Character test under section 501 can be used discretionary to refuse a visa application or to cancel a visa.

Discretionary visa refusal or cancellation

Character test under section 501 provides that a visa application may be refused if the applicant does not satisfy the decision maker that they pass the character test. Similarly, if the decision maker reasonably suspects that a visa holder does not pass the character test, and the visa holder does not satisfy the decision maker that they pass the character test.

The character test under section 501(6) requires the decision maker to determine whether or not the person passes the character test according to the prescribed circumstances. If a person does not pass 1 ground, then they do not pass the character test.

Unresolved or pending criminal matters

If a person already failed the character test then any other outstanding criminal matter would not generally prevent visa refusal or cancellation under section 501.

However, if a person who does not already fail the character test and is subject of unresolved or pending criminal charges in Australia, would not generally be considered under section 501 until the charges have been finalised.

If a person is in Australia, and they are facing criminal charges in another country which cannot be resolved without their presence in that country, the conduct that is the subject of the criminal charges may be considered under section 501(6)(c)(i) and/or (ii).

If the applicant does not pass the character test, their visa applicant will be refused under section 501(1).

If the visa holder does not pass the section 501 character test, their visa will be cancelled under section 501(2).

Mandatory visa cancellation

Section 501(3A) requires the decision maker to cancel a person’s visa because they have a substantial criminal record (section 501(6)(a)) because the person has been sentenced to death, imprisonment for life, or sentenced to 12 months or more imprisonment (section 501(7)(a), (b) or (c)); or involved in sexually based offences involving a child (section 501(6)(e)). The sentence must be a full-time custodial sentence.

Whether a person is liable for mandatory visa cancellation, “serving a sentence of imprisonment, on a full-time basis” does not include periodic detention or home or residential detention.

A person who has been servicing a full-time sentence and is allowed to participate in a work release scheme, or is allowed home visits is liable for mandatory cancellation.

The mandatory cancellation is only activated when a decision maker makes a finding that they are satisfied that section 501(3A)(a) and (b) are met. Once the decision maker is satisfied, they must cancel the person’s visa.

The intention of mandatory cancellation of those who are in prison is to make sure they do not pose a risk to the safety of the Australian community and they are to remain in either in prison or in immigration detention until that risk has been assessed.

Substantial criminal record

Section 501(6)(1) provides that a person does not pass the character test if they have a substantial criminal record as defined in section 501(7).

A person has a substantial criminal record if:

• sentenced to death; or
• sentenced to imprisonment for life; or
• sentenced to a term of imprisonment of 12 months or more; or
• sentenced to 2 or more terms of imprisonment totally 12 months (eg, sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently, the total of those terms is 6 months); or
• acquitted of an offence on the grounds of unsound mind or insanity; and has been detained in a facility or institution; or
• found by a court to not be fit to plead and has been detained in a facility or institution.

Immigration detention offences

If a person who has been convicted of an offence that was committed while in immigration detention; or while escaping from immigration detention or after escaping from immigration detention but before been taken into immigration detention again, they will not pass the character test (section 501(6)(aa) & (ab)).

A person does not pass the character test if convicted of an offence against section 197A.

Membership/Association

Under section 501(6)(b), if the Minister reasonably suspects you have been or is a member of a group or organisation, or you have or have had an association with a group, organisation or person which or who has been, or is, involved in criminal conduct, then you do not pass the character test.

Minister’s suspicion

The Minister’s suspicion does not have to be a certainty or a belief. However, the suspicion must be more than a speculation or idle wondering. The Minister’s suspicion must be reasonable, it should be:

(a). a suspicion that a reasonable person could hold in the particular circumstances; and

(b). based on an objective consideration of relevant material.

Belonging to a criminal group or organisation

If you belongs to a group or organisation, the Minister is required to have evidence to establish reasonable suspicion of your membership which depends on the circumstances of the case. The Minister is not required to assess whether you are sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is enough that the Minister has reasonable suspicion that:

(a). you have been, or is a member of a group or organisation; and

(b). the group or organisation has been, or is, involved in criminal conduct.

Associating or associated to a criminal group or organisation

Unlike belonging to a group or organisation, under the association limb of the character test, the Minister is only required to have a reasonable suspicion that you were sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation to fail the character test. However, mere knowledge of the criminality of the associate is not, in itself, enough to establish association. The association must have some negative bearing upon your character.

You should note some information concerning association cannot be disclosed if the disclosure might put the life or safety of informants or other people at risk.

Involvement in certain criminal activities

Under section 501(6)(ba), you do not pass the character test if the Minister reasonably suspects that you have been, or is involved in, conduct constituting 1 or more of the following:

(a).      people smuggling (described in sections 233A to 234A);

(b).     trafficking in persons;

(c).      genocide, a crime against humanity, a war crime, a crime involving torture or slavery  or a crime of serious international concern.

You should note that you can fail this limb of the character test even if you have not been convicted of an offence constituted by the conduct.

Not of good character due to past and present criminal or general conduct

Under section 501(6)(c)(i) and (ii), you do not pass the character test if you are not of good conduct because of your past and present criminal and/or because of your past and present general conduct.

Conduct can be both general and criminal at the same time or it may either general or criminal conduct (Wong v Minister for Immigration and Multicultural Affairs [2002] FCAFC 440 at [33]).

The Minister can consider that you are not a person of good character when all the relevant circumstances of the particular case are taken into account to obtain a complete picture of your character.

What is of good character?

The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not just a matter of repute, fame or standing in the community. The words “of good character” refer to the continuing performance according to moral principle. For example, a person of ill repute because of their past criminal conduct may, on objective examination at a later stage in life, be shown to be a person reformed and now of good character (Godley v MIMIA (2004) 83 ALD 411 at [34]).

You can fail this limb of the character test even if you do not have a recent criminal conviction, or have been involved in recent general conduct which could indicate that you are not of “good character”. However, your conduct in question must be sufficient to indicate a lack of enduring moral quality that outweights any consideration of more recent good behaviour. So, the nature of your criminal conduct must be examined and assessed as to its degree of moral culpability or turpitude. In addition, the Minister must examine your past and present criminal conduct to establish that at the time of decision, you are not of good character. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that you are not of good character.

Furthermore, before past and present general conduct is taken to reveal indicia that you are not of good character, your continuing conduct must be shown a lack of enduring moral quality (Godley v MIMIA (2004) 83 ALD 411).

What is past and present criminal conduct

Whether you are not of good character because of your past or present criminal conduct, the Minister will take the following into consideration:

(a).      the nature and severity of your criminal conduct;

(b).     the frequency of your offending and whether there is any trend of increasing seriousness;

(c).      the cumulative effect of repeated offending;

(d).     any circumstances surrounding the criminal conduct which may explain the conduct, for example, the sentencing judge’s comments, parole reports and other authoritative documents; and

(e).      your conduct since your most recent offence, including:

          (i).      the length of time since last criminal offending;

          (ii).      any evidence of recidivism or continuing association with criminals;

          (iii).     any pattern of similar criminal conduct;

          (iv).     any pattern of continued or blatant disregard or contempt for the law;

          (v).      any conduct which may indicate character reform.

What is past and present general conduct

Past and present general conduct refers to situation where convictions may not have been recorded or when your conduct may not have constituted a criminal offence. However, the relevant circumstances of the particular case are to be taken into consideration, including evidence of rehabilitation and any relevant periods of good conduct.

The Minister may consider the following factors to determine whether you are not of good character:

(a).      whether you have been involved in activities indicating contempt or disregard for the law or for human rights. This includes (not unlimited to):

          (i). involving in terrorist activity, trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or

          (ii). having a history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or in another country; or

          (iii). involved in war crimes or crimes against humanity.

(b).      whether you have been removed or deported from Australia or another country

(c).      whether you have been:

          (i). dishonourably discharged; or

          (ii). discharged prematurely

          from the armed forces as a result of disciplinary action or serious misconduct

In addition, if you are in Australia and charges have been brought against you in another country, and those charges will only be resolved if you return to that country, that conduct may be considered against your overall character.

Risk in regards to future conduct

Under section 501(6)(d), you do not pass the character test if there is a risk that you would engage in below conduct. However, there must be evidence suggesting that there is more than a minimal or remote chance that you, if you would engage in the below conduct. Section 501(6)(d) cannot be applied to the past conduct because there must be a risk that you would engage in the below conduct in the future.

