Character Requirements for Australian Visas: What to Declare, Refusal and Cancellation

Australia’s character test under Section 501(6) of the Migration Act can result in a visa refusal or cancellation on several grounds, including a substantial criminal record (12 months or more imprisonment), association with criminal groups, or sexually based offences against children. Failing the test does not automatically result in refusal – it triggers a discretionary decision, weighed against factors including the best interests of any affected children and the strength of Australian ties.

Refusal vs Cancellation on Character Grounds

3 Steps If Character Is a Live Issue

1. Disclose Everything: All convictions, charges, and periods of detention anywhere in the world, regardless of when they occurred.
2. Understand Which Process Applies: Refusal, discretionary cancellation, and mandatory cancellation each follow different procedures and timeframes.
3. Respond to Any Notice Immediately: A Notice of Intention to Consider Cancellation carries strict, often very short, response deadlines.

Overview

Australia’s character requirement is one of the most misunderstood aspects of the immigration system – and one of the most consequential. Every visa applicant must satisfy the Department of Home Affairs that they meet the character test under Section 501 of the Migration Act 1958. Failing to understand what must be disclosed, or receiving a notice that your character is under assessment, can have life-altering consequences.

What Is the Character Test?

The character test under Section 501(6) of the Migration Act sets out the circumstances in which a person does not pass the test. A person fails the character test if any of the following apply:

They have a substantial criminal record – which means a sentence of imprisonment of 12 months or more (including multiple sentences totalling 12 months), a sentence of life imprisonment, or a sentence of death.

They have been convicted of an offence committed in immigration detention or while escaping from detention.

The Minister reasonably suspects they have been or are a member of, or associated with, a group or organisation involved in criminal conduct.

The Minister reasonably suspects they have been involved in people smuggling, people trafficking, genocide, war crimes, torture, slavery, or other crimes of serious international concern – regardless of whether there has been a criminal conviction.

They are not of good character based on their past or present criminal conduct or past or present general conduct.

They have been convicted of a sexually based offence involving a child.

They have had an adverse security assessment from ASIO.

An Interpol notice has been issued from which it is reasonable to infer they present a risk to the Australian community.

A person fails the character test if they satisfy any single one of these grounds. Each is assessed independently.

What You Must Declare on a Visa Application

All visa applications require disclosure of criminal history. In practical terms, you must disclose:

All criminal convictions in Australia and overseas, regardless of when they occurred and regardless of how minor the offence.

Any charges that are pending or unresolved at the time of application.

Any periods of imprisonment or detention.

Any convictions that have been spent, pardoned, or which you believe have been “wiped” – Australian migration law does not automatically recognise spent conviction schemes from other jurisdictions.

Any involvement in activities that could be described as people smuggling, trafficking, or war crimes, even without a conviction.

The standard applies broadly. Many applicants assume that minor offences – a traffic infringement, a small fine, a youth offence – do not need to be disclosed. This assumption is dangerous. The safest approach is to disclose everything and let the case officer determine its relevance. Failing to disclose is itself a potential ground for refusal under integrity provisions.

Visa Refusal on Character Grounds

Where an applicant does not pass the character test, the decision-maker has discretion under Section 501(1) to refuse the visa application. Failing the character test does not guarantee refusal – it triggers a discretionary assessment.

Decision-makers are required to follow Ministerial Direction 110 (in effect from June 2024), which sets out the factors to be considered. Primary considerations include:

Protection of the Australian community from harm – the seriousness of the criminal conduct, the likelihood of reoffending.

The best interests of any minor children in Australia affected by the decision.

The strength of the individual’s ties to Australia, including family connections and the extent to which they may be a victim of circumstances beyond their own control.

Secondary considerations include the person’s contribution to the Australian community, their employment, their conduct since any offence, and the impact of refusal on family members who are Australian citizens or permanent residents.

Visa Cancellation on Character Grounds

Section 501(2) gives the Minister power to cancel a visa already granted if there is reasonable suspicion the holder does not pass the character test and the holder cannot satisfy the Minister otherwise.

More significantly, Section 501(3A) imposes mandatory cancellation. Where a person is serving a custodial sentence in Australia and has a substantial criminal record, their visa must be cancelled. The Minister has no discretion once this trigger is met – cancellation is automatic, and the person is notified by a Notice of Mandatory Cancellation.

The standard process for non-mandatory cancellation involves a Notice of Intention to Consider Cancellation (NOICC). This is a formal document setting out the grounds for consideration and providing an opportunity to respond. The response period is strictly limited – often 28 days or less.

Consequences of Cancellation

Visa cancellation on character grounds carries severe consequences:

The person may be placed in immigration detention.

The person may be removed from Australia.

A ban from re-entering Australia may apply, potentially permanently.

Cancellation affects family members who may hold visas tied to the cancelled holder.

Review Rights

In most cases where a delegate (not the Minister personally) refuses or cancels a visa on character grounds, review rights at the ART exist. Deadlines are typically 28 days from the date of the decision. Where the Minister makes a personal decision, review at the ART is generally not available – only judicial review in the Federal Court may remain.