Articles

Criminal record not lethal to Australian visas

Catchwords: Immigration Law, criminal record, criminal convictions, Character Test, substantial criminal record, risk of criminal conduct, war crimes, genocide, torture, slavery or a crime of serious international concern, harassment, Ministerial Direction, a reviewable migration decision, family violence, risk to the Australian community, expectations, convict history, rehabilitation

A visa application to Australia will certainly be affected by criminal convictions and a criminal record. But is this lethal?

A visa application may be refused or a visa cancelled solely on “character” grounds. This may occur when a person fails the “Character Test”. However, this article explains why the failure is not necessarily lethal.

Character Test Discretion

The legislation states that the Minister “may” refuse to grant a visa, if the person does not satisfy the Minister that they pass the “Character Test” [S501(1), (6) of the Migration   Act (“MA”)[i]].  And 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.  (S501(2), (6) MA).

The use of the “may” word is significant. The use of the word “may” in S501(1), (2), (3) MA has the meaning set by statutory law, which provides that the Minister has a discretion to refuse to grant or to cancel the visa. (S33(2A) Acts Interpretation Act 1901(Cth) [ii].

Therefore, the refusal or cancelation of a visa application or visa already granted is “discretionary’ and not “mandatory”.   It does not mean that the Minister “must” refuse or cancel the visa after a person does not pass the Character Test. Refusal or cancellation is not automatic.

There are several separate grounds by which the Character Test may not be passed, here are some of them.

Substantial Criminal Record

The Character Test is not passed if the person has a “substantial criminal record” (S501(6)(a) MA)[iii].  This is defined as where the person has been sentenced to death, or life imprisonment or for a term of imprisonment of 12 months or more (S501(7)(a), (b), (c) MA); or 2 or more terms of imprisonment, where the total of those terms is 12 months or more (S7(d) MA).

“Concurrent sentence” terms are added together to work out the term (S7A MA). With “periodic detention” the term of imprisonment equals the number of days spent in detention (S7(8) MA). If a convicted person is ordered to “participate in” a residential drug rehabilitation scheme or program for the mentally ill, then they are “taken to have been sentenced” to a term of imprisonment equal to the number of days in the participation (S501(9) MA).

So, on this ground, it is not the conviction itself, it is the sentence that dictates not passing the Character Test.

Conduct

The Character Test is also not passed if it applies to “conduct” which falls short of a substantial criminal record, or even a conviction. This includes having regard to a person’s past and present criminal conduct or general conduct and a view that the person is not of good character, with or without a conviction. (S501(6)(c) MA)[iv].

Under this ground, no criminal conviction is necessary to fail the Character Test.

Child sex offences

By another ground, the Character Test is not passed if a Court in Australia or a foreign country has convicted the person of a “sexually based offence involving a child”; or if the charge was proved and the person was discharged without conviction (S501(6)(e) MA)[v].

This would include convictions for offences involving possession or dissemination of child pornography material; or using a carriage service (internet) for such material (For Australia: s.474.19 (1) Criminal Code).

Under this ground, no custodial sentence is necessary in order not to pass the Character Test.

Risk of criminal conduct

The Character Test is also not passed if there “a risk” of engaging in criminal conduct if a person were allowed to enter or remain in Australia; or  harass, molest, intimidate or stalk another person; vilify a segment of the Australian community; incite discord; or a danger to the Australian community or to a segment or liable to become involved in activities that are disruptive to, or in violence threatening harm   (S501(6)(d) MA)[vi].

No criminal conviction is necessary not to pass the Character Test on this ground, only a risk of criminal conduct. An Apprehended Violence Order (“AVO”) can be relevant here, as the Department may consider that the AVO indicates a risk of such conduct.

Some other grounds

There are other grounds including that a person has been charged or indicted with crimes such as war crimes, genocide, torture, slavery or a crime of serious international concern (S501(6)(f) MA). Again, no actual conviction is necessary in order not to pass the Character Test.

Similarly, a negative assessment by ASIO that a person is directly or indirectly a risk to security is also a ground (S501(6)(g) MA).

An “in force” Interpol notice from which it would be reasonable to infer the person would present a risk to the Australian community or a segment is also a ground (S501(6)(h) MA) is another ground.

Being convicted of an “offence” whilst in immigration detention or whilst escaping is also a ground. (S501(6) (aa) MA); including being convicted of the crime of escaping from immigration detention, which carries a 5-year maximum prison sentence (S501(6) (aa) MA).

A  “reasonable suspicion” by the Minister that the person was a member or associated with a group, organisation or person who has been or is involved in criminal conduct is also a ground (S501(6)(b) MA); or that the person is involved in conduct such as “people smuggling”, “trafficking  in persons”, genocide, a crime against humanity, a war crime, a crime involving torture or slavery, or a crime that is of “serious international concern”; whether or not the person or the other person was convicted for that conduct (S501(6) (ba) MA)

This list above is not intended to be exhaustive.

