Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

MIGRATION ACT 1958 - SECT 501

Refusal or cancellation of visa on character grounds

Decision of Minister or delegate--natural justice applies

             (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.

Note:          Character test is defined by subsection (6).

             (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.

Decision of Minister--natural justice does not apply

             (3)  The Minister may:

                     (a)  refuse to grant a visa to a person; or

                     (b)  cancel a visa that has been granted to a person;

if:

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

                     (d)  the Minister is satisfied that the refusal or cancellation is in the national interest.

          (3A)  The Minister must cancel a visa that has been granted to a person if:

                     (a)  the Minister is satisfied that the person does not pass the character test because of the operation of:

                              (i)  paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

                             (ii)  paragraph (6)(e) (sexually based offences involving a child); and

                     (b)  the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

          (3B)  Subsection (3A) does not limit subsections (2) and (3).

             (4)  The power under subsection (3) may only be exercised by the Minister personally.

             (5)  The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).

Character test

             (6)  For the purposes of this section, a person does not pass the character test if:

                     (a)  the person has a substantial criminal record (as defined by subsection (7)); or

                    (aa)  the person has been convicted of an offence that was committed:

                              (i)  while the person was in immigration detention; or

                             (ii)  during an escape by the person from immigration detention; or

                            (iii)  after the person escaped from immigration detention but before the person was taken into immigration detention again; or

                   (ab)  the person has been convicted of an offence against section 197A; or

                     (b)  the Minister reasonably suspects:

                              (i)  that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

                             (ii)  that the group, organisation or person has been or is involved in criminal conduct; or

                   (ba)  the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

                              (i)  an offence under one or more of sections 233A to 234A (people smuggling);

                             (ii)  an offence of trafficking in persons;

                            (iii)  the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

                            whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

                     (c)  having regard to either or both of the following:

                              (i)  the person's past and present criminal conduct;

                             (ii)  the person's past and present general conduct;

                            the person is not of good character; or

                     (d)  in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

                              (i)  engage in criminal conduct in Australia; or

                             (ii)  harass, molest, intimidate or stalk another person in Australia; or

                            (iii)  vilify a segment of the Australian community; or

                            (iv)  incite discord in the Australian community or in a segment of that community; or

                             (v)  represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

                     (e)  a court in Australia or a foreign country has:

                              (i)  convicted the person of one or more sexually based offences involving a child; or

                             (ii)  found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

                      (f)  the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

                              (i)  the crime of genocide;

                             (ii)  a crime against humanity;

                            (iii)  a war crime;

                            (iv)  a crime involving torture or slavery;

                             (v)  a crime that is otherwise of serious international concern; or

                     (g)  the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ); or

                     (h)  an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

Otherwise, the person passes the character test .

Substantial criminal record

             (7)  For the purposes of the character test, a person has a substantial criminal record if:

                     (a)  the person has been sentenced to death; or

                     (b)  the person has been sentenced to imprisonment for life; or

                     (c)  the person has been sentenced to a term of imprisonment of 12 months or more; or

                     (d)  the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

                     (e)  the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

                      (f)  the person has:

                              (i)  been found by a court to not be fit to plead, in relation to an offence; and

                             (ii)  the court has nonetheless found that on the evidence available the person committed the offence; and

                            (iii)  as a result, the person has been detained in a facility or institution.

Concurrent sentences

          (7A)  For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example:    A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.

Periodic detention

             (8)  For the purposes of the character test, if a person has been sentenced to periodic detention, the person's term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.

Residential schemes or programs

             (9)  For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:

                     (a)  a residential drug rehabilitation scheme; or

                     (b)  a residential program for the mentally ill;

the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.

Pardons etc.

           (10)  For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

                     (a)  the conviction concerned has been quashed or otherwise nullified; or

                     (b)  both:

                              (i)  the person has been pardoned in relation to the conviction concerned; and

                             (ii)  the effect of that pardon is that the person is taken never to have been convicted of the offence.

Conduct amounting to harassment or molestation

           (11)  For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:

                     (a)  it does not involve violence, or threatened violence, to the person; or

                     (b)  it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

Definitions

           (12)  In this section:

"court " includes a court martial or similar military tribunal.

"imprisonment " includes any form of punitive detention in a facility or institution.

"sentence " includes any form of determination of the punishment for an offence.

Note 1:       Visa is defined by section 5 and includes, but is not limited to, a protection visa.

Note 2:       For notification of decisions under subsection (1) or (2), see section 501G.

Note 3:       For notification of decisions under subsection (3), see section 501C.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback