Holders of ‘temporary visas’ such as ‘student visas’, ‘work visas’ and ‘sponsored visas’ often ask:
- Will a criminal conviction (or ‘criminal record’) make me lose my visa? or
- Will a criminal conviction (or ‘criminal record’) stop me from getting permanent residency?
The answer is: It depends on whether you pass the ‘character test’!
Section 501 of the Migration Act 1958 says that an existing temporary visa may be cancelled, or a visa application may be refused (including an application for ‘permanent residency’), if a non-citizen fails to pass the ‘character test’.
What is the ‘Character Test’?
The ‘character test’ is contained in section 501(6) of the Migration Act.
A person fails the character test if:
- the person has a ‘substantial criminal record’ (see the definition below), or
- the person was convicted of a criminal offence while a detainee, or
- the person is or was associated with an individual or group reasonably suspected of being involved in criminal activity, or
- the person is otherwise not of ‘good character’ because:
– of current or past criminal conduct, or
– there is a significant risk that the person would:-
(1) commit a crime in Australia, or
(2) harass, molest, intimidate or threaten stalk another person, or
(3) ‘vilify’ a segment of the Australian community (eg promote racism), or
(4) ‘incite discord’ (eg promote community or cultural divisions), or
(5) represent a ‘danger’ to the Australian community through ‘violent’ or ‘disruptive’ activities.
The Minister for Immigration – or those to which he ‘delegates’ (gives) authority decide whether a person passes the ‘character test’.
What is a ‘Substantial Criminal Record’?
A ‘substantial criminal record’ is defined by section 158(7) as where:
- a person has been sentenced to death in any country, or
- a person has been sentenced to life imprisonment in any country, or
- a person has been sentenced to a term of imprisonment of 2 years or more in any country (since the writing of this article, this has been reduced to 12 months), or
- a person has been sentenced to more than one term of imprisonment, the total of which is 2 years or more, or
- the person has been acquitted of any offence due to ‘unsoundness of mind’ or ‘insanity’ and detained in an institution.
Can I Appeal Against a Decision to Cancel or Refuse a Visa?
Generally Yes, an appeal can be lodged to the Administrative Appeals Tribunal (AAT).
However, there is no right to appeal against a decision by the Minister to cancel or refuse a visa on the grounds of ‘national interest’.