Character Test and Immigration Law
Introduction?
Australia has a long history of welcoming immigrants from all over the world. However, in order to maintain the safety and security of its citizens, the Australian government has established certain criteria that must be met by those who wish to migrate to the country. One such requirement is the character test, which is designed to ensure that prospective immigrants are of good character and do not pose a threat to the safety or security of the Australian community. The character test applies to all visa applicants, regardless of their country of origin or the type of visa they are applying for.?
In this test, the Australian government considers a range of factors, including criminal history, immigration history, and other relevant information, to determine whether an individual is of good character and eligible for a visa. The character test is an important aspect of Australia's immigration policy, as it helps to maintain the safety and security of the country and its citizens while also ensuring that immigrants who come to Australia are able to contribute positively to the country's cultural and economic life.
Relevant Legislation?
The requirements and implications of the character test are set out in the Migration Act 1958 (Cth). Section 501 of the Act outlines the grounds for failing the character test, while section 501A provides for the cancellation of a visa on character grounds. Section 116 of the Act provides for the detention of non-citizens who do not hold a valid visa.
Requirements of the Character Test?
The character test is defined in section 501 of the Migration Act 1958 (Cth). This section states that a person does not pass the character test if,?
(a) you have a substantial criminal record, meaning you have been sentenced to 12 months or more in prison, or multiple sentences that add up to more than 12 months in prison. A suspended sentence is considered a prison sentence.
(b) you have been convicted of escaping from immigration detention, or convicted for an offence that you committed:
(c) you are or have been a member of a group or organization, or had or have an association with a person, group or organization that the Minister for Immigration reasonably suspects of involvement in criminal conduct.
(d) the Minister for Immigration reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether you have been convicted of such an offence.?
(e) your past and present criminal or general conduct shows that you are not of good character.?
(f) there is a risk that while you are in Australia you would:?
(g) you have been convicted of, or found guilty or had a charge proven for one or more sexually based offences involving a child,?
(h) you are subject to an adverse security assessment by the Australian Security Intelligence Organization?
(i) you are subject to an Interpol notice, from which it is reasonable to infer that you pose a direct or indirect risk to the Australian community, or a segment of the Australian community.?
Implications of Failing the Character Test?
Not succeeding in the character test can have a serious impact on a person's visa application for Australian immigration. An applicant may be denied a visa and/or have their current visa revoked if they do not pass the character test. This would imply that the person would have to leave Australia right away, thus cutting them apart from their loved ones, their employment, and other obligations.?
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However, failing the character test may have a long-term impact on a person's ability to migrate to Australia in the future.?
An Applicant with a Criminal Record?
An applicant with a criminal record should always,?
The Department of Home Affairs considers all circumstances of a case. Even if you do not meet the character requirements, the Department of Home Affairs, or the Minister for Home Affairs can choose to grant your visa.?
If you are not completely honest about your criminal history, the Department of Home Affairs may refuse your application.?
Revocation of a Visa??
The width of Ministerial discretion is substantial.?The Minister or a delegate has the authority to deny or revoke a visa if they have reasonable grounds to think an individual does not pass the character test, or if the individual fails to convince the Minister or delegate that they do pass the character test. The Minister may also deny or revoke a visa without following natural justice principles if, after reasonably suspecting an individual does not pass the character test, they decide it is in the national interest.?
The decision to rescind a visa on character grounds — or to reverse an automatic revocation — is mainly subjective under the statutory structure. The choice can be made in two ways: either personally by the Minister or through a designated decision-maker. When a delegate makes a decision, any Ministerial directions in effect that prescribe mandatory and discretionary factors must be considered.?
Key Case Authorities?
The character test has been the subject of many legal cases, with courts often called upon to interpret the requirements and implications of the test. One key case authority is Minister for Immigration and Citizenship v Li [2013] HCA 18, in which the High Court considered the application of the character test to a visa applicant who had been convicted of a serious criminal offense. The Court held that the Minister's decision to refuse the visa application on character grounds was not unreasonable.?
Another important case is SZVFW v Minister for Immigration and Border Protection [2018] HCA 30, in which the High Court considered the application of the character test to a visa applicant who had been involved in domestic violence. The Court held that the applicant did not pass the character test and was therefore not entitled to a protection visa.?
The High Court Decision in Re Minister for Immigration and Ethnic Affairs; Ex parte Lam [2003] HCA, it was held that Mr Lam's Transitional (Permanent) Visa was cancelled in early 2001, and he was ordered deported, as a result of a conviction for serious offenses. Mr Lam, like many others in this situation, had raised a family in Australia, and his deportation would have meant either relocating his Australian-born children to another country or separating him from them. As a result, the impact of deportation on his two children's welfare was a major concern. Mr Lam, the applicant, was born in Vietnam but came to Australia as a refugee at the age of 13 in 1983. On arrival, he was given a Transitional (Permanent) Visa, which was cancelled on January 23, 2001, as a result of a court order.?
The importance of consulting with an immigration lawyer when applying for a visa is to ensure that the applicant meets all requirements and is able to present their best case to the authorities.?
Conclusion?
To sum up, the character criteria is crucial to the Australian immigration procedure. It is a critical component that guarantees the maintenance of the nation's security and safety as well as the preservation of the values and principles of Australian society. By ensuring that people with criminal histories or other undesirable features are barred from entering the nation, the provision safeguards its residents from possible harm. The Australian government's dedication to upholding moral standards among newcomers has contributed to the development of a secure, affluent, and varied society that values and upholds the rule of law. The character requirement is thus a crucial component of the Australian immigration procedure and must stay a pillar of the nation's immigration policies.?
Visa applicants should be aware of the requirements and implications of the character test, including the possibility of visa refusal, cancellation, detention, and removal from Australia. It is thus essential to consult with an immigration lawyer to ensure that an applicant meets all requirements and is able to present their best case to the authorities.?