All applicants who apply to immigrate to Australia must pass a ‘character test’ in order to qualify for an Australian visa. This requirement also applies to  all non-migrating family members seeking to enter or stay in Australia with the primary visa holder.

The ‘character test’ investigates a person’s past and present general conduct to determine if he or she has if of good character. If a person fails this test, the Department of Immigration and Citizenship (DIAC) has power to refuse or cancel a person’s Australian visa application. It is important then, that current and prospective applicants for an Australian visa understand what Australian laws define as a good (or bad) character.

The character requirements which must be met in order to qualify for an Australian visa are set out in Section 501 of the Migration Act, 1958. The test puts the responsibility on the visa applicant to show that they are of good character. An applicant must satisfy the Minister for Immigration and Citizenship that they pass the character test.

The Character Test for Australian Immigration:

The character test consists of a series of questions which are asked on your visa application form. It is a requirement that you answer all questions honestly, and disclose any information relevant to what you are asked. If at any time it is found that you have not disclosed relevant information, then any Australian visa you may have been granted is liable to subsequent cancellation, which can result in detention and removal from Australia.

In general, you may not be considered to satisfy the character test for an Australian visa if;

• you have a substantial criminal record.

The term ‘substantial’ here refers to where an applicant has a significant criminal history. It is considered significant if an applicant has been sentenced to either life imprisonment or death, has been sentenced to a jail term of more than 12 months, has been sentenced to two or more terms of imprisonment where the total of these terms is two years or more, or has been acquitted of an offense on the grounds of insanity or unsound mind and have consequentially been detained in an institution.

• you have, or have had an association with an individual, a group or an organisation that is reasonably suspected of being involved in criminal activity or conduct.

It is up to the discretion of DIAC as to which individuals, groups or organisations are reasonably considered to be involved in criminal activity or conduct.

• you are found not to be of good character because of your past and/or present criminal conduct.

DIAC will consider factors relevant to your past and present criminal conduct in regard to the nature, severity and frequency of any criminal activity attributed to you, how long ago any such offences were committed, as well as your record since the time any such offences were committed (including investigating whether there is any evidence you have continued to associate with persons involved in criminal activity, and whether you have continued patterns of behavior demonstrating similar offences or general disregard for common law).

DIAC will also consider what circumstances surrounded any criminal activity you have been involved in, which may explain the conduct or illustrate extenuating circumstances. This may include evidence from judicial proceedings such as the judge’s comments, parole reports or any other relevant documentation. DIAC will also take into account any good and beneficial behaviours undertaken by you after the criminal activity you were involved in occurred, as evidence that you have reformed from any previous criminal conduct.

• you are found not to be of good character because of your past and/or present general conduct.

DIAC considers a series of factors as relevant in determining the nature of your ‘general’ conduct. They will investigate whether you have ever been involved in any activities which demonstrate a general disregard for the law, human rights or any other relevant matters. DIAC will also consider relevant to your general character and conduct whether you have ever been forcibly removed from Australia or any other country.

Any of the above behaviors could result in you failing to pass the character test associated with obtaining an Australian visa. However, DIAC is also prepared to consider all evidence demonstrating recent good behavior as an indication that you have reformed from any past criminal or generally questionable conduct you have engaged in previously.

If you are of the view that you may not past the character test in order to obtain your Australian visa, it is crucial that you gather together as much evidence as possible to demonstrate recent good behavior. This might include character references, proof of stable employment, etc.

If you feel that the Australian visa character test may present difficulties in your particular case, or if the Department of Immigration and Citizenship has indicated to you that they have concerns regarding your character, it is highly recommended that you contact an Australian immigration lawyer as they will be able to advise you on the best ways to address these concerns as well as explain to you what alternative options are still available to you.

Police Clearance Certificates for Australia Immigration:

Answering questions on the visa application form pertaining to the above is usually all that is required of applicants who are applying for a temporary Australian visa which allows them to stay for a period of up to or less than 12 months, unless the applicant’s answers prompt DIAC to investigate the applicant’s character further.

Applicants applying for a permanent Australian visa will need to obtain a police clearance certificate from any country they have resided in for a period of longer than 12 months, at any time during the previous 10 years since turning 16 years of age.

If you are required to produce overseas police clearance certificates, DIAC will advise you of the process to follow in order to obtain these.Note that a police clearance certificate will only be valid for a period of 12 months from the date of issue.

When Australian Visas May Be Granted Despite Failing The Character Test:

In limited situations, the Australian Minister for Immigration and Citizenship may waive an applicant’s need to meet with the requirements of the character test.

Rights To Appeal Australian Visa Refusal on Character grounds:

If your application for an Australian visa is refused based on character grounds, you may, in some circumstances, have the right to appeal that decision.

You will be notified of the decision to refuse your visa on the basis of failing the character test, indicating whether this decision has been made by the Minister for Immigration and Citizenship personally or by a delegate of the Minister for Immigration. You will also be notified as to what your appeal rights are.

Where the decision to refuse or cancel a visa is made by the Minister personally, you will not be given the opportunity to respond to this decision and will have no right of appeal to the Administrative Appeals Tribunal (AAT).

However, if the decision to refuse or cancel a visa is made by a delegate of the Minister for Immigration and Citizenship, then you will be given an opportunity to respond to the decision to deny your application based on character grounds, and a chance to produce evidence of your good character. You will also have the right to appeal the decision at the Administrative Appeals Tribunal (AAT), should you wish to pursue the matter.

If you choose to exercise these rights to appeal, it is crucial that you seek legal advice from a qualified immigration lawyer, as proceedings at the AAT are usually very structured and complex.