Future conduct (section 501(6)(d))

1. Engage in criminal conduct in Australia – a criminal conviction could be recorded (section 501(6)(d)(i))
2. Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501(6)(d)(ii)). Conduct and behaviour that may fall under this category include (but not limited to):

(a). conduct that could be construed as harassment or intimidation which does not necessary breach an AVO or DVO

(b). conduct that could potentially places children in danger, for example, unwelcome and/o inappropriate approaches through electronic media and other means

(c). conduct that would reasonably cause a person to be severely apprehensive, fearful, alarmed or distressed regarding your behaviour or alleged behaviour towards an individual, or in relation to their property.

• Risk of vilifying a segment of the community, of inciting discord or of representing a danger through involvement in disruptive and/or violent activities (section 501(6)(d)(iii), (iv) and (v)). Factors to be considered include (but not limited to) evidence that you:

(a). would hold or advocate extremist views such as a belief in the use of violence as a legitimate means of political expression

(b). would vilify a part of the community

(c). have a record of encouraging disregard for law and order (for eg, when addressing public rallies)

(d). have engaged or threatens to engage in conduct likely to be incompatible with the smooth operation of a multicultural society (for eg, advocating that particular ethnic groups should adopt certain political, social or religious values outside those generally acceptable, and if adopted or practised, might lead to discord within those groups or between those groups and other segment of the society

(e). participates in, or is active in promoting politically motivated violence or criminal violence and/or is likely to propagate or encourage such action in Australia

(f). likely to provoke civil unrest because of the conjunction of your intended activities and proposed timing of your presence in Australia with those of another person, group or organisation holding opposing views.

You should note that section 501(6)(d)(iii) to (v) is balanced with freedom of expression. The Minister cannot refuse or cancel your visa simply because you hold and are likely to express unpopular opinions unless those opinions may attract strong expressions of community disagreement and condemnation.

Sexually based offences involving a child

Under section 501(6)(e), you will not pass the character test if a court in any country has convicted you of 1 or more sexually bas offences involving a child or found you guilty of such an offence, or found a charge proven, even if you were discharged without conviction or regardless of the level of penalty or orders made in relation to the offence.

What are sexually based offences involving a child?

They include (but not limited to):

(a). child sexual abuse

(b). indecent dealings with a child

(c). possessing or distributing child pornography

(d). internet grooming

(e). other non-contact carriage service offences

Crimes under International Humanitarian Law

You will not pass the character test if you have in any country been charged with or indicted for 1 or more of the following offence (section 501(6)(f)):

• Crime of genocide
• Crime against humanity
• War crime
• Crime involving torture or slavery
• Crime that is otherwise of serious international concern

National security risk

If ASIO has assessed you to be directly or indirectly a risk to security (section 4 of the ASIO Act 1979, then you will not pass the character test (section 501(6)(g)).

Certain Interpol notices

Under section 501(6)(h), you will not pass the character test if an Interpol notice in relation to you is in force as this infer that you would present a risk to the Australian community or a segment of that community.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (consultation fee applies) regarding the character test under section 501 or click here to learn more about Direction No 90.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Direction No 99 is the Ministerial Direction provides consideration for the decision maker to consider when refusing or cancelling a visa under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

Direction No 99 replaces Direction No 90. Like other Ministerial Directions, Direction No 99 is given by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs under section 499 of the Migration Act 1958.

Direction No 90 has been replaced by Direction No 99 (effective on 3 March 2023). Direction No 99 allows the strength, nature and duration of ties to Australia to be considered as a primary consideration. Hence, will be given more weight by the decision-makers. What this mean is, the level of tolerance will increase with the length of you have spent in Australia, especially if you have been living here as a child. Whereas, under Direction No 90 these factors were considered as “other considerations” and not given much weight.

The Migration Act 1958 regulate, in Australia interest, the presence of non-citizens in the country. A non-citizen who does not pass the character test is liable to have his or her visa application refused or their visa cancelled.

Section 501(1) prescribes that a non-citizen may be refused a visa if they do not pass the character test. Similarly, under section 501(2), a non-citizen may have their visa cancelled if they do not pass the character test.

When the discretion to refuse or to cancel a visa is activated, the decision maker must consider the specific circumstances of the case in deciding whether to refuse or cancel the visa. In short, the decision maker must be satisfied that the person passes the character test (because of the operation of section 501(6)(a) on the basis of section 501(7)(a), (b) or (c) or section 501(6)(e)) or servicing a sentence of full-time imprisonment for an offence against an Australian law.

Where the visa holder has their visa cancelled under section 501(3A), they may request for the cancellation order be revoked under section 501CA. If the decision maker is not satisfied that the non-citizen passes the character test, the decision maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

Purpose of Direction No 99

The purpose of Direction No 99 is to direct the decision maker in deciding whether to refuse or to cancel a visa (under section 501) or revoke a cancelled visa (under section 501CA). The decision maker must comply with Direction No 99 (section 499(2)).

Direction No 99 contains factors that the decision maker must consider when deciding whether to refuse or cancel a visa or whether or not to revoke a cancelled visa.

Principles of Direction No 99

The principles of Direction No 99 are:

• Australia has a right to determine whether non-citizens who are of character concern be allowed to enter and/or remain in the country.
• Non-citizens who engage or have engaged in criminal or other serious conduct may be denied the privilege of coming to, or removed from, Australia.
• Australian community expect that the Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in, whether in Australia or elsewhere, conduct that raises serious character concerns.
• Australia has a low tolerance of any criminal or other serious conduct of non-citizens who contribute to the Australian community only for a short period of time. Those who have lived in the Australian community for most of their life, or from a very young age may be afforded a higher level of tolerance of criminal or other serious conduct.
• Decision makers must take into account the primary and other considerations relevant to the individual case. In cases where the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may not be enough to justify not refusing or cancelling the visa, or revoking a mandatory visa cancellation. For example, family violence conduct even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Exercising Direction No 99 discretion

The decision maker should give appropriate weight for both primary and other considerations. However, primary considerations are generally given greater weight than the other considerations; and 1 or more primary considerations may outweigh other primary considerations.

Direction No 99 Primary Considerations

There are 4 primary considerations in the Direction No 99 which the decision maker has to take into consideration when making a decision under section 501(1), 501(2) or 501CA(4).

1. Protection of the Australian community. Australian government is committed to protecting the community from harm from non-citizens’ criminal activity or serious conduct. Staying in Australia is a privilege for non-citizens who must be law abiding, respecting important institutions and will not cause or threaten hard to individuals or the Australian community. This is the expectation the Australian government have on non-citizens wanting to enter or remain in Australia.

The decision maker will give consideration to the nature and seriousness of the non-citizen’s conduct and the risk of the Australian community if the non-citizen commit further offences or engage in other serious conduct.

• The nature and seriousness of the conduct. The decision maker when considering the non-citizen’s criminal offending or other conduct, must have regard to (not exhaustive):

Very serious conduct

1. whether the conduct is related to violent and/or sexual crimes
2. whether the violent crimes is against women or children, regardless of the sentence imposed
3. whether the conduct is an act of family violence, regardless of whether there is a conviction or a sentence imposed

Serious conduct

1. causing or being a party to a forced marriage, regardless of whether there is a conviction or a sentence imposed
2. committing a crime against vulnerable people, for e.g., elderly and the disabled, or government representatives or officials because of the position they hold, or in the performance of their duties
3. any conduct that forms the basis that the non-citizen does not pass an aspect of the character test (section 501(6)(c))
4. a crime committed while in immigration detention or while escaping or having escaped from immigration detention (section 197A prohibiting escaping from immigration detention)

• a sentence imposed by the courts for a crime(s)
• how often did the non-citizen offended
• is the offending becoming more serious
• the cumulative effect of repeated offending
• whether the non-citizen has provided false or misleading information to the Department, including not disclosing prior criminal offending
• if the non-citizen has been formally warned, or being made aware, in writing, reoffended (if there was no formal warning, it is not considered to be in the non-citizen’s favour)

• The risk to the Australian community if there is further offences or engage in other serious conduct. Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, hence any risk that may be repeated may be unacceptable. The decision maker must have regard to:
• the nature of the harm if the non-citizen engage in further criminal or other serious conduct by considering information and evidence on the risk of re-offending; and evidence of rehabilitation completed, time spent in the community since most recent offence

When deciding whether to grant a visa, the decision maker must consider whether the risk of harm may be affected by the duration and purpose of the intended stay, the type of visa applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Family violence

The Australian government has serious concerns of people who engage in family violence. Those who has been convicted, found guilty or had charges proven that involve family violence; and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence and has been afforded procedural fairness, is relevant consideration under section 501 or section 501CA.

Seriousness of the family violence

The following factors will be used to determine the seriousness of the family violence:

1. the frequency of the conduct and/or whether there is any trend of increasing seriousness
2. the cumulative effect of repeated acts of family violence
3. whether the non-citizen has been rehabilitated since the last known act of family violence; and
4. whether the non-citizen has accepted responsibility for their conduct
5. to what extent the non-citizen understands the impact of their behaviour on the victim and witness of that abuse, particularly children
6. efforts to address factors which contributed to their family violence conduct
7. whether the non-citizen has re-offended after family violence conduct is known and warned (absence of warning is not considered to be in the non-citizen’s favour)

Best interests of minor children in Australia affected by the decision

The decision maker has to consider whether the best interests of a child (under 18) is affected by section 501 visa refusal or cancellation or section 501CA non-revocation of visa cancellation. If there is more than 1 child, then each child’s best interests will be considered as their interests may differ.

Best interests of minor children – factors

1. nature and duration of their relationship. Less weight will be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including an existing Court order restricting contact)
2. what role the non-citizen is likely to play a positive parental role in the child’s future (up to 18) (including an existing Court orders relating to parental access and care arrangements)
3. the impact of prior conduct, and likely future conduct, and whether that conduct has, or will have a negative impact on the child
4. the likely effect of their separation and the ability for them to maintain contact in other ways
5. whether there are other persons fulfilling a parental role
6. child’s views (weight depends on age and maturity of the child)
7. evidence whether the child has been, or is at risk, or exposed to, family violence, or has been abused or neglected by the non-citizen in any way (physically, sexually or mentally)
8. evidence whether the child has suffered or experienced any physical or emotional trauma from the non-citizen’s conduct

Expectations of the Australian community

Australian community expects non-citizens to obey Australian laws. The community expects the Australian government not to allow non-citizens who have engaged in serious conduct or where there is an unacceptable risk that they may do so, to enter or remain in Australia.

Australian community expects the government to refuse entry or cancel non-citizens’ visas if they raise serious character concerns through their conduct anywhere if their conduct (not necessarily involve physical harm to the community and the community generally) involve:

1. acts of family violence; or
2. forced marriage
3. committing serious crimes against women, children or other vulnerable members (e.g., elderly or disabled) of the community. Serious crimes include crimes of a violent or sexual nature; fraud, extortion, financial abuse/material exploitation or neglect against the elderly or disabled
4. crimes against government representatives or officials due to their position, or in the performance of their duties; or
5. suspected to, or involved in human trafficking or people smuggling, or in crimes that are of serious international concerns, for e.g., war crimes, crimes against humanity and slavery; or
6. worker exploitation

Other considerations

The decision maker when considering whether to refuse or cancel a visa or revoke a cancellation under section 501(1), 501(2) or 501CA(4), must also take into account:

1. Australia’s international non-refoulement obligations
2. the extent impediments if the non-citizen is to be removed
3. impact on victims
4. the non-citizen links to the Australian community (e.g., strength, nature and duration of ties to Australia) and the impact on Australian business interests.

International non-refoulement obligations

Non-refoulement means not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), the 1951 Convention relating to the Status of Refugees (Refugees Convention), and the International Covenant on Civil and Political Rights (the ICCPR).

It is relevant whether Australia has non-refoulement obligations (section 197C) because section 198 provides for the removal from Australia as soon as reasonably practicable, and section 189 requires unlawful non-citizens to be detent.

In addition, it does not mean when Australian non-refoulement obligation is enlivened, a visa cannot be refused or cancelled or mandatory visa cancellation must be revoked. This is because the non-citizen could be removed to another country where s/he does not face any risk of harm or the Minister can use his section 195A discretion to grant another visa or use section 197A discretion to make a residence determination to enable the non-citizen to live in a specific place in the community. Also, the non-citizen could also apply for a protection visa (click here to learn more about Subclass 866 visa) and will not be removed until the visa application is being determined.

Furthermore, international refoulement obligations will not be relevant unless the visa application or visa cancellation or revocation is a protection visa.

You should be aware that if the visa application or visa cancellation is a protection visa, you may not be able to lodge another protection visa application (section 48A) unless the Minister exercise his discretion under section 48B that section 48A does not apply to you. In addition, a visa application is refused or visa is cancelled under section 501 or visa cancellation is not revoked under section 501CA, you can only apply for a Bridging Visa Class WR (section 501E; r. 2.12AA).

Extent of impediments if removed

When considering whether to refuse or cancel or not to revoke your visa cancellation, the decision maker must consider the extent of any impediments you may face if you are deported back to your home country, for e.g., difficulty establishing yourself and maintaining basic living standards (comparing with local residents) taking into account your age, health; your language or cultural barriers; and any social, medical and/or economic support available to you in your home country.

Impact on victims

What this mean is if your visa application is refused or visa cancelled or your visa cancellation is not revoked, what is the impact  on members of the Australian community, including the victims  and their family of your criminal behaviour.

Links to the Australian community

If you have family members in Australia who are Australian citizens, PRs or having a right to remain definitely. The decision maker must consider the strength, nature and duration of these ties. Also, the nature of your family or social links with Australian citizens. The decision maker must consider how long you have lived in Australia. Less weigh will be given you start offending soon after arriving in Australia. More weight will be given to the time for contributing positively to the Australian community.

Impact on Australian business interests

The decision maker must consider if your visa application is refused or cancelled or cancellation is not revoked, and your employer’s business will be adversely affected because if you were not in Australia, it would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) or click here to decide whether to retain a registered immigration agent or a migration lawyer.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Regaining Australian PR by former permanent residents may be possible by applying for a subclass 159 visa, Subclass 159 visa is for eligible Norfolk Island or NI (click here to learn more) and former permanent residents who departed Australia without checking their visa status.

As a general rule, only Australian citizens have an automatic right to enter Australia. Permanent residents do not have an automatic right to return to Australia.

As a permanent resident, before you leave Australia you must always check to make sure you have a valid permanent visa (click here to learn more about RRV 155) for you to return if you wish to leave and return as a permanent resident.

If your permanent visa has ceased when you depart Australia and you cannot provide evidence that you was an Australian permanent resident, it is still possible for regaining your Australian PR by applying for a former PR subclass 159 visa if there is an urgent and compelling reasons for wanting to travel to Australia before being able to prove you are a former PR. Regaining Australian PR is only possible if you are outside Australia.

You should be aware that by regaining Australian PR, the subclass 159 visa has the following aspects for the grant of this visa:

• subclass 159 visa will cause any other visa, including RRV 155 held (s. 82(2));
• subclass 159 visa is only a single entry and valid for 3 months;
• You will be required to apply for a RRV 155 or 157 (click here to learn more about subclass 157 visa) in Australia after returning;
• While holding a subclass 159 visa, you may not be eligible for government payments and services;
• Holding a subclass 159 visa may adversely affect your future applications for Australian citizenship (click here to learn more about General Residence requirement); and
• As a subclass 159 visa is valid for 3 months, failing to apply for a visa within the 3 months validity will cause you to become an unlawful non-citizen.

If you previously held a Business Skills visa, such as subclass 132 or subclass 188 or subclass 888 or subclass 160 – 165, that was cancelled or subject to cancellation, you will not be able to apply for a subclass 159 visa. If you are a holder of 1 of these visa and have been granted a subclass 155 or subclass 157 or subclass 159 on the same business visa grounds, you will not be able to make a valid application for a subclass 159 visa. In addition, you did not leave Australia while subject to a deportation order or your visa was cancelled under s. 501 (you must satisfy SRC 5001 or SRC 5002). This rule applies to all secondary visa holders.

Regaining Australian PR, you must satisfy a number of at the “time of application” criteria:

1. You cannot satisfy the Department that before leaving Australia, you were an Australian PR who was usually resident in Australia. Generally, this occurs when your arrived in Australia before electronic records existed and left Australia (between 1 March 1976 and 31 December 1986; holder of an Authority to Return or Return Endorsement) after electronic movement records existed (cl. 159.211). You can also provide evidence of your Australian employment details, drivers licence, Medicare and credit cards.
2. You are eligible for a subclass 155 or subclass 157 (cl. 159.212);
3. You are not an Australian citizen as Australian citizens cannot make a valid visa application under s. 45(1) (cl. 159.212A).
4. You must provide a written statement that you have an urgent and compelling reasons for wanting to travel to Australia before your Australian PR can be proved, your entry to Australia will not prejudice Australia’s interests and there are reasonable grounds for you to prove that you were a former Australian PR (cl. 159.213). Urgent and compelling reasons is not defined, some examples may be, you booked a return flight but has lost your travel documents which contained evidence of your Australian PR or you have an important work appointment or serious family circumstances in Australia.

