Hi there. Under section 501 of the Migration Act 1958 (Cth), a person holding an Australian temporary or permanent residence visa may have their visa cancelled if they fail the character test. One way a person can fail the character test is if have a ‘substantial criminal record’ (i.e. they have been sentenced to one or more terms of imprisonment that, when added together, total 12 months or more). Note that there are many other grounds on which a person can fail the character test.

If a visa holder fails the character test, the Department of Immigration & Border Protection (DIBP) may send them a Notice of Intention to Consider Cancellation. This document usually asks the visa holder whether they pass the character test and whether their visa should be cancelled. If your brother has received a Notice, he should seek legal advice as soon as possible. A response must be received by the DIBP within 14 days.

It is possible for a visa holder to fail the character test but still retain their visa. So even if your brother fails the character test, it is still worth explaining to the DIBP why his visa should not be cancelled. He may want to explain his background (i.e. immigration, childhood, upbringing), current circumstances (i.e. family, children, employment) and the impact deportation would have on his life and family. Providing supporting documentation and independent evidence will help his case.

In deciding whether to cancel a person’s visa on character grounds, the DIBP must consider the need to protect the Australian community from criminal conduct (including the seriousness of the visa holder’s crime and likelihood of reoffending), the best interests of any children in Australia who are affected by the potential visa cancellation, and the general expectations of the Australian community. The DIBP must also consider the strength, nature and duration of the visa holder’s ties to Australia. Other relevant factors include the visa holder’s age and health, links to country of origin, hardship to their family, and any prior warnings issued by the DIBP.

After taking these factors into account, the DIBP will decide whether to cancel the person’s visa. A decision to not cancel the visa can be revisited in the future if the person commits a further criminal offence. In any situation, regardless of the original decision, the Minister for Immigration and Border Protection can step in and personally cancel any person’s visa on ‘national interests’ grounds. If a person’s visa is cancelled, they will be moved to immigration detention and then deported.

It is possible to appeal a visa cancellation to the Australian Administrative Tribunal. Very strict time limits apply for appeals.

Suggested way forward

Although your brother faces serious consequences if his visa is cancelled, he has the opportunity to present his case to the DIBP before they make a final decision. Your brother would benefit from speaking to an immigration lawyer who can help him prepare his written response and advise him of his legal rights. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.