Character Provision | Health Waiver

Australian Department of Home Affairs may refuse or cancel a visa application if the visa applicant does not pass  the character check. Some of the reasons a person may fail the character test are when the individual has a  substantial criminal record or when the individual may represent a threat to the Australian community.  

An individual whose visa has been rejected or cancelled by a representative can apply to the Administrative  Appeals Tribunal (AAT) to have this decision reviewed. 

Section 501 of the Migration Act 1958 lists a range of reasons why someone may not go through the character test. Subsection (6) of section 501 has the full list of reasons, but examples consist of:

• Because the individual has a substantial criminal record
• Because the individual may represent a threat to the Australian community
• Because the Minister is convinced the person is not of good character due to their past and current criminal or overall conduct.

An individual whose visa has been rejected or cancelled by a representative under section 501 can apply to the AAT to have this decision altered.

Section 501(3A) states that a visa must be cancelled when the visa holder has been penalized, to 12 months or more detention or has been found guilty of a sexually founded crime involving a child. The visa holder must also be providing a full-time custodial sentence.  This is called a compulsory cancellation.

A mandatory cancellation may be withdrawn by a delegate of the Minister or the Administrative Appeals Tribunal if they are convinced the person does in fact pass the personality test or where there is another reason for revocation.  If a required cancellation is revoked by a delegate or the Tribunal, the person whose visa was cancelled will get their visa back.  The Minister has the power to reverse this decision.

• Passing the health criteria is a relevant factor for the grant of Australian permanent visas and some temporary  visas. Applicants, including secondary applicants, must first meet all other eligibility criteria for the visa.  Department must then be satisfied that granting the visa is unlikely to: 

  • result in a significant cost to the community 
  • prevent Australian citizens from accessing health care or community services in short supply. 

  Department might be able to exercise a health waiver for applicants for some visa subclasses if a Medical Officer  of the Commonwealth (MOC) finds they don’t meet the health requirement.