If your attempt at regaining Australian PR is refused, you may be able to apply to the AAT for a merits review. Whether you have the merits review rights will depend on where you falls within s. 338(6) – you have a parent or partner or child or sibling who is an Australian citizen or an Australian PR (s. 338(6)(c)). If s. 338(6) applies, only your Australian PR or Australian citizen relative will have a right to seek merits review on your behalf regardless of their place of residence (s. 347(2)(c)) and your location at the time your relative lodge the review application is irrelevant.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a detailed consultation (fee applies) or click here to find other Australian visas.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

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Long-term Australian residents deported – is this possible?

There is a clear distinction between lawful non-citizens (those who hold visas permitting them to enter and remain in Australia: s. 13 of the Migration Act) and unlawful non-citizens (those who do not hold visas – ss. 14 and 15)  and who are in consequence liable to detention and to removal from Australia: ss. 189, 196 and 198).

In Chetcuti v Commonwealth of Australia [2021] HCA 25, Chetcuti was born in August 1945 and arrived in Australia in July 1948 as a 3 year British subject. Between 1958 and 1959 he returned to his country of birth for about 8 months as a teenager. Chetcuti has remained in Australia for 73 years where he voted in local, State, and federal elections (s. 3 Commonwealth Electoral Act 1949). In addition, he registered for compulsory military service during the Vietnam war (National Service Act 1951) and eligible to sit as member of the House of Representative or in the Senate – Commonwealth Electoral Act 1918). Chetcuti was employed by the NSW Education Department where he worked as a teacher (Commonwealth Public Service Act 1922). Furthermore, he is eligible to be issued with an Australian passport (s. 4 of the Passport Act 1948 stopped issuing passports to British subjects in 1984).

In 1993, he was sentenced to 24 years for murder. In 2017, the Minister cancelled his Absorbed person visa (click here to learn more about APV) under s. 501 of the Migration Act (click here to learn more about Character test). After having served his sentence, Chetcuti was taken into detention where he remains.

His visa cancellation was set aside on judicial review by the Federal Court, the Minister then made another decision to cancel his visa. This cancellation was upheld on judicial review by the Federal Court in 2018 but was set aside on appeal to the Full Court of the Federal Court in 2019. The Minister immediately made another decision to cancel his visa again.

Chencuti argued that his detention was unlawful because he is not within the reach of the aliens power even though an alien (s. 51(xix) of the Constitution) is any person who was not born in Australia, whose parents were not Australians, and who has not been naturalised as an Australian (Nolan v MIEA (1988) 165 CLR 178 at 185).

Chencuti also argued that in Love v The Commonwealth (2020) 94 ALJR 198 there is a further exception in respect of a person who is an Aboriginal Australian according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70. This further exception is in respect of a person who was a natural born British subject and who commenced living permanently in Australia before 26 January 1949.

The HCA said that in Shaw v MIMA (2003) 218 CLR 28 (at 43, 87) it was confirmed that ‘the aliens power has reached all those persons who entered this country after the commencement of [the Australian Citizenship Act] on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised”. Such a person is treated as an alien to the Australian community.

Chencuti missed out on becoming an Australian citizen on 26 January 1949 because he arrived in Australia on 31 July 1948 (s. 25(1)(d) of the Australian Citizenship Act) as he had then been ordinarily resident in Australia for a period of less than 5 years. After he had resided in Australia for a period of 5 years he did not apply to Australian citizenship by registration (under s. 25(1) of the Australian Citizenship Act 1948) even though he can do so until this was removed from the Australian Citizen Act at the start of the Australian Citizen Act 1973 on 1 December 1973.

The HCA said that Chencuti falls within the scope of the constitutional meaning of ‘alien’ in s. 51(xix), therefore he is within the application of the Migration Act such that he can be detained or removed from Australia.

In Pochi v Macphee (1982) 151 CLR 101 at 111, the Court rejected the notion that an alien could become a non-alien by absorption into the Australian community, hence Chencuti’s 73 years residence in Australia and the strength of any of his general bonds to the community is irrelevant.

The HCA said in 2017, Chencuti’s circumstances were as follows:

• he was born outside Australia;
• he had no Australian parents;
• he was not an Australian citizen because he never registered or applied to be an Australian citizen;
• he had not been naturalised; and
• he was a citizen of a foreign country.

Chencuti is an alien within s. 51 (xix) and was therefore a person to whom the Migration Act could apply – a long-term Australian resident can be detained and deported.

Long-term Australian residents deported | Is this possible? The above HCA case confirmed that long-term Australian residents can be deported if they do not satisfy s. 501 Character test.

Australian migration law is complex and difficult to understand, contact our immigration lawyer to a consultation (fee applies) if your visa has been cancelled or help you to understand whether it is possible for long-term Australian residents to be deported.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Long-term Australian residents deported | Is this possible? appeared first on Ozzie Visa.

Become an Australian citizen by conferral or applying to become an Australian citizen under s. 21 of  Australian Citizenship ACT 2007 – you must be an Australian permanent resident and satisfy a number of criteria, including general residence requirement (click here to learn if you need this requirement), must be of good character (click here to learn more) and the Department must be satisfied with your identity (click here to learn more).

When you apply to become an Australian citizen by conferral, you are required to complete an online application and provide a number of documents to support your application. It is very important that you must take care when completing or when answering the questions in the application form as your application may be refused under s. 24(1) of the Act.

Section 24(1) of the Act states if “a person makes an application under section 21, the Minister must, by writing, approve or refuse to approve the become becoming an Australian citizen”.

When applying to become an Australian citizen by conferral, you must not provide incorrect answer(s) or fake document because “the grant of Australian citizenship is a privilege not bestowed lightly. It is given to those who uphold the values of the Australian community and who are willing to make a positive contribution to the country they want to call home” (Fenn v MIMA [2000] AATA 931 at [8]).

In the case of Bongely and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 2360 (15 July 2021), Bongely was born in Congo (DRC) first arrived in Australia as child on his father’s Partner subclass 309 visa (click here to learn more about subclass 309). In March 2017 (aged 21 and having lived in Australia for over years), he lodged an application to become an Australian citizen by conferral. In his application he gave date of birth as 20 September 1995. He provided his Document of Travel showing his date of birth as 20 September 1995, a DRC birth certificate showing his date of birth as 20 September 1995 and a WA driver’s license showing his date of birth as 20 September 1995.

Bongely produced his DRC school records (to support his identity pursuant to s 24(3) of the Act) which he paid a family friend to obtain, the records turned out not to be genuine. He then advised the Department that he did not pay close attention to the records and if he did he would have known that they were fraudulent documents and would not have submitted them to the Department. It was on this that cause the Tribunal to consider whether he is of good character pursuant to s. 21(2)(h).

Identity

There is no discretion in s. 24(3) available to the Department to grant Australian citizenship unless they are satisfied of the identity of the applicant. “Identity” is not defined in the Act but is covered in chapter 13 of the Australian Citizenship Policy (CPI). CPI 16 states that (at [4.12]):

“It is not sufficient to be satisfied of a person’s identity at one point in time, as a person’s identity is not a point in time concept; it must be verified incrementally throughout a person’s life and considered historically”.

CPI 16 provides 3 pillars of identity to be used when assessing identity and they are:

1. Biometrics – personal identifiers such as fingerprints, facial images or signature.
2. Documents – genuine documents that are issued with robust identity proofing processes with issuance protocols and security features. For e.g., documents contain biodata, or personal information, such as name, date of birth, nationality, and containing biometric information.
3. Life story – a narrative of the events that happened to them from birth to present. It should include descriptions of family composition, education, employment countries of residence, countries visited, social footprint, and online presence

Applying to become an Australian citizen by conferral, you must satisfy the Department as to your identity, the Department will rely on each of the above 3 pillars of identity. The Department must reach an affirmative belief as to your identity (Rezai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 145).

Good character

Section 21(2)(h) of the Act states that a person is eligible to become an Australian citizen if the Minister is satisfied that the person is of good character at the time of the Minister’s decision on the application.

“Good character” is not defined in the Act. In Irving v MILGEA (1996) 68 FCR 422, Lee J said at 431-432 “the words ‘good character’ should be taken to be used in their ordinary sense, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. . . . . A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless, may show that he or she has reformed and is of good character …. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.”

In short, when applying to become an Australian citizen by conferral you must be of good character, good character is not a reputational test, but an objective assessment. It requires ‘consideration of an aggregate of qualities” and a single adverse incident of ‘sufficient weight and seriousness’ can outweigh many good qualities (Prasad and MIEA [1994] AATA 326 at [7]).

