Sunday the 15th February 2015
Volume 361

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Today we look at the "Character test" the Immigration department use to screen PR applications and some TR applications.  

Are you of good character? 
police dog with a street stop sign
A couple of drink driving convictions could stop you getting PR

By Amy KIM
Client Manager and RMA
Australian Immigration Law Services


Ever wonder why you have to do those pesky police checks when you are applying for permanent residency?  


It's about being sure that you are of good character before the government lets you loose on Australia on a permanent (and sometimes temporary) basis. The "Character Test" is defined in law and it gives case officers the right to refuse a visa application or cancel a current existing visa.


On the 22nd of December 2014 the Immigration Minister of the time Scott Morrison, issued what it termed "Direction 55". This direction outlines how the character test operates and over time various Ministers have made alterations to it. The overall intention is clear in the explanation provided in this direction;


"Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community."


I doubt you will get many Australians disagreeing with this overall policy intention.


Serving a 12 month Sentence?


If you have a criminal conviction which results in you serving a custodial sentence on a full time basis for a 12 months or more, then you would be classified as having a serious criminal history and would automatically fail the character test. If you served such sentence by periodic or home detention then you would be spared the automatic failure.


Not of Good Character


However even if you did not serve a 12-month sentence on full time basis in detention as a result of your conviction, it does not mean that you will automatically pass the "character test".


In fact you may not even have a criminal conviction at all but you can still be found to be a person of "not of good character". In Direction 55 it states;


"A person does not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct."


An association or membership with a group or organization that has been involved in criminal activity is enough for you to fail the character test.


Minor Convictions?


In my experience however most applicants who worry about this character test will have relatively minor offences on their criminal history records such as drink driving, cautions for shop lifting or giving someone a black eye in a pub brawl. Is such a record going to stop you getting PR?


A single offence by itself is unlikely to warrant refusal of a visa application by failing the character test. A single drink driving offence which resulted in a fine or loss of license would generally not result in visa refusal. You would be surprised how many international visitors get charged for drink driving so this is a common concern amongst them.


However a string of offences, perhaps all minor in nature, would give the indication that you are not of good character. Even a couple of drink driving convictions can be enough to receive a Natural justice letter from the DIBP.


The guidelines state;


"......a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of 'good character'. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behavior."


One fails, you all fail


If one of your family unit members were to fail this character test and has their visa refused, then all of the applicants family members who were included in the application are also refused.  


In Summary


This article simple scrapes the surface of the complexity of the character test. Their are many discretionary considerations may be applied by case officers to pass certain individuals where on face value they may seem not appropriate to migrate to Australia.


One thing is certain. If you get a natural justice letter from the DIBP saying that they intend to cancel your visa or refuse your application because you may fail the character test you will need professional representation. The variables are complex in arguing and achieving a positive outcome for such people.  


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