The Department of Home Affairs may refuse or cancel a visa if the visa applicant/holder does not pass the character test. The Minister for Home Affairs, the Minister for Immigration Citizenship and Multicultural Affairs or one of their delegates, can make this decision.
A person whose visa has been refused or cancelled by a delegate under section 501 can apply to the AAT to have this decision changed. The Administrative Appeals Tribunal (AAT) cannot review decisions made by the Minister personally, only decisions made by delegates.
Section 501 of the Migration Act 1958 lists a variety of reasons why someone may not pass the character test. Subsection(6) of section 501 has the full list of reasons, but examples include:
- because the person has a substantial criminal record
- because the person may represent a danger to the Australian community
- because the Minister is satisfied the person is not of good character due to their past and present criminal or general conduct.
A person whose visa has been refused or cancelled by a delegate under section 501 can apply to the AAT to have this decision changed.
Section 501(3A) states that a visa must be cancelled when the visa holder has been sentenced to 12 months or more imprisonment, or has been found guilty of a sexually based crime involving a child. The visa holder must also be serving a full-time custodial sentence. This is called a mandatory cancellation.
A mandatory cancellation may be revoked by a delegate of the Minister or the Administrative Appeals Tribunal if they are satisfied the person does in fact pass the character test or where there is another reason for revocation. If a mandatory cancellation is revoked by a delegate or the Tribunal, the person whose visa was cancelled will get their visa back. The Minister has the power to overturn this decision.
Section 501 provides further guidance about the application of the character test, including how to decide whether a person has a substantial criminal record. Further, a Ministerial Direction issued by the Minister for Immigration Citizenship and Multicultural Affairs guides any decision maker, including the AAT, when considering whether to refuse or cancel a visa where the applicant does not pass the character test.