To visit or live in Australia, you must be of good character. This means you need to meet the Department of Home Affairs’ character requirements – and continue to maintain good character throughout your stay. These requirements are a key part of visa eligibility and ongoing compliance.
Why character matters?
Australian migration law treats a visa as a privilege, not a right. Section 501 of the Migration Act 1958 allows the Minister or a delegate to refuse or cancel a visa when an applicant fails the “character test”. Since 21 June 2024, Ministerial Direction 110 has guided decision makers on how to exercise this power and has replaced the short lived Direction 99.
The legal framework of section 501 in brief
Section 501 empowers the Minister to act in three ways.
- Discretionary refusal before a visa is granted.
- Discretionary cancellation after a visa is granted.
- Mandatory cancellation when a person is serving a full‑time prison sentence and fails the character test because of a substantial criminal record or child sexual offences.
Depending on the situation, a person whose visa has been refused or cancelled under section 501 may be able to apply to the Administrative Review Tribunal (ART) for a merits review of the decision. In other cases, they may only be able to challenge the legality of the decision through the courts. Whether a person can seek a merits review at the ART depends on who made the decision – if it was made by a delegate of the Minister, review may be available. However, if the decision was made by the Minister personally, a merits review is generally not available.
What is Ministerial Direction 110?
Direction 110 restates that the safety of the Australian community is the highest priority. Decision makers must weigh five primary considerations: protection of the community, any family violence, the person’s ties to Australia, the best interests of affected children and community expectations. Protection of the community generally carries more weight than all other factors.
Notable emphases include:
- Family violence is serious. Even strong countervailing factors may not outweigh it.
- Community expectations apply even when the person poses no measurable physical danger. For example, forced marriage, regardless of whether it is an adult or underage forced marriage, is also considered to be one of the conducts that influence the satisfaction of character requirement.
- Authorities may show slightly more tolerance where the person arrived in Australia as a young child and has lived here most of their life, yet serious conduct can still override long residence.
How can an applicant fail the character test?
Based on section 501, an applicant does not pass the test if, among other things, they:
- have a “substantial criminal record” (twelve months or more of imprisonment in total)
- have been convicted of an offence either whilst in immigration detention, during an escape from immigration detention, or after having escaped from immigration detention but prior to being taken back to immigration detention
- pose a significant risk of engaging in criminal conduct (such as harassing, molesting, intimidating or stalking another person, or vilifying, inciting discord against a segment of the Australian community)
- belong or used to belong to, or is associated with a group, organisation or person involved in criminal conduct
- represent a danger to the Australian community
- are not of good character due to their past and present criminal or general conduct
Under Australian migration law, an applicant’s visa must be cancelled if they are serving a full-time prison sentence and meet certain criteria. This includes if the applicant has:
- Been sentenced to death, life imprisonment, or a prison term of more than 12 months
- Been convicted of a child-related, sexually based offence by an Australian or overseas court
- Had a charge proven for a sexually based offence involving a child, even if no conviction was recorded
- Been found guilty of a sexually based offence involving a child, even if you were discharged without conviction
What is being assessed for the character test
Character related visa decisions involve careful assessment of several factors. When making these decisions, departmental offices must follow a Ministerial Direction (Ministerial Direction No. 110), which outlines the key considerations to be weighed when deciding whether to refuse or cancel a visa on character grounds.
The decision-maker must take into consideration the following factors, cumulatively:
- the protection of the Australian community from criminal or other serious conduct
- whether the conduct engaged in constituted family violence
- the strength, duration and nature of the non-citizen’s connections to Australia.
- the expectations of the Australian community
- the best interest of minor children in Australia
However, the Department also assesses the following mitigating factors:
- Legal consequences of the decision
- Extent of impediments if removed
- Impact on Australian business interests
How are character checks conducted?
As part of the character assessment process, most applicants are required to provide a valid police clearance from every country they have lived in – including Australia- where they resided for 12 months or more over the past 10 years.
Obtaining these certificates can take anywhere from a few weeks to several months, may involve a fee, and could delay your visa application if not arranged early. Each country has its own process and requirements.
Full disclosure in your visa application is essential. Omitting criminal history or adverse information can itself trigger refusal for misleading the Department. This gives rise to PIC 4020.
What is the Visa Applicant Character Consideration Unit (VACCU)?
The Visa Applicant Character Consideration Unit (VACCU) is a specialist unit within the National Character Consideration Centre (NCCC), part of the Department of Home Affairs. Its main role is to assess whether visa applicants meet Australia’s character requirements.
VACCU conducts comprehensive reviews of applicants’ backgrounds to identify any potential risks to the Australian community. This includes gathering information from law enforcement, security, and intelligence agencies. The unit handles a wide range of character concerns, such as:
- Criminal convictions
- Serious misconduct
- Links to individuals or organisations involved in criminal or unlawful activity
If VACCU identifies concerns, your visa application may be delayed or referred for further assessment, including possible refusal or cancellation on character grounds.
What happens if you fail the character test?
In some cases, the visa must be refused or cancelled (mandatory cancellation).
In other cases, the Minister or a delegate has discretion to decide whether to cancel the visa, taking into account the various considerations in Ministerial Direction No 110.
Takeaway for visa applicants
Certain criminal convictions, actions, or behaviours – whether in Australia or overseas – may make you ineligible to apply for or be granted an Australian visa. You may also be refused a visa if the Minister believes you are likely to engage in criminal conduct or pose a risk to the Australian community, security, or public order.
If you have any past criminal history or are unsure of your situation, it is essential to seek professional advice early to avoid delays or complications with your visa application.
Changes to the migration program can occur without notice. The above information is not intended to be legal advice and is correct as of the date of writing this article.
Contact Migrations Affairs to speak with our immigration experts for tailored advice on the circumstances and eligibility.
