Satisfying the Character Test for an Australian visa

Case 1

The Case of He and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs exemplifies how section 501 of the Migration Act practically operates. Section 501 states that the Minister may refuse to grant a visa to a person if he/she is not satisfied that the person passes the character test. Conduct that may affect a person’s ability to satisfy this test most commonly includes criminal conduct, actions that represent a danger to the Australian community or anything else that indicates a significant risk to society. It is important to note that if a person does not satisfy the character test, the Minister (or delegate decision maker) has discretion as to whether they will or will not refuse the visa. The case below exemplifies how this discretion is exercised.

The Case of He and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 797 (8 April 2021) 

Facts:

The facts of the case involved an applicant who had previously lived in Australia as a permanent resident from 2015-2019. During this time the applicant was convicted of numerous domestic violence offences including; contravening family violence intervention orders, counts of unlawful assault, a count of assaulting police and recklessly causing injury among other charges.

In late 2019 the applicant returned to his home country of China where he stayed until the COVID-19 pandemic threatened to impede his ability to return to Australia. At this point, the applicant sought to apply for a Resident Return (permanent) visa.

The Issue:

This Resident Return visa was refused on the basis of the applicant not satisfying the character test in s 501(1)(6)(d)(i). The applicant appealed this decision to the AAT.

 

The Tribunal’s Finding:

The tribunal was satisfied that the applicant did not satisfy the character test. It was agreed that the man still was likely to commit offences and had unresolved anger management issues. However, regardless of whether an applicant fails to satisfy the character test, a refusal of visa on this basis is discretionary. Therefore, the AAT considered other factors.

For example, the Tribunal accepted the applicants wife’s evidence that she would suffer significant hardship in raising her minor son if she did not have support of her husband (the applicant). It was also found that the applicant played a positive role in his sons life and maintained a close parental relationship. It was seen as the sons best interests that the applicant should be granted the visa allowing him to return to Australia permanently.

It is important to note at this time something called Ministerial Direction No.79 is in force. This direction sets out a guideline on what factors should be ‘primary considerations’ and what factors should be secondary or ‘other considerations’ when a decision maker is deciding to refuse a visa. Among the primary considerations outlined were the best interests of minor children in Australia.

The Tribunal decided that the reasons to grant the visa outweighed the reasons to refuse the visa and therefore the applicant had the original decision overturned.

Case 2

The case of Sadiq is a contrasting example of where the decision maker exercised his/her discretion, yet the applicants visa application was still refused. In this case, Sadiq had fewer and minor charges than the applicant in the previous case, He. However, this case exemplifies that the decision maker does not only consider the weight of criminal charges. Other factors (such as the interests of minor children in keeping the applicant in Australia and non-refoulement obligations) are just as influential.

Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 80 (1 February 2021)

Facts:

The applicant was a citizen of Pakistan who had lodged an application for a Student (Temporary) (Class TU) visa and was granted a bridging visa. In 2019 the applicant was sentenced to seven months imprisonment for possession of stolen property. Consequently, in 2020 the applicant received notice from the Department of Immigration and Border Protection that his application for a visa was refused and his bridging visa was cancelled by operation of law.

The Issue:

The visa was refused under s501(1) of the Migration Act as the applicant failed to satisfy the character test. At this point the applicant appealed to the AAT.

The Tribunals Finding:

The Tribunal found that the applicant did not satisfy the character test. However, the Tribunal also exercised discretion and considered whether any factors outlined in Ministerial Direction No. 79 would weigh in favour of the applicant’s visa not being refused.

The Tribunal found that the applicant would continue to be a danger to the Australian community. Although the applicant submitted that he had two nieces whose best interests would be served by him staying in Australia, the Tribunal found that it would not severely affect the best interests of the children to refuse the visa.

It was held that the need to protect the Australian community weighed more strongly in favour of the need to refuse the visa than any other considerations. The applicants visa application was refused and the bridging visa was cancelled by operation of law. The applicant was ordered to return to Pakistan.

