Sponsoring a worker who has a criminal record: the nomination is unaffected, the visa is where it is decided, and whether the employer should proceed

MARN 1576536

The nomination and the visa are different questions

The employer-sponsored visas run in three stages, the sponsorship approval, the nomination and the visa, and the criteria for each are their own: the sponsorship and the nomination ask about the business, the position, the salary, the testing and the sponsor's own standing, including adverse information about the business and the people who run it; the visa asks about the worker, including the character requirement, the health requirement and the worker's history. A worker's conviction is not adverse information about the sponsor and is not a nomination criterion, and the Department approves a nomination for a worker with a record on the same basis as any other; the record is assessed when the worker's visa application is decided, and a nomination approved for a worker whose visa is then refused on character is a nomination the employer paid for and cannot use for anyone else. That is the employer's exposure, and it is a question of money and time rather than of the nomination's merits.

The character test

Section 501 of the Migration Act sets the character test, and a visa may be refused where the applicant does not pass it: a person fails where they have a substantial criminal record, which means a sentence of death or life, a sentence of twelve months or more, two or more sentences adding to twelve months or more, with suspended sentences counted at their full term, or an acquittal on the ground of insanity with detention; where they have been convicted of certain offences, including offences against children and offences committed in immigration detention; where they are a member of or associated with a criminal group; or where, on their past and present conduct, they are not of good character or there is a risk they would engage in criminal or other conduct of the kinds the section lists. A person who fails the test can still be granted the visa if the Department exercises its discretion, which it does rarely and under the direction in force; a person who does not fail the test can be refused under the conduct limb, which is where most minor records are weighed. The criminal record guide sets out the test from the worker's side.

Convictions that fail outright

• Any single sentence of twelve months or more, whether served, suspended, or partly suspended, counted at the sentence imposed and not the time served.
• Two or more sentences that add to twelve months or more, across any courts and any countries, including sentences for minor offences that happen to add up.
• A conviction for a sexual offence against a child, in any country, whatever the sentence.
• Membership of or association with a group the Department reasonably suspects of criminal conduct.
• A conviction, in Australia or abroad, for an offence that, if committed in Australia, would carry those sentences, read on the foreign sentence actually imposed.

A worker in these groups is refused the visa unless the Department exercises its discretion to grant notwithstanding, which for a temporary work visa it does in a small number of cases on compelling evidence; an employer told that the candidate falls here is told that the nomination is a poor bet, and the consultation says so plainly.

Records the Department weighs

A conviction with a fine, a bond, community service or a sentence under twelve months does not fail the test on the record limb, and the Department considers it under the conduct limb and the direction in force, weighing the seriousness and nature of the offence, the time since, the sentence, whether it was a single lapse or a pattern, the conduct since, the worker's circumstances, and the protection of the community; a drink-driving conviction with a fine and a disqualification, a minor assault from a decade ago with a bond, a drug possession fine in youth, and the ordinary run of summary matters are weighed and, for a worker with an otherwise clean history and the evidence of rehabilitation, do not stop the 482 in the ordinary case. A pattern of offending, a recent offence, violence, dishonesty relevant to the role, or offences against the person are examined harder, and the Department can refuse on the conduct limb without the twelve months. The direction in force since 31 October 2026 sets the considerations, and the character guide covers it; the drink driving guide covers the commonest conviction an employer meets.

The police certificates

The worker's visa application requires a police certificate from every country, including Australia, in which the worker has lived for a total of twelve months or more in the ten years since turning sixteen, obtained from each country's authority with the identity documents and sometimes fingerprints the authority requires, and the certificates take from days for Australia to months for some countries; the worker applies for them when the sponsorship process begins, not when the Department asks, because a visa application without them waits. A certificate that shows a conviction is read with the court documents, the sentence and the worker's statement, and the Department may request Form 80 and the full court record. An employer planning a start date counts the certificates' time into it. The police checks guide covers each country.

