Under section 501 of the Migration Act 1958 (Cth), a non-citizen’s visa may be refused or cancelled if they do not pass the character test.
What is the character test?
The character test is defined under section 501(6) and a person will fail it if:
The most common cause of failure of the character test is having a substantial criminal record.
What is a substantial criminal record?
Under section 501(7), a person has a substantial criminal record if they have been:
Most non-citizens who fail the character test will do so as a result of having been sentenced to a term of imprisonment for 12 months or more. There can be multiple terms of imprisonment which together add up to 12 months or more [s 501(7)(d)]. The terms of imprisonment can also be served concurrently (at the same time), but still add up to 12 months for the purposes of the definition under section 501(7) [s 507(7A)]. There can also be a single sentence for multiple offences (aggregate sentences) which either alone, or together with other sentences, add up to a term of imprisonment for at least 12 months [s 5AB].
If you are a non-citizen who has a substantial criminal record (or who is affected by one of the other provisions of the character test) you should seek legal advice. Those serving a prison sentence and who are either at risk of having their visa cancelled or who have already had their visa cancelled may also benefit from referring to our Mandatory visa cancellation kit.
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Legal Services acknowledges Aboriginal people as the Traditional Owners and ongoing occupants of the lands and waters in South Australia and we respect their spiritual, cultural and heritage beliefs. We recognise their continuing connection to land, water and community and pay our deep respect to Elders past and present.
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