Introduction
Before the Department of Home Affairs grants any Australian visa, it must be satisfied that the applicant passes the character test under section 501 of the Migration Act 1958. This requirement applies to virtually every visa category, skilled, family, student, visitor, and more. It also applies to permanent residents who hold a visa. Failing the character test can result in visa refusal or, in serious cases, visa cancellation. Understanding what the test involves, and what to do if you have concerns about your character history, is essential for every applicant.
What Is the Section 501 Character Test?
Section 501 of the Migration Act 1958 sets out the character test that all visa applicants and visa holders must satisfy. The Department of Home Affairs assesses character based on several grounds.
A person does not pass the character test if they have a substantial criminal record. Under section 501(7) of the Migration Act 1958, a substantial criminal record includes: a single sentence of imprisonment of 12 months or more; or two or more separate sentences of imprisonment where the total of those terms is 2 years or more. Other grounds also exist; refer to the DHA website and seek professional advice for your specific circumstances. It also includes being found not guilty on grounds of unsoundness of mind but ordered to be detained.
A person may also fail the character test if they have been convicted of a sexually based offence involving a child, if there are reasonable grounds to suspect they have been involved in criminal conduct, if they have been a member of a group involved in criminal conduct, or if their past or likely future conduct is assessed as a risk to the Australian community.
The character test also covers national security concerns. If the Australian Security Intelligence Organisation (ASIO) provides an adverse security assessment, this will result in the person failing the character test.
Who the Test Applies To
The character test applies at the time of visa application and can be assessed at any point during a person’s time in Australia. It applies not only to primary applicants but, in some cases, to secondary applicants (family members included on a visa application). It also applies to permanent residents. If a visa holder who is a permanent resident is sentenced to 12 months or more in prison, their visa may be subject to mandatory consideration for cancellation under section 501.
What Information Is Assessed?
The Department of Home Affairs may request Form 80 (Personal Particulars for Assessment Including Character Assessment) from visa applicants. This form asks detailed questions about criminal history, military service, government employment, membership of organisations, and more. Applicants from certain countries or in certain visa categories are also required to complete Form 1221 (Additional Personal Particulars Information).
Answering these forms honestly is critical. Non-disclosure of relevant information is itself a ground for visa refusal or cancellation under the character provisions and other sections of the Migration Act.
Consequences of Failing the Character Test
If a person fails the character test, the Minister or a delegate may refuse to grant their visa, or may cancel an existing visa. In some circumstances, the cancellation of a visa is mandatory (the decision-maker has no discretion). In other cases, discretion exists and the decision-maker must weigh factors including the best interests of minor children in Australia, the applicant’s ties to the Australian community, the extent of their compliance with Australian law, and the protection of the Australian community.
Following a visa refusal or cancellation on character grounds, a person may be able to seek review at the Administrative Review Tribunal (ART). However, the Minister has personal powers under section 501 that cannot be reviewed by the ART. Where the Minister exercises these powers personally, judicial review may be available in the Federal Circuit and Family Court of Australia or the Federal Court.
Practical Advice for Applicants
If you have any criminal history, even spent convictions, pending charges, or matters from overseas, you should disclose this in your visa application. Your registered migration agent or lawyer can assess whether your history is likely to trigger the character test and whether any discretionary considerations apply in your favour. Do not assume that an old or minor offence will not matter.
If you are applying for a visa and have concerns about your character history, seek professional advice before lodging your application. An incorrectly completed Form 80 or 1221, or non-disclosure of relevant information, can have consequences that go beyond the initial visa refusal.
Conclusion
The section 501 character test is a significant part of Australia’s visa framework. It applies broadly, and its consequences, visa refusal or cancellation, can be life-changing. The key messages are: understand what the test covers, disclose relevant history fully and accurately, and seek professional advice if you have any concerns about your record. If your situation is complex, contact Migration Guru for tailored advice.
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Email: info@migrationguru.com.au
Website: migrationguru.com.au
