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Visa cancellation on the ground of character test

Updated: Oct 25, 2019

S501(2) of the Migration Act 1958 provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test which is set out in s501(6). S501(3)&(4) provides that the Minister personally may refuse to grant or cancel a visa if he is satisfied that the refusal or cancellation is in the national interest.

This article is to summarize some primary considerations for the discretion to cancel the visa of the applicant to be exercised by the decision maker taking into account the Migration Amendment (Strengthening the Character Test and other Provisions) Bill 2011 and Direction 41.

Factors relevant to assessing the level of risk of harm to the community include:

(1) The seriousness and nature of the relevant conduct;

(2) The risk that the conduct may be repeated.

To assess the level of seriousness, direction 41 requires decision-makers to take into account other factors:

(1) The sentences imposed for the offences

(2) The number and nature of the offences

(3) The period between different offences

(4) Judicial comments

(5) Professional Psychological reports

(6) The person’s general previous conduct and criminal records are relevant to assessing the risk of re-offending.

(7) The family ties, the nature and extent of any relationships.

(8) Links to the country to which he or she will be removed.

(9) Level of Education.

(10)Hardship likely to be experienced by the Applicant or other family members lawfully reside in Australia.

The length of that the applicant was ordinarily resident in Australia prior to engaging in criminal activity. A period of more than 10 years bears negatively on the person’s character test would be an important consideration as pointed out in Direction 41.

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