Character Grounds for Visa Refusal or Cancellation
Visa applications may be refused and existing visas may be cancelled by the Department of Immigration and Citizenship (DIAC) if the applicant or visa-holder fails the Character Test under Section 501 of the Migration Act 1958.
Substantial Criminal Record
A person fails the character test if he/she has ‘substantial criminal record’. That means,
- sentenced to death or to life imprisonment
- sentenced to imprisonment for 12 months or more
- sentenced to two or more terms of imprisonment for a total of 2 years or more
- acquitted of an offense for insanity and have been detained in a facility or institution.
A person who has ‘substantial criminal record’ automatically fails the character test.
Conviction for Immigration Detention Offences
A person fails the character test:
- while in immigration detention
- during an escape from immigration detention
- after an escape from immigration detention.
Association with Persons Suspected of Engaging in Criminal Conduct
A person fails the character test if he/she:
- has been involved in criminal conduct
- has been or is a member of a group or organization involved in criminal conduct
- has past or present association with a group or organization involved in criminal conduct.
This includes the nature, degree and frequency, and duration of the ‘association’.
Past and Present Criminal or General Conduct
A person fails the character test if he/she (in Australia or a foreign country) has been or is involved in:
- people smuggling
- drug trafficking
- terrorism
- crimes against humanity, genocide, war crimes, torture/slavery
- extortion, fraud
- an established pattern of breaches of immigration law.
Or that person has been:
- removed or deported from Australia
- dishonourably or prematurely discharged from the Australian armed forces
- involved in criminal conduct internationally.
Significant Future Risk of Criminal Conduct
A person fails the character test if there is significant future risk that he/she 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
- represent a danger to the Australian community (or a segment of the community) through disruptive activities and violent threats of harm to that community.
Appealing a Visa Decision
A visa refusal is not always final. There are options available for applicants or visa holders to appeal their cases for review. You may request the Department of Home Affairs Tribunal to review the decision. If the Tribunal review does not prosper, the appeal may be elevated to the Federal Circuit Court or Federal Court.
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