Pathway Advice and Character Issues
TABLE OF CONTENTS
Pathway Advice and Character Issues
Visa Cancellation on character grounds can have permanent consequences
Character issues now spill into many areas of migration law
Mandatory Visa Cancellation for Imprisonment for Certain Crimes
28 Days to Apply to Have the Mandatory Cancellation Revoked
Person Remains in Detention Once a Visa is Cancelled
Merit Review, Mandatory Cancellation and Revocation of Cancellation
What is the Relevance of s 501(3A) to Sentencing Principles
Other Character Cancellation Powers
The Character Test in the Non-Mandatory Cancellation Context
Substantial Criminal Record – Imprisonment
Okay to Exhaust All Remedies
Australian Citizen Children
Offences in Immigration Detention
Involved in a Group Involved in Criminal Conduct
People Smuggling
General Character
Further General Grounds to Fail the Character Test
Sexually Based Offences Involving a Child
War Crimes
ASIO Adverse Assessment or an Interpol Notice
Additional Definitions of Substantial Criminal Record
The Minister’s Personal Power
Administrative Appeals Tribunal Review
Judicial Review of AAT Decisions
Time Limits for AAT Review
Practice Points
Can’t Go Behind the Conviction
Character References
Forensic Psychiatric Report
Those Convicted of Fraud
The Minister’s personal decisions including those in the national interest
Notes from Lorenzo
The writer’s view is that migration advisors are in a wonderfully privileged position of being able to help change people’s lives. Part of that role spills over into life advice, even at the first visa stage. So many people over the years have destroyed their pathways to permanent residence by deliberate or careless bad behaviour. Clients therefore need to be warned of these character provisions and that until one becomes a citizen, one is still a guest in Australia. Even a long term permanent resident faces the risk of having his or her visa cancelled if that person does something which propels the person into failing the character test.
Simply put a non-citizen who does something terribly wrong in a criminal sense risks deportation at any stage of his or her stay in Australia. The best protection against visa cancellation on the basis of bad behaviour is acquiring Australian citizenship. There are very limited grounds for cancelling Australian citizenship (which is dealt with the Citizenship paper).
Even things which do not fall foul of the character test will still cause harm to a visa applicant’s case. The writer’s opinion is that the psychology of advocacy can be influence in determining the outcome of a visa application, tribunal hearing or a court matter. For example even drunk driving convictions give a matter an unpleasant ordour. Worse is a string of minor convictions, even those not leading to jail. Ultimately a visa application has to pass the unwritten but often present test – will this person’s presence in Australia be good for Australia. Criminal behaviour of any sort inhibit the passing of that test. That ‘test’ becomes manifest in this way, if there are any judgment calls to be made or discretions to be exercised, they may be exercised unfavourably to an applicant who has a poor criminal track record even if the person does not fail the character test.
Hence the take home message for visa applicants is they must be on their best behaviour while present in Australia. Even the ultimate achievement of citizenship is dependent on the applicant being positively of ‘good character’.