Key takeaways
- Two-stage process: A conviction of 12 months or more means you automatically fail the character test (stage 1), but the decision to refuse your visa is still discretionary (stage 2)
- Disclosure is non-negotiable: You must declare all convictions, including spent convictions, minor offences, and overseas convictions. Hiding them is worse than disclosing them
- Mandatory cancellation is narrow: Only applies if you are currently serving a sentence of imprisonment AND have a substantial criminal record. For visa applications, refusal is always discretionary
- Visa type affects stakes, not the test: The character test applies equally to tourist, student, partner, and skilled visas. But a refusal on a partner visa has more devastating consequences than a tourist visa refusal
- Tern supports applicants under 12 months: Our immigration lawyer prepares character statements and documentation to present the strongest case. For 12+ months, we recommend specialist legal advice for the character component
If you're reading this article, chances are you're anxious about how a past mistake might affect your future in Australia. That anxiety is completely valid. The intersection of criminal records and immigration is one of the highest-stakes areas of visa law, and the consequences of getting it wrong can be permanent.
Here's what we want you to understand upfront: having a criminal record does not automatically mean you cannot get an Australian visa. But it does mean you need to approach your application with complete honesty, careful preparation, and in most cases, professional guidance. The system is unforgiving of both concealment and poor preparation.
This article explains how Australia's character requirements work, what the critical thresholds are, and what options exist for people with criminal histories. We'll be direct about the challenges because you deserve honest information, not false reassurance. But we'll also show you where genuine pathways exist.
Having a criminal record does not automatically bar you from Australia. But how you handle the disclosure and application process can determine whether a difficult situation becomes an impossible one.
What is the character test under Section 501?
Section 501 of the Migration Act 1958 gives the Department of Home Affairs the power to refuse or cancel any visa on character grounds. The character test is applied to all visa applicants, whether you're applying for a tourist visa, student visa, partner visa, or permanent residency.
You will not pass the character test if, among others, any of the following apply:
- You have a substantial criminal record (defined below)
- You have been convicted of a sexually-based offence involving a child
- You are or have been a member of a group involved in criminal conduct
- You have been involved in people smuggling, human trafficking, genocide, war crimes, or crimes against humanity
- You are assessed by ASIO as a direct or indirect risk to security
- There is a significant risk you would engage in criminal conduct, harass or stalk others, vilify a segment of the community, or incite discord
- A court has found you not fit to plead on mental health grounds for certain serious offences
The most common reason people fail the character test is having a substantial criminal record. This is also where the specific thresholds matter most.
What is a "substantial criminal record"?
A substantial criminal record is defined in Section 501(7) of the Migration Act. You have a substantial criminal record if you have been:
- Sentenced to death (in any jurisdiction)
- Sentenced to life imprisonment
- Sentenced to 12 months or more imprisonment (for a single offence)
- Sentenced to two or more terms totalling 12 months or more (whether the sentences were imposed at the same time or on different occasions)
- Acquitted of an offence on grounds of mental impairment and detained in a facility as a result
The 12-month threshold is critical for determining whether you pass or fail the character test. Once your total convictions reach 12 months or more, you automatically fail the character test at the first stage of assessment. It does not matter if the sentence was suspended, served concurrently with another sentence, or imposed many years ago. A single conviction of 12 months and two 6-month convictions are treated identically under the law.
This threshold applies to convictions from any country, not just Australia. A conviction in the UK, US, India, or anywhere else counts toward your total.
However, failing the character test does not mean automatic visa refusal. This is where the two-stage process becomes important.
Failing the character test triggers the second stage, where the decision-maker has discretion to refuse or grant your visa. Even with a substantial criminal record, the outcome is not predetermined. The decision-maker must weigh all relevant factors before deciding.
The two-stage decision process
Understanding how character decisions work requires understanding the two-stage process.
Stage 1 - The character test (threshold): The decision-maker first determines whether you pass or fail the character test. If you have a substantial criminal record (12+ months), you automatically fail. This is not discretionary.
Stage 2 - The discretionary decision: If you fail the character test, the decision-maker then decides whether to actually refuse or cancel your visa. This second stage is discretionary in most cases, meaning the decision-maker weighs all factors before making a decision.
This two-stage process is critical. Failing the character test is not the same as having your visa refused.
Mandatory vs discretionary powers
Mandatory cancellation (Section 501(3A))
There is only one truly mandatory scenario: if you hold an Australian visa, are currently serving a full-time sentence of imprisonment, and have a substantial criminal record, your visa must be cancelled. There is no discretion. The Department has no choice.
