Australian Visa Character Requirements: Understanding the Character Test
When applying for an Australian visa, most people focus on meeting the eligibility requirements for their chosen visa, such as qualifications, work experience, family relationships or financial capacity. However, every visa applicant should also be aware of Australia's character requirements.
Australia takes character assessment seriously. The Australian Government has broad powers to refuse or cancel visas where an applicant does not satisfy the character requirements under Australian migration law.
Fortunately, having a criminal history does not automatically mean that you cannot obtain an Australian visa. Many applications involving previous offences are approved each year. The outcome depends on the particular circumstances of each case and the way Australia's character provisions apply.
This article explains how Australia's character requirements operate, what the character test involves, and why obtaining appropriate advice can be important where character issues arise.
The Legal Framework
Australia's character requirements are primarily contained in section 501 of the Migration Act 1958.
Section 501 gives the Minister and authorised delegates the power to refuse or cancel visas where an applicant or visa holder does not satisfy the character test.
Where the legislation requires decision-makers to exercise discretion under section 501, they must also take into account the relevant Ministerial Direction. At the time of writing, this is Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA.
Ministerial Direction 110 identifies both primary and other considerations that decision-makers must weigh when determining whether discretion should be exercised. The protection of the Australian community is the primary consideration.
Who Must Meet the Character Requirements?
Character requirements apply across almost every Australian visa programme, including:
• Student visas
• Employer-sponsored visas
• Business visas
• Permanent residence visas
Applicants for Australian citizenship are assessed under different legislation and are subject to a separate "good character" requirement.
What Is the Character Test?
The character test is set out in section 501(6) of the Migration Act.
Rather than focusing solely on criminal convictions, the character test considers a range of matters, including criminal history, associations, past conduct and the potential risk an individual may pose to the Australian community.
An applicant may not satisfy the character test for several different reasons, including where they:
• have a substantial criminal record;
• have been convicted of escaping from immigration detention;
• are or have been associated with individuals or organisations involved in criminal conduct;
• are considered likely to engage in criminal conduct in Australia;
• are considered likely to harass, molest, intimidate or stalk another person;
• are considered likely to vilify a segment of the Australian community;
• are considered likely to incite discord within the Australian community; or
• are considered likely to represent a danger to the Australian community.
These provisions extend beyond offences committed in Australia and may include overseas convictions and conduct.
What Is a Substantial Criminal Record?
One of the most important concepts within the character test is the definition of a substantial criminal record, found in section 501(7) of the Migration Act.
A person may have a substantial criminal record if, among other things, they have:
• been sentenced to death;
• been sentenced to imprisonment for life;
• been sentenced to a term of imprisonment of 12 months or more;
• received multiple terms of imprisonment that total 12 months or more; or
• been acquitted because of unsoundness of mind or insanity and detained in a facility.
Importantly, Australian migration law generally focuses on the sentence imposed rather than the amount of time actually served.
Case Study: A Singapore Applicant with a 12-Month Prison Sentence
One matter involved a client in Singapore who had previously been sentenced to 12 months' imprisonment for a criminal offence. Although the client was released after approximately three months for good behaviour, Australian migration law focuses on the sentence imposed, not simply the time actually served.
As a result, the client had a substantial criminal record for the purposes of section 501 of the Migration Act 1958. This meant the application required careful consideration of the relevant legislative framework rather than simply relying on the fact that the client had been released early.
The submission addressed the nature and circumstances of the offending, the client's conduct since the offence, evidence of rehabilitation, and the factors relevant to the exercise of discretion under the Migration Act and Ministerial Direction No. 110.
Following consideration of the evidence and submissions, the client was granted their Australian visa.
This case illustrates an important aspect of Australian migration law: where a prison sentence has been imposed, it is generally the sentence itself—not the time actually served—that is relevant when assessing whether a person has a substantial criminal record under section 501 of the Migration Act 1958. It also demonstrates that a substantial criminal record does not necessarily mean that a visa cannot be granted.
Does Every Criminal Conviction Lead to Visa Refusal?
No.
Many people assume that any criminal conviction automatically prevents them from obtaining an Australian visa. This is not the case.
Some offences may have little or no practical impact on a visa application, while others may require detailed assessment.
Whether a visa is granted depends on factors including:
• whether the applicant satisfies the character test;
• whether discretion is available under the legislation;
• the nature and seriousness of any offending;
• the risk posed to the Australian community; and
• the legal framework applicable to the particular application.
Each case must be assessed on its own facts.
Police Certificates
Many Australian visa applicants are required to provide police certificates as part of the application process.
Police certificates assist the Department of Home Affairs in assessing an applicant's background and determining whether any further enquiries are required.
Providing a police certificate does not, by itself, establish that an applicant satisfies the character test, nor does the absence of convictions necessarily mean that character concerns cannot arise.
Applicants should carefully follow the Department's instructions regarding which police certificates are required.
Do Minor Offences Need to Be Declared?
Applicants should answer every character question in their visa application truthfully, accurately and completely.
Many applicants incorrectly assume that a minor offence, an old conviction or an offence that resulted only in a fine does not need to be disclosed. If the application asks about that offence or conviction, it should be declared honestly.
Attempting to minimise, omit or conceal relevant information can create far more serious migration problems than the underlying offence itself. In some cases, a visa application may be refused not because of the nature of the offence, but because the applicant provided incorrect, incomplete or misleading information.
