The Character Test in the Non-Mandatory Cancellation Context


The Migration Act posits a character test, breach of which crystallises the power of visa cancellation or visa refusal, ie there is then a discretionary power to refuse or cancel a visa on character grounds.

However the Full Federal Court has established the notion that just because a person fails the character test, there is no presumption that the discretion should be exercised against the applicant.  In Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 (24 December 2004), Sackville J observed:

It is true that the authorities have accepted that s 501 prescribes the failure to satisfy the character test as a condition precedent to the exercise of the discretion to cancel a visa and does not create a presumption as to how the discretion should be exercised: Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514; 65 ALD 667, at [10], per Dowsett J, cited with approval by Kiefel and Bennett JJ in Minister for Immigration and Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126, at 143 [72].

Here is the general power :

[501] (1)      The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

[501] (2)      The Minister may cancel a visa that has been granted to a person if:

(a)      the Minister reasonably suspects that the person does not pass the character test; and

(b)      the person does not satisfy the Minister that the person passes the character test.

As stated above s 501(3A) has now overtaken s 501(1) & (2) where a person has been sentenced to at least one year’s imprisonment and the person is serving some period in full time custody.

The character test will now be dealt with incrementally.