Character requirements for Australian partner visas

Meeting the character requirements is crucial to secure an Australian Partner Visa. Both the applicant and sponsor in a Partner Visa application must pass the character requirements. This is a mandatory requirement that all applicants for the visa must pass. The character requirement aims to ensure that individuals who pose a risk to the Australian community or have a significant criminal history are not granted visas.

At Australian Migration Lawyers, we are experienced with assisting our clients navigate the character requirements for Partner visas. If you or someone you know would benefit from tailored advice and assistance, contact us today to book a consultation with one of our migration lawyers.

Understanding character requirements

Character requirements for a Partner Visa are a set of criteria that applicants and sponsors must meet to demonstrate that they are of good character. The character requirements may involve assessing: criminal records, including the nature and severity of any offence, associations with groups or organisations, or individuals who are reasonably suspected of being involved in criminal conduct and any history of deportation or removal from another country or has failed to comply with Australian visa conditions.

These conditions apply to onshore subclass 820/801 partner visa applications, offshore subclass 309/100 partner visa applications, and subclass 300 prospective marriage visa applications.

Section 501 of the Migration Act 1958, sets out the legal foundation for the character requirements for Australian visas. Under this section, the Ministers of Home Affairs or their delegates has the authority to refuse or cancel visa applications if a person does not pass the character test.

The specific character criteria applied to a partner visa application sit in Schedule 4 of the Migration Regulations 1994, under the Public Interest Criteria, alongside separate health related criteria. Schedule 4 is a different legal instrument to Schedule 3, which addresses whether an applicant validly held or lost a substantive visa before applying onshore, not character. It is common for these two to be confused, since both can affect a partner visa application, but they deal with entirely different issues.

The character requirements are an essential aspect of ensuring that individuals entering or remaining in Australia are of good character and remain of good character.

Sponsor

In an effort to reduce family violence in Australia, the government introduced laws that permits the Immigration department to refuse sponsorship applications for a Partner Visa if the sponsor has a significant criminal record in relation to specific offences.

A sponsor with a conviction for a registrable offence is generally barred from being approved as a sponsor, unless more than five years have passed since completing the sentence for that offence, and no further registrable offence has been charged since. Where this bar applies, the Department may still grant a waiver in compelling circumstances, such as a dependent child of the relationship or a genuine long-term relationship, assessed on a case-by-case basis.

Applicant

A partner visa application may be refused if the applicant fails to meet the character requirements. An applicant’s visa may be cancelled if they fail to meet the character requirements during the period of their visa.

A substantial criminal record, generally meaning a sentence of 12 months or more imprisonment, or two or more sentences totalling 12 months or more, is treated as one of the most serious character concerns and can lead to a mandatory rather than discretionary refusal in some circumstances.

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Book a consultation

If you are interested in getting more information about your situation, get in touch with Australian Migration Lawyers for a consultation.

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Key Components of character requirements

The Department of Home Affairs requires applicants to provide police certificates, also known as penal clearance certificates, forms, and any specific information relating to offences.

Police Certificates: A police certificate or penal clearance certificate is a document issued by the police or relevant authorities in a country to provide information about an individual’s criminal history, if any. For an Australian Partner Visa, police certificates are crucial in assessing whether the applicant meets the character requirements as outlined under s 501 of the Migration Act. The Department of Home Affairs uses these police certificates to check for any conviction or behaviour that could be considered a risk to the Australian community.

Applicants must provide police certificates from every country they have lived in for 12 months or more during the past ten years. This requirement applies to all individuals included in the visa application, including the main visa applicant and any dependants. Failing to provide the required certificate or providing a certificate that reveals concerning criminal activity or substantial criminal record could result in the refusal of your visa application.

For time spent living in Australia, this generally means an Australian Federal Police National Police Check. For time spent in other countries, applicants need to obtain an equivalent overseas police clearance certificate from each relevant country, which can take considerably longer to arrange and should be started early.

Common issues that affect character assessment

List of typical issues that can impact your character assessment:

Some of these issues, particularly serious criminal convictions, security concerns, or a history of deportation, may lead a case officer to refer the file to the Visa Applicant Character Consideration Unit (VACCU) for a more detailed assessment. A VACCU referral does not decide the outcome itself, but it typically means a longer and more thorough review before a final decision is made.

Addressing character concerns in your application

Addressing character concerns in your application is crucial to mitigate any potential issues that may arise due to past actions or associations. It requires careful preparation, honesty, disclosure, and demonstrations of your rehabilitation.

When writing a personal statement, it is important to acknowledge the issue. Start by openly acknowledging the issue in your past that may raise character concerns. Provide a clear and concise account of what had happened and do not omit important details. Moreover, describing rehabilitation efforts is another important aspect to include in your personal statement. Also, highlight any positive changes you’ve made since the incident and most importantly, show that you are committed to a continuous improvement; mention any continued efforts to improve yourself.

