If you don’t pass the character test, your visa application may be refused or your existing visa may be cancelled.
People with substantial criminal record do not pass the character test. 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.
In addition, the Migration legislation specifically refers to some crimes that are so serious that the applicant will not pass the character test. Examples include people smuggling, trafficking, or similar serious crimes and sexually based offences.
You might fail the character test even if you don’t have a substantial criminal record. The Migration Act gives extremely broad discretion to the decision maker. For example if you have committed an offence in the past, if the decision maker believes there is a risk that you will offend again, that may be sufficient to argue that you are not of good character.
It’s important to realise that even if you don’t pass the character test, you may still get a visa or keep your visa. This is because Immigration has a discretion: they have the power to decide that even though you have failed the character test, there are reasons why your visa should still be granted.
We have helped clients secure a visa or keep their visa even though they have failed the character test. If you would like to read an example of a decision in which we have helped a client get his visa back after he failed the character test, click here.
When Immigration or the Administrative Appeals Tribunal looks at an applicant’s criminal history, these are some of the considerations they take into account:
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.