A criminal record does not necessarily mean that you cannot obtain or keep an Australian visa. However, Australia’s character provisions extend considerably further than serious criminal convictions.
A visa applicant or visa holder may encounter character issues because of criminal charges or convictions in Australia or overseas, a history of offending, domestic or family violence, associations with certain people or organisations, past or present general conduct, or other conduct that raises concerns under Australia’s character test.
From 31 October 2026, a new Ministerial Direction — Ministerial Direction 123 (MD 123) — will guide decision-makers considering visa refusal or cancellation under section 501 of the Migration Act 1958, and requests to revoke mandatory visa cancellations under section 501CA.
MD 123 replaces Ministerial Direction 110 and introduces some significant changes to the way character cases are assessed.
For people with potential character concerns, the important question is not simply “Do I have a criminal record?” It is:
What does my particular history mean for my Australian visa, and what evidence can I provide to properly address it?
Section 501 of the Migration Act 1958 contains Australia’s character test.
The character test contains numerous grounds on which a person may fail the test. A substantial criminal record is one of them, but it is certainly not the only one.
Depending on the circumstances, character concerns can arise from matters including:
This means that a person does not necessarily need to have served time in prison — or even have a conventional criminal conviction — before character issues can become relevant to a visa application or an existing visa.
It is also important to distinguish between failing the character test and the ultimate decision about whether a visa should be refused, cancelled or a mandatory cancellation should be revoked. In many section 501 matters, once the relevant power is enlivened, the decision-maker must still consider the circumstances of the individual case.
Not necessarily.
One of the most common misconceptions we encounter is that any criminal conviction automatically prevents someone from obtaining an Australian visa.
That is not how section 501 operates.
The first question is what part, if any, of the character test applies. For example, the Act contains a specific definition of a “substantial criminal record”, which includes circumstances where a person has been sentenced to imprisonment for 12 months or more, or has received two or more terms of imprisonment totalling 12 months or more.
But character concerns are not confined to that threshold.
A person with offending below the “substantial criminal record” threshold may potentially encounter other aspects of the character test. Conversely, even where a person does not pass the character test, the particular statutory power being exercised may involve a further discretionary assessment.
This is why simply adding up convictions or sentences is not an adequate character assessment.
MD 123 changes the framework used by decision-makers when assessing many section 501 and section 501CA cases.
Under the new Direction, there are four primary considerations:
The protection of the Australian community is generally to receive greater weight than the other primary considerations, while primary considerations generally receive greater weight than the “other considerations”.
This weighting can be extremely important in difficult character cases.
One of the notable changes under MD 123 concerns a person’s ties to Australia.
Under the previous Direction, the strength, nature and duration of ties to Australia was a primary consideration.
Under MD 123, it moves to the other considerations.
That does not mean Australian ties are irrelevant.
Decision-makers must still consider the impact of the decision on immediate family members in Australia who are Australian citizens, permanent residents or otherwise have an indefinite right to remain.
In visa cancellation and mandatory cancellation revocation matters, consideration can also be given to matters such as:
The important change is one of weight. These ties no longer sit amongst the primary considerations.
For a person who has spent decades in Australia, has Australian family and has established their life here, this makes the careful presentation of those circumstances particularly important.
MD 123 contains an extensive definition of domestic and family violence.
It extends well beyond physical assault and includes conduct that is threatening, coercive, controlling, dominating, sexually, emotionally, psychologically or economically abusive.
The Direction gives examples including stalking, certain forms of surveillance and monitoring, image-based abuse, coercive conduct, harassment, neglect, breaches of relevant court orders and exposing children or relatives to domestic and family violence.
The definition of a family or domestic relationship is also broad. It can extend beyond spouses and de facto partners to relatives, people sharing domestic life, recognised cultural family groups and certain caregiving relationships.
For visa applicants and visa holders, there is another particularly important point:
A criminal conviction is not necessarily required before domestic or family violence can become relevant to a character decision.
MD 123 permits consideration of information from independent and authoritative sources, including protection orders and police records of attendance at domestic or family violence events, even where charges were not ultimately brought, provided the person affected by the section 501 process is afforded procedural fairness.
This makes it extremely important not to assume that a matter is irrelevant to immigration simply because it did not result in a criminal conviction.
This is an area where individual advice can be particularly important.
People sometimes assume:
“The charge was withdrawn, so Home Affairs cannot consider it.”
or:
“I was never convicted, so it doesn’t affect my visa.”
That conclusion can be unsafe.
Depending on the particular character ground and circumstances, the migration character framework can permit consideration of conduct extending beyond convictions.
