Criminal Record and Australian Visas — Disclosure and the Character Test

MARN 1576536

What must be disclosed

Every Australian visa application asks whether you have ever been charged with or convicted of an offence, in any country. The question is answered on the form and, for most visas, in Form 80 or the character declaration. The duty is to disclose everything: convictions, charges that were withdrawn or dismissed, cautions where asked, and convictions that are spent, expunged or sealed under the law of the country where they occurred. Australia’s spent-conviction scheme does not apply to decisions under the Migration Act, and the Department expects the whole history.

Non-disclosure is treated far more seriously than the offence it hides. An undisclosed conviction discovered through a police certificate or a fingerprint check becomes a PIC 4020 false-information problem and a character-test credibility problem at the same time, and the three-year bar that follows is harder to overcome than most records.

The character test (s501)

Section 501 of the Migration Act 1958 sets the character test. A person fails it if, among other grounds, they have a substantial criminal record: a sentence of death or life, a sentence of imprisonment of 12 months or more, two or more sentences that total 12 months or more, or acquittal on grounds of unsoundness of mind with detention in a facility. Suspended sentences count as sentences of imprisonment. Sentences served concurrently are counted by their individual lengths. Other limbs cover sexually based offences involving a child, association with criminal organisations, and the Minister’s reasonable suspicion based on past and present conduct that the person is not of good character.

Public Interest Criterion 4001, which most visas require, is met if the applicant satisfies the Minister that they pass the character test, or if the Minister decides not to refuse despite the applicant not passing it. That second limb is where most criminal-record cases are decided.

Failing the test is not the end

Where the test is not passed, the decision-maker has a discretion whether to refuse, exercised under Ministerial Direction 110. The primary considerations are the protection of the Australian community from criminal or other serious conduct, whether the conduct engaged in constituted family violence, the strength, nature and duration of ties to Australia, the best interests of minor children in Australia, and the expectations of the Australian community. Other considerations include legal consequences of the decision, extent of impediments if removed, and impact on victims and on Australian business interests.

In practice a case is decided on the seriousness and recency of the offending, the risk of re-offending shown by the years since and what has been done in them, and what refusal would do to Australian citizens and residents connected to the applicant. A single sentence from fifteen years ago with a documented clean record since is assessed very differently from a pattern of offending that continues. The difference is made by evidence, not assertion.

Old convictions and rehabilitation

There is no rule under which an old conviction stops counting. A 12-month sentence from 2010 still fails the test in 2026. What changes with time is the discretion: the longer the period since the last offence, the lower the assessed risk, provided the file shows it. The evidence that carries these cases is specific: the court’s sentencing remarks, completion of any order or program, employment history since, references from people who know the record and still vouch, evidence of family and community ties, treatment records where relevant, and a frank personal statement that takes responsibility rather than minimises.

Police certificates

Applicants for permanent and many temporary visas must provide a police certificate from every country they have lived in for 12 months or more in the last ten years since turning 16, plus an Australian Federal Police check if they have spent 12 months or more in Australia. Certificates have Department-set validity periods and the Department may ask for fingerprint-based checks for some countries. Where a certificate shows “no trace” or “no live trace” but a record exists, the record must still be disclosed; the certificate is not the disclosure.

How the file should be built

• Full disclosure on the form and in Form 80, with court documents attached rather than waited for.
• A statement that explains the offending, the sentence, what has changed and why the risk is low, in the applicant’s own words, signed.
• Evidence against each Direction 110 consideration: ties to Australia, children, employment, treatment, time since offence.
• References from people who know about the record.
• Where the test is clearly failed, submissions addressed to the discretion, organised by the Direction’s headings.

Where a visa has already been refused or cancelled on character grounds, see character refusal and cancellation for the review rights and the Tribunal path.

General information only, current at October 2026; not advice on your own case. Outcomes depend on the Department’s assessment of each application; no registered migration agent can guarantee a result (Code of Conduct, Migration Agents Regulations). Keshab Chapagain, MARN 1576536.