Character Test: 2019 Update - What Everyone Should Know

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When you apply for an Australian Visa, you must pass the Character Test. The same is true when you hold a visa - you have to continue to pass the Character test.

*** What is the Character Test? ***

It's a test which the Australian Government uses to decide if you present a risk to the Australian Community.

*** Who fails the Character Test? ***

There are a large number of scenarios in which you can fail the test. In fact, in the last 4 years, the number of visa refusals and cancellations on this ground have increased by 1,100% !

The most obvious and well known example is if you have a substantial criminal record - meaning you have been sentenced for a term of imprisonment of 12 months or more.

You can also fail the test if the Department of Home Affairs believe that if you are allowed to enter or remain in Australia, then there is a risk that you will engage in criminal conduct.

Even your past or present general (i.e. not criminal) conduct can be grounds for failing the character test.

When your visa is refused or cancelled on character grounds, this is also known as a section 501 visa refusal or cancellation. This is a reference to section 501 of the Migration Act 1958.

*** What happens if you fail the character test? ***

Your visa MAY be refused or cancelled.

If you currently hold another visa, that other visa will automatically be cancelled as well.

If you are in Australia, you can't apply for another visa, not even a bridging visa. They will put you in Immigration Detention.

*** Is there anything you can do if your visa is cancelled or refused? ***

Yes, in many cases you can lodge an appeal with the Administrative Appeals Tribunal. If your case is well prepared and presented, you can win, and the Tribunal can order the Department to proceed on the basis that you pass the character test.

*** Example of how the Department's decision can be overturned ***

Our client came to us when his visa was cancelled based on character grounds. We represented him in the appeal and won. Here is a link to the case, so that you can read it yourself:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2018/4305.html?context=1;query=Haque;mask_path=
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*** ABOUT OSZKAR DENES ***

Oszkar Denes is the principal lawyer of Denes Lawyers. He regularly regularly represents his clients in Court, and he is a strong advocate. He is a solicitor admitted in the High Court of Australia and the Supreme Court of Queensland and he is a member of the Queensland Law Society.

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