Abstract: Australia's 'Character Test' is a mandatory hurdle for nearly all visa applicants. Based on Section 501 of the Migration Act 1958, it aims to ensure visa holders do not pose a risk to the Australian community. This article provides an in-depth analysis of the character requirements, the definition of a 'substantial criminal record' that can lead to refusal or cancellation, the core considerations of Ministerial Direction 99, and offers professional strategies for applicants with potential character issues.
The 'Character Test' is a fundamental requirement in Australian immigration law that applies to almost all visa applicants and current visa holders. Its primary purpose is to protect the safety and values of the Australian community by preventing non-citizens who might pose a risk from entering or remaining in the country.
This test is not merely a check for a criminal record; it encompasses a broader assessment of a person's past and present conduct, their associations, and any potential future risk they may pose to the community. The direct consequences of failing the Character Test can include:
Therefore, correctly understanding and properly addressing character issues is a critical step on your immigration journey.
All powers related to the Character Test are derived from Section 501 of the Migration Act 1958. This section grants the Minister for Immigration (and their delegates) the authority to refuse a visa application or cancel an existing visa on character grounds.
The decision-maker must be satisfied that the applicant or visa holder is not of good character. This is a statutory power that involves a degree of discretion, but its exercise must adhere to legal procedures and relevant policy guidelines.
Under Section 501, a person will fail the Character Test if any of the following apply:
What exactly constitutes a 'substantial criminal record'? The law provides a clear definition. A person is deemed to have a substantial criminal record if they have been:
Crucial Point: The "term of imprisonment of 12 months or more" refers to the total sentence imposed by the court, not the actual time served. Even if the sentence was fully suspended, it is the total length of the sentence that matters.
When a decision-maker (such as a delegate of the Minister or a Member of the AAT) exercises their discretion under Section 501, they must follow the current ministerial direction, which is Direction 99. This Direction provides a framework for how various factors are to be weighed.
Direction 99 mandates that decision-makers must consider the following Primary Considerations:
Among these, the protection of the community and the best interests of children are given very high weight. This means that even if an applicant has family and children in Australia, a visa is still highly likely to be refused or cancelled if their offence was serious or if they are deemed to pose a high risk of reoffending.
If you are aware of circumstances in your background that might raise concerns under the Character Test, remaining silent or concealing information is never the right option. Under Public Interest Criterion 4020, providing false information can lead to more severe consequences. The correct approach is to:
Having a criminal record or facing other character concerns, while presenting a serious challenge to your immigration plans, does not automatically mean there is no hope. The Australian legal system provides applicants with an opportunity to explain their circumstances and present their case.
The key lies in how professionally and strategically your case is presented to convince the decision-maker that, despite past issues, you do not pose an unacceptable risk to the Australian community.
The Immigix team has extensive experience in handling a wide range of complex character cases. If you are worried about this, do not hesitate—contact us immediately for a professional and confidential assessment.