Commonwealth Consolidated Acts

MIGRATION ACT 1958 - SECT 501

Decision of Minister or delegate--natural justice applies

             (1)  The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

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

             (2)  The Minister may cancel a visa that has been granted to a person if:

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

                     (b)  the person does not satisfy the Minister that the person passes the character test.

Decision of Minister--natural justice does not apply

             (3)  The Minister may:

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

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

if:

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

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

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

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

Character test

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

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

                     (b)  the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

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

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

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

                            the person is not of good character; or

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

                              (i)  engage in criminal conduct in Australia; or

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

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

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

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

Otherwise, the person passes the character test .

Substantial criminal record

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

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

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

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

                     (d)  the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or

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

Periodic detention

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

Residential schemes or programs

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

                     (a)  a residential drug rehabilitation scheme; or

                     (b)  a residential program for the mentally ill;

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

Pardons etc.

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

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

                     (b)  the person has been pardoned in relation to the conviction concerned.

Conduct amounting to harassment or molestation

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

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

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

Definitions

           (12)  In this section:

"court" includes:

                     (a)  the Australian Military Court; and

                     (b)  a court martial or similar military tribunal of another country.

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

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

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

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

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