Charged with an offence while holding a visa: what a charge does, what a conviction does, and why the plea is a visa decision

MARN 1576536

Two matters

The court decides guilt and sentence under the criminal law of the state. The Department decides the visa under the Migration Act, on the character test and the cancellation powers, using what the court records. The two run on different timetables, with different advisers, and the criminal matter usually finishes first. What links them is the sentence: the character test counts months of imprisonment, and the plea and the sentencing submissions in the criminal matter decide those months. A visa holder who treats the charge as a criminal problem only finds the visa problem waiting when the criminal problem is over.

What a charge does

A charge is an allegation. It does not fail the character test, which turns on convictions, sentences, associations and conduct, and a person charged with an offence and later acquitted has no character issue from it. What a charge does in the meantime is three things. It must be disclosed on any application pending or lodged while it is unresolved, because every form asks about charges as well as convictions. It can delay a pending application, because the Department commonly waits for the outcome before deciding. And in a serious case, where the person is in custody or the alleged conduct suggests a risk, it can prompt the Department to consider cancellation on general grounds or to refer the matter to its character unit before the court has finished. For most charges, nothing happens to the visa until the court decides.

Disclosure

Every visa application and most citizenship forms ask whether the applicant has ever been charged with an offence that is awaiting legal action, as well as whether they have been convicted. A charge is answered yes. A charge arising after an application is lodged is a change in circumstances that must be notified before the decision. A charge not disclosed, discovered later through the police check or the data exchange between agencies, is incorrect information under PIC 4020 and section 109, and it turns a charge the Department would have waited on into a refusal or cancellation for dishonesty. The disclosure is a sentence on the form with the court documents attached; it is not a confession, and the Department does not decide guilt. The criminal record guide sets out what must be disclosed, including spent and overseas matters.

The character test

Section 501 provides that a person does not pass the character test if, among other limbs, they have a substantial criminal record, meaning a sentence of death or life imprisonment, a sentence of imprisonment of twelve months or more, two or more sentences totalling twelve months or more, or acquittal on the ground of unsoundness of mind with detention in a facility; if they have been convicted of a sexually based offence involving a child, or of an offence committed in immigration detention; if the Minister reasonably suspects they are a member of or associated with a group involved in criminal conduct; or if, having regard to their past and present criminal or general conduct, they are not of good character, or there is a risk that they would engage in criminal conduct, harass or stalk, vilify or incite discord, or be a danger to the Australian community. A sentence of twelve months is counted whether served, suspended or concurrent, and a sentence imposed overseas counts. The full test is in the character guide.

Mandatory cancellation

Section 501(3A) requires the Minister to cancel a visa, without prior notice, where the holder has a substantial criminal record because of a sentence of twelve months or more, or a child sex offence conviction, and is serving a sentence of imprisonment on a full-time basis in a custodial institution. The person is told after the cancellation and may request revocation within the period stated in the notice, usually 28 days, on the ground that they pass the character test or that there is another reason the cancellation should be revoked. The revocation request is decided under the Direction in force, and a refusal to revoke by a delegate is reviewable at the Tribunal within a very short period; a refusal by the Minister personally is not. A person whose visa is cancelled under this provision is detained on release from prison until removed or the cancellation is revoked.

Discretionary cancellation and refusal

Where a person fails the character test but is not within the mandatory provision, a sentence of twelve months served other than in custody, a suspended sentence, the conduct and risk limbs, the Department may cancel the visa or refuse an application, after giving notice of the intention and the information relied on and inviting a response. The decision weighs the considerations in the Direction in force, and it is where the response, the evidence of rehabilitation, the family, the time in Australia and the circumstances of the offence are put. A person refused or cancelled under section 501 is then subject to section 501E, which bars most further applications from inside Australia, and to the ordinary consequences of a cancellation.

Direction 123

Ministerial Direction 123 commences on 31 October 2026 and replaces Direction 110 for character decisions made from that date. It keeps protection of the Australian community and the interests of children in Australia as primary considerations, adds family violence and community expectations as primary considerations, and moves the strength, nature and duration of the person's ties to Australia from a primary consideration to an other consideration. For a person who has lived here since childhood, the argument that was often decisive under the earlier directions now weighs less against the seriousness of the offence. The practical effect is that the sentence matters more than it did, and the plea that produces it matters correspondingly. The change is set out in the character guide as it takes effect.

The plea and the sentence

The character test does not ask what the person did; it asks what sentence was imposed. The same conduct, charged, pleaded and sentenced differently, lands on different sides of twelve months and inside or outside a custodial sentence, and those are the two lines that decide mandatory cancellation, discretionary cancellation or no character issue at all. A criminal lawyer negotiating a plea is weighing the prospects at trial and the likely sentence; they may not know that a sentence of twelve months served in custody means certain cancellation while eleven months, or twelve months on an intensive correction order, means a discretionary decision with a response. The visa line is a fact the criminal lawyer needs before the plea is entered and before sentencing submissions are made, and it is the migration adviser's job to give it to them in writing. A sentencing court can also be told of the migration consequences, and some courts take them into account.

Bail, custody and travel

A visa holder on bail holds their visa and keeps its conditions; bail conditions that require surrender of the passport or reporting sit alongside the visa's own. A visa holder in custody on remand holds the visa, and the Department may be notified by the prison. A visa that expires while the holder is on bail or in custody leaves the holder unlawful, and a bridging visa is applied for in the ordinary way; a bridging visa with a reporting condition may be granted. Travel overseas while charged is usually prevented by the bail conditions, and a visa holder who leaves and returns while a charge is pending is examined at the border on it. A person acquitted keeps the visa and discloses the charge and the acquittal on later applications. A person convicted is in the position above from the day of sentence.

On the day of the charge

• Get a criminal lawyer, and tell them you hold a visa and which one.
• Get migration advice before the first court date, so that the visa line for the possible outcomes is known.
• Disclose the charge on any application pending or lodged from now, with the court documents.
• Keep every visa condition, including 8303 and 8564, the conduct conditions, and keep working and studying if the visa allows.
• Do not travel, and do not let the visa expire without a bridging application.
• If a notice of intention to consider cancellation arrives, treat it as a matter for an immigration lawyer, and answer within the period with evidence, not apology.

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General information only, current at October 2026; not advice on your own case. Sections 501, 501(3A), 501CA and 501E of the Migration Act 1958, and Ministerial Direction 123 commencing 31 October 2026 as announced, as at the date above. A section 501 matter is one for an immigration lawyer; WIDEN refers. Outcomes depend on the Department’s assessment of each matter; no registered migration agent can guarantee a result (Code of Conduct, Migration Agents Regulations). Keshab Chapagain, MARN 1576536.