What triggers a character test failure?
Section 501 sets out the circumstances in which a person fails the character test. These include having a substantial criminal record (generally 12 months or more of cumulative imprisonment), association with criminal organisations, a risk of engaging in criminal conduct or harassment in Australia, or past and present conduct indicating you are not of good character.
The character test can be triggered at any stage: during a new visa application, during the processing of a pending application, or as a ground for cancelling an existing visa.
What happens after you fail?
In most cases, the Department sends a Notice of Intention to refuse or cancel, or a section 57 natural justice letter, before making a final decision. This notice identifies the character concern and gives you an opportunity to respond.
This is not a formality. Your response is your case. Everything you want the decision maker to consider needs to be in that submission, supported by evidence. The quality and completeness of your response directly affects the outcome.
What factors does the decision maker consider?
The decision maker weighs the character concern against several factors. These include the nature and seriousness of the conduct, the time since the offending, evidence of rehabilitation, the person's ties to Australia including the length of residence, the impact on Australian citizen family members (particularly children), the person's contribution to the Australian community, and the best interests of any minor children affected.
No single factor is determinative. The assessment is holistic, meaning the decision maker looks at the full picture rather than applying a mechanical test.
What about Ministerial cancellation powers?
The Minister for Immigration has personal powers to cancel visas on character grounds under section 501. In some cases, this cancellation can happen without prior notice to the visa holder. If the Minister exercises this power, the visa is cancelled immediately, and the former visa holder is typically detained.
Following a Ministerial cancellation, the person can apply for revocation of the cancellation, but the burden is on them to demonstrate why the decision should be reversed.
What should you do if you're at risk?
If you have a criminal history and hold an Australian visa, or are applying for one, be proactive. Understand your risk level, prepare rehabilitation evidence, and have a strategy in place before the Department raises the issue.
Don't minimise or deny the conduct. Decision makers are more receptive to honest acknowledgment followed by genuine evidence of change than to attempts to dismiss or hide the criminal history.
A migration agent in Brisbane experienced in character cases can assess your situation, advise on the likely risk level, and prepare you for the process. The earlier you prepare, the stronger your position.
What factors does the decision maker consider in character cases?
When the decision maker has discretion in character matters, they consider factors set out in the current Ministerial Direction. Key considerations include the protection of the Australian community from criminal or harmful conduct, whether the person would be subject to Australian law enforcement, the best interests of any minor children in Australia, the expectations of the Australian community regarding the conduct, and other relevant factors specific to the individual case.
The strength and duration of your ties to Australia, the impact on Australian citizen family members, particularly children, evidence of rehabilitation, the seriousness of the original conduct, and the consequences of returning to your country of citizenship are all weighed.
What review options exist after a character-based decision?
If your visa is refused or cancelled on character grounds, review pathways may include the Administrative Appeals Tribunal, judicial review through the courts, or Ministerial intervention. Each has different criteria, different timelines, and different prospects for success.
Review deadlines are strict, and missing them can permanently close access to the review pathway. Acting immediately after receiving a character-based adverse decision is essential. A migration agent in Brisbane who handles character cases can assess the available options and prepare the strongest possible response within the applicable timeframes.
The timing of your response to a character concern is critical. When the Department issues a Notice of Intention or natural justice letter about character issues, the response deadline is a hard boundary. Everything you want the decision maker to consider must be in your submission, supported by evidence, and lodged before that deadline expires.
Preparing character evidence takes time. Rehabilitation reports need to be commissioned from psychologists. Employment records need to be gathered and verified. Community references need to be drafted and signed. Starting this preparation immediately upon receiving notice of the character concern gives you the maximum available time to build the strongest possible response.
How do you respond to a character concern effectively?
Acknowledge the conduct directly. Do not minimise it, deny it, or try to explain it away. Present genuine evidence of change since the offending: completion of rehabilitation programs, stable employment history, community involvement, psychological assessments showing reduced risk, and references from people who can speak to your current character and behaviour.
The response needs to be structured around the factors in the applicable Ministerial Direction. Address each relevant factor individually with supporting evidence. A general statement about being a good person, without specifics or documentation, does not satisfy the assessment criteria that decision makers are required to apply.