Having a criminal record or being previously sentenced could heavily impact the outcome of your visa application. visa refusals or cancellation for failing the character test under the Australian migration laws are the scariest dilemma facing visa applicants who have prior convictions or criminal records. So, what is the stance of the Australian migration laws on this issue?
Under Australian migration laws the Minister (or his delegates) has the power to either refuse to grant you a visa or to cancel your visa if you do not pass the character test. When considering cancellation, the Minister will consider two things; whether or not a visa applicant or visa holder passes the character test and if that person does not pass the character test, whether to exercise this power to refuse to grant the visa or to cancel the visa. The question to ask is what lies at the heart of this discretionary power? The answer is simple: the protection of the Australian community. Australian courts have emphasised that the object of Australian migration laws is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To help achieve this outcome, the Minster has been given this power to determine who passes the character test as the Minister is responsible to protect the Australian community from criminal or other reprehensible conduct and to refuse to grant visas or to cancel visas held by non-citizens whose actions are abhorrent to the community. In other words, non-citizens who do such acts should not be allowed to enter or remain within Australian borders.
Where can we draw the line between what is good or bad character?
Under Australian migration laws, to determine whether a person is not of a good character, regard must be had to the person’s past and present criminal conduct or the person’s past and present general conduct. Unfortunately, Australian migration laws do not define what is considered is considered as good character. However, Australian courts have defined these words to mean enduring moral qualities in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. In other words, it is not a matter of someone having good reputation or fame in the community. It is a matter of continuing performance according to moral principles.
If you have a criminal record or total of your convictions equals or exceeds 12 months this will likely trigger the operation of the Minister’s power to refuse grant your visa or to cancel your visa. It will be a matter of time when you will receive a notice notifying you that the Department is considering cancelling your visa and an opportunity for you to provide reasons why your visa should not be cancelled. If you have been served with a notice of cancellation you must act early. Our migration agents can assist you with drafting well-presented submissions to respond. Call us to discuss your circumstances and what options you may have.
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