Applicants should seek advice on character

August 1, 2003

The Immigration Department can use even minor breaches of previous visas to deny visas to applicants on the grounds that they are not of ‘good character’. In fact, the Migration Act expressly prohibits the provision of false or misleading information to the Department. For instance, section 234 of the Act specifically prohibits the provision of false documents and the making of false statements in relation to an application. Any such action by the applicant can have serious future ramifications. Indeed, many applications have been refused on this basis as it is considered that the applicant is not of ‘good character’.Accordingly, those considering applying for visas in the future should be very careful not to become illegal at any point, and should consider seeking professional assistance if they have any concerns. Further still, if immigration laws have been breached in any capacity, whether intentionally or unintentionally, applicants are obliged to make a full and frank disclosure in relation to their past conduct in any future interaction with the Department. Failure to do so may result in failing the character test. Of course, failing the character test does not mean that an applicant is automatically refused. Legislation stipulates that failure of the character test is considered against the expectations of the community, the nature of crimes committed, links to Australia and international law obligations.However, visa applicants have often had their claims rejected because they overstayed or worked in violation of a previous visa. Under the character test prescribed by the legislation, the decision maker may not only refuse a visa on character grounds due to the applicant’s past criminal conviction, if any, but also due to his/her past and present general conduct. For example, Ministerial Direction No 21, which works as a guide to the character test, states that the provision of false information may result in failure of the testHence, when applicants breach their visa conditions, they become “illegal”, and being in the country illegally is grounds for failure of the character test under the Migration Act due to their past misconduct. The situation is worsened when applicants attempt to conceal their past misconduct by either actively providing false information, or by misleading the Department through omission. In any case, the Department keeps records of all the movements and immigration affairs of its applicants and thus will take notice of any inconsistencies which may later appear in visa applications. A recent case example was a Thai national who applied for a protection visa on the grounds that he was in danger due to his participation in anti-government protests in Thailand. A migration agent arranged the application on his behalf, but the applicant was not aware of what was on the application or what the claim was.His application for protection was rejected, but he remained in Australia, unlawfully. During this time he entered into a relationship with an Australian citizen who, upon realising he was overstaying his original visa, sought the advice of an immigration lawyer.After accepting advice, he returned to Thailand to apply for an interdependency visa.Under the provisions of the Migration Act your visa may be refused or cancelled if you fail to pass the Immigration Department’s Character Test. As the test looks at past and present general conduct, this may mean that if your previous applications have contained false or misleading statements you will be found to be “not of good character” and have your application refused.In the case of the Thai national, the fact that the applicant overstayed his visa and also provided false information in departmental interviews was considered a valid ground for possible refusal. That is, the applicant was not considered to have passed the character test due to his past and present general conduct.A further case example was a person who in 1994 applied for permanent residency on the grounds of his recent marriage to an Australian citizen. During the application process he forged his wife’s signature and deliberately provided false information to Immigration Department Officers during a series of interviews.As it is illegal to present, or cause to be presented, forged or false documents under the Migration Act, he was convicted of an immigration offence in relation to his behaviour, was fined, and placed on a good behaviour bond.Since his conviction, he has reapplied for residency in Australia. But due to his previous actions he has been found to be ‘not of good character’ and his application refused.Although the applicant was able to have this decision overturned at the Administrative Appeals Tribunal, the Minister intervened to overturn the decision.With this in mind, an applicant may also fail the character test due to the existence of a substantial criminal record, as distinct from his/her past and present general conduct which may not be criminal in nature. Under the character provisions of Australia’s immigration laws, anyone who has spent more than 12 months in prison cannot pass the character test. A period of 12 months imprisonment is considered to be equivalent to a ‘substantial criminal record’ and therefore grounds for failure of the character test.Mr Sheng Hong Wang (reported AAT decision: Wang June 26, 2001 )was initially refused a visa due to his six years imprisonment in China. Though the applicant has since been granted a visa as the result of an arduous appeal process, the sentence was considered substantial and thus he was not considered to be of ‘good character’ upon initial application for a visa. The case was further complicated by Mr Wang’s failure to declare his conviction on any of his visa applications. As mentioned previously, this sort of conduct also impacts on the assessment of the applicant’s character.In another case, Mr Michael Vos (reported AAT decision: Vos, April 16, 2002)failed to pass the character test on similar grounds, having omitted to disclose the fact that he had been imprisoned for over 12 months. Fortunately, Mr Vos was eventually permitted to remain in the country on appeal to the Administrative Appeals Tribunal. The Tribunal recognised that Mr Vos had a clean criminal record for the past 28 years and represented no threat to the Australian community.These examples suggest that it is a good idea to seek the advice and assistance of an immigration lawyer, where you believe your past conduct may be an issue in a future application. This advice may help you steer clear of the many character-related pitfalls present in the immigration system. Further, the importance of early disclosure will be brought to your attention should you consult an immigration lawyer.

By: Anne O'Donoghue, Samantha Stavros, Tim McDonald