Character Provision

The Character Provisions in Australian immigration law is designed to ensure that non-citizens entering or remaining in Australia meet specific character standards. These provisions are set out primarily in section 501 of the Migration Act 1958 (Act) and give the Minister for Department of Home Affairs (DOHA) or their delegates the power to refuse or cancel visas based on character concerns.

The Two Stage Cancellation Process

There are two stages of the decision-making process under section 501 of the Act. At the first stage, the Minister or the delegate must consider whether the person passes the character test as set out in subsection 501(6) of the Act.

If the Minister or the delegate is satisfied that the threshold test under subsection 501(1), (2), or (3) for refusal or cancellation has been met, this triggers the second stage of the decision-making process under section 501 of the Act. At this stage, the Minister or the delegate must decide whether to exercise their discretion to refuse or cancel the person’s visa.

In guiding the decision-making process under section 501 of the Act, the Minister can give a Direction under section 499 of the Migration Act. The current Ministerial Direction is Direction No. 110, which commenced on 7 June 2024. The delegates of the DOHA making visa cancellation and refusal decisions under subsections 501(1) and (2) of the Act must comply with this Direction No. 110. The Direction does not apply to visa refusal or cancellation decisions made by the Minister personally. In exercising his or her personal powers, the Minister may refer to the Direction, but he or she is not obliged to follow it.

Mandatory Cancellation

By law under section 501(3A) of the Act, it is mandatory cancellation of your visa if