Character test
Statutory definition
Section 501 of the Migration Act 1958 (Cth) provides that the Minister may refuse to grant a visa to, or cancel the visa of, a person who does not pass the character test. Section 501(6) defines the character test by specifying the circumstances in which a person does not pass it, including a substantial criminal record, association with criminal organisations, and past or likely future conduct involving serious crimes or harm to the Australian community.
Explanation
The character test under s 501 is one of the most consequential provisions in Australian immigration law. It applies to both visa applicants and existing visa holders.
A person does not pass the character test if they have a substantial criminal record — defined in s 501(7) to include sentences of 12 months or more imprisonment, two or more sentences the total of which exceeds 12 months, or acquittal on grounds of unsoundness of mind for a serious crime, among other circumstances.
Other grounds include: past, present, or likely future association with a person, group, or organisation reasonably suspected of involvement in criminal conduct; conduct that constitutes harassment or intimidation; or a general character that is not good.
Since 2014, cancellation is mandatory (not discretionary) if the person is serving a full-time custodial sentence and the Minister is satisfied the person does not pass the test on the substantial criminal record ground.
How this term is used
The character test has significant interaction with the review system. A mandatory cancellation decision under s 501(3A) is not reviewable by the Administrative Review Tribunal; only the Minister's personal powers of revocation and intervention apply.
Ministerial Direction 99 (and predecessor directions) set out how decision-makers must weigh competing considerations when exercising discretion under s 501.