The character test
Visa applicants and visa holders are assessed against the character test in section 501 of the Migration Act 1958. If you do not pass it, your visa application can be refused, or a visa you already hold can be cancelled, even if you meet every other requirement.
Under section 501(6), a person does not pass the character test if, among other things:
- Substantial criminal record: they have a substantial criminal record (explained below).
- Offences in immigration detention: they were convicted of an offence committed in immigration detention, or during or after an escape from it.
- Association: the Minister reasonably suspects they have been a member of, or associated with, a group, organisation or person involved in criminal conduct.
- Past and present conduct: having regard to their past and present criminal or general conduct, they are not of good character.
- Risk: there is a risk that, if allowed to enter or remain in Australia, they might engage in criminal conduct, harass, molest, intimidate or stalk another person, or represent a danger to the Australian community.
- Child sexual offences: a court has convicted them of, or found them guilty of, sexually based offences involving a child.
Other grounds cover spreading hatred and extremism, people smuggling, people trafficking, serious international crimes, security assessments and Interpol notices.
What is a substantial criminal record?
Under section 501(7), you have a substantial criminal record if, for example, you have been sentenced to:
- death or life imprisonment;
- a term of imprisonment of 12 months or more; or
- two or more terms of imprisonment that total 12 months or more.
It also covers some cases where a person was acquitted on the grounds of unsoundness of mind, or found unfit to plead, and was detained as a result. Concurrent sentences are counted in full: two 3-month sentences served at the same time count as 6 months.
When character concerns arise
- Before a decision on your application: the Department may send you a notice inviting you to comment on the information it is relying on before it decides whether to refuse the visa.
- While you hold a visa: the Department may send you a notice of intention to consider cancellation (NOICC) under section 501. See visa cancellation and NOICC responses.
- Mandatory cancellation: if you are serving a full-time prison sentence and you have been sentenced to death, life imprisonment or a single term of 12 months or more, or have been convicted or found guilty of sexually based offences involving a child, your visa must be cancelled under section 501(3A).
Revoking a mandatory cancellation
After a mandatory cancellation, the Department gives you a notice with the information it relied on and invites you to ask for the cancellation to be revoked. Your request must be in writing and must be made within 28 days after you are given the notice and information.
The cancellation can be revoked if you pass the character test, or if there is another reason why it should be revoked. That is where your circumstances, ties to Australia, family and rehabilitation become central.
What decision-makers weigh
Apart from mandatory cancellation, failing the character test does not automatically lead to refusal or cancellation. The decision-maker must apply the Minister’s current Direction under section 499 of the Migration Act, which sets out the considerations to be weighed. These include:
- protection of the Australian community, including the nature and seriousness of the conduct and the risk of further offending;
- whether the conduct involved family violence;
- the strength, nature and duration of your ties to Australia;
- the best interests of minor children in Australia; and
- the expectations of the Australian community.
Other considerations, such as the impediments you would face if removed from Australia and the impact on victims, can also be relevant.
Time limits are short
- Revocation of a mandatory cancellation: within 28 days after you are given the notice and information.
- Notices inviting comment: the deadline is stated in the notice.
- Review at the ART: if a delegate refuses or cancels your visa on character grounds, or decides not to revoke a mandatory cancellation, and you are in Australia, you must apply to the Administrative Review Tribunal within 9 days after you receive the decision and documents. The Tribunal has no power to extend this time, and it must make its decision within 12 weeks. See ART appeals.
How we help
- Strategy session: we review your criminal and visa history, the notice and the information relied on, and explain your options and risks.
- Evidence planning: we identify the evidence that will strengthen your case and how to obtain it.
- Submission drafting: we prepare a clear, structured written submission that responds to the Department’s concerns and the considerations it must weigh.
- Ongoing support: we manage correspondence with the Department and, where review is available, prepare your case for the ART.
Frequently asked questions
Does a criminal record mean my visa will be refused?
Not necessarily. Unless mandatory cancellation applies, the decision-maker must weigh your circumstances against the concerns, under the Minister’s current Direction. Each case turns on its own facts, and a well-prepared submission matters.
Do I need to declare old or overseas convictions?
Visa applications ask detailed questions about your criminal history. Answer every question accurately, and if you are unsure whether something must be declared, get advice before you lodge. Not disclosing information can create a separate problem under PIC 4020.
My visa was cancelled while I am in prison. What can I do?
If your visa was cancelled under section 501(3A), you can ask for the cancellation to be revoked. The request must be in writing and made within 28 days after you are given the notice. Family members can help gather evidence, but the time limit is strict, so contact us as soon as the notice arrives.
Can a character decision be reviewed?
Many character decisions made by a delegate of the Minister can be reviewed by the ART, with strict time limits. Decisions made by the Minister personally generally cannot be reviewed by the Tribunal.
Talk to a Registered Migration Agent
A character strategy session with Tatsiana Pustavoit (MARN 1800880) gives you a clear view of your position, the risks and the next steps. Consultations are held online via Microsoft Teams or by phone. Only the Department of Home Affairs, or the Tribunal on review, can decide your case, and no registered migration agent or lawyer can guarantee an outcome.