This mandatory provision does not apply to visa applications. It applies only to the cancellation of visas held by people already in prison in Australia.
For permanent residents who have lived in Australia for decades, this can be devastating. It does not matter if you came to Australia as a child, if all your family is here, or if you have no connection to any other country. Once you are in prison with a substantial criminal record, cancellation is automatic.
However, mandatory cancellation is not necessarily the end of the road. Even after your visa is mandatorily cancelled, you have a legal right to seek revocation of that cancellation under Section 501CA. You can make written representations within 28 days explaining why your visa should be reinstated. The Department must then consider your request and decide whether to overturn the mandatory cancellation. This decision is discretionary, meaning the Department weighs factors like your ties to Australia, the interests of any children, rehabilitation evidence, and non-refoulement obligations before deciding. While revocation is not guaranteed, it provides a genuine pathway for people who can demonstrate compelling reasons why they should retain their visa despite their criminal record.
Discretionary refusal and cancellation (most situations)
For visa applications and for visa cancellations outside the mandatory scenario, the Department has discretion. Even if you fail the character test, the decision-maker may still grant or maintain your visa after weighing all relevant factors.
When exercising this discretion, decision-makers must follow Ministerial Direction 110 (effective 21 June 2024), which sets out the factors to consider. These include:
Primary considerations:
- Protection of the Australian community (given the highest weight)
- Whether the conduct involved family violence
- The best interests of any minor children in Australia
- Australia's international non-refoulement obligations
Other considerations:
- The strength and duration of ties to Australia
- Impact on victims
- Extent of impediments if removed
- Links between your past and risk of future criminal conduct
Under Direction 110, community safety is explicitly stated as "the highest priority of the Australian government." This represents a stricter approach than previous directions, particularly for long-term residents. The previous assumption that Australia would "generally afford a higher level of tolerance" to people who have lived here most of their lives has been weakened.
How different visa types are affected
The character test applies equally to all visa types. There is no visa category exempt from Section 501. However, the practical implications vary.
Tourist visas (Subclass 600, ETA, eVisitor)
Electronic Travel Authority (ETA) and eVisitor applications include automated screening questions about criminal history. If you answer "yes" to having a criminal conviction, you cannot continue with the ETA process and must apply for a standard Visitor visa instead.
For a standard Visitor visa, you can disclose your criminal history and have it assessed. Minor offences like traffic violations typically will not prevent approval, but you must still declare them. The Department will consider the nature and severity of the offence, how long ago it occurred, and your conduct since.
If you have a substantial criminal record, you will fail the character test, and the decision-maker will then exercise discretion on whether to refuse your visa. For short tourist visits, refusal is common but not automatic. You would need to present compelling reasons why you should be granted entry despite your record.
Student visas (Subclass 500)
Student visas require police certificates from every country where you have lived for 12 months or more in the past 10 years. Your criminal history will be fully visible to the Department.
Minor offences generally will not prevent a student visa grant, but the genuine temporary entrant (GTE) assessment may be affected if there are concerns about your character or intentions.
A substantial criminal record means you will fail the character test, but the Department still has discretion at the second stage. You would need to present a strong case for why you should be granted a visa despite your record.
Partner visas (Subclass 820/801, 309/100)
Partner visas present unique considerations. Both the visa applicant and the Australian sponsor are subject to character-related requirements.
For the applicant, the standard character test applies. For the sponsor, there are specific provisions targeting family violence and serious offences. If the sponsor has a "significant criminal record" relating to "relevant offences" (including family violence), their sponsorship may be refused.
Partner visa refusals are particularly devastating because they affect not just travel plans but family unity. If you or your partner have any criminal history, professional advice before lodging is essential.
Skilled and employer-sponsored visas
The same character test applies. Police certificates are required, and any criminal history will be assessed. Skilled visas involve points-based assessments and occupation lists, which provide some objectivity, but character requirements still apply in full.
What happens when a visa is cancelled on character grounds?
Visa cancellation under Section 501 triggers severe consequences:
- Immediate detention: You may be taken into immigration detention pending removal
- Loss of permanent residency: Even if you've held permanent residency for decades, it can be cancelled
- Permanent exclusion: A Section 501 cancellation typically results in a permanent ban from Australia. You cannot apply for or be granted another visa unless the Minister personally lifts the exclusion, which happens extremely rarely
- No automatic family exception: Having Australian citizen children or an Australian spouse does not prevent cancellation, though it is considered in discretionary decisions
The permanence of this exclusion cannot be overstated. Unlike some visa refusals that may be overcome with a stronger future application, a Section 501 cancellation creates a barrier that very few people ever overcome.
