Are you able to satisfy the character test? If not, your Australian visa application may be refused. If you already hold an Australian visa, it may even be cancelled.
The cancellation of Australian visas on the grounds of ‘character’ has increased since December 2014, when the Australian government amended its immigration law. More than half of cancelled visas belonged to New Zealanders, almost 1,300 of whom have been deported since January 2015.
It is important to understand how this character test operates, so that you can determine how your past may affect your visa application.
What is the ‘Character Test’?
Every person that applies for an Australian visa is subject to the character test set out by the Department of Home Affairs. This test applies to both the visa applicant and visa sponsor, and if either one fails this test the visa may be refused.
The purpose of the character test is to protect the Australian community from the risk of harm by non-citizens of character concern.
In most cases, the character test is concerned with your criminal history. The Department of Home Affairs tries to determine if you will cause trouble in Australia and will assess your past offences. Based on the summary of your criminal offending, there will be a decision made as to whether, or not you pass the character test.
Both you and your sponsor will need to obtain police checks from the countries that you have resided for a certain amount of time, and provide detailed statutory declarations about your criminal history if you have one.
Who won’t pass the character test?
If you have a substantial criminal record, meaning that you have been convicted to a term of imprisonment of 12 months or more, you will not pass the character test. It doesn’t matter if your sentence was suspended, or if you haven’t actually spent a single day in prison. If the imprisonment sentence was for at least 12 months, this amounts to a substantial criminal record.
Persons involved in war crimes, people smuggling and trafficking, or sexually based offences against a child will also not pass the character test.
Character test failed – What are my options?
If the character test is failed, this doesn’t mark the end of the visa application. The Minister has discretion to grant, or refuse the visa, and in considering whether to exercise this discretion the seriousness of the criminal history will be evaluated, as well as the interests of the Australian community.
What you do after you fail the character test depends entirely on the stage that you are at in the visa cancellation process. Has your visa already been cancelled, or is the Department just considering cancellation?
- Notice of intention to consider cancellation
This may, but not always, be the first step in many cases where the character test is failed. The Department of Home Affairs will send you a letter called a ‘Notice of Intention to Consider Cancellation’ of your visa if your character test has failed.
This letter will explain the reasons why the Department wishes to cancel your visa and will provide a time frame within which you have to respond. Ideally you will want to engage a lawyer to respond for you, as this is an excellent opportunity for you to put forward your position and prevent your visa from being cancelled.
- If the visa has been cancelled – Merits Review
If your visa has been cancelled, you are able to apply for merits review by the Administrative Appeals Tribunal. However, be mindful that strict time limits apply. It is important at this stage to engage the services of an experienced lawyer to ensure the strongest argument possible is presented to the Tribunal and prevent your visa from being cancelled.
If you choose to pursue merits review, your argument will depend entirely upon your personal circumstances. Have you undergone rehabilitation and are a changed person? Do you have a family in Australia (especially Australian citizen children)?
How will your departure from the country affect those Australian citizens, and how would it be a detriment to their best interests if your visa were cancelled and you were forced to leave? Developing a strong argument is essential and extremely important in any review application.
If you want to discuss your options concerning your visa cancellation, or the problems that may arise due to your criminal history, we are here to help guide you through the process and ensure you receive advice that suit your individual circumstances. At Results Migration our team of experienced immigration lawyers are experts in the field and are skilled in handling complex matters requiring review applications.
Give Results Migration a call on 1800 808 717 or email us on [email protected] and book your free consultation today!
