If you have your visa refused or cancelled, you need to get expert advice a soon as possible. Strict time limits apply to drafting submissions and appeals.
A visa refusal or cancellation can limit the type or visas you can apply for in the future or even prohibit you from applying for any visa to enter or remain in Australia.
Pursuant to Section 501 of the Migration Act 1958 (Act) the Minister may refuse or cancel a visa for the following reasons if the Minister or his delegate believes:
- The person fails to pass the character test (501(1))
- The person is suspected of not passing the character test and the person has not satisfied the Minister they can pass the character test (501(2))
- It is in the National Interest (501(3))
The power under section 501(3) can only be exercised by the Minister and not his delegate.
What is the character test?
The Act at Section 501 provides that a person does not pass the character test if they fall within any of the grounds specified in subsections 501(6)(a) to (d). They are:
- a substantial criminal record
- a conviction for immigration detention offences
- an association with persons suspected of engaging in criminal conduct
- their past and present criminal or general conduct
- they are a significant risk of particular types of future conduct.
Substantial criminal record
A person has a ‘substantial criminal record’ if they have been:
- sentenced to death or to imprisonment for life
- sentenced to imprisonment for 12 months or more
- sentenced to two or more terms of imprisonment where the total of these terms is two years or more
- acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result they have been detained in a facility or institution.
If you have a ‘substantial criminal record’ you will automatically be deemed to fail the character test even if here were mitigating circumstances. However, mitigating circumstances may be taken into account when the decision-maker is considering whether to exercise the discretion to refuse or cancel the person’s visa
Conviction for immigration detention offences
A person will fail the character test if that person has been convicted of any offence which was committed while the person was in immigration detention, or during or after an escape from immigration detention, before being re-detained.
Association with persons suspected of engaging in criminal conduct
A person does not pass the character test if the person ‘has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct’.
The degree and frequency of association the person had or has with the individual, group or organisation, and the duration of the association will be considered.
Past and present criminal or general conduct
A person does not pass the character test if, having regard to the person’s past and present criminal conduct and/or general conduct, the person is ‘not of good character’.
Matters which will be taken into account are:
- the nature, severity, frequency and cumulative effect of the offence/s
- any surrounding circumstances which may explain the criminal conduct
- the person’s conduct since the offence/s were committed, including:
- the length of time since the person last engaged in criminal conduct
- any evidence of recidivism or continuing association with criminals
- any pattern of similar offences; or
- any pattern of continued or blatant disregard or contempt for the law
Ministerial Direction 65
If a person fails, the character test before the visa is refused or cancelled the Minister’s delegate is required to take into consideration a number of factors including both Primary and other considerations.
The primary considerations are:
- the protection of the Australian community from criminal or other serious conduct
- the best interests of minor children in Australia
- whether Australia owes international non-refoulement obligations to the person under various international conventions
The other considerations are:
- the person’s immediate family in Australia (if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely)
- Australian business interests
- members of the Australian community, including victims of the person’s criminal behaviour and those victims’ families
In the case of a cancellation a further consideration is the extent of any impediments that the person may face if removed from Australia such as their age and health, language or cultural barriers and social, medical and/or economic support available to them in that country.
What should I do now if my visa has been refused or cancelled due to character?
At FC Lawyers, our team has extensive experience in representing people making submissions as to their character issues right through to representing them in the Tribunals and Courts throughout Australia.
Contact our team today to discuss your refused or cancelled visa.