For many clients, the hardest part of a permanent visa is not the points or the skills assessment. It is character. A permanent visa is a lasting grant, so the department looks at character with more care than it might for a short stay. A single charge that feels minor to a client can become the issue that decides the application. This article sets out how the character requirement works, how common situations such as a drink driving charge or a good behaviour order are treated, and how to present a matter so that it gives the client the best chance.
The framework: PIC 4001 and the character test
Public Interest Criterion 4001 (“PIC 4001”) is a central character requirement in Australian visa decision-making. Where PIC 4001 is prescribed for a visa subclass, an applicant must satisfy the Minister, or the Minister’s delegate, that they pass the “character test” in section 501 of the Migration Act 1958 (Cth).
PIC 4001 is a public interest criterion that applies to many visa subclasses. In simple terms, it requires the applicant to satisfy the Department that they pass Australia’s character requirements. In some cases, even where there is a character concern, the Minister or delegate may still decide not to refuse the visa. The practical issue is whether the applicant can explain the conduct, address any risk, and provide evidence of rehabilitation.
The test itself sits in section 501 of the Migration Act 1958. At the application stage, character may arise either because PIC 4001 is a criterion for grant, or because the Department is considering refusal under section 501. This article focuses on visa applications, not cancellation of visas already held.
How a person fails the character test
The “character test” is defined in section 501(6) of the Migration Act. A person does not pass the character test if any of the statutory grounds are enlivened.
A person fails the character test if any one of the grounds in section 501(6) applies. The grounds are independent of each other, so a single ground is enough. They include:
- substantial criminal record, as defined in subsection 7;
- a conviction for an offence committed in immigration detention, during an escape from it, or after escaping;
- a reasonable suspicion of membership of, or association with, a group, organisation or person involved in criminal conduct;
- involvement in spreading hatred and extremism, as set out in subsection 6A;
- a reasonable suspicion of involvement in people smuggling, human trafficking, genocide, a crime against humanity, a war crime, or a crime involving torture or slavery, whether or not the person has been convicted;
- not being of good character, judged by past and present criminal conduct or general conduct;
- a risk, if the person enters or stays, of criminal conduct, harassing or stalking someone, vilifying part of the community, inciting discord, or being a danger to the community;
- a conviction or a finding of guilt for a sexually based offence involving a child, even if the person was discharged without conviction;
- having been charged with or indicted for genocide, a crime against humanity, a war crime, or a crime involving torture or slavery;
- an assessment by ASIO that the person is a risk to security; or
- an Interpol notice indicating the person would present a risk to the community.
The character test is broader than a criminal record check. For everyday matters such as a traffic offence, the grounds that usually matter are the substantial criminal record limb, the good character limb, and the risk limb.
What counts as a “substantial criminal record”
A person does not pass the character test if they have a “substantial criminal record”.
Under section 501(7), this includes circumstances where the person has been:
- a sentence of death;
- a sentence of imprisonment for life;
- a single sentence of imprisonment of 12 months or more;
- two or more sentences of imprisonment that add up to 12 months or more;
- an acquittal on the grounds of unsoundness of mind or insanity that led to detention in a facility or institution; or
- a finding that the person was unfit to plead, where the court still found the person committed the offence and the person was detained.
Two rules often surprise people. First, where sentences are served at the same time, the full length of each sentence still counts toward the total. Two terms of three months served together count as six months, not three, so several short matters can add up to a substantial criminal record even when they were served concurrently. Second, time ordered in a residential drug rehabilitation scheme or a residential program for mental illness counts as imprisonment for the number of days involved. On the other hand, a sentence or conviction is disregarded if the conviction has been quashed or if the person has been pardoned in a way that treats them as never convicted.
Past and present criminal or general conduct
A person may fail the character test if, having regard to their past and present criminal conduct or general conduct, they are not of good character.
This ground is broader and more evaluative than the substantial criminal record ground.
