Before you can be granted a partner visa (and many other visas) you must be able to pass the so called “character test”. Visa applicants who do not pass this requirement may still be able to get a visa, but they must put evidence before the Department of Immigration to convince them that it is appropriate to grant the visa.

The first issue which Immigration will look at is the summary of a person’s criminal offending. Based on that summary, there will be a conclusion made as to whether the person does or does not pass to character test.

Who doesn’t pass the character test?

Most importantly, people with substantial criminal record. This applies to anyone who has ever been convicted to a term of imprisonment of 12 months or more. It doesn’t matter if the sentence was suspended. It doesn’t matter that the visa applicant hasn’t actually spent a single day in jail. If the sentence was for at least 12 months imprisonment, that amounts to substantial criminal record.

Some other examples mentioned in the legislation include:

• people smuggling, trafficking, or similar serious crimes
• sexually based offences

Character test failed – what now?

Not all is lost if a visa applicant fails the character test. If the person does not pass the character test, then the Minister has discretion to grant or refuse the Visa. Immigration will consider the seriousness of the criminal history, as well as the interests of the Australian community.

Seriousness of criminal conduct

Each case is different, but here is a general guide as to the factors which Immigration will look at:

• serious, violent and/or sexual crimes are viewed most seriously;
• crimes committed against vulnerable people (minors, elderly and disabled) or government representatives and officials are serious;
• the frequency of a person’s offending and whether there is any trend of increasing seriousness;
• any history of reoffending;
• if the offence was committed in another country, whether the offence is classified as an offence in Australia.

Risk to the Australian community

In addition to the seriousness of the criminal offending, Immigration will take into account other factors as well, namely the interests of the Australian community. For example, they will look at what is in the best interests of minor children in Australia affected by the decision.

How the interests of children are taken into account

• The nature and duration of the relationship between the child and the applicant is relevant. Less weight will be given to this if there is no existing relationship and/or there have been long periods of absence or limited meaningful contact;
• If there are any other people already fulfilling a parental role in relation to the child, then it is less likely a visa will be granted;
• Any known views of the child – with those views being given due weight in accordance with the age and maturity of the child;
• Evidence that the person has abused or neglected the child in any way, including physical, sexual and mental abuse.

6 practice tips

• For people with Australian criminal history, the starting point for Immigration will often be the transcript of the earlier criminal trial, and the sentencing remarks of the judge. Accordingly, when we advise about the prospects of a positive visa decision, we would want to obtain and consider these transcripts as well.
• The fact that a person had not previously engaged in criminal or other serious misconduct may well be taken into account to show that the risk to the Australian community is or may be low.
• In relation to the risk of reoffending, Immigration will take into account records held by prisons including statements by corrections officers. Time spent in classes whilst in prison, or helping other prisoners to rehabilitate will be taken into account in favour of the applicant.
• Evidence from experts may also be relevant, for example a report can be obtained from a clinical psychologist about whether the applicant is likely to reoffend.
• When considering the interests of children, the applicant will need to supply evidence about any regular contact being maintained with their children. For example, being involved in preparing meals for children, taking them to and from school, helping with school work and so on are all important. This is especially the case when the other parent runs a business or has other commitments – meaning it is in the children’s interests that the applicant stay in Australia so that his/her children can be better looked after.
• In terms of the expectations of the Australian community, if someone has no previous criminal history and there is a low risk of reoffending, there is good argument that the Australian community would be expected to give a second chance to demonstrate rehabilitation.