CPI 15 (Assessing character under the Citizenship Act) states “An applicant who is a person of good character would generally be expected to exhibit the following characteristics:

• not practise deception or fraud in dealings with the Australian Government, or other organisations. For e.g., intentionally providing false personal information (such as fraudulent work experience or qualification) or other material deception during visa and citizenship applications.

CPI 15 also provides “it also necessary to consider other information that is relevant to a person’s character such as family life, for e.g., raising children, in a stable home environment, employed, paying taxes, and doing community work. In addition, expressing genuine remorse for past wrong-doing and the time that has elapsed since the wrong-doing.

In Taradel and MILEA [2005] AATA 1255, the Tribunal observed at [23] that “dishonesty in dealings with the department is a very serious matter …. [because] the integrity of the immigration system depends on individuals telling the truth about their personal circumstances and history …. When dishonesty comes to light, it must be dealt with firmly to deter others who might intend acting dishonestly.”

Dishonesty includes providing documentation that you knew or ought to have known is unlikely to be of any probative value, without providing the necessary explanation and qualification that would enable the Department to appreciate the value of the evidence: Sakhi Zada and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2020] AATA 1729 at [73].

When Bongely’s father apply for Partner subclass 309 visa listing him as being born on 20 September 1995 in Q 38 of form 47SP and on Q 64 of the same form, his date of birth was listed as 21 October 1995. On form 40SP, his mother listed his date of birth as 21 October 1995. He provided his birth certificate showing his date of birth to be 21 October 1995. However, his mother provided a statutory declaration declaring that he was born on 21 October 1995. He further provided a pathology report listing his date of birth as 21 October 1995. When he was applying for the subclass 309 visa, his migration health check-up recorded his date of birth as 26 October 1995. He later provided a replacement birth certificate which listed his date of birth as 20 September 1995. Sometime in November 2019 his mother told him that he was born on 21 October 1995.

When his application to become an Australian citizen by conferral was refused by the Department he applied to the AAT and gave his date of birth as 20 September 1995. When asked by the Tribunal why he put 20 September 1995 as his date of birth when applying to the AAT, he could not explain why even though he already knew from his mother that he was born on 21 October 1995.

The Tribunal finds that Bongely’s date of birth is 21 October 1995. And on his school records the Tribunal could not be certain if they were fraudulent documents. The Tribunal concluded that Bongely was careless in providing evidence because he admitted that he did not pay due care and attention to, and which he says he would likely have considered to be fraudulent if he had paid sufficient attention.

Furthermore, Bongely made a number of errors in his application to become an Australian citizen by conferral even though he has a good command of English and the questions were plain and simple. Here the Tribunal finds that he has at best been flippant in completing his application to become an Australian citizen by conferral. On balance, the Tribunal finds it more likely that he has been careless in completing the application form, rather than intentionally dishonest.

The Tribunal was satisfied with Bongely’s identity prior to coming to Australia and after coming to Australia on the basis of his biometric evidence.

However, the Tribunal is concerned with his incorrect answer given on his application to become an Australian citizen by conferral. The Tribunal concluded that the failure to answer simple questions in a forthright manner raises questions concerning his honesty. The Tribunal do not know why Bongely had lied in his application, finds that he simply did not give sufficient weight to the need to ensure that the information he provided was complete, truthful and correct in every detail. On this basis, the Tribunal is not satisfied that Bongely is of good character.

With regard to his school records, the Tribunal said that Bongely should have included information about how he went about obtaining it and the fee he paid. The Tribunal said that this is further evidence that he lack appreciation for the level of detail and diligence required when making an application to become an Australian citizen by conferral.

The Tribunal said that it does not make a finding that Bongely is not of good character, it simply unable to be satisfied, on evidence before it, that he was of good character at the time of its decision, in the context of his lack of demonstrated appreciation for the need to be both honest and forthcoming in his dealing with the Department, irrespective of any personal cost.

Australian migration law and Citizen law are complex and difficult to understand, contact our immigration lawyer for consultation (fee applies) to assist you on becoming an Australian citizen by conferral.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration or citizenship legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Become an Australian citizen by conferral appeared first on Ozzie Visa.

Absorbed person visa (APV) is, by operation of law, taken to have been granted to certain people on 01 September 1994.

Usually, non-Australian citizens entering the country is considered to be “immigrants” but certain persons who entered Australia did not remain immigrants because at some point in time, they were “absorbed” into the Australian community and ceased to be immigrants. These people who arrived before 02 February 1984 had become absorbed should not become unlawful if they remain continuously in the country. They remained as permanent residents even though they were not holders of any entry permits.

From 01 September 1994, section 34 of the Migration Act applies and grants them a permanent visa or Absorbed person visa (APV). An Absorbed person visa (APV) is an Act-based visa that does not have a class or subclass but has been allocated an administrative code ZY-934. The visa grant will always be recorded as 01 September 1994. This visa will cease as soon as the holder leave Australia or granted a substantive visa or the Absorbed person visa (APV) is cancelled (e.g., under s. 501 or  501A or s. 501B).

An Absorbed person visa (APV) allows the holder to remain permanently in Australia but if they were to depart, the Absorbed person visa (APV) will cease, hence will not be able to return to Australia.

Absorbed person visa (APV) is a stay only visa, and does not allow the holder any travel outside of Australia as the visa does not have any travel (re-entry) component.

In short, an Absorbed person visa (APV) is (i) granted by operation of law (section 34), (ii) there is no application required as they are taken to have been granted an Absorbed person visa (APV) on 01 September 1994 if they meet the requirements of s. 34, and (iii) the Absorbed person visa (APV) will automatically cease when the holder leave Australia or if they are subsequently granted another substantive visa (s. 82).

Absorbed person visa (APV) & NZ citizens

If you are an NZ citizen residing in Australia on 01 September 1994 and satisfied the criteria for the grant of an Absorbed person visa (APV), you may have been granted an Absorbed person visa (APV) on 01 September 1994.

If you have been granted an Absorbed person visa (APV), you will not be holding a Special Category Visa (click here to learn more about SCV) on 01 September 1994 (r. 17 of the Migration Reform (Transitional Provisions) Regulations 1994).

However, if on 01 September 1994 you have been granted an SCV and not a holder of an Absorbed person visa (APV); and you were residing in Australia before or on 01 September 1994 as an exempt non-citizen or holding a permanent entry permit), you may be eligible to apply for a Resident Return Visa (click here to learn more about RRV) as a “former permanent resident”.

Absorbed person visa (APV) & British arrivals

British citizens who arrived in Australia before the commencement of the Migration Act 1958 on 01 June 1959 may be taken to have been granted an Absorbed person visa (APV) on 01 September 1994.

Leaving Australia while holding an Absorbed person visa (APV)

Section 82(8) applies to an Absorbed person visa (APV) holder as they are allowed to remain in but not re-enter Australia. Their Absorbed person visa (APV) ceases to be in effect if they leave Australia. Depending on the person’s circumstances, they may be eligible to apply for an RRV (or a Former Resident visa – click here to learn more) on the grounds that they are a former permanent resident.

Can Absorbed person visa (APV) be cancelled?

In Falzon v MIBP [2018] HCA 2, Falzon, a national of Malta, lived in Australia for 61 years after arriving at age of 3. He held an Absorbed person visa and a BF Transitional (Permanent) visa. In 2008 he was convicted of trafficking a large commercial quantity of cannabis and was sentenced to 11 years’ imprisonment. In addition, Falzon had previous convictions for drug-related and other offences. While servicing his jail term, his Absorbed person visa (APV) was cancelled under s. 501(3A). As a result, his BF visa was also cancelled.

Section 501(3A) allows the Minister to cancel a visa if the holder is serving an imprisonment term, and does not pass the character test because he has substantial criminal record (s 501(6) – does not pass the character test if, (s 501(7) if sentenced to death or life or 12+ months of imprisonment) or committed sexually based offences involving a child (s. 501(6)(e)).

After Falzon’s Absorbed person visa (APV) was cancelled, he was invited to make representation about revoking the cancellation (r. 2.52). Section 501CA(4) allows the Minister to revoke the cancellation if satisfied that he passes the character test or there is another reason why the visa should be revoked. However, a decision not to exercise the power conferred by s. 501CA(4) cannot be reviewed by the AAT.