The time a character assessment adds

A visa application with a disclosed conviction is assessed for character by the officer where the record is minor, which adds little, and referred to the Department's character unit where the record engages the discretion or the conduct limb, which adds weeks to months: the unit requests the court documents, a personal statement, references and evidence of rehabilitation, considers the direction's factors, and may put adverse information to the worker for comment before deciding. The employer's start date is planned with that in mind, and a worker already in Australia on a bridging visa from the 482 application continues working for the employer while the assessment runs, which reduces the business's exposure; a worker abroad waits. The processing time guide covers the ordinary times the assessment adds to.

What the employer may ask and act on

An employer may ask a candidate about criminal history that is relevant to the inherent requirements of the role, and may require a police check where the role requires one by law or by the business's reasonable policy; the anti-discrimination laws of several states and territories prohibit discrimination on the ground of an irrelevant criminal record, the Commonwealth spent convictions scheme and the state schemes mean that a conviction old enough to be spent need not be disclosed to an employer and may not be used against the worker, and the Australian Human Rights Commission can hear a complaint of discrimination on the ground of criminal record under its Act. The Department is not an employer and is not bound by the spent conviction schemes for visa purposes, so the worker declares a spent conviction to the Department even where the employer may not ask about it; the employer's question is whether the worker can do the job, and the Department's is whether the worker gets the visa, and an employer who declines to sponsor because the visa is unlikely has made a decision about the sponsorship's prospects rather than about the record, which is the honest way to put it. A role that requires a working-with-children check, a security licence, a registration or a clearance has its own rules, which the employer applies as for any employee.

The worker who did not tell you, or the Department

A worker who did not disclose a conviction to the employer and whose visa application discloses it has told the Department the truth and the employer less, and the employer decides what that means for the employment under its own rules; a worker who does not disclose the conviction to the Department, answering no to the character questions, has made a false statement that the police certificates, the earlier visa files, and the Department's own checks with partner countries reveal, and the visa is refused under PIC 4020 with a three-year bar on the worker and the nomination's charges lost. An employer who knows of a conviction and encourages the worker to omit it, or who prepares a visa application that omits it, has made itself a party to the false statement and has adverse information on its own sponsorship record. The honest sequence is disclosure to the Department in full, with the documents and the statement, which for most records is the route to the grant. The PIC 4020 guide covers the undisclosed conviction.

A charge or conviction after the grant

A sponsored worker charged with an offence after the grant holds the visa, which the Department can consider cancelling on character grounds on a conviction, and must cancel while the worker is in full-time custody for a sentence of twelve months or more; the employment continues under the Fair Work Act as for any employee charged with an offence, with any dismissal tested as any dismissal is, and the employer's sponsorship obligations are unchanged, the notification of a cessation of employment if it comes to that and the records. The employer does not report the charge to the Department, is not required to, and is not the Department's informant; the worker's own obligations and the police and court records are how the Department learns. A worker whose visa is cancelled is detained and the employment ends, which the employer notifies. The charged guide covers the worker's position, and the resignation guide the employer's notification.

Whether to proceed

1. Have the record read against the character test before the nomination is lodged: a sentence of twelve months or more, or sentences adding to it, is a visa the employer should expect to be refused.
2. For a lesser record, weigh the seriousness, the time since and the conduct since; a single old minor conviction is granted in the ordinary case, a recent or repeated one is a risk.
3. Count the police certificates and the character assessment into the start date; a worker onshore can work on the bridging visa meanwhile.
4. Decide on the sponsorship's prospects, not on the record as such, and document the decision in those terms.
5. If proceeding, have the worker disclose in full, with the court documents, a statement and references, and never otherwise.
6. If the visa is refused on character, the nomination charge is not refunded; the levy may be, under the charges rules for a visa refused on character.

General information only, current at October 2026; not advice on your own case, and not employment or discrimination law advice. Section 501 of the Migration Act 1958 (the character test) and the ministerial direction in force on its application, public interest criteria 4001 and 4020 in Schedule 4 to the Migration Regulations 1994, the nomination criteria in regulation 2.72, Part VIIC of the Crimes Act 1914 (spent convictions) and the state and territory anti-discrimination and spent conviction laws, as in force at the date above; the Department’s practice on character assessments and the direction’s considerations govern the visa decision. 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.