Character Concern, Visa Refusal, Appeals

The term “character” as commonly understood, embraces concepts of an individual’s inherent and social characteristics which impact upon that individual’s standing in the community when measured against community standards, morality, and overall adherence to the law.

But if you are applying for a visa or Australian citizenship, the character requirements are set out under section 501 of the Migration Act 1958.

There are many reasons for someone to fail to meet the character requirement as defined in subsection 6 of the MIGRATION ACT 1958 – SECT 501. Some of them are, but not limited to:

• The person has a substantial criminal record.
• The Minister reasonably suspects that:
  • The person has had or has an association with a group or organization that has been or involved in a criminal conduct.
  • The person has been or is involved in people smuggling, human trafficking, war crime, crime against humanity or genocide, or slavery.
• If the person were allowed to enter or to remain in Australia, there is a risk that 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.
• The person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security.
• 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.

For the purposes of the character test, a person has a substantial criminal record if:

• • the person has been sentenced to death; or
  • the person has been sentenced to imprisonment for life; or
  • the person has been sentenced to a term of imprisonment of 12 months or more; or
  • the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
  • the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
  • the person has:
    • been found by a court to not be fit to plead, in relation to an offence; and
    • the court has nonetheless found that on the evidence available the person committed the offence; and
    • as a result, the person has been detained in a facility or institution.

A consideration of an applicant’s character arises in the context of every application for a substantiative visa.

The primary considerations include:

• Protection of the Australian community from criminal or other serious conduct.
• The best interests or minor children in Australia.
• Expectations of the Australian community.

Falsifying statements or failure to disclose material facts in your visa or citizenship applications will result in refusal based on character grounds.

One thing is certain; there is no fixing a failure to disclose a past conviction or other material facts for poor general conduct.

Character decisions require consideration of a range of factors. When making a decision, departmental delegates refer to a Ministerial Direction. This sets out the considerations that must be balanced when deciding whether to refuse or cancel someone’s visa on character grounds.

If your application for visa/citizenship is refused or your visa is canceled, you may be able to apply for a review of that decision. You cannot appeal a decision if it was made by the minister personally.

The independent Administrative Appeals Tribunal (AAT) is responsible for reviewing departmental decisions including visa cancellation decisions.

Appeals have strict time limits. You must apply in writing within the time specified by the Department in their decision notification letter.

If you wish to seek assistance with your visa/citizenship application, please reach out to us at +61-415 882 542.

Amitava Deb

• Amitava is a gold medallist from India’s premier technical institute, IIT Kharagpur.
• He has worked with some of the world’s top companies such as Sony Australia Pty. Ltd., Siemens AG Germany, Clarity International Ltd., Reliance Communications and Optus Sydney.
• Amitava is a Chartered Professional Engineer accredited by Engineers Australia. He is a full member of this esteemed association.
• He is a member of the Australian Computer Society, Tele Management Forum and Worldwide Institute of Software Architects.
• Amitava is a well-recognised name in the ICT Professional Community in Australia.