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What is the Character Test in Australia?

31/10/2022

It if is a requirement of a visa that an applicant satisfy the public interest criterion 4001, the applicant is required to satisfy the Minister that the pass the “Character test.

Direction number 79 of the Migration ACT 1958(Cth) recites the formal policy of the Parliament and seeks to bind decision makers in the exercise of these powers.

The starting point in all of this are the primary considerations at Part A of Direction number 79. The primary considerations include: 

  • Protection of the Australian community from criminal or other serious conduct; 
  • The best interests or minor children in Australia;  
  • Expectations of the Australian community.

Section 501(6)(a) directs a consideration of the statutory test at section 501(7), which defines a “substantial criminal record”.

Section 501(6)(d) deals generally with the types of conduct likely to lead either to the refusal or cancellation or a temporary visa. However, it is conceded that the very broad scope of section 501(6)(d) could apply to any type of visa.

Section 501(6) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record”. “Substantial criminal record” is defined in section 501(7) of the Act as, among other things, having been sentenced to a term of imprisonment of 12 months or more.

Often, the effluxion of time and subsequent good character will serve to mitigate the breach or may help an individual to pass the character test which has enlivened the character concern. This may be judged on the basis of following factors:

  • Past and present criminal conduct; and/or  
  • Past and present general conduct.
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