At the same time, an allegation is not automatically equivalent to established offending. The source, reliability and nature of the information, the outcome of criminal or other proceedings, the person’s response to the allegation and the requirements of procedural fairness may all be important.
A character submission should therefore deal carefully with what actually happened and what the available evidence establishes, rather than treating every allegation either as proven or irrelevant.
In one matter we assisted with, a wife had applied for an Australian permanent visa, with her husband included as a secondary applicant. While their visa application was being processed, a domestic dispute occurred. The husband slapped his wife twice, police were called, and he was charged with aggravated common assault categorised as family violence. Although his wife later wanted the matter withdrawn, it proceeded through the ACT Magistrates Court. The Court ultimately dealt with the offence without recording a conviction, imposing a nine-month good behaviour order.
The absence of a conviction did not mean the incident could simply be disregarded for migration purposes. The Department of Home Affairs issued a Notice of Intention to Refuse, giving the applicant an opportunity to respond to the character concerns. We provided the relevant police and court records together with detailed evidence addressing the circumstances of the incident, his acceptance of responsibility and remorse, the absence of any previous or subsequent family violence, compliance with the good behaviour order, his voluntary completion of an anger-management course, and an assessment by an independent forensic psychologist.
This is a useful example of why character matters need to be assessed individually. Conduct can be relevant to a visa even where no conviction is recorded, while rehabilitation, subsequent behaviour and the evidence surrounding the incident can also be important to the overall assessment.
Names and identifying details have been omitted to protect client confidentiality. Every migration matter is different and past outcomes do not guarantee future outcomes.
Past offending is important, but so is what has happened since.
When assessing the risk of further offending or serious conduct, MD 123 requires consideration of information and evidence concerning the risk of reoffending and evidence of rehabilitation achieved by the time of the decision.
Time spent in the community since the most recent offence is expressly relevant.
Depending on the case, useful evidence might include:
Simply saying “I am rehabilitated” is unlikely to be as persuasive as objective evidence showing what has changed and how those changes have been maintained.
In domestic and family violence cases, MD 123 gives decision-makers specific guidance about rehabilitation.
Relevant matters include the extent to which the person:
The effect or likely effect of the violence upon victims and witnesses must also be considered, particularly where a minor child was involved.
This means that evidence of rehabilitation should generally address insight and behavioural change, not simply attendance at a program.
The best interests of minor children in Australia affected by the decision remain a primary consideration under MD 123.
The assessment is individual.
Where several children are affected, their interests should be considered separately where those interests differ.
Relevant issues can include the child’s relationship with the non-citizen, the role that person is likely to play in the child’s future, the consequences of separation, whether another person performs a parental role, the child’s views having regard to age and maturity, and the effect of the person’s previous conduct.
Importantly, MD 123 also places increased emphasis on children who may themselves have been victims of, or exposed to, abusive conduct or domestic and family violence.
Accordingly, the existence of an Australian child should never simply be presented as:
“I have an Australian child, therefore my visa should not be cancelled.”
The evidence should explain the child’s individual circumstances and how the immigration decision would actually affect that child.
MD 123 also reflects significant changes to the character framework concerning hate and extremist conduct.
The Direction deals expressly with conduct constituting hate crime and advocacy that might lead another person to engage in hate crime.
Under the community expectations consideration, MD 123 also expressly refers to conduct including hate speech, inciting violence, discord or racial disharmony, and related advocacy.
The character test itself now contains additional grounds dealing with matters including membership of or association with specified organisations or entities, hate crime conduct and certain public statements disseminating ideas based on racial or ethnic superiority or hatred.
For visa applicants and visa holders, this is a reminder that character is no longer an issue confined to what appears on a police certificate.
Depending upon the applicable statutory ground, public conduct — including online statements — can potentially have immigration consequences.
Another misconception is that an offence committed outside Australia does not matter to an Australian visa application.
It can.
The character test and MD 123 contemplate conduct occurring overseas. MD 123 also directs decision-makers, when considering overseas offending or conduct, to consider whether the conduct is classified as an offence in Australia.
Visa applicants should therefore disclose criminal history accurately when required, even where the matter occurred many years ago or in another country.
Trying to minimise or conceal a past offence can create an additional problem. MD 123 expressly identifies the provision of false or misleading information to the Department — including failing to disclose prior criminal offending — as relevant when assessing the nature and seriousness of conduct.
Time can matter, but there is no simple rule that an old offence disappears for migration purposes after a particular number of years.
