You must be of good character to visit or live in Australia. This means you must meet the character requirements, and remain of good character.
The character requirements are set out under section 501 of the Migration Act 1958. They help us decide if you are of good character.
You must meet the character requirements if you are applying for:
The Department of Home Affairs may refuse or cancel a visa if the visa applicant/holder does not pass the character test. The Minister for Home Affairs, the Minister for Immigration Citizenship and Multicultural Affairs or one of their delegates, can make this decision.
A person whose visa has been refused or cancelled by a delegate under section 501 can apply to the AAT to have this decision changed. The Administrative Appeals Tribunal (AAT) cannot review decisions made by the Minister personally, only decisions made by delegates.
Section 501 of the Migration Act 1958 lists a variety of reasons why someone may not pass the character test. Subsection(6) of section 501 has the full list of reasons, but examples include:
- because the person has a substantial criminal record
- because the person may represent a danger to the Australian community
- because the Minister is satisfied the person is not of good character due to their past and present criminal or general conduct.
A person whose visa has been refused or cancelled by a delegate under section 501 can apply to the AAT to have this decision changed.
Section 501(3A) states that a visa must be cancelled when the visa holder has been sentenced to 12 months or more imprisonment, or has been found guilty of a sexually based crime involving a child. The visa holder must also be serving a full-time custodial sentence. This is called a mandatory cancellation.
A mandatory cancellation may be revoked by a delegate of the Minister or the Administrative Appeals Tribunal if they are satisfied the person does in fact pass the character test or where there is another reason for revocation. If a mandatory cancellation is revoked by a delegate or the Tribunal, the person whose visa was cancelled will get their visa back. The Minister has the power to overturn this decision.
Section 501 provides further guidance about the application of the character test, including how to decide whether a person has a substantial criminal record. Further, a Ministerial Direction issued by the Minister for Immigration Citizenship and Multicultural Affairs guides any decision maker, including the AAT, when considering whether to refuse or cancel a visa where the applicant does not pass the character test.
Refusal or cancellation
To decide if you meet character requirements, we consider a variety of matters, including:
- the protection of the Australian community
- the best interests of any children in Australia
- Australia’s international legal responsibilities
- the impact of visa refusal or cancellation on your family in Australia
- any impact on Australian business and community interests
Character decisions require consideration of a range of factors. When making a decision, departmental delegates refer to a Ministerial Direction. This sets out the considerations that must be balanced when deciding whether to refuse or cancel someone’s visa on character grounds.
If you have had a visa refused or cancelled on character grounds since you last arrived in Australia the only visa you can apply for is a Protection visa.
If we remove you from Australia on character grounds, you may have difficulty satisfying the character requirements when applying for another visa to re-enter Australia.
By law, we must cancel your visa if you are serving a sentence in a prison full-time for an Australian crime, and you have:
- been sentenced to death, imprisonment for life or imprisonment for longer than a year.
- been convicted of a sexually based crime involving a child by an Australian or foreign court.
- had a charge proven for a sexually based crime involving a child, even if you were discharged without conviction.
- been found guilty of a sexually based crime involving a child, even if you were discharged without conviction.
If we must cancel your visa, you have 28 days to request revocation of the cancellation. Revocation of the cancellation decision would have the effect of restoring your visa.
Appeal a refusal or cancellation
If we refuse or cancel your visa, you may be able to apply for a review of our decision. You cannot appeal a decision if it was made by the minister personally.
The independent Administrative Appeals Tribunal (AAT) is responsible for reviewing departmental decisions including visa cancellation decisions.
Appeals have strict time limits. You must apply in writing within the time specified by the Department in our decision notification letter.
It is available to you to seek judicial review if you believe the refusal or cancellation decision was not lawfully made.
You may wish to seek assistance with your immigration status from a registered migration agent, or engage independent legal advice.
You may need to provide a military certificate with your visa application. If we ask you for one, it will usually be when you served for more than 12 months in any country’s military force.
A military certificate can be a letter from your commanding officer. It should say you have not been convicted of any criminal offence while in the military.
You may also need to provide a police certificate for every country you served in for over 12 months. This includes where you were stationed at a military base.
We may ask you to provide a police certificate (also called a penal clearance certificate) from every country you lived in. If we ask you for one, it will usually be if you are over 17 and lived in any of the listed countries, including Australia, for at least 12 months in the past 10 years.
Police certificates are valid for 12 months from the issue date. They must cover:
- the time you turned 16 up to the issue date
- the whole time you were in the country
DHA may ask you to provide a new police certificate if you have returned to the country after your previous certificate has expired.