1. Introduction

Any type of visa (permanent or temporary) may be cancelled by the Department of Immigration and Border Protection (DIBP) if you do not pass the “character test”. The character test is defined in section 501(6) of the Migration Act 1958 (the Migration Act). Applications for a visa can also be refused if you do not pass the character test.

You will not pass the character test if you:

1. have a “substantial criminal record” (see below for definition); or
2. have an association with an individual, group or organisation which is suspected of being involved in criminal conduct; or
3. are not of good character having regard to your past and present criminal or general conduct; or
4. are at significant risk of engaging in future, unacceptable conduct.

What is a substantial criminal record?

A person will have a substantial criminal record if they have been:

• Sentenced to a period of imprisonment of 12 months or more;
• Sentenced to a number of shorter periods of imprisonment (at the same time or at different times) that add up to 2 years or more; or
• Found not guilty due to mental illness and detained.

If you have a substantial criminal record you fail the character test and DIBP may cancel your visa.

Tip

When calculating a “period of imprisonment”, DIBP will include parole periods, suspended sentences, time spent in periodic detention, or time spent in drug rehabilitation or mental health facilities if they were ordered as a sentence by a court. Sentences received for juvenile offences can also be included.

What happens if my visa is cancelled?

• If your visa is cancelled you cannot remain in Australia unless you get another type of visa.
• You cannot apply for any other visa except a protection (refugee) visa or a bridging visa.
• Once you have finished your prison sentence, you will be removed from Australia and returned to the country of which you are a citizen. Most of the time this is the place you were born.
• After you have been removed from Australia you will never be able to return.