It may capture conduct such as:
- repeated offending below the 12-month imprisonment threshold;
- domestic and family violence;
- dishonesty, fraud or deception;
- breaches of court orders;
- immigration non-compliance;
- serious traffic offending;
- drug-related conduct;
- violent or threatening behaviour; and
- patterns of disregard for Australian law or community standards.
Importantly, criminal conduct does not need to meet the threshold of a “substantial criminal record” before it becomes relevant. A pattern of lower-level offending may still support an adverse character finding.
Two common situations
Most character questions that practitioners meet are not at the serious end. They involve a charge or an order that worries the client far more than it worries the Department of Home Affairs, yet still needs careful handling on a permanent application.
A drink driving charge
A single drink driving convictionrarely carries a sentence of 12 months or more, so on its own it usually does not create a substantial criminal record.
Even where the substantial criminal record limb is not engaged, the conduct may still be relevant under the “past and present criminal or general conduct” limb and the future-risk limb of the character test. The task is therefore to place the drink-driving incident in context: for example, whether it was isolated or repeated, the blood alcohol reading, whether there was dangerous driving, accident, injury or police pursuit, the client’s prior traffic history, compliance with court orders, rehabilitation steps, alcohol counselling, insight and evidence that the conduct does not indicate an ongoing risk. In a permanent visa context, those matters assume particular significance because the decision-maker is assessing whether the applicant satisfies Australia’s character requirements for long-term residence.
A good behaviour order
A good behaviour order or a community correction order is made by a court and sets conditions a person must meet for a period of time. It does not usually involve a term of imprisonment, so will not, by itself, create a substantial criminal record. Its relevance is more likely to arise under the “past and present criminal or general conduct” limb and the future-risk limb.
A client who complies fully, completes any required program, and finishes the period without further issue has clear evidence of rehabilitation to show. Where an order is still running, it helps to explain the conditions, the progress made, and any steps the client has taken beyond what the court required.
The role of Ministerial Direction 110
When a decision maker is considering a discretionary refusal or cancellation on character grounds, decision makers are generally required to follow Ministerial Direction 110, unless the decision is made personally by the Minister or another exemption applies.
Direction 110 sets out the considerations decision makers must take into account, with the protection of the Australian community placed as the highest priority. The direction groups the considerations into primary ones, such as the protection of the community and the nature and seriousness of the conduct, and further ones, such as the strength and length of a person’s ties to Australia and the effect of a decision on family members and children.
How to present the matter
The first rule is full and early disclosure. Hiding a charge is far more damaging than the charge itself, because nondisclosure raises a separate and serious concern about honesty and can lead to refusal in its own right. The strongest responses are honest, evidence-based and structured around risk. The applicant should disclose the issue early, explain what happened, accept responsibility where appropriate, and show what has changed since the incident.
Helpful evidence may include court documents, sentencing remarks, proof of compliance with court orders, completion of driver education or counselling, alcohol or drug treatment records, character references, employment evidence, community involvement, and evidence of family ties in Australia.
Community work and rehabilitation should not simply be listed. They should be connected to the real question: why the conduct is unlikely to happen again.
A recent change to watch: hatred and extremism
Recent amendments have also expanded the character test to address certain conduct involving hatred, extremism and serious community harm. Those provisions will not arise in most routine visa applications, but they show that the character test extends beyond convictions and can include conduct that has not resulted in a criminal sentence.
Key takeaways
- PIC 4001 brings the character test into most applications and can be met in four ways, including where the Minister chooses not to refuse despite a concern.
- The grounds for failing the test are independent, so a single ground is enough.
- A substantial criminal record usually means 12 months or more, and concurrent sentences are added together in full.
- A single drink driving charge rarely fails the test, but the good character and risk limbs still apply on a permanent visa.
- A good behaviour order, fully complied with, can become evidence of rehabilitation.
- Direction 110 sets the considerations and is the natural structure for a submission.
Disclose early, present honestly, and tie every piece of evidence to a consideration the officer must weigh.
Contact Migrations Affairs to speak with our property experts for tailored advice on the circumstances and eligibility.
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