Strengthened character test to safeguard the Australian community

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Alex Hawke, has issued a new Ministerial Direction to guide decision-makers applying the character test. The character test applies to certain visa cancellation and refusal decisions, as well as the revocation of mandatory visa cancellations.

This direction reinforces the Government’s intolerance for family violence by requiring decision-makers to consider family violence as a primary consideration when making visa determinations.

It also requires decision-makers to seriously consider other forms of unacceptable behaviour towards vulnerable people, such as the elderly, who are often the target of serious non-violent crimes including fraud, extortion, exploitation and neglect.

In addition, the direction reflects the Government’s strong stance against forced marriage and worker exploitation.

The character test plays a significant role in safeguarding the Australian community by preventing the entry or stay of non-citizens who may present a risk to the safety or good order of the Australian community. Non-citizens who do not pass the character test may be stripped of their visa or have their visa application refused.

“Being a member of the Australian community is a privilege and it comes with a responsibility to respect and abide by our laws,” Minister Hawke said.

“Family violence and crimes against vulnerable members of the community have no place in Australia and will not be tolerated.

“These changes align with the Australian community’s expectation that non-citizens who commit serious offences will not be permitted to enter or stay in Australia,” Minister Hawke said.

The Character Test

A non-citizen who does not pass the character test may have their visa application refused, or have their visa cancelled.

Under section 501(1) of the Act, a non-citizen may be refused a visa if they do not satisfy the Minister that they pass the character test.

Under section 501(3), the Minister may personally refuse to grant a visa to a person, or cancel a visa that has been granted to a person if the Minister:

  • reasonably suspects that the person does not pass the character test; and
  • is satisfied that the refusal or cancellation is in the national interest.

Under section 501(3A) of the Act, the Minister must personally cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test in specific prescribed circumstances, that is, where they:

  • have a substantial criminal record (as defined in the legislation); or
  • a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child, or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; and
  • the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
What Is The Character Test?

A person will not satisfy the character test if they:

  • have a substantial criminal record;
  • have been convicted of an offence that was committed whilst they were in immigration detention, during an escape, or after escape and before being placed into immigration detention again;
  • have been convicted of escaping from immigration detention;
  • the Minister reasonably suspects that they have been, or are, a member of a group or organisation, or an association with a group, organisation or person which has been, or is involved in, criminal conduct;
  • the Minister reasonably suspects that they have been, or are, involved in conduct constituting one or more of the following (irrespective of whether there has been a conviction of an offence):
  1. a people smuggling offence;
  2. a trafficking of persons offence; or
  3. the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
  • having regard to either, or both, their past and present criminal and general conduct, the person is not of good character;
  • if they are allowed to enter or remain in Australia, there is a risk that the person would:
  1. engage in criminal conduct in Australia;
  2. harass, molest, intimidate or stalk another person in Australia;
  3. vilify a segment of the Australian community;
  4. incite discord in the Australian community or in a segment of that community; or
  5. represent a danger to the Australian community or to a segment of that community, whether 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;
  • a court in Australia or in another country has:
  1. convicted the person of one or more sexually based offences involving a child;
  2. found the person guilty of such an offence, or found a charge against them proved for such an offence, even if they were discharged without a conviction;
  • they have been, in Australia or in another country, been charged with or indicted for (one or more of) the crime of genocide, humanity, a war crime, a crime involving torture or slavery, or a crime that is otherwise of serious international concern;
  • they have been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security; or
  • an Interpol notice in relation to the person, from which it is reasonable to infer that they would present a risk to the Australian community or a segment of that community, is in force.
What Is A Substantial Criminal Record?

A person will be deemed to have a substantial criminal record if they have been:

  • sentenced to death;
  • sentenced to imprisonment for life;
  • sentenced to a term of imprisonment of 12 months or more;
  • sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
  • acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result, have been detained in a facility or institution; or
  • found by a court to not be fit to plead, in relation to an offence and the court has, nonetheless, found that on the evidence available, they have committed the offence and, as a result, they have been detained in a facility or institution.

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