Conviction for immigration detention offences
An applicant will fail the character test if they have been convicted of any offence which was committed while the applicant was in immigration detention, or during or after an escape from immigration detention, before being re-detained. Also, an escape from immigration detention is itself an offence which will result in the person failing the character test.
The above will result in a visa being refused or cancelled, even if the offence itself is not serious enough to warrant a sentence of 12 months’ imprisonment (or any period of imprisonment).
Association with a person or a group of people suspected of engaging in criminal conduct
An applicant will be unlikely to pass the character test if they had or have an association with someone who is involved in criminal activity.
To determine ‘an association’ the following factors may be considered:
- the nature of the association;
- the degree and frequency of association the applicant had or has with the individual, group or organisation; and
- the duration of the association.
Past and present criminal or general conduct
When considering this, the Department will take the following into account:
- 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
- any conduct which may indicate character reform
Please note that in considering this broader view of character, the decision-maker should take into account all relevant circumstances, including evidence of rehabilitation and any relevant periods of good conduct.
Significant risk of particular types of future conduct
An applicant will not pass the character test if there is a significant risk that, while in Australia, the applicant would:
- engage in criminal conduct;
- harass, molest, intimidate or stalk another person;
- vilify a segment of the Australian community;
- incite discord in the Australian community or in a segment of the community; or
- represent a danger to the Australian community or to a segment of the 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.
How We Can Help
Even if an applicant does not pass the character test, it may still be possible to obtain a visa, or to keep your visa if it was cancelled based on character grounds (through a revocation request).
The Department has the power to decide whether there are sufficient reasons why your visa should still be granted, or not be cancelled. There are a number of factors which can affect this decision and a variety of circumstances that must be taken into account.
If you have character related issues, contact All Access Migration today and we will assist you in determining any possible solutions that may be available to you to gain a successful grant of your visa or to avoid cancellation even where character issues may be present. Our team of professionals will help you to establish and prepare evidence to be submitted to support your application.
