bundy

Look at me at work on a Saturday....any news this morning???!!!

teach

Waitingggggggggg! WBB, tell us something.

WBB

i'm at work too how depressing is that.

i phoned the mrs this morning and she said there was a strange looking letter there addressed to me but it turned out to be from my solicitor.

never mind, i'm sure next week will be the one.

teach

Hope so, my fingers are numb they have been crossed so long.

bundy

I wasn't working though - came in purely to use the work copiers to photocopy all my visa stuff...took me 3 hours!

Nevermind WBB. What about today? Any post yet???!!!

WBB

4 letters, but nowt from AHC.

i do think this will be the week though, i hope so anyway.

bundy

Grrrr


AHC do seem to be clearing a backlog at the moment though - seem to have been a flurry of Got Its at the end of last week....

Come on AHC! Pull the collective finger out!

WBB

come on AHC how long you going to drag it out.

bundy

Do you think they're watching, and the moment we're not looking.......

Not that I'm paranoid or anything!

WBB

i'm here all week, i only have a couple of mid-week night shifts, i might have to string the portman up by his testicles and warn him like the scene out of the film goodfellas.

bundy

LOL!!!


No wonder he's not delivering the magic letter...he's too scared of your evil reputation.

bondipom

Any experts know what procedure the AHC uses to determine if a migrant is deemed to be of good character.

WBB

i have some stuff i got sent, will post it here in a mo.

WBB

it's a couple of years old but probably still a good guide.





DIRECTION NO. 21

MIGRATION ACT 1958

DIRECTION UNDER SECTION 499

Visa refusal and cancellation under section 501 of the Migration Act 1958

DIRECTION - VISA REFUSAL AND CANCELLATION UNDER SECTION 501 - No. 21


PREAMBLE:

This Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of the Migration Act 1958 (the Act).

The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.

Under the Character Test, visa applicants and visa holders must satisfy decision-makers that they can pass the test. When a visa applicant or visa holder does not pass the Character Test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors including the expectations of the community, the nature of crimes committed, the non-citizen’s links to Australia and any relevant international law obligations.

The Act enables the Minister to give precise written directions on what weight is to be given to each of these factors. These directions are binding to all decision-makers, including merits review tribunals, to ensure a consistency of approach.

The Act also enables the Minister to order the deportation of non-citizens under section 200/201 of the Act in certain cases. The Government is currently considering recommendations of the Joint Standing Committee on Migration on criminal deportation matters. Following that consideration, there may be a further direction in respect of the exercise of deportation powers.

For the purposes of this Direction the term decision-maker includes both the Minister’s delegates for the purposes of section 501 of the Act, and members of the Administrative Appeals Tribunal when conducting a review of a decision made under section 501 of the Act.


THEREFORE I, Philip Maxwell Ruddock, the Minister for Immigration and Multicultural Affairs, hereby give the following Direction pursuant to section 499 of the Migration Act 1958 to any person or body having functions or powers under section 501 of the Act.

1. This Direction may be cited as “Direction - Visa Refusal and Cancellation under section 501 - No.21�. This Direction revokes and replaces Direction No.17.

2. The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.


PRELIMINARY

This Direction consists of two parts. Part 1 provides directions on the application of the Character Test. Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. If the non-citizen does not pass the Character Test, decision-makers are to exercise the discretion to consider whether to refuse or cancel a visa, taking into account primary and other considerations. Part 2 provides directions on what these considerations are and the weight to be given to them.


PART 1 - APPLICATION OF THE CHARACTER TEST

The Minister may refuse or cancel a visa if the non-citizen does not satisfy the Character Test

1.1 Non-citizens who are being considered under section 501 must satisfy the decision-maker that they pass the Character Test. If there is reasonable suspicion that a non-citizen does not pass the Character Test, the non-citizen must also provide evidence to satisfy the decision-maker that the non-citizen passes the Character Test.

1.2 If a non-citizen is unable to satisfy the decision-maker that they pass the Character Test, subsection 501(1) provides the authority to refuse to grant a visa and subsection 501(2) provides the authority to cancel a visa that has already been granted.

WBB

....cont

1.3 There are four grounds against which a non-citizen may be considered to not pass the Character Test under subsection 501(6).

Paragraph 501(6)(a) “substantial criminal record�

1.4 A non-citizen does not pass the Character Test if they have a substantial criminal record. Substantial criminal record is defined in subsection 501(7).

Paragraph 501(6)(b) “association� grounds

1.5 The meaning of “association� for the purposes of the Character Test encompasses a very wide range of relationships including having an “alliance� or a “link� or “connection� with a person, a group or an organised body that is involved in criminal activities. “Association� does not require actual membership of a group or an organised body that is involved in criminal activities. In establishing criminal association, the decision-maker may have regard to the following:

(a) the degree and frequency of association the non-citizen had or has with the individual, group or organisation;

(b) the duration of the association; and

(c) the nature of the association.

1.6 In some cases the information concerning association will be protected from disclosure by section 503A of the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of informants or other persons at risk.

Paragraph 501(6)(c) – not of good character on account of past and present criminal or general conduct

1.7 Under paragraph 501(6)(c), decision-makers are required to make a finding that a non-citizen is “not of good character� on account of the non-citizen’s past and present, criminal or general conduct and thereby does not pass the Character Test. In reaching the conclusion that a non-citizen is not of good character, decision-makers must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct.

• Subparagraph 501(6)(c)(i) – past and present criminal conduct

1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:

(a) the nature, severity and frequency of the offence/s;

(b) how long ago the offence/s were committed;

(c) the non-citizen’s record since the offence/s were committed, including:
• any evidence of recidivism or continuing association with criminals;
• a pattern of similar offences; and/or
• pattern of continued or blatant disregard/contempt for the law; and

(d) any mitigating circumstances such as may be evident from judges’ comments, parole reports and similar documents.

• Subparagraph 501(6)(c)(ii) – past and present general conduct

1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:

(a) whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

• engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
• continual evasion or non-payment of debt;
• continual disregard as to payments of family maintenance;
• involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, "white collar" crime, fraud, breaches of immigration law; or
• involvement in war crimes or crimes against humanity.

(b) whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;

(c) whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen’s character or conduct or both;

(d) whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or

(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.