Australian Visa Character Waivers

What are the character requirements for an Australian visa?

The Migration Act 1958 under Section 501 set out the character requirements for visa & citizenship applicants and visa holders and is used to approve, refuse or cancel visa and citizenship applications.

The Character Test is used to assist the Department in assessing if applicants and visa holders are of good character and not a threat to Australia.

The Australian government has introduced and is continuing to introduce stricter measures to refuse and cancel visas on character grounds in the interest of public safety.

Technically, a waiver does not exist for the character requirements however certain mitigating factors can allow for a visa to be granted or not cancelled if presented correctly.

Most Common Grounds for Visa Refusals & Cancellations based on Character

In simple terms the Department considers any applicant who has been sentenced to a term of imprisonment of 12 months or more as having a ‘substantial criminal record’ regardless of how long ago they were sentenced. To have a substantial criminal record a person does not actually have to have served time in prison.

This includes suspended sentences and situations where a person is either acquitted of an offence due to mental health issues or found not fit to please in relation to an offence but nevertheless found to have committed the crime and as a result was detained in a facility or institution.

The purpose of this criteria is to cover conduct that might not meet the criminal thresholds noted previously but nonetheless is a concern to the Australian public.

Departmental officers must consider both past and present criminal or general conduct and the conduct must be a reflection of the persons enduring moral character over a continued period of time.

The Department will also consider good conduct during the relevant periods.

Character Waivers Australian Visa

The Character Test

People may not meet the character requirements in certain circumstances. The circumstances the Department has outlined include if:

  • you have a substantial criminal record
  • you have been convicted of escaping from immigration detention, or convicted for an offence that you committed:
    • while you were in immigration detention
    • during an escape from immigration detention
    • after an escape, but before you were taken into immigration detention again.
  • you are or have been a member of a group or organisation, or had or have an association with a person, group or organisation that the Minister reasonably suspects of being involved in criminal conduct
  • the Minister reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether or not you have been convicted of such an offence
  • your past and present criminal or general conduct shows that you are not of good character
  • there is a risk that while you are in Australia you would:
    • engage in criminal conduct
    • harass, molest, intimidate or stalk another person
    • vilify a segment of the Australian community
    • incite discord in the Australian community or in a part of it
    • be a danger to the Australian community or a part of it.
  • you have been convicted, found guilty or had a charge proven for, one or more sexually based offences involving a child
  • you are subject to an adverse security assessment by the Australian Security Intelligence Organisation
  • you are subject to an Interpol notice, from which it is reasonable to infer that you are a direct or indirect risk to the Australian community, or a segment of the Australian community.

Schedule a Consultation with Ethos Migration Lawyers for Expert Immigration Advice and Assistance

Common grounds for refusals and cancellations

Substantial Criminal Records

In simple terms the Department considers any applicant who has been sentenced to a term of imprisonment of 12 months or more as having a ‘substantial criminal record’ regardless of how long ago they were sentenced. To have a substantial criminal record a person does not actually have to have served time in prison. This includes suspended sentences and situations where a person is either acquitted of an offence due to mental health issues or found not fit to please in relation to an offence but nevertheless found to have committed the crime and as a result was detained in a facility or institution.

Past and Present Conduct

The purpose of this criteria is to cover conduct that might not meet the criminal thresholds noted previously but nonetheless is a concern to the Australian public.

Departmental officers must consider both past and present criminal or general conduct and the conduct must be a reflection of the persons enduring moral character over a continued period of time. The Department will also consider good conduct during the relevant periods.

Further Advice

Ethos Migration Lawyers have assisted many applicants present strong cases to the Department of Home Affairs, the Administrative Appeals Tribunal and relevant Courts.

If you would like expert legal advice regarding your situation, please Schedule a Consultation with us or Contact Us for further information.

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