Options if your visa is cancelled or refused
If you face a character-related visa decision, there are limited but important options:
Revocation request (Section 501CA)
If your visa is mandatorily cancelled under Section 501(3A), you can request revocation within 28 days. You must make written representations explaining why the cancellation should be revoked despite your substantial criminal record.
The decision-maker will consider factors in Ministerial Direction 110, including your ties to Australia, the interests of any children, and non-refoulement obligations. This is not an appeal but a request for the Department to exercise discretion to reverse the mandatory cancellation.
Administrative Review Tribunal (ART)
If a Department delegate (not the Minister personally) makes a discretionary decision to refuse or cancel your visa, or refuses to revoke a mandatory cancellation, you can seek review at the Administrative Review Tribunal (formerly the AAT).
Critical timeframes apply: you have just 9 days to lodge an ART application for non-revocation decisions if you are in Australia after a mandatory cancellation.
The ART conducts a fresh assessment of your case, not just a review of whether the original decision was correct.
Appeals can succeed more often than you might expect. Between July and November 2025, the ART received 261 character-related case lodgements, with 43% of decided cases set aside (meaning the applicant won) and 48% affirmed (the original decision upheld). For visa cancellation cases specifically, there were 407 lodgements, with 39% set aside and 49% affirmed.
These statistics are worth understanding: roughly 4 in 10 appeals succeed. If you have a genuine case with strong rehabilitation evidence, an appeal is not a hopeless exercise. It is a legitimate pathway that delivers meaningful results for many applicants.
Ministerial intervention
If a delegate's decision is upheld by the ART, the Minister has personal power under Section 501A to set aside that decision and substitute their own. This is a discretionary power exercised only in exceptional circumstances.
If the Minister personally makes the original decision to refuse or cancel, you have no merits review rights. Your only option is judicial review in the Federal Court, which is limited to examining whether the decision involved legal error.
Judicial review
The Federal Court can review decisions for jurisdictional error, meaning errors of law in how the decision was made. This does not involve reassessing the facts of your case. You must apply within 35 days of notification.
The absolute importance of disclosure
If there is one message to take from this article, it is this: you must disclose your entire criminal history, regardless of how minor or old the offences are.
The character test question asks about all convictions, including:
- Spent convictions (convictions that have been "erased" under rehabilitation schemes in other countries)
- Findings of guilt without conviction
- Overseas convictions
- Minor traffic offences
- Juvenile offences
Australia does not automatically recognise spent conviction schemes from other countries. Even if your conviction no longer appears on a police certificate in your home country, you must still disclose it.
The consequences of non-disclosure are severe and often worse than the consequences of the conviction itself:
- PIC 4020 refusal: Providing false or misleading information triggers Public Interest Criterion 4020, which results in automatic visa refusal and a potential 3-year or 10-year ban on further applications
- Visa cancellation: If you are granted a visa based on false information and this is later discovered, your visa can be cancelled
- Permanent credibility damage: Non-disclosure raises fundamental questions about your honesty, making every future application harder
The Department often treats concealment more seriously than the underlying offence. A minor traffic offence honestly disclosed is unlikely to affect your application. The same offence concealed and later discovered can result in a 10-year application ban.
Tern Tip
If you think you might have a criminal record, obtain your police clearance certificates before applying so you know exactly what you are disclosing. Review them carefully. If something appears that you had forgotten about, you still need to disclose it. The application form asks what you know, not just what is on your police certificate.
Practical advice for applicants with criminal histories
If you have any criminal history, here is how to approach your visa application:
1. Obtain all police certificates first
Before completing any visa application, get your police clearance from every country where you have lived for 12 months or more in the past 10 years. Review them carefully. If anything appears that you were not expecting, you need to address it.
2. Calculate your total sentence carefully
Add up all convictions you have ever received, from any country. If the total reaches 12 months or more, you have a substantial criminal record and will automatically fail the character test at the threshold stage.
However, this does not mean automatic refusal. The decision-maker still has discretion at the second stage to consider whether to refuse your visa. Professional advice is essential to prepare the strongest possible case for why discretion should be exercised in your favour.
If your total is under 12 months, you may still face difficulties but your case will be considered on its merits from the outset.
3. Prepare rehabilitation evidence
If you have past convictions, proactively address them with evidence of rehabilitation:
- Character references from employers, community members, or professionals who know you
- Evidence of stable employment and community ties
- Completion certificates for any rehabilitation programs
- A personal statement acknowledging responsibility and explaining the circumstances
- Evidence of time elapsed since the offence and clean conduct since
4. Address the concerns before they are raised
In your application or a supporting statement, acknowledge your criminal history directly. Explain:
- The circumstances of the offence (without minimising responsibility)
- What you have learned and how you have changed
- Why you do not pose a risk to the Australian community
A proactive, honest explanation is far more effective than waiting for the Department to raise concerns.
