Character concerns in immigration processes in Australia

Wednesday 24 May 2023

Anne O’Donoghue
Immigration Solutions Lawyers, Sydney, New South Wales

Diane Markantonakis
Immigration Solutions Lawyers, Sydney, New South Wales

Holding a visa in Australia, much like in many countries, comes with responsibilities and duties. Maintaining good character, abiding by Australia’s laws while you are in the country and ensuring you abide by your visa conditions is crucial to ensuring your visa does not get cancelled.

If you do find yourself breaking a condition of your visa, or committing a crime, under section 501 of the Migration Act 2018 (Cth), the Minister for Immigration and Citizenship (the ‘Minister’) or the Minister’s delegate (the ‘Department’), may cancel a visa on ‘character’ grounds. The Minister may cancel a visa on ‘character’ grounds where they ‘reasonably suspect’ that the person does not pass the character test and where that person does not satisfy the Minister that they pass the character test. 

Section 501(3) provides a further power to cancel a visa on ‘character’ grounds which can only be used by the Minister personally. The Minister may cancel a visa under section 501(3) where they reasonably suspect that the person does not pass the character test and the Minister is satisfied that the cancellation is in the national interest.

Section 501 of the Migration Act 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). These grounds can be grouped into ten broad categories, with six being more common than the latter four:

  1. Substantial criminal record – Section 501(6)(a):

A person will not pass the character test if they have a ‘substantial criminal record’, as defined in subsection 501(7). For the purposes of the character test, 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. A person who has a ‘substantial criminal record’ will automatically fail the character test, regardless of any mitigating factors which attended their offending. However, mitigating factors may be taken into account at the second stage under section 501, when the decision-maker is considering whether to exercise the discretion to refuse or cancel the person’s visa, and when considering a revocation request.’

  1. Conviction for immigration detention offences – Section 501(6)(aa):

If a person commits an offence while in (or while escaping from) immigration detention, pursuant to subsection 501(6)(aa) or (ab) their criminal behaviour will trigger the power in section 501 to refuse or cancel their visa, even if the offence is not serious enough to warrant a sentence of 12 months’ imprisonment (or any period of imprisonment). Under subsection 501(6)(aa) or (ab) therefore, a lower level of criminality may cause a person to fail the character test, because of the context in which their offence was committed, as compared to the criminality required for a ‘substantial criminal record’ for the purposes of subsection 501(6)(a).

  1. Association with persons suspected of engaging in criminal conduct – Section 501(6)(b):

A person does not pass the character test under subsection 501(6)(b) 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’. In establishing ‘association’ for the purposes of the character test, decision-makers are to consider a variety of aspects including but not limited to the nature of the association and duration of the association.

  1. Involvement in certain criminal activities – Section 501(6)(ba):

A person does not pass the character test under subsection 501(6)(ba) if the person the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following: an offence under one or more of sections 233A to 234A (people smuggling); an offence of trafficking in persons; and the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern, whether or not the person, or another person, has been convicted of an offence constituted by the conduct.

  1. Past and present criminal or general conduct – Section 501(6)(c):

The Minister, in deciding whether to cancel a visa, will have regard to either or both, the person's past and present criminal conduct; the person's past and present general conduct and/or the person is not of good character. This shows that a holistic approach is taken into account when assessing someone’s character, as although they may not be currently convicted of a new crime, their previous crimes are taken into consideration.

  1. Significant risk of particular types of future conduct – Section 501(6)(d):

In the event the person were allowed to enter or to remain in Australia, there is a risk that the person would, engage in criminal conduct in Australia; or harass, molest, intimidate or stalk another person in Australia; or vilify a segment of the Australian community; or incite discord in the Australian community or in a segment of that community; or represent a danger to the Australian community or to a segment of that 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.

  1. Sexually based offences involving a child – Section 501(6)(e):

A person fails the character test if a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child; or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.

  1. Crimes under international humanitarian law – Section 501(6)(f):

A person fails the character test if the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following: the crime of genocide, a crime against humanity; a war crime; a crime involving torture or slavery; or a crime that is otherwise of serious international concern.

  1. National security risk – Section 501(6)(f):

A person fails the character test if the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

  1. Certain INTERPOL notices – Section 501(6)(g):

A person fails the character test if an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Now, when the Minister or a delegate of the Minister considers primary considerations for decision-makers in relation to visa refusal or cancellation under section 501 and revocation of mandatory visa cancellation under section 501CA, this is under Ministerial Direction 99, which came into effect on 3 March 2023. Under Direction 99, the primary considerations for making a decision under sections 501(1), 501(2), or 501CA(4) include the protection of the Australian community from criminal or other serious conduct, whether the conduct constituted family violence, the strength, nature, and duration of ties to Australia, the best interests of minor children in Australia, and expectations of the Australian community. Additionally, the principles have been amended, from Ministerial Direction 99’s predecessor, Ministerial Direction 90, to include a paragraph that acknowledges a higher level of tolerance for non-citizens who have lived in the Australian community for most of their lives or from a very young age, and the level of tolerance increases with the length of time spent in Australia, particularly during formative years.

It is crucial to understand the importance of primary and other considerations when acting on behalf of clients who are having their visa cancelled or considered for cancellation, to ensure you provide the Minister and/or delegate of the Minister a holistic view of their matter, taking into specific account the mitigating factors as mentioned above, with reference to both primary other considerations.

Lastly, another recent development affecting character concern matters and visa cancellations is the case of Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Ors; DCM20 v Secretary of Department of Home Affairs & Anor was recently decided in the High Court of Australia.

Recently, two appellants lodged an appeal on the basis that they could not have their visa refusals overturned. They claimed that this was due to a Department of Home Affairs policy, which provided the Minister with a role of overriding decisions in ‘unique or exceptional circumstances’ under Section 351(1) of the Migration Act. A majority of the High Court ruled in favour of the appellants and held that the government is not permitted to defer intervention decisions for refused visa applicants. The High Court held that the decisions by departmental officers to decline refer requests for ministerial intervention under Section 351 were invalid, as only the minister was able to personally assess the public interest factors and could not be deferred.

What does this mean now? It means applicants who applied for a Ministerial Request, and had their requests rejected by a delegate who did not refer their case to the Minister, will now have the ability to have their cases be reviewed personally by the Minister. It is crucial for those who have had their visa’s cancelled or have been issued an intention to cancel notice, seek legal advice on the basis of their unique circumstances.