The right of a non-citizen to reside in Australia is recognized by the Australian government as a privilege, and as such, certain expectations are imposed upon visa holders. Of particular concern to the Australian community relates to criminal conduct by visa holders. In response to this concern, the Department of Home Affairs is given significant powers to ensure that community expectations are met in relation to migrants who engage in unlawful conduct.
Criminality, under Australian migration law, is viewed within the framework of “good character” and community safety. Those responsible for unlawful conduct are generally refused or deprived of a visa where they are deemed to be either not of good character or a danger to the community at large. This assessment is relevant to both the grant and cancellation of visas.
Section 501 Characters
Many provisions relating to character require that visa applicants and visa holders be assessed against a “character test” prescribed under Section 501(6) of the Migration Act 1958 (Cth). This character test forms the cornerstone of many decisions relating to the criminal conduct of current and prospective migrants. This test is applied most prominently by Section 501 of the Migration Act 1958 (Cth) and Public Interest Criterion 4001, as found in Schedule 4 to the Migration Regulations 1994 (Cth).
A person may be deemed to fail the character test where:
- They have a substantial criminal record.
- They have been convicted of an offence involving escape from immigration detention, or committed either while in immigration detention or after escaping from immigration detention.
- They are suspected to have had involvement with a group or organisation engaged in criminal conduct.
- They are suspected that the person has been or is involved in people smuggling
- They are regarded to not be of good character on the basis of their past or present criminal and general conduct.
- There is a risk that the person would engage in criminal conduct or would otherwise pose a risk to the Australian community.
- A court has convicted the person of one or more sexually based offences involving a child or found the person guilty of such an offence, or found a charge against the person proved for such an offence.
- They have been charged with or indicted for genocide, crimes against humanity, war crime, torture, slavery or another crime that is of serious international concern.
- They are assessed as a risk by ASIO.
- An Interpol notice exists in relation to the person.
The range of conduct which may give rise to an adverse decision on character ground. This expansive provision offers the Department of Home Affairs broad reaching powers to fail an applicant or visa holder on the grounds of the character test.
Section 501 General Refusal and Cancellation
The most broad-reaching and controversial mechanism for visa refusal or cancellation concerns Section 501 of the Migration Act 1958 (Cth). This provision provides authorities a general power to refuse to grant a visa or to cancel a visa where an applicant or visa holder does not satisfy a so-called “character test.”
Operation of Section 501
Section 501 contains provisions for both discretionary and mandatory visa refusal and cancellation. This distinction is not a trivial one, as this can materially influence the prospects of success on internal and merits review. For example, a mandatory refusal will generally only be open to challenge where the grounds for mandatory refusal have not been met. By contrast, a discretionary decision allows for a broader range of considerations which may influence whether a discretion ought to have been exercised in a particular instance.
Discretionary Refusal and Cancellation
Discretionary powers under Subclass 501 include:
- The power of the Minister or their delegate to refuse a visa where the applicant does not satisfy the decision maker that the applicant passes the character test.
- The power of the Minister or their delegate to cancel a visa where:
- The decision maker reasonably suspects that the visa holder does not pass the character test; and
- The visa holder does not satisfy the decision maker that he or she passes the character test.
- The power of the Minister to personally refuse to grant or to cancel a visa where:
- The Minister reasonably suspects that the visa holder does not pass the character test; and
- That the refusal or cancellation is in the national interest.
It is purported by the legislation that the “national interest” power is exempt from the requirements of “natural justice” under the common law. This purported abrogation of natural justice is a controversial one, particularly in contexts where it is purported to constitute a privative clause, whereby a migrant’s rights to judicial review are curtailed by operation of Section 476A of the Migration Act 1958 (Cth).
It is important to note that as a discretionary power, it is open to the decision maker to not take action even where the relevant person fails the proscribed character test. This allows for a broad range of factors to be taken into account the the decision maker when deciding when to best exercise these power, and is particularly crucial within the context of merits review, broadening the scope of arguments which may be presented before the Administrative Appeals Tribunal.
Mandatory Discretion and Cancellation
Mandatory cancellation will be effected where the decision maker is satisfied that a visa holder does not pass the character test due to either:
- Having been sentenced to death, life or a period of 12 months in prison or more; or
- Having been convicted of a sexually base offence involving a minor or found guilty of such an offence irrespective of whether a conviction was recorded.