The Assistant Minister decided not to revoke the cancellation decision as Falzon does not pass the character test. The Assistant Minister then consider if there is another reason why Falzon’s cancellation should be revoked. It was accepted that Falzon has strong family ties to Australia and his removal would cause substantial emotional, psychological and practical hardship to his family (2 sisters, 4 brothers, 4 adult children and 10 grandchildren in Australia). It was also accepted that Falzon has not been to his country of birth for many years and he may suffer social isolation and emotional hardship. Nevertheless, the Assistant Minister concluded that Falzon represents an unacceptable risk of harm to the Australian community and protecting the community outweighs his  interests (family and others). The cancellation of Falzon’s Absorbed person visa (APV) was not revoked.

At the HCA, Falzon argued that s. 501(3A) further punishes him for the offences he has committed.

Section 501, of which s. 501(3A) forms part, provides for the refusal or cancellation of visas on character grounds.

Section 501(1) allows the Minister to refuse to grant a visa if the applicant does not pass the character test.

Section 501(2) allows the Minister to cancel a visa if the Minister suspects that the holder does not pass the character test and the holder does not satisfy the Minister that he passes the character test.

A person whose visa is cancelled will become an unlawful non-citizen and will be liable to immigration detention (s. 189) for certain duration (s. 196) and until he is deported or granted a visa. That person’s detention will continue (s. 196(4)) unless a court determines that the detention is unlawful or that person is not an unlawful non-citizen. Section 196(5) provides that s. 196(4) will applies whether or not there is a real likelihood of removal under s. 189 or s. 199 in the reasonably foreseeable future and whether or not the decision relation to the person’s visa is unlawful.

You should be aware that ss. 189 and 196 authorise and require the detention of a non-citizen for the purpose of his removal from Australia (Al-Kateb v Godwin (2004) 219 CLR 562; Re Woolley; Ex parte Applicant M276/2003 (2004) 225 CLR 1; Chu Kheng Lim v MILGEA (1992) 176 CLR 1).

The HCA does not accept Falzon’s argument that because he is absorbed into the Australian community, he cannot be deported as an alien (Pochi v Macphee (1982) 151 CLR 101 at 111, 112, 116). In Pochi, Gibbs CJ said at [111] that a person’s nationality does not change by the length of residence or an intention permanently to remain in a country of which he is not a national.

In Chu Kheng Lim v MILGEA (1992) 176 CLR 1, the joint judgement (at 29-30) said that whilst an alien enjoy the protection of Australian law, his status, rights and immunities under the law differ from those of an Australian citizen.

The HCA said, in term of whether Falzon’s immigration detention is punishment, unless a decision is made to revoke his visa cancellation, his cancellation is valid. The HCA further accepted that s. 501(3A) constitutes a legislative judgement that a class of persons identified by their offending and imprisonment are not to remain in Australia as the Migration Act regulate the coming into and presence in Australia of non-citizens (s. 4(1)).

Further, the deportation of aliens does not constitute punishment, same as the cancellation of a visa is a step necessary to achieve the removal of the holder from Australia (Falzon at [47]). The power to cancel a visa by reference to Falzon’s character due to his prior offending is not inherently judicial in character. In the EM, s. 501(3A) was calculated to ensure that “noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved” (Parliament Debates (Hansard) 24 September 2014 at 10328).

The HCA held that s. 501(3A) did not authorise or require Falzon’s detention (s. 189 provides for detention of unlawful non-citizens; s. 196 deals with the duration of immigration detention). Section 501(3A) only requires his visa be cancelled on account of his criminal history and his imprisonment. Once his Absorbed person visa (APV) is cancelled, his legal status changed to an unlawful non-citizen which caused him to be liable for removal from Australia and to detention to facilitate his removal.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to discuss your Absorbed person visa (APV) or click here to search for a visa suitable to your circumstances.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Absorbed person visa (APV) | permanent visa to remain appeared first on Ozzie Visa.

Withdrawing doc prevent PIC4020 – when applying for a visa, you may be required to satisfy PIC 4020.

What is PIC 4020?

PIC 4020 (Sch 4) is also known as the integrity PIC (Public Interest Criteria). PIC 4020 is to prevent visa applicants from giving bogus documents or false or misleading information to support their visa application. Hence, PIC 4020 is an incentive to visa applicants not to give or cause to give a bogus doc or information that is false or misleading in a material particular (click here to learn more about PIC 4020).

Failure to satisfy PIC 4020 is grounds for your visa application to be refused but is not a ground for your visa to be cancelled.

If you are found not to have satisfied PIC4020, you can ask for it to be waived under PIC 4020(4).

Can withdrawing doc prevent PIC4020 ? To answer whether withdrawing document can prevent PIC4020 or whether withdrawing your visa application can prevent PIC4020 from being applied to your next visa application, we will turn to Tracey J in the case of Mudiyanselage v MIAC [2013] FCA 266.

Mudiyanselage first came to Australia on a student visa. After completing her studies, she applied for a Subclass 485 visa (click here to learn more about VC 485 visa) which was refused because she has provided a reference letter from a company stating that she worked there for more than 920 hours as a volunteer. The reference letter was signed by a person claiming to be the General Manager. This reference letter was used to obtain a positive skills assessment. She then obtained a second skills assessment by providing a reference letter from another company where she actually worked. She then provided the second positive skills assessment and ask for the first skills assessment to be withdrawn. The Department found that reference letter was a bogus doc because the person who claimed to be the General Manager was not a staff and Mudiyanselge has never worked there.

After her Subclass 485 visa application was refused, she applied to the AAT. At the Tribunal hearing, Mudiyanselage claimed that she has been led to believe by her manager that the reference letter was legit. The Tribunal found that she did not meet PIC 4020, even though she has withdrawn the first skills assessment, because she had provided a bogus doc (the skills assessment) to the Minister and that she had provided false and misleading information (the reference letter) to the skills assessor in order to secure a positive skills assessment.

The first or original skills assessment was a bogus doc because it s a doc that the Minister reasonably suspected was obtained because of the false or misleading statement that Mudiyanselage had undertaken the 920hours of voluntary employment. The Tribunal also found that, even if Mudiyanselage was a victim of fraud of her manager and had subsequently obtained a second positive skills which was also before the Department, her circumstances was not compelling for the Member to waive PIC 4020(1) under PIC 4020(4).

Mudiyanselage then appealed to the Federal Magistrates Court where she argued that the first skills assessment had been withdrawn and the second positive skills should not be affected by the first skills assessment. She also argued that the second skills assessment was also provided to the Department and was before the Tribunal. The Federal Magistrate held that the first skills assessment, which was withdrawn, was before the Tribunal and the Tribunal was entitled to conclude that the first skills assessment was a bogus doc which was submitted to support her visa application. The Court also held that it mattered not that the first skills assessment had subsequently been withdrawn and had not been acted on, hence the Tribunal was entitled to conclude that Mudiyanselage had given or caused to be given a bogus doc to the Minister in relation to her visa application. The Court further held that her second skills assessment was not a matter that the Tribunal was required to consider when determining whether Mudiyanselage satisfied PIC 4020(1), it was irrelevant to determine this issue.

After her Federal Magistrate Court appeal was dismissed, she appealed to the Federal Court.

The Federal Court said (at [35]) that PIC 4020 is to “frustrate applicants who submit bogus documents when making a visa application in the hope that they will not be detected but that, if their deceit is exposed, they are able to eschew reliance on the document without prejudice to the success of their application”.

The Federal Court rejected Mudiyanselage’s argument at the Federal Magistrate Court (this argument was not pressed at the Federal Court) that she was free to withdraw her first skills assessment and not to rely on it because once she had withdrawn, the first skills assessment could no longer be regarded as material to her visa application.

The decision in Mudiyanselage confirmed that withdrawing document to prevent PIC 4020 may not help you. Similarly, it also appears that you may not be able to prevent PIC 4020 from being applied to your future visa application (3 years ban applies to those who failed to satisfy PIC 4020).

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation on whether withdrawing doc prevent PIC4020 or whether withdrawing your visa application can prevent PIC 4020 or how to ask for PIC 4020 to be waived.

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Withdrawing doc prevent PIC4020 | Will it? appeared first on Ozzie Visa.

Citizenship by conferral and identity requirement – if you are applying for Australian citizenship by conferral under the Australian Citizenship Act 2007, the Department must be satisfied as to your identity pursuant to s. 24(3).

Section 24(3) states that the Department must not approve an Applicant becoming an Australian citizen unless it is satisfied of the identity of the Applicant. The decision maker in deciding whether the Applicant’s identify is satisfied, will be assisted by the Australian Citizenship Policy Statement including the Citizenship Procedural Instruction 16 and Chapter 13.