This kind of statement is sometimes referred to as a character concern response. Where possible, it should directly address each specific concern the Department has raised, rather than responding generally, and should be supported by independent evidence wherever available, such as counselling records, references, or evidence of completed rehabilitation programs.

Importance of full disclosure

Full disclosure is a legal obligation. The Department of Home Affairs requires applicants to provide complete and accurate information, failing to do so can result in serious consequences, including visa refusal or cancellation of your Partner Visa.

The role of character statutory declarations

Statutory declarations play an important role in an Australian Partner Visa application process, especially in instances where applicants may need to clarify issues regarding their character.

Addressing issues or contextualising offences is one way the statutory declaration can be used. For instance, if an applicant has a criminal record, they can use statutory declaration to provide context around the offence. This might include details about the circumstances leading to the offence, the actions taken since the incident and evidence of changed behaviour. In addition, applicants may also explain any mitigating factors that contributed to their behaviour. For example, the applicant might have been under duress, suffering mental health issues or influenced by others. A statutory declaration allows the applicant to present these factors and to formally explain to the Department of Home Affairs, helping to paint a clear and complete picture of their character.

Statutory declarations can be used to provide character references. It can be used to include character references from reputable organisations or individuals, such as employers, community leaders or religious figures who can vouch for the applicant’s good character. These should focus on the applicant’s behaviour, contribution to the community or any other positive attributes that would support the applicant’s case.

Tips on how to draft an effective and persuasive statutory declarations

1. Clarity of intent: Before you begin, be clear about the purpose of your statutory declaration. Whether you are explaining a past conviction or providing context of a criminal record, addressing discrepancies, etc., ensure that your intent is clearly defined from the outset.
2. Be honest and transparent: Misleading or false statements can have serious legal consequences.Be honest, acknowledge the facts openly and show sincerity and remorse: showing accountability is key to demonstrating good character.
3. Provide detailed explanations: It is important that you provide sufficient context of the circumstance to help the Immigration authority to understand your circumstances. You can include relevant dates, locations, and any contributing factors. If relevant, describe the actions you've taken, for example, seeking rehabilitation, participation in community service or any relevant instance that demonstrates growth and positive change since the event.
4. Include supporting evidence: If you refer to any documents in your statutory declaration, ensure that you attach them along with your statutory declaration.
5. Seek legal advice: It is highly recommended to seek legal advice to ensure that your statutory declaration is comprehensive, legally sound and aligned with the requirements of your visa application. A lawyer, like us, can help you avoid potential pitfalls and strengthen your declaration.

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What happens if you fail the character test?

Failing the character test when applying for an Australian partner visa can lead to serious consequences, including visa refusal or cancellation. However, there are avenues for appeal and, in some cases, waivers may be applicable.

Potential Outcome of Failing a Character Test

• Visa Refusal: The most common consequences of failing the character test is that your visa application is refused. This can also lead to a s48 bar.

Whether a refusal is discretionary or effectively mandatory depends on the specific ground relied on. A substantial criminal record generally triggers a stricter, less discretionary approach, while other character concerns, such as association with questionable individuals, are weighed as part of a broader discretionary assessment that considers factors including the seriousness of the conduct, family ties in Australia, and the best interests of any children involved.

Options for Appeal

• Administrative Appeals Tribunal / Administrative Review Tribunal: You may be able to seek a merits review by the AAT/ART if your visa is refused or cancelled due to failing the character test.
• Judicial Review: If the AAT/ART upholds the refusal, you may seek a judicial review in the Federal Court of Australia.
• Ministerial Intervention: In cases where all other appeals have been exhausted, it is an option to seek intervention from the Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs. However, Ministerial intervention is very rare and is only generally considered in exceptional circumstances.

Options for Waivers

• Technically, there is no waiver for the Character test, but presenting certain mitigating factors correctly, can allow for a visa to be granted or not cancelled by the Department. To do this, the applicant must be able to demonstrate that there is compelling evidence to disregard the character grounds for refusal.

Here is how a character concern generally moves through the assessment process.

How Australian Migration Lawyers can help

• Describe how Australian Migration Lawyers can assist with navigating the complex character requirements for partner visas.
• Highlight services such as assessing potential character issues, preparing documentation, and representing clients during the visa application process.

At Australian Migration Lawyers we are committed to delivering legal services tailored to your specific needs. Our team has extensive experience in diverse migration issues, including character issues, and we offer clear and actionable legal advice. We can help you prepare a comprehensive personal statement, legal submissions, and ensure that all necessary information is entailed in your application. We understand the complexities of addressing character issues and how emotionally challenging it can be to have a visa refused. At Australian Migration Lawyers, we offer continued support; we are with you all the way, from initial consultation, to final outcome and beyond. We are committed to providing representation to clients at Australia’s Administrative Review Tribunal where necessary. Contact us for assistance today.