What is PIC 4001 & The Character Test?
The character test is a key requirement that visa applicants must meet to ensure that they are suitable to live in and are not a threat to the Australian community. A failure to pass the character test can affect not only a visa applicant but also a current visa holder, as it can lead to a visa cancellation. Therefore, it is important to ensure that you remain of good character throughout the entirety of your stay in Australia as a visa cancellation would make you an unlawful non-citizen and can result in significant obstacles such as entry bans for any future visa applications.
What is Public Interest Criteria 4001?
Public Interest Criteria (PIC) 4001 is a key requirement that must be met for the vast majority of visa applicants. An individual who passes the character test will automatically satisfy PIC4001. However, the requirement can also be met if the minister does not refuse to grant a visa despite an applicant's failure to pass the character test. The effect of PIC4001 is simply to ensure that all visa applicants undergo a character assessment regardless of the results.
What is the character test?
The character test can be found under section 501(6) of the Migration Act 1958 (Cth), listing several reasons why a person may not pass the character test. The most common reason as to why an applicant or visa holder may fail the character test is due to having a substantial criminal record. As the name implies, a substantial criminal record involves a relatively serious degree of offending, such as being sentenced to imprisonment for at least 12 months.
Other reasons why a person might fail the character test could include:
Being a member of a criminal organisation
Not being a person of good character based on past and present conduct
Being a national security risk
Having a risk of engaging in criminal conduct or otherwise being a danger to the community
It is important to note that this is not the full list of grounds under which a person can fail the character test. If you do not fall under any of the grounds mentioned in section 501(6), then you will have passed the character test.
What happens if I have a substantial criminal record?
Generally, a minister has the discretion to decide whether to refuse or cancel a visa whenever someone does not pass the character test. However, the minister must cancel a person’s visa for certain grounds, such as:
being sentenced to 12 months or more of imprisonment,
life imprisonment,
the death penalty or;
a sexual offence against a child
It is important to note that this mandatory power only applies to visa cancellation, not visa refusal. If you are applying for a new visa with a substantial criminal record, the minister can still decide to grant the visa.
Do aggregate sentences count?
A recent 2024 High Court decision found that an aggregate sentence resulting in an overall term of imprisonment of at least 12 months would engage the mandatory cancellation power. As multiple sentences of imprisonment would not involve mandatory cancellation, it was important to consider the difference between an aggregate sentence and multiple sentences.
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How Can Agape Henry Crux Help You?
If you have found a PIC4001 criterion on your cancellation letter from the Department, speak with one of our Accredited Specialist Immigration Lawyers (s), our team of immigration lawyers and migration agents at Agape Henry Crux. The team specialises in handling highly complex matters. You can schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin, Cantonese and Malay. We can also help you arrange an interpreter if this isn't your language.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
