Are you, or someone you know, the holder of an Australian visa that has spent 12 months or more in prison?
On 11 December 2014 amendments to section 501 of the Migration Act 1958 came into effect, and these changes affect the character requirements to hold or be granted an Australia visa. As already noted in my recent article on visa conditions and cancellation, the Minister for Immigration and Border Protection has a wide discretion to refuse or cancel a visa on the basis of a variety of factors.
Section 501(1) of the Migration Act allows the Minister to refuse to grant a visa to an applicant where they are not satisfied that the applicant in questions passes the character test. Further, under section 501(2) of the Act the Minister may cancel a visa, which has already been granted, where the Minister reasonably suspects that the visa holder does not pass the character test, and the visa holder fails to satisfy the Minister that they do pass the character test. It is important to note that natural justice requirements apply to both of the above sections.
What does it take to fail the character test?
The Migration Act states that a person will fail the character test if they have a ‘substantial criminal record’. A person is said to have a substantial criminal record where they have been sentence to a term of imprisonment for 12 months or more, or two or more separate terms of imprisonment which cumulatively equal 12 months or more.
It is also important to note that section 501(3) of the Migration Act allows the Minister to refuse or cancel a visa, where the Minister reasonably suspects that the applicant or visa holder does not pass the character test, and the Minister believes that the refusal or cancellation of the visa is in the national interest. The requirements of natural justice do not apply to section 501(3).
If you, or someone you know, is the holder of an Australian visa and has a substantial criminal record, it is important to contact us so that one of our qualified migration lawyers can assist you with your migration matter especially with specific issues, like a Character Requirement.