The failsafe

Failing the “Character Test” enlivens the Minister’s discretion to grant, refuse to grant or cancel a visa. But failure to pass the Character Test, is not lethal to the visa application or visa grant. There is still chance of life and to exercise the Ministerial power in favour of the foreigner and allow the visa.

Ministerial Direction

In exercising the failsafe, the decision maker is bound in the exercise of the discretion by the Ministerial Direction[vii] made under S499 MA.

This Direction applies the principles of protection and safety of the Australian community [Para. 5.2].    It makes as primary considerations the protection of the Australian community from criminal or other serious conduct; the nature and seriousness of the conduct; the risk to the Australian community of further offences or other serious conduct; family violence; the strength, nature and duration of ties to Australia; the best interests of minor children in Australia; and the expectations of the Australian community; and other considerations such as the legal consequences, the effect of any “non-refoulment” obligations and impact of Australian businesses.   [Para.8].

A reviewable migration decision

Not all decisions that affect foreigners are reviewable in the ART. It must be a “reviewable migration decision” within the meaning of S338 MA. This includes a refusal to grant a non-citizen a visa where the visa could not be granted onshore; they intend to visit an Australian citizen, or an Australian permanent resident; who is a parent, spouse, de-facto partner, child, brother or sister; and details of the relative are in the visa application.  See S338(7) MA[viii] . There is a restriction on who can apply and in the above situation it must be the relative. See S347A(1)(c) MA[ix] .

Molyneux

A case before the AAT[x] (now ART) Molyneux (2024)  [xi] per S. Webb, Member, on 9 September 2024, was decided in favour of the visa applicant who had a substantial criminal record. The visa applicant Mrs Saunders was 65 years of age and from the UK had received a term of imprisonment of five (5) years for “soliciting to murder” her ex-husband. It is similar to conspiracy to murder in Australia, which carries a maximum sentence of 25 years in NSW. It was a serious offence.

After 6 months she served her sentence in a low security open prison with community activities. She was assessed as being low risk. She was released on Final Parole 2.5 years into her sentence.  She was a grandmother of 65 years and had been engaged in charitable work and helping the community. She had a very strong testimonial from a Judge saying she is not a criminally minded person. She had been entrapped. Her daughter in Australia had given birth to two grandchildren and had been granted Australian citizenship.

On the negative side, the Minister argued that she had also been previously refused a Visitor visa and “excluded” because she provided false information failing to disclose her criminal record. She was required to satisfy PIC 4020 and effectively excluded (or banned) for 3 years because of the falsehoods. After that she applied again.

The current short stay Visitor Visa application took more than 4.5 years to decide and be finally refused. The Minister argued that her professed remorse and rehabilitation did not mitigate the potential harm to individuals and the Australian community. The Australian community should expect that she not be granted the visa. The Minister’s argument was that telephone and video contact was sufficient with the grandchildren. The daughter could easily travel to the UK with the grand kids to see their grandmother.

However, the ART noted the low income of the daughter, and the prohibitive cost of travel went against that argument. The Minister also argued that grand parenting was not a “parental role”. The ART followed Markaj[xii] which determined that parental role was not confined to the child’s parents and includes grandparents.

The ART found that the risk on a “short stay” visa of 4 to 8 weeks posed to the Australian community was negligible. It also found that there was compelling evidence as to the likely impact on the immediate family members in Australia if the visa were refused.

Mrs Saunders was successful, and the ART determined that the decision to refuse the visa be set aside and remitted to the Minister for reconsideration … and that the visa not be refused on character grounds S 501(1) of the MA.

Moreau & FYBR

In the case of Moreau (2021)[xiii] in the AAT[xiv] (now ART) the visa applicant was citizen of France who had been convicted of murder by the Crown Court of the Yvelines in Versailles, France in 1999. The offence was in 1996. He was sentenced to 10 years of imprisonment, and 5 years loss of all civil, civic and family rights. He failed the “Character Test” because he had received a term of imprisonment of 12 months or more (S501(6), (7)(c) MA)[xv] which was a “substantial criminal record”.

The discretion was enlivened and the  Ministerial Direction[xvi] made under S499 MA was applicable including the “expectation of the Australian community” as a “primary consideration”.

In most cases this expectation would call for cancellation or refusal of a visa. However, the Full Court Federal Court decision in FYBR (2019) [xvii] (per Flick, Charlesworth and Stewart JJ) determined that this contemplates a case where the decision maker  “considers” this expectation and there may be cases where: “…the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration …There may be cases in which it is not appropriate to give the community expectations discerned  … any weight at all.” (@ para. 76 per Flick J)

These countervailing factors were substantial. The facts involved a situation of high stress following a family law case when the Bailiffs presented in the family home together with the estranged wife where Monsieur Moreau lived, with his daughter. He accidentally killed his wife with a knife. He had been sentenced to 10 years but was released after 5 years. He was placed on an early conditional release in 2001 due to good behaviour. He paid full compensation to the French Guarantee Fund for Victims (FGTI) of E111,382.

