Australian migration laws require all applicants to satisfy a "character test" before approving a visa. This is known as the public interest criteria, and it can be difficult to understand its requirements.
All non-citizens seeking to enter or stay in Australia must be assessed against the Character Requirement, as defined in section 501 of the Migration Act.
Section 501 ensures that visa applicants and visa holders are of acceptable character. The onus is on the applicants and holders to show they are of good character. The Immigration Minister can either refuse or cancel visas if a non-citizen fails the character test.
The character test
A person will fail the test where:
- They have a substantial criminal record;
- They have or had association with a person/group/organisation suspected of being or have been involved in criminal activity;
- The person's past and present criminal and general conduct is evidence the person is not of a good character;
- There is a significant risk that the person will engage in criminal conduct including harassment, molestation, intimidation, stalking, vilification of or incitement of discord within a community, or representing a danger to a community (general or at large).
An applicant satisfies the character requirements if:
- the applicant satisfies the Minister that they pass the character test; or
- the Minister is satisfied that there is nothing to indicate that the applicant would not pass the character test; or
- the Minister has decided not to refuse the visa despite not being satisfied that the applicant passes the character test.
A person whose visa is cancelled on the grounds of either a substantial criminal record, or past and present criminal conduct, is permanently excluded from Australia.
The discretion of the Minister
When a visa applicant/holder fails the character test, the visa can be refused or cancelled. This discretion will consider the protection and expectations of the community, the best interest of any children under 18 years old and any relevant international law obligations.
If you have a visa application denied on character grounds then:
- you cannot make another visa application (except for a protection visa) while you remain in Australia; and
- any other visa application being considered will automatically be refused as well.
The appeal process
A decision to refuse or cancel a visa made by the Minister personally ensures the person has no right of appeal to the Administrative Appeals Tribunal (AAT).
If a departmental officer refuses or cancels a visa and the person is in Australia, the person will have a right to have the decision reviewed by the AAT. If they are outside Australia, a sponsor or a nominator in Australia can have a right to have the decision reviewed for them.
Strict timelines apply on AAT appeals - applicants in Australia must apply within nine days of being notified; applicants outside Australia have 28 days. The AAT will be deemed to confirm the decision being reviewed if it does not make its own decision within 84 days of the date the applicant was notified of the original decision.
An applicant may seek judicial review of the decision if they believe the decision was not lawfully made. Legal advice is strongly recommended.