The character test is naturally an important part of any visa application. How would one have their visa refused on the character grounds? Even if you have already gotten your visa granted, your visa may be cancelled on character grounds.
Having your visa refused or cancelled can make any further visa applications very difficult. In some cases a person in Australia whose visa was refused or cancelled and does not hold a substantive visa will be limited from applying for most visas under s48.
Otherwise there is a chance that you will face a permanent exclusion period and will not be able to eligible to apply for another visa again.
Failing the character test
- Substantial criminal record
- Convicted of an offence
- While the person was in immigration detention
- During an escape by the person from immigration detention
- After the person escaped from immigration detention but before the person was taken into immigration detention again
- The person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person
- Reasonable suspicion that the person is, or has been involved in conduct constituting people smuggling, trafficking in persons, genocide, crimes against humanity, war crimes, torture or slavery; or a crimes that is otherwise of serious international concern
- The person’s past and present criminal conduct
- The person’s past and present general conduct
- Multiple grounds relating to risk of the person
- Engaging in criminal conduct
- Harassing, molesting, intimidating or stalking another person in Australia
- Vilifying a segment of the community
- Inciting discord in the Australian community (or a segment of that community
- Representing danger to (by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to), that community or segment, or in any other way)
- Sexually based offences involving a child
- Person has been charged or indicted in Australia or in a foreign country for one or more of the following: genocide, crimes against humanity, war crimes, torture or slavery; crimes otherwise of serious international concern.
- The person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security
- There is an Interpol notice in effect from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community.
Substantial criminal record
What is a substantial criminal record?
- The person has been sentenced to death
- The person has been sentenced to imprisonment for life
- The person has been sentenced to a term of imprisonment of 12 months or more
- The person has been sentenced to 2 or more terms of imprisonment, and the total of those terms is 12 months or more
- The person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution
- In relation to an offence, the person has been found by a court to not be fit to plead but the court has nonetheless found that, on the evidence available, the person committed the offence; and as a result, the person has been detained in a facility or institution
You may think that this relates only to prison time but it is not so. Whether you have been detained or court ordered to enter into rehabilitation for drugs or mental illness, your time is also counted.
Calculating term of imprisonment
If a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. For example, a person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
If a person has been sentenced to periodic detention, the person’s term of imprisonment is the number of days the person is required under that sentence to spend in detention.
If a person has been convicted of an offence and is ordered to participate in a residential drug rehabilitation scheme or a residential program for the mentally ill, the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Association or membership
Person will not pass the character test if there is a suspicion that they have been or are a member of a group or organisation or has or has had an ‘association’ with a person, group or organisation, whom the delegate ‘reasonably suspects is or has been involved in criminal conduct’.
Person’s past and present criminal and general conduct
This is important as even if you have not been convicted of a very serious offence but you have a history of criminal conduct, this tells the Department of Home Affairs (DOHA) that you lack moral character and are likely to continue committing offences
Visa refusals and cancellations, especially based on character grounds can be very difficult to recover from. Are you unsure if your history will affect your visa chances? Book a consultation to speak one of our highly experienced migration specialists. Make an appointment today. Call +61 2 8054 2537, 0434 890 199 or book online.