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It has been well documented that since the introduction of mandatory visa cancellation laws on character grounds in December 2014, there has been a significant increase in the number of deportations of non-citizens. Previously, the Minister had a discretionary power to cancel a non-citizen’s visa, now if it is determined a person does not meet the character test, the Minister must cancel the visa and the onus is on the non-citizen to address why there are other reasons that justify the revocation of the cancellation.

A non-citizen will fail to pass the character test for the following reasons where the person:

  • Has been sentenced to death;
  • Has been sentenced to imprisonment for life;
  • Has been sentenced to a term of imprisonment of 12 months or more;
  • Has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more;
  • Has been acquitted of an offence on grounds of unsoundness of mind or insanity; and
  • Has been found by a Court to not be fit to plead and the Court has nonetheless found that on the evidence available the person committed the offence and as a result, the person has been detained in a facility or institution.

Suspended sentences are also considered for the purpose of the character test.

In recent cases we have seen the character threshold tighten with visas being cancelled or refused for reasons that would not have otherwise been an issue before. In the case of Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326 (22 August 2017), the Department of Immigration and Border Protection decided to cancel the holder’s student visa on the basis that the accumulation of traffic offences was serious enough to not meet the character test. The Tribunal affirmed the Department’s decision on review.

The Department’s tough stance on character issues does not just apply to non-citizens with a criminal record. In the decision of Truong and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 1213 (8 August 2017), the Department refused the applicant’s citizenship application as the Minister’s delegate was not satisfied she met the character requirement. The applicant was never charged or convicted with any offences, however she had resided in Australia without a visa from 1992 to 1999 and on that basis, the delegate found she was not of good character. The matter proceeded to the Administrative Appeals Tribunal where the Tribunal made the decision to set aside the delegate’s decision and remit the application back to the Department with the direction that the applicant is of good character. So while the applicant was eventually found to be of good character, this case demonstrates that non-citizens do not need to have engaged in unlawful conduct to be considered not to meet the character requirement.

Another example of the tightening of the character threshold is a case we have presently, which relates to an applicant who applied for a partner visa, disclosed his police clearance to the Department, was found to have passed the character test and then subsequently had his visa cancelled.

In this case “C” was convicted of 11 offences, mostly minor, between April 2009 and February 2010. During this time, C developed an alcohol dependency and depression after the breakdown of his marriage. Prior to April 2009, C had not been convicted of any offences.

On three occasions in 2014 and 2015, C entered Australia and on each entry, C ticked ‘yes’ on his incoming passenger card to having criminal convictions. When questioned about these convictions by custom officers in the airport, C confirmed again he had a criminal history but failed to provide details about all convictions. C had been unaware of his full criminal history at that time, which was made all the more difficult by the short period of time in which the offending occurred. C had left school at the age of 14 and it is reasonable to appreciate that his understanding and recollection of his criminal history was very limited. Prior to arriving in Australia, C had also not been required to provide a police clearance.

C applied for a partner visa in 2015 and provided his police clearance to the Department. The Department determined that C passed the character test, despite full disclosure of his convictions, and his partner visa application was approved.

In July 2017, C received an invitation to comment from the Department stating that they had information that he had lied on his incoming passenger card as he had not provided full disclosure to the custom officers about his criminal history. The partner visa was eventually cancelled in August 2017 and the matter is due before the Administrative Appeals Tribunal later in November 2017.

Catherine Bloor is a Solicitor in the migration team at Stephens & Tozer alongside Mr Rodney Sahay. Together they have extensive knowledge and experience in a broad range of migration matters, whether contested or uncontested. For more information on visa cancellation issues, or if you have any questions or concerns about a migration matter, please contact our team at Stephens & Tozer.

21 November 2017

Category: All / Migration

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