Where mandatory cancellation has been effected, it is not generally open to the Department of Home Affairs to reverse such a decision unless it can be proven that the visa holder does not fail the character test on the grounds prescribed.
Discretionary Cancellation and Revocation of Mandatory Cancellation
Pursuant to Direction no. 90, made pursuant to Section 499 of the Migration Act 1958 (Cth), decision makers are required to consider a range of factors before option to exercise their discretion.
In this assessment, the following are to be regarded as the “Primary Considerations” by the decision maker:
- protection of the Australian community from criminal or other serious conduct;
- whether the conduct engaged in constituted family violence;
- the best interests of minor children in Australia;
- expectations of the Australian community.
The following considerations are also to be taken into account, however these “other considerations” are to be given less weight than the aforementioned “primary considerations:”
- international non-refoulement obligations;
- extent of impediments if removed, such as the visa holder’s health;
- impact on victims;
- links to the Australian community.
The application of these factors are the subject of a great deal of commentary by the Administrative Appeals Tribunal, often forming the basis for appeals against the application of Section 501.
In the recent matter of Barsby and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)  AATA 3296, the Tribunal applied the standard approach to their assessment as to whether a mandatory visa cancellation ought to be revoked, pursuant to Section 501CA of the Migration Act 1958 (Cth). In this matter, applicable Direction 90 factors were assessed and assigned weightings by the presiding member.
In the matter at hand, the applicant had a significant criminal history in relation to a number of offenses spanning multiple decades. Whilst he had committed violent offences in his youth, many of his subsequent transgressions involved minor drug infractions and a single more serious offence involving synthetic cannabis. It was noted by the tribunal that the most significant of his offences had occurred roughly three decades prior to the hearing.
It was further found that the best interests of the applicant’s three underage children weighed strongly in favor of revocation of cancellation. The applicant further evidenced strong ties to Australia, having been resident in the country for a significant duration.
Ultimately, it was deemed appropriate that the visa cancellation be revoked. It was the opinion of the member that the interests of the applicant’s sons substantially outweighed all other primary considerations applicable to this matter.
Australia, as a signatory to multiple treaties relating to the protection of human rights, is subject to a general obligation not to return refugees to the countries from which they seek protection. Such obligations intersect with the cancellation of humanitarian visas, as it is generally not feasible to repatriate such migrants upon visa cancellation.
It is important that this non-refoulement obligation is not conflated with Section 36(2) of the Migration Regulations 1958 (Cth) which proscribes criteria for consideration of humanitarian visa applications. It is instead the following conventions which give rise to this non-refoulement obligation.
- 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (“Refugee Convention”)
- International Covenant on Civil and Political Rights and its Second Optional Protocol (“ICCPR”)
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”)
The manner in which this tension is dealt with can be seen in the recent matter of DPGF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)  AATA 3228. This matter concerns an appeal remitted to the Tribunal from the Federal Circuit Court of Australia. It concerns a South Sudanese national convicted of numerous repeated domestic violence offences of significant severity.
The Tribunal firstly acknowledged the matter of Ali v Minister for Home Affairs  FCAFC 109, indicating that the Tribunal was required to undertake an analysis of potential non-refoulement obligations owed to the applicant.
The Tribunal affirmed that the applicable Directions required a weighing of considerations. In the matter at hand, despite sporadic violence occurring throughout South Sudan, the applicant’s native country was considered to not pose any significant risk to the applicant. This, when weighed against other factors, particularly regarding his prior criminal conduct and the risk he posed to his former partner and child, any potential non-refoulement assessment did not weigh sufficiently in favour of revoking cancellation of the applicant’s visa.
The above merely scratches the surface of the interactions between the Character Test and the broader Australian visa scheme. What can be seen, however, is that this area is fraught with complexities. Exacerbated by enormous volumes of past cases, judicial commentary on the operation of these provisions is extremely voluminous.
As such, visa applicants and visa holders facing refusal or cancellation on character grounds are encouraged to seek independent professional advice before settling on their next course of action. Similarly, for those who harbor criminal backgrounds, it is equally important to seek the assistance of a professional in preparing your initial application. Given the broad nature of the Character Test, any transgression can potentially lead to scrutiny.
As experienced migration solicitors, Visa Plan’s team are well versed in all manner of complex visa matters, including significant character issues. To ensure you get the best advice on your next visa, contact our lawyers today.