He was never terminated by his employer and had high level security clearance for nuclear power installations. He had been elected as the Union Representative by the staff at his work. His behaviour in detention had been exemplary. He had made “serious” efforts to reintegrate back into society. He took full responsibility for his wife’s death. He tried to revive her and waited for the police to arrive after she died. He never contested it. He has been a model citizen before and after the event.  He just wanted to visit his daughter for 2 or 3 weeks in Australia.

His daughter, Dr Moreau, brought the case in Australia. She herself was a victim of the crime, in the house at the time, and yet she fully supported her father.

The Tribunal found that “he does not pose a risk of reoffending” and that there would be a great impact on his Australian family, the daughter, if the visa were refused. Also, he should be allowed to restore the familial bond.

The Tribunal set aside the visa refusal decision and substituted it with   a decision that the visa applicant not be refused a Short Stay Visitor Visa under S501(1) MA (the Character provision).

Convict History

From 1788 to 1868 convictions were the main source of arrivals in the colony of New South Wales (now Australia). In fact, 162,00 convicts were transported over the 80 years[xviii]. Convicts had to survive a horrendous journey of 8 months and more than 15,000 miles, often below decks for long periods in unsanitary conditions.

But if they made it and survived, they were often able to rehabilitate themselves. Robert Hughes states this eloquently in his epic book The Fatal Shore:

“The fatal shore was a hard and unyielding land, but it also offered the opportunity for reinvention and redemption.” [xix]

Rehabilitation was part of the convict story of Australia. The convicts could receive pardons and contribute to society as free settlers.

“A great number of those whose terms have expired have turned settlers, some of whom are doing well, better than many farmers in England.” (Reverend Richard Johnson, 29 July 1794)

Fast forward

Rehabilitation is today one of the sentencing objectives in all States of Australia and also in federal law[xx] . It is also recognised in the Ministerial Direction as a criterium for consideration in the exercise of the discretion in “risk to the Australian community”; in “family violence”; and “past and present general conduct”[xxi].  Evidence of rehabilitation at time of decision is both relevant and probative.

In modern times, the Ministerial discretion in Australia provides the failsafe for visitors and new arrivals who fail the Character test.  Even if a foreigner fails to pass the Character Test due to a substantial criminal record, or other ground, they can still be granted or keep a visa.  So having a criminal record or convictions is not lethal.

The Australian legal system was and continues to be tolerant of criminal convictions, if combined with genuine rehabilitation and low risk to the Australian community.

Jonathan de Vere Tyndall

7 July 2025

The articles published contain comment only and not legal advice, for which you should retain a solicitor. No responsibility is accepted for the accuracy of the contents. All rights reserved.

Endnotes

[i]   Link: https://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s501.html

[ii]   Link: https://classic.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s33.html

[iii] n i

[iv] Link: https://classic.austlii.edu.au/au/legis/cth/consol_act/aia1901230/s33.html

[v] ibid

[vi] Ibid

[vii] Link: https://immi.homeaffairs.gov.au/support-subsite/files/ministerial-direction-110.pdf

[viii] Link: https://classic.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s338.html

[ix] Link: https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/ma1958118/s347a.html

[x]  Administrative Appeals Tribunal (AAT) now Administrative Review Tribunal (ART) from 14 October 2024

[xi] Molyneux 2024 per Webb S, Member Link:   https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2024/3315.html

[xii] Markaj v Minister for Immigration and Border Protection [2020] FCA 1511 per Kenny J

Link: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2020/1511.html

[xii] n i

[xiii] Moreau 2021 per AE Burke AO, Member

Link :  https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/AATA/2021/7.html

[xiv] n viii

[xv] n iii

[xvi] n vii

[xvii]  FYBR v Minister for Home Affairs [2019] FCAFC 185

Link:  https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2019/185.html

[xviii] “Convicts and the British colonies in Australia”

Link: https://web.archive.org/web/20160101181100/http:/www.australia.gov.au/about-australia/australian-story/convicts-and-the-british-colonies

[xix] “The Fatal Shore” Robert Hughes, Vintage Books, London 2003 [ISBN 9780099448549]

Link: https://www.thebookroomatbyron.com/p/history-the-fatal-shore–9?barcode=9780099448549

[xx] Crimes Act 1914 S16A (2)(n)

Link: https://classic.austlii.edu.au/au/legis/cth/consol_act/ca191482/s16a.html

[xxi] n vii The Ministerial Direction @ para. 8.1.2(2)(b)(ii) “risk to the Australian community”; para. 8.2(3) (c) “family violence”; para. 5.2 (1) (a) “past and present general conduct”.