New Character Test

In November 2014, the current government successfully passed a Bill through parliament to effect a new character test. The Bill also introduced some additional cancellation powers under the Migration Act.

When Did the New Character Test Commence?

The new character test became law and came into force on 11 December 2014.

How and When is the New Character Test Applied?

The new character test can be applied when deciding whether to refuse a visa application, or it can be used to cancel an existing visa.

The new character test significant tightens the previous character test and even requires MANDATORY cancellations of visas in some cases – that is the Minister or the Immigration Department MUST cancel visas in certain situations. If your visa is mandatorily cancelled while you are in prison, you may be able to apply to have the cancellation revoked.

The Minister issues special instructions about how Immigration must deal with character cases.

The special instructions have not been updated for several years and considering the recent changes to the legislation and the early press releases of the new Minister, we expect that new stricter instructions will be issued early in the new year.

Effect of Visa Cancellation or Refusal on Character Grounds

If your visa is refused or cancelled because you fail the new character test then you are banned from Australia for life and you cannot enter Australia again, unless you successfully appeal or have the cancellation decision revoked.

Who Should Take Notice or Prepare to Take Action?

The issue is more than interesting reading, but of vital importance to anyone who has any level of police history or other anti-social history. If this applies to you, you should understand the changes and take appropriate action if necessary.

Extended Powers

The new character test gives the Minister greatly extended powers to refuse or cancel visas and the Minister has the further ability to remove appeal rights by acting personally to refuse or cancel visas. Refusal or cancellation of visas by the Minister acting personally cannot be appealed.

New Minister’s Tough Stance

On the day he was sworn in, the new Minister for Immigration announced his intention to target certain groups in the community, starting with motorcycle gangs. There is every reason to believe that the Minister will continue to target other groups that are of interest to the government.

See the link below for Minister Dutton’s first major announcement as the new Immigration Minister.

http://www.smh.com.au/federal-politics/political-news/immigration-minister-peter-dutton-targets-bikie-gang-members-as-top-of-my-list-for-deporting-20141223-12cp0c.html

Overview of Changes in the New Character Test

In overview, the main changes (additional criteria) in the new character test are these;

A person also fails the character test if;

The person is convicted to prison for any offences and the total period of all jail terms sentenced exceeds 12 months (previously 24 months in some cases) or if the person was ruled “not fit to plead” but was sentenced to stay in an institution (mental health facility or even drug rehabilitation facility) for any period.

The Minister suspects (Note: not “reasonably suspects”) that the person is associated with or is a member of a group involved in criminal activity. The activities include people smuggling or trafficking, genocide, war crimes, torture or slavery or (a new category) crimes that are otherwise of serious international concern. This new category is not yet defined, but the new Minister has only barely started work in his role.

Having regard to the person’s past and present conduct, there is a risk (Note: not “significant risk”) that the person will engage in conduct described in the paragraph above.

The person has been convicted in a court anywhere of any sexually based offence involving a child even if the person was discharged without conviction.

The person has been charged or indicted (Note: not convicted) in any country of activities which include people smuggling or trafficking, genocide, war crimes, torture or slavery or (a new category) crimes that are otherwise of serious international concern.

The person has a negative ASIO assessment or an Interpol notice has been issued on the person, and from which the Minister can infer that the person represents a risk to the Australian community.

Please note: The above is a summary of the recent changes to the character test. It is not a full explanation of the character test.
Other Changes

Several other minor changes affect how the “12 months of imprisonment” limit is calculated and makes the new character test even stricter.

The changes also introduced new cancellation powers under the Migration Act that reflect some of the character cancellation powers above, example: where someone is a “risk to the Australian community”, and there are other cancellation powers relating to identity, incorrect information, and changing circumstances of visa holders.

Notice of Intention to Consider Cancellation of a visa (NOICC)

In cases where an appeal right exists, Immigration issues a NOICC which tells the visa applicant or visa holder that a cancellation decision is being considered and offers an opportunity to provide a response including documents and information before the decision is made.

If you receive a NOICC or a letter discussing refusing your visa application on character grounds, contact an experienced migration agent like Career Up immediately to consider how to respond to the NOICC or other notice on time.

Automatic Cancellation of Visas

The Minister MUST cancel a visa without any right to “natural justice” provisions if the visa holder has a criminal history involving sentences of 12 months or more or is convicted of a sexually based offence against a child and is in prison in Australia for conviction for any offence in Australia.

No NOICC is sent and there is no right of appeal of the decision.

However, Immigration can be asked to revoke the decision, and a decision not to revoke the cancellation can be appealed in many cases.

Direct Intervention by the Minister

The Minister can, and the previous Minister increasingly had been intervening personally in character based visa refusals and visa cancellations. It appears that the new Minister will also intervene more in character cases compared to previous Ministers.

Where the Minister intervenes and exercises his or her power personally, there is no right to appeal the decision.

In practise, there is only a limited ability to challenge whether the Minister correctly exercise the personal powers in the Federal Circuit Court or in the High Court. These options are extremely limited.

Appeals

Decisions to refuse visa applications and cancel visas based on character can be appealed in many cases, but not all.

What Action Should I Take?

If you plan to apply for a visa for Australia, or if you are a visa holder and you might be affected by the new rules, contact Career Up as soon as you can to discuss your situation and prepare and plan your future actions.

If you have been issued with a NOICC, or a notice that Immigration plans to refuse your visa application, or you have had your visa cancelled, then contact Career Up urgently for advice and information about your options and about how to respond.

George Pearse
MARN 0425396

Contact us here

Please note this blog post is not legal advice or visa advice.

Read our disclaimer for further details;  https://careerup.com.au/visa/disclaimer/