To be granted entry to Australia whether temporarily or permanently, whether you are a main applicant or an additional applicant, you will need to pass the character test set out in section 501 of the Migration Act 1958. The Department of Immigration and Citizenship (DIAC) will consider your past and present criminal conduct and your conduct in general, in determining whether you are of good character. You will be required to disclose information about your past conduct including criminal convictions or charges, and the refusal or cancellation of any previous visas. If you’ve got spent convictions, you will also need to disclose them to DIAC.

Applying for permanent residency?

Whether or not you have prior convictions, you will need to provide ‘Police Clearance Certificates’ from every country that you have spent more than 12 months in accumulatively in the last 10 years.

Do any of these apply to you?

• You have been sentenced to a term of imprisonment for 12 months or more;
• You have been sentenced to two or more terms of imprisonment, where the total of those terms is 2 years or more;
• You have been acquitted of an offence of the grounds of unsoundness of mind or insanity and you have been detained in a facility or institution on that basis;
• You have been convicted of any offence that was committed while in immigration detention, during an escape from immigration detention, during a period where you escaped from immigration detention, or if you have been convicted of the offence of escaping from immigration detention
• You have, or have had, a criminal association with an individual, group or organisation suspected of having been, or being, involved in criminal conduct

If you answer ‘yes’ to any of the above, you will not pass the character test.

You will also fail the character test if your general or criminal conduct means there is a significant risk that you will:

• Engage in criminal conduct in Australia; or
• Harass, molest, intimidate or stalk another person in Australia; or
• Vilify a segment of the Australian community; or
• Incite discord in the Australian community or in a segment of that community; or
• Represent a danger to the Australian community or to a segment of that community

What do I do if any of the above applies to me?

If any of the above circumstances apply to you, you may still be eligible for a visa if there are reasons for the Minister to exercise his discretion in your favour. This may be, for example, if the offence for which you were imprisoned is not a crime in Australia, or if your age and length of time in Australia show that you are otherwise of good character.

September 01 changes

As of 01 September 2012, a new Ministerial Direction will come into effect, making clearer guidelines for DIAC officers when they are considering whether or not you pass the character test. The direction emphasizes the following:

• Coming to Australia is a privilege and it is expected that non-citizens are respectful and law-abiding. There is a particularly low tolerance of those who come to Australia either temporarily or have been in Australia for a short period of time and partake in criminal conduct.
• Some types of offences and the harm that would be caused if repeated is so serious that any risk of repeat offending is unacceptable; and
• If you commit a violent or sexual crime, your visa application is likely to be refused.

You should consult a migration agent if you are concerned about not meeting the character requirements, as it is better to know in advance what issues there may be so you can tackle them head on. If you have any questions or need any advice, feel free to contact our Migration Team.