5. Get professional advice
This is not an area where DIY applications are wise. The stakes are too high and the law too complex. A registered migration agent or immigration lawyer can:
- Assess whether your criminal history triggers mandatory or discretionary provisions
- Advise on the strength of your case and realistic prospects
- Help prepare the strongest possible supporting evidence
- Ensure your disclosure is complete and appropriately framed
At Tern, we work with qualified immigration professionals who can assess your situation and advise on your options. If you have a criminal history, please seek advice before submitting any application.
When professional advice is essential
You should always seek professional migration advice if any of the following apply:
- Your total convictions equal or exceed 12 months
- You have any conviction involving violence, sexual offences, or offences against children
- You have multiple convictions of any kind
- You have ever had a visa refused or cancelled on character grounds
- You are unsure whether something in your past requires disclosure
- Your partner or sponsor has a criminal history (for partner visas)
The cost of professional advice is insignificant compared to the cost of a wrong decision in this area. While refusals can be appealed, appeals are stressful, expensive, and not always successful. Getting it right the first time is far better than fighting to reverse a bad outcome.
Frequently Asked Questions
How Tern can help
We know that applying for a visa with a criminal record can feel isolating. Many applicants assume they will be turned away or judged before they even start. At Tern, we take a different approach: if there is a legitimate pathway forward, we want to help you find it.
If your total sentences are under 12 months
Tern fully supports applicants with criminal records totalling less than 12 months imprisonment. Our in-house immigration lawyer will work directly with you to prepare supporting character statements and documentation that present the strongest possible case for your visa to be granted.
This is not a box-ticking exercise. We help you build a compelling narrative around your rehabilitation, gather the right evidence, and ensure your disclosure is framed in a way that addresses the decision-maker's concerns head-on. Many applications with minor criminal histories succeed with proper preparation, and we have experience guiding people through this process.
You do not need to feel embarrassed or apologetic when you come to us. Everyone deserves a fair shot at having their case properly assessed, and that starts with presenting it properly.
If your total sentences are 12 months or more
For applicants with a substantial criminal record, the stakes are significantly higher. You will automatically fail the character test at the threshold stage, and while the decision to refuse is still discretionary, you are facing an uphill assessment where community protection is weighted as the primary consideration.
For these cases, we recommend seeking a specialist immigration lawyer who can provide dedicated representation. This is not about us passing the buck. It is about ensuring you have the level of advocacy that a complex character case demands. Specialist lawyers in this area have experience presenting cases at the Administrative Review Tribunal, preparing detailed submissions under Ministerial Direction 110, and navigating the appeals process if needed.
Tern can still assist with the visa application process itself, but given the higher stakes and complexity, specialist legal advice is essential for the character assessment component. If you are unsure whether your situation falls into this category, reach out to us and we can help you understand where you stand.
Tern Tip
Not sure which category you fall into? Calculate your total convictions of 12 months or more from all countries carefully. If you are on the borderline or unsure how certain convictions count, that is exactly the kind of question we can help you clarify before you apply.
Final thoughts
Navigating Australian immigration with a criminal record is challenging, but it is not always impossible. Even if you have a substantial criminal record and automatically fail the character test, this does not mean automatic refusal. The decision-maker still has discretion to grant your visa after weighing all relevant factors.
What you can control: complete honesty, thorough preparation, strong rehabilitation evidence, and professional guidance.
What you cannot control: how the decision-maker weighs your circumstances against the primary consideration of community protection.
If your criminal history is minor, a well-prepared application with full disclosure and evidence of rehabilitation has a strong chance of success. If you have a substantial criminal record, the outcome depends on how effectively you can demonstrate rehabilitation, ties to Australia, and why you do not pose a risk to the community. Professional advice is essential to navigate this complex assessment.
The worst outcome is not being refused. It is being refused for concealment, which closes doors that honest disclosure might have left open.
Next steps:
- If you have convictions, obtain your police certificates so you know exactly what will be disclosed
- Calculate your total convictions from all countries to understand which threshold you fall under
- If your total is under 12 months, start your application with Tern. Our in-house immigration lawyer will help you prepare character statements and documentation to present the strongest possible case
- If your total is 12 months or more, seek specialist immigration lawyer advice for the character component. Tern can still help with your visa application, but you need dedicated legal representation for the character assessment
- Unsure where you stand? Get in touch with us and we can help you understand your options before you commit to anything
