The Character Test - Time Heals All Wounds

The Character Test - Time Heals All Woundings

The character test is an important part of the Australian immigration process. Applicants must demonstrate that they are of good character in order to be granted a visa. This includes proving that they have not committed any crimes and are not likely to commit any crimes in the future. The test can be difficult to pass, but it is important to remember that everyone makes mistakes. With time and patience, most people can overcome any wrongdoing in their past and prove that they are worthy of being granted a visa.

For many visitors to Australia, the realisation that Australia takes its border security and migration laws very seriously can come as a bit of a rude surprise, for others, especially with a criminal record, it can be a cause for concern.

The ‘Character Test’ has been a feature of the Migration Act for a long time, and has been used to prevent celebrities such as Snoop Dogg and Mike Tyson from entering the country.

The test is defined in section 501(6) of the Migration Act, but as a basic summary, you’re likely to struggle with the character test if:

• You have a ‘substantial criminal record’. Fully defined in section 501(7) but in general terms, 12 months’ imprisonment.

• You’re involved in organised crime.

• The Minister reasonably suspects the individual has been involved in people smuggling or war crimes.

• You’ve been convicted of sexual offences.

• from your past and present criminal, or general conduct, the department decides you’re not of ‘good character’.

Ministerial Direction 90 And Other Considerations:

The character test is clearly designed to cast a wide net, and has been described as giving the Department of Immigration ‘God-Like Powers’, but thankfully, when deciding that an applicant doesn’t pass the character test, the decision-maker is still required to carry out an assessment under Ministerial Direction 90, and examine the specific surrounding circumstances of the applicant to better inform a decision on whether to refuse the visa application.

The assessment must take into account both primary and secondary considerations, listed below:

Primary Considerations (Clause 8):

(1) Protection of the Australian community from criminal or other serious conduct;

(2) Whether the conducted engaged in constituted family violence;

(3) The best interests of minor children in Australia;

(4) Expectations of the Australian community.

And secondary considerations:

Clause 9(1):

a. International non-refoulment obligations;

b. Extent of impediments if removed;

c. Impact on victims;

d. Links to the Australian community, including:

(i) Strength, nature, and duration of ties to Australia;

(ii) Impact on Australian business interests

Any applicable considerations are given a weighting either for or against refusal, with the final result being a more balanced decision on whether to refuse the visa or not is in the interests of Australia.

The Case Of Seagg And Biological Mathematics

One of the interesting things about the law is that it’s math without a pre-determined outcome, no formula can fully capture the appropriate response to the circumstances of every individual on earth, otherwise, we’d have computers dispensing justice at this point.

Photo from gruesomemagazine.com

Because it’s a more biological examination of law and facts, the best way to get your desired outcome is to understand how the test is applied. Cases such as Seagg and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 678 (7 April 2022) can be useful in understanding how that assessment is carried out by the Department, or the Tribunal in its administrative review capacity.

In this case, the Applicant was refused a visa on the basis of a conviction he had received 12 years previously, for ‘wounding’, as well as a previously well populated criminal history, and failing to declare previous criminal convictions on incoming passenger cards.

However, in the 12 years that had passed since his most serious offence, the applicant had demonstrated a change in character, engaging in alcohol rehabilitation programs,

finding full time employment, repairing his relationship with his family and starting a family of his own. As such, there were multiple factors that the Tribunal had to consider when determining whether the refusal of the Applicant’s visa was justified.

Going through Ministerial Direction 90, the tribunal had this to say:  

Primary Considerations: 

1. Protection of the Australian community from criminal or other serious conduct:  

   The Applicant’s criminal history, while extensive, had became less frequent and less serious as he matured. His most serious offence of ‘wounding’ was balanced by the Applicant’s behaviour during the trial, such as writing a letter of apology to the victim, compensating him for time taken off work and pleading guilty in the first instance. These actions demonstrated that the offence was not premediated, and, when taking into consideration: 

   • The time that had passed since this offence; 

   • The Applicant’s engagement with alcohol rehabilitation programs since the offence;  

   • The Applicant’s longstanding commitment to his employment; and  

   • His position as a caretaker for his stepchild;  

   The Tribunal was of the opinion that it was unlikely the Applicant would re-offend and was a risk to the Australian community, but when combined with the seriousness, and frequency of the Applicants offending led to the Tribunal weighing this consideration as slightly in favour of refusing the visa application. 

2. Whether the Applicant was found to have engaged in family violence; and 

3. Whether the best interests of a minor child in Australia weighed in favour of any decision: 

   Were deemed not applicable in this case.   

4. The Expectations of the Australian Community:  

   It is the expectation of the Australian community that non-citizens both obey the law and not engage in serious conduct, and non-citizens found to have breached the law in such a way should not be allowed into, or removed from Australia. However, the Tribunal must still give real consideration to the human consequences of removal from Australia.  

   In this case, the refusal of the application would have ‘devastating’ consequences on multiple people with a right to reside in Australia. These consequences were more serious considering that the Applicant’s partner would be forced to decide whether to discontinue her relationship or to abandon her family to live in another country with the Applicant. Negative affects would be felt by:  

   • The Applicant’s step-child – who although 18 was considered to still be in need of guidance and support;  

   • The Applicant’s father, who was an Australian citizen and had developed a strong relationship with the applicant in recent years;  

   • The Applicant’s partner’s father, who required regular medical assistance and appointments;  

   The Tribunal, when taking all the circumstances into consideration, as well as the default expectations of the Australian community, found that primary consideration 4 carried only slight weight in favour of refusal of the visa application.  

Secondary Considerations;  

The facts of the case meant that: 

1. International non-refoulment obligations;  

2. Extent of impediments if removed; 

3. Impact on victims:

   Were deemed not applicable in this case. Leaving:

4. Links to the Australian community, including the strength, nature and duration of ties to Australia’:  

The factors that went into this were previously covered, but the Applicant’s relationship with his family and his good employment history led to the Tribunal deciding that this consideration weighed strongly in favour of the Applicant.  

Summary:

Summarised, the Tribunal found that when considering all of the factors mentioned in Direction 90, the sum total of the Applicant’s circumstances justified the grant of the visa to the Applicant, despite failing the character test.  

What this means:  

If you have the goal of temporary or permanent residency, applying for a visa can be extremely stressful, even without a previous criminal conviction. Consider this case summary as an example of how your individual circumstances can potentially outweigh the past wrongs you’ve committed, and if you’re concerned about passing the character test, it’s never a bad idea to engage a lawyer to advise you on how to demonstrate your good character, and face the character test head on.  

How Can Agape Henry Crux Help You?

If you want to find out more about your visa or need advice on your Australian migration matter, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.  

We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.  

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.