What Is the Character Test?
Section 501 of the Migration Act sets out Australia's character test. A person fails the test if they have:
- A substantial criminal record — sentenced to death or life imprisonment, sentenced to 12 months or more, or two or more sentences totalling 12 months or more
- Been convicted of a sexually based offence involving a child
- Escaped from immigration detention
- Past or present membership of a criminal organisation or association with crime
- Engaged in harassment, molestation, or stalking
- Been involved in people smuggling, trafficking, genocide, war crimes, or similar serious conduct
- Conduct that makes them a risk to the Australian community
Failing the character test does not automatically result in visa refusal or cancellation — but it triggers the Department's discretion to act.
Mandatory Cancellation
Since late 2014, the Department is required to cancel the visa of any person who:
- Is serving a full-time custodial sentence of 12 months or more, or
- Has been sentenced to such a sentence (whether or not they are still serving it)
Once a mandatory cancellation notice is issued, the visa holder has an opportunity to make representations — to provide information and arguments for why the cancellation should be revoked. The delegate then decides whether to revoke or maintain the cancellation.
What Representations Need to Cover
Strong character representations address the full picture — not just the offending, but everything else. A well-prepared submission typically includes:
- The nature and context of the offending — what happened, why, and the circumstances at the time
- Rehabilitation evidence — participation in programs, employment, community involvement, changed circumstances
- Length of time in Australia — particularly for people who have lived here most of their lives
- Ties to Australia — family, community, employment
- Impact on Australian family members — particularly Australian citizen children, whose best interests must be a primary consideration
- Country conditions — conditions in the country the person would be removed to, particularly where they have limited connection to that country
- Risk to the community — evidence addressing whether the person poses a genuine ongoing risk
ART Review
If a visa is cancelled on character grounds, most visa holders have the right to apply to the Administrative Review Tribunal (ART) for merits review of the decision. The ART conducts a fresh assessment and can substitute its own decision.
For certain ministerial decisions — including decisions made personally by the Minister — no ART review is available. In those cases, judicial review in the Federal courts may be the only external avenue.
People Who Grew Up in Australia
A significant number of character cancellations affect people who came to Australia as children or young adults and have spent most of their lives here. They may have little or no connection to their country of origin, have Australian citizen family members, and face serious hardship if removed.
These circumstances are relevant to the decision-maker's discretion and must be put forward in representations. The best interests of Australian citizen children are a primary — not merely a relevant — consideration.