Legal can provide advice and assistance to people who have concerns about their ability to meet the character test. We can also assist if someone has received a notice from the Department of Home Affairs that they do not meet the character test. If your visa application might be refused, or your visa may be cancelled, you should contact us today to discuss the best course of action.
We may need access to past records and we will need to speak to a range of people about you. In all applications involving character assessment or criminal history, timing and responsiveness is crucial.
There are strict time limits to appeal any decision involving character.
Our experienced Registered Migration Agents are well versed to counsel you on these matters and can respond quickly to time sensitive issues.
Contact us now, before it becomes too late!