Citizenship by conferral and identity requirement – to fulfil the identity requirement, there are 3 pillars of identity to be considered and they are:

• biometrics;
• documents; and
• life story.

The term “identity’ is not defined in the Citizenship Act. However, the Supplementary Explanatory Memorandum to the Australian Citizenship Bill 2005 states:

“There may be cases where identity is unclear or cannot be satisfactorily ascertained. In these circumstances the Minister cannot approve the person becoming an Australian citizen.”

The Australian Citizenship Policy Statement provides at Chapter 13:

“The identify provisions prohibit the approval of a citizenship applicant in cases where the decision maker is not satisfied of the person’s identity.”

The Policy makes reference to the National Identity Proofing Guidelines 2016 which states:

“A person’s identity is not a fixed concept; it is highly dependent on context. It is some combination of characteristics or attributes that allow a person to be uniquely distinguished from others within a specific context.”

The Citizenship Procedural Instruction 16 (Assessing Identity under the Citizenship Act) identities 3 pillars of identity: biometric, documents and life story. It also states that:

“Officers should not rely on a single pillar to establish a person’s identity. Considering a single pillar in isolation is generally inadequate for providing a reliable basis on which to establish a person’s identity. In order to comprehensively test and evaluate a person’s claims with regard to their identity, decision-makers should consider each pillar.”

It also states with regard to being “satisfied of a person’s identity”:

“Reaching the point where a decision-maker is satisfied or not satisfied of a person’s identity is a process of exercising informed judgement. It should reflect a process of reasoning where the decision-maker has turned their mind to the issue(s) and the evidence and information has been rationally and impartially weighed.”

For the decision maker to be “satisfied”, s/he must consider whether or not s/he is persuaded on the basis of evidence of a person’s identity. What this mean is that the decision maker cannot be satisfied simply as a result of a “mere mechanical comparison of probabilities independently of any belief in its reality”. Similarly, the decision maker does not require incontrovertible evidence of a person’s claimed identity to be satisfied of that identity.

It is not just about information and documents, but its quality, plausibility and relevance of the information provided in the context of how it supports or refutes a person’s claimed identity. So, more documents do not necessarily result in better identification of a person.

It should be noted that while the production of documents to establish identity is not legally essential, however not producing requires a cogent and acceptable explanation: CDWB and WLVM v MIBP [2018] AATA 757 at [9]. In addition, failing to show positive steps in obtaining identity or supporting documents or provided an acceptable reason for not doing so, that failure will weight against an applicant: Dhayahpa and MIBP [2015] AATA 310 at [117].

To explain the citizenship by conferral and identity requirement, we will refer to the case of Karimi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Citizenship) [2021] AATA 1018 (26 April 2021).

Karimi arrived in Australia as an unauthorised maritime arrival on 21 December 2010. He claimed that he was born on 28 September 1977 and his citizenship was Iranian Kurd and had a Green card.

In his Unauthorised Arrival interview, he said he was born in Iraq in August 1975 and was stateless, he and his family were expelled from Iraq in 1978 and moved to IIam, Iran and did not have a Green card.

When he applied for a Protection visa he completed Form 80 (Character Assessment) he stated that he was born in Iraq on 27 May 1975.

In July 2011, Karimi requested his date of birth be changed from 27 May 1975 to 27 May 1972.

On 24 August 2015, Karimi applied for Australian citizenship by conferral stating that he was born on 27 May 1972 in Iran.

On 29 August 2018, he was granted a RRV (click here to learn more about subclass 155 visa) and departed the country on 8 November 2018. On 16 June 2019 on his incoming passenger card Karimi stated that he spent most of the time in Iran visiting friends and relatives.

The AAT noted that Karimi had provided 4 different birth dates more than 5 years apart. Karimi claimed that this was due to error of translation and calendar conversions.

The AAT said that Karimi has provided inconsistencies and implausibilities regarding his life story such as receiving payments for work done before coming to Australia. He also claimed that he had borrowed monies from his parents and brother, but no repayments were made in the last 10 years, no one has asked for him to repay yet the “debt is still in place”.

Karimi also claimed that he used fake passport to depart Iran, but the Tribunal did not accept that it was possible because all passports were checked against a computer system and there are multiple persons being responsible for the ultimate authority to board a plane. Hence, the Tribunal said many people would need to be  bribed if Karimi was to leave using a fake passport.

The Tribunal also said that it would be extremely dangerous, undesirable, difficult and even fatal for Karimi to return to Iran on his RRV. The Tribunal did not accept that Karimi’s claim that he was smuggled in and out of Iran for his visit. In addition, Karimi’s wife and children currently live in Iran as undocumented stateless persons and that they voluntarily choose to live in Iran.

More importantly, the Tribunal finds that Karimi return to a country where he claimed to fear great harm and danger, this undermines his credibility. The Tribunal finds that Karimi’s life story in this regard is implausible.

As Karimi did not provide biometric and documents, the Tribunal can only assess his “life story” pillar of the 3 pillars of identity. On balance, the Tribunal cannot be satisfied, as required under s. 24(3), of Karimi’s identity.

When completing the citizenship application or providing supporting document, it is important that you put effort into completing the task or risk refusal – click here to prevent your application being refused.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you understand Australian citizenship by conferral and identity requirement. Click here to learn about citizenship test; or click here for character requirement; or click here for residence requirements or click here for general residence requirement discretion.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post Citizenship by conferral and identity requirement | s 24(3) appeared first on Ozzie Visa.

PR cancellation & citizenship cancellation – can the Department cancel or revoke a child born in Australia to a PR (permanent resident) parent the child’s Australian citizenship if the parent’s PR is cancelled?

In the case of Shaheen (Migration) [2020] AATA 2568, the child’s mother, Shaheen, first came to Australia on a student visa. She later applied and was granted a Subclass 475 visa but never worked for her sponsor. She and her family later applied for and were granted a permanent visa, Subclass 187, in 2016. In 2017, their son was born in Australia and by virtue of s. 12(1)(a) of the Australian Citizenship Act 2007 was an Australian citizen because his parents were permanent residents at the time of his birth.

In late 2016 the Department received information (a dob-in) alleging that Shaheen’s sponsorship for the Subclass 475 and Subclass 187 were not genuine as she was involved in a paying for visa sponsorship scheme. Both sponsors when contacted by the Department confirmed that they have never sponsored Shaheen for any visa. Shaheen later admitted that she has never worked for either sponsor. In 2018 the Department cancelled her permanent visa under s. 116(1AB) for giving of incorrect information. Shaheen then applied to the AAT to review the cancellation.

At the Tribunal hearing, Shaheen claimed that both jobs were secured through a paid recruitment consultant. She admitted that she never commenced working for her Subclass 457 sponsor because she claimed they told her that there was no job for her after her visa was granted.

Shaheen told the Tribunal that the same recruitment consultant helped her find a sponsor for her Subclass 187 visa. She also confirmed that she did not work for this sponsor after her permanent visa was granted because they asked her to pay $30,000 or they will give her trouble.

As s. 116 cancellation is a discretionary cancellation, the Tribunal advised that if it decided that the ground of cancellation exists it must proceed to consider whether her permanent visa should be cancelled. And there are no matters specified in the Migration Act or the Migration Regulations that must be considered in exercising the s. 116 discretion. In short, they can put to the Tribunal anything they like the Member to consider in not cancelling their permanent visa.

She claimed that s. 116(1AB) does not apply to her because the incorrect information (fake docs) were provided by the recruitment consultant without her knowledge, therefore she did not provide any incorrect information in support of her sponsor’s nomination application. However, the Tribunal said that s. 116(1AB) applies to any incorrect information given which informs that grant of the visa and can relate to incorrect information provided in a linked and related nomination application. In Shaheen’s case, it was information given as part of the related Subclass 187 nomination, the approval of which informed the grant of the visa to her. The Tribunal finds the incorrect information was given by her recruitment consultant on her behalf to the Department. The incorrect information have been taken into account when granting her the Subclass 187 visa.

The Tribunal then consider whether her PR cancellation would cause her son’s Australian citizenship cancellation. Shaheen argued that her son is an Australian citizen, therefore he has a right to be able to live in Australia and enjoy all the benefits available to all Australian citizens. She also claimed that her other children who were not born in Australia but have lived most of their lives here should also enjoy the same benefits as it would be in their best interests (in accordance with CRC).

Can the Dept cancel a child’s citizenship if parent’s PR is cancelled?

The Tribunal consider whether her son’s citizenship could be cancelled or revoked under s. 34 of the Citizenship Act 2007 if there are circumstances involving offences or fraud. However, the Tribunal concluded that s. 34 does not apply to the son because he automatically acquired Australian citizenship at birth under s. 12 as Shaheen (and her husband) was a permanent resident.

