The Character Test in the Non-Mandatory Cancellation Context

 
 

The Migration Act posits a character test, breach of which crystallises the power of visa cancellation or visa refusal, ie there is then a discretionary power to refuse or cancel a visa on character grounds.

However the Full Federal Court has established the notion that just because a person fails the character test, there is no presumption that the discretion should be exercised against the applicant.  In Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340 (24 December 2004), Sackville J observed:

It is true that the authorities have accepted that s 501 prescribes the failure to satisfy the character test as a condition precedent to the exercise of the discretion to cancel a visa and does not create a presumption as to how the discretion should be exercised: Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514; 65 ALD 667, at [10], per Dowsett J, cited with approval by Kiefel and Bennett JJ in Minister for Immigration and Multicultural & Indigenous Affairs v Huynh (2004) 211 ALR 126, at 143 [72].

Here is the general power :

[501] (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.

[501] (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.

As stated above s 501(3A) has now overtaken s 501(1) & (2) where a person has been sentenced to at least one year’s imprisonment and the person is serving some period in full time custody.

The character test will now be dealt with incrementally.

Barbara DavidsonThe Character Test in the Non-Mandatory Cancellation Context