The proper assessment may involve looking at matters such as:
An offence committed 15 or 20 years ago followed by a lengthy period of demonstrated rehabilitation may present very differently from recent or repeated offending.
The evidence is what tells that story.
MD 123 introduces an express principle concerning compliance with Australia’s migration framework.
It states that the Australian community expects non-citizens to abide by migration rules and standards, including departing Australia when their privilege of remaining has ceased or been forfeited, while recognising that the significant majority of non-citizens do comply.
This means that in an already difficult character matter, a person’s broader immigration history may also require careful consideration.
Another notable change is that MD 123 removes impact on Australian business interests from the specified “other considerations”.
Under the new framework, losing an employee, disrupting a business or adversely affecting commercial interests is therefore no longer expressly identified as a consideration that must be taken into account in the way it was under MD 110.
That does not necessarily mean every fact connected with employment becomes irrelevant — facts can sometimes be relevant to another consideration, depending on the circumstances — but the previous express business-interest consideration has been removed.
The consequences can extend well beyond losing the particular visa.
Depending on the circumstances, a section 501 refusal or cancellation can affect a person’s ability to make further visa applications, their ability to remain lawfully in Australia and their ability to return to Australia in the future.
For a person in Australia, loss of their visa can potentially result in them becoming an unlawful non-citizen, with detention and removal consequences.
Some decisions may carry review rights, but character matters can involve very strict statutory time limits.
This is not an area where a person should put a Departmental letter aside for a few weeks and deal with it later.
Take it seriously and obtain advice promptly.
A response to a character concern is not simply a character reference exercise.
Depending on the case, it may be necessary to obtain and analyse:
The submissions then need to address the actual statutory character ground and the considerations applicable to that particular decision.
A large bundle of documents does not necessarily make a strong character case. The evidence needs to answer the issues the decision-maker is required to determine.
Certain non-citizens serving a full-time custodial sentence can have their visas mandatorily cancelled under section 501(3A).
A person subject to mandatory cancellation may be able to request revocation under section 501CA.
These matters are particularly time-sensitive.
A revocation case can involve substantially more than arguing that a person has family in Australia or regrets their offending. The relevant character issues, risk, rehabilitation, family circumstances, children, Australian ties, consequences of the decision and impediments to removal may all require evidence and careful submissions.
Two people can have apparently similar convictions and face very different immigration circumstances.
Their sentences may differ. One may have repeated offending and the other an isolated offence. One may have substantial evidence of rehabilitation. One may have lived in Australia since early childhood. There may be Australian children affected by the decision. Domestic or family violence may be involved. The potential consequences of removal may be completely different.
Even the particular provision of the character test relied upon can fundamentally change the analysis.
That is why character advice should start with the person’s complete immigration, criminal and personal history, rather than with the name of an offence alone.
If you have criminal convictions, pending charges or other circumstances that may raise character concerns, obtaining advice before lodging a visa application can be particularly important.
Do not assume that a minor, old or overseas matter is irrelevant, and do not omit information simply because you believe Home Affairs will not consider it important.
Visa applicants should answer character questions accurately and disclose relevant matters when required. Providing false or misleading information can create further immigration difficulties.
Where character issues exist, it may be appropriate to assess the issue in advance, obtain the relevant court and police records and prepare supporting evidence addressing the applicable character provisions.
MD 123 was signed on 18 September 2026 and commences on 31 October 2026, when it replaces Ministerial Direction 110.
The new Direction does not make every person with a criminal record ineligible for an Australian visa. Nor does it mean that long-term Australian residents, rehabilitation, family circumstances or the interests of children have become irrelevant.
It does, however, change the framework within which many of those circumstances are weighed and places particular emphasis on community protection, domestic and family violence, community expectations and the interests of children — including children affected by a person’s conduct.
If you are concerned that a criminal conviction, charge, domestic or family violence matter, previous conduct or another character issue may affect an Australian visa, it is worth obtaining advice before assuming either that the matter is fatal or that it does not matter.
Every character case turns on its individual facts, the particular provision of the character test engaged, the evidence available and the decision that is actually being considered.
Heenan & Browne Visa and Migration Services assists with complex Australian migration matters, including visa applications involving character concerns, responses to potential visa cancellation and character-related migration advice. If you have received correspondence from the Department of Home Affairs or are concerned about how your history may affect a current or proposed visa application, you can book a complex migration consultation to obtain advice tailored to your circumstances.
This article provides general information only and does not constitute migration or legal advice. Migration legislation, policy and Ministerial Directions can change, and the appropriate approach depends on the individual circumstances of each case.
30 September, 2026
23 September, 2026