If the Tribunal affirmed the Department’s decision to cancel their permanent visa, their subclass 187 visas will cease to be in effect from the date of cancellation onwards (s. 82(1) of the Migration Act). The cancellation does not have retrospective effect, causing the visa to have legally never been in effect. Hence, Shaheen and her husband were in fact permanent resident as at the time of their son’s birth for the purposes of s. 12(1)(a) of the Citizenship Act.

Shaheen’s son is extremely fortunate that he retains his citizenship even though at the time of his birth his parents permanent residency was only in effect because of incorrect information and migration fraud.

To learn whether long-term permanent residents can be deported, please click here.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to understand the consequences of your PR cancellation & citizenship cancellation or click here to learn about other s. 116 visa cancellation or click here on how to prevent visa cancellation.

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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post PR cancellation & citizenship cancellation appeared first on Ozzie Visa.

To apply for 866 protection or refugee visa, you must satisfy the definition of a “refugee”. To be a refugee, (1) you must fear persecution in your home country; (2) the persecution that you feared must be for reasons of your race, religion, nationality, membership of a particular social group or political opinion (commonly known as the Convention grounds); (3) your fear of persecution must be well-founded; and (4) you must have fled your home country because of your well-founded fear. If your claim does not fall under the Convention or s. 36(2)(a) grounds, your claim may fall under s. 36(2)(aa) or the Complementary ground as Australia has non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under the ICCPR and CAT, Australia agreed not to return a person to a receiving country where they would be subjected to the death penalty, arbitrarily deprived of their life or subjected to torture or cruel, inhuman or degrading treatment or punishment.

To satisfy the 866 protection or refugee visa criteria for a Convention (s. 36(2)(a)) reason, you must be owed protection obligations by Australia because you are a refugee. That is, you are unable or unwilling to avail yourself of the protection of your home country or your former habitual residence because of your well-found fear of persecution for 1 of the reasons set out in s. 5J(1), that is, 1 of the 5 Convention reasons.

So, to satisfy 1 of the 866 protection or refugee visa criteria your fear of persecution will have to be “well-founded” if there is a “real chance” that you will suffer the feared persecution if returned to your home country or former habitual residence. You should be aware that persecution must relate to all areas of your home country (s. 5J(1)(c)). A real-chance is a prospect that is not “remote” or “far-fetched” but it does not require a likelihood of persecution on the balance of probabilities (Chan v MIEA (1989) 169 CLR 379; CGA15 v Minister for Home Affairs (2019) 26 FCR 362). There are certain exceptions provided by s. 5J(3), that is, if you could take reasonable steps to modify your behaviour so as to avoid a real chance of persecution unless the modification, among other things, relates to fundamental, innate or immutable characteristics.

Whether you are able to rely on s. 36(2)(aa) or the Complementary ground, you must convince the Department or AAT that there is/are substantial grounds for believing that there is a real risk that you will suffer significant harm (as defined in s. 36(2A) and subject to matters in s. 36(2B) and (2C)) and as a necessary and foreseeable consequence of you returning to your home country. What this mean is that the Department or AAT must be satisfied that (1) there must be substantive grounds for believing (2) that, as a necessary and foreseeable consequence of you being removed from Australia to a receiving country, (3) there is a real risk that you will suffer significant harm.

You should note that significant harm is defined in s. 36(2A) and it include the death penalty carried out in countries which have not abolished it (SZDCD v MIBP [2019] FCA 326). Torture is defined to mean an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for specific identified purposes including intimidating or coercing a person (s. 5(1)). Cruel or inhuman treatment or punishment means an act or omission by which, among other things, severe pain or suffering, whether physical or mental, is intentionally inflicted on a person or pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. Degrading treatment or punishment refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.

Changing or modifying behaviour

If you fear being harmed because of certain behaviour that is not accepted in your home country, do you have to change or modify that behaviour to avoid the harm? For example, in DQU16 v Minister of Home Affairs [2021] HCA 10, DQU10 is an Iraqi who fled Iraq because he had sold alcohol previously (as a private alcohol seller). Selling of alcohol is banned and drinking of alcohol is considered “un-Islamic” or “immoral behaviour”. While it was accepted that Iraqi Sunni and Shiite extremists have in the past attacked liquor shops with impunity, but the decision maker did not accept that DQU16 was ever harmed by anyone for selling alcohol. Hence, he did not face a real chance of harm now or in the foreseeable future.

The decision maker also considered DQU10’s claim that because the sale of alcohol is forbidden by Islamic law, he will not be forgiven on his return to Iraq even if he were to cease this conduct (selling alcohol). DQU10 further said that there would not be an option for him to return to Iraq and not sell alcohol, but when asked whether it is an option for him to stop selling alcohol after finding out that the Shia militia were interested in him, DQU10 said he had decided to quit selling because he would be concerned for his own safety and the safety of his family. The decision maker considered that (pursuant to s. 5J(3)) DQU10 could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution by ceasing to sell alcohol on return. There was no country info indicating that persons who had previously sold alcohol are targeted once they have stopped.

Modifying behaviour & Appellant S392/2002 v MIMA (2003) 216 CLR 473

In Appellant S395, he was an openly gay person in Bangladesh but conducted himself discreetly. The Court said that it does not matter if S395 lives discreetly if he is returned to his home country. The Court further said that the principle for which S395 stands is that “a fear of persecution for a Convention reason, if it is otherwise well-founded, remains well-founded even if the person concerned would or could be expected to hide his or her race, religion, nationality, membership of a particular social group, or political opinion by reason of that fear and thereby avoid a real chance of persecution”.

Appellant S395 is the leading authority that a person who would otherwise be entitled to protection under s. 36(2)(a) will not, and should not, lose that protection if it can be shown that the person would or could avoid persecute by sacrificing a protected attribute under the Convention (MIBP v SZSCA (2014) 254 CLR 317).

Modifying behaviour & Convention reasons (s. 36(2)(a))

In DQU10’s case, the decision maker concluded that he satisfied the protection visa criterion in s. 36(2)(a) on the basis that being a “seller of alcohol” constitutes “membership of a particular social group” for the purposes of the definition of “refugee” in s. 5H and the reasons listed in s. 5J(1). However, DQU10’s feared persecution by reason of being an alcohol seller was not a manifestation of a Convention characteristic, that is, it was not a fear faced because of his membership of a particular social group under s. 5J(1).

Modifying behaviour & Complementary protection claims

The principle in Appellant S395 does not apply to complementary or s. 36(2)(aa) protection claims because s. 36(2)(a) and s. 36(2)(aa) are different. Whether a person has a well-founded fear of persecution under s. 36(2)(a) is a fundamental different inquiry to the question is s. 36(2)(aa). The Convention grounds seek to define when a protection or refugee visa will be granted to a person seeking refuge. The Complementary grounds is whether a person can be returned to a particular country (DQU10 at 18).

Also, the harm suffered or feared are different between Convention grounds and Complementary. The s. 36(2)(aa) harm is not formulated by reference to a person’s  inherent or immutable beliefs, attributes, characteristics or membership of a particular group. Section 36(2)(aa) harm does not involve finding a nexus between the harm feared and those beliefs, attributes or characteristics or membership of a particular group. It only requires an assessment of the “necessary and foreseeable consequence(s)” of being returned to a receiving country. This includes a person who already received the death penalty, no modification of behaviour could avoid the risk of significant harm.

Nothing in s. 36(2)(aa) requires the decision maker to consider why the 866 protection or refugee visa applicant would modify their behaviour. This is because the underlying motivation of the applicant is not required to be considered under s. 36(2)(aa).

So, Appellant S395 is not applicable to Complementary or s. 36(2)(aa) protection claims. Hence, a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify their behaviour so as to avoid persecution (other than those listed in s. 5J(2)(a) to (c) such as identify, disability, race, ethnicity, religious beliefs, sexual orientation, etc).

In DQU10’s case, the decision maker found DQU10 did not face “a real risk of harm” in Iraq because he would not work as an alcohol seller upon his return to Iraq. Therefore, DQU10 did not face “a real risk of harm” in Iraq on that basis, that is, there was not a real risk that he would suffer significant harm of a kind listed in s. 36(2A).

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) or click here to learn more about 866 protection or refugee visa matters:

• Safe third country
• Self harm
• How to make a 866 protection or refugee visa claims

041 222 4020 or WeChat: AUDvisa

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.

The post 866 protection or refugee visa | change to avoid harm appeared first on Ozzie Visa.