If you are unsure whether a particular offence or conviction falls within the questions being asked in your visa application, it is advisable to seek professional advice before lodging your application rather than making assumptions about what should or should not be disclosed.
What About Spent Convictions?
The treatment of spent convictions differs between countries and legal systems.
Applicants should not assume that an offence can be ignored simply because it has become "spent" under the laws of another country.
Australian migration law may still require disclosure depending on the questions asked in the visa application and the relevant legislative provisions.
Character Issues Are Not Always Straightforward
Character assessments can become legally complex.
For example, issues may arise where an applicant has:
• multiple convictions;
• overseas criminal history;
• previous visa refusals or cancellations;
• offences committed many years ago;
• juvenile offending;
• pending criminal charges; or
• offences involving family violence or serious drug offences.
Each situation requires careful consideration of the applicable legislation and the individual circumstances.
Case Study: Previous Conviction and Deportation from a Third Country
Another matter involved a client from the Philippines who had previously been convicted of an offence in a third country after overstaying their visa. The circumstances were particularly complex because the case involved three separate issues: a criminal conviction, an immigration overstay, and subsequent deportation.
Cases of this nature require far more than simply acknowledging that an offence occurred. It is essential to explain the background to the offending, the legal context in which it arose, and why the circumstances should be considered within the framework of Australian migration law.
Comprehensive submissions were prepared addressing section 501 of the Migration Act 1958 together with the relevant considerations contained in Ministerial Direction No. 110. The submissions explained the circumstances surrounding the offending and demonstrated why, when the legislative framework was properly applied, the client's character concerns should not prevent the grant of a visa.
The application was ultimately successful, and the client was granted an Australian visa.
Character Cases Require Evidence, Not Emotion
Applicants are often understandably distressed when previous criminal offences or adverse immigration history become an issue in an Australian visa application. It is natural to want to explain how much the visa means to them or how difficult their personal circumstances have been.
While those matters may form part of the overall picture, character cases are rarely determined by emotional appeals alone.
Successful character submissions are generally based on careful analysis of the relevant legislation, objective evidence and the specific considerations that decision-makers are required to take into account under the Migration Act 1958 and Ministerial Direction No. 110.
This may include court documents, sentencing remarks, police records, evidence of rehabilitation, employment history, character references and any other material relevant to the legal issues in the case.
Professional advice can help applicants present their circumstances in a way that is legally relevant, ensuring that submissions focus on the matters that decision-makers are actually required to consider rather than relying primarily on emotion or personal opinion.
Frequently Asked Questions
Can I obtain an Australian visa if I have a criminal record?
Possibly. Many applicants with previous criminal convictions are granted Australian visas. Whether a visa can be granted depends on the nature of the offences, the relevant provisions of migration law, and the individual circumstances of the case.
Do traffic offences affect Australian visa applications?
Many routine traffic infringements are unlikely to raise character concerns. However, criminal driving offences, such as dangerous driving or drink-driving resulting in criminal convictions, may require closer assessment.
Will I always need police certificates?
Not every applicant must provide police certificates from every country in which they have lived. The Department of Home Affairs specifies when police certificates are required depending on the visa subclass and an applicant's personal circumstances.
Should I declare an offence that occurred many years ago?
Yes. Applicants should answer every character question in their visa application truthfully, accurately and completely, regardless of how long ago an offence occurred.
Many applicants mistakenly believe that because an offence was minor, happened many years ago or resulted only in a fine, it no longer needs to be disclosed. If the offence falls within the questions asked in the visa application, it should be declared.
Failing to disclose relevant information can create far more serious migration issues than the offence itself and may adversely affect the outcome of a visa application. If you are uncertain how a question applies to your circumstances, professional advice should be obtained before lodging your application.
Final Thoughts
Australia's character requirements are an important part of the visa application process, but they should not automatically discourage applicants with previous offences or complex backgrounds.
Many people with historical convictions successfully obtain Australian visas. Equally, some matters that appear relatively minor may require careful legal assessment under Australia's migration legislation.
Understanding the character provisions before lodging an application allows potential issues to be identified early and addressed appropriately.
If you have concerns about how your personal circumstances may affect your eligibility for an Australian visa, obtaining professional advice before lodging your application may help you better understand your options and prepare the strongest application possible.
Need Advice About Australian Visa Character Requirements?
Every character case is different. While some matters can be resolved with straightforward explanations, others require careful consideration of the Migration Act 1958, Ministerial Direction No. 110 and the individual circumstances surrounding an applicant's history.
If you are concerned that a previous conviction, criminal charge, immigration issue or police record may affect your Australian visa application, obtaining professional advice before lodging your application can help you understand your options and avoid common mistakes.
At Graham-Nguyen & Associates, we have experience assisting clients with complex character matters, including cases involving imprisonment, overseas convictions, immigration offences and deportation. We prepare submissions that focus on the relevant legislative framework and the evidence that decision-makers are required to consider.
If you would like advice tailored to your individual circumstances, please contact us or email us at enquiries@graham-nguyen.com. We would be pleased to discuss your situation and help you determine the best way forward.
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• Australian Skilled Migration: A Comprehensive Guide to Australia's Permanent Skilled Visa Program – An overview of Australia's current skilled migration opportunities.
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• Who Can Be Included in an Australian Visa Application? Understanding Dependents and Family Members – A guide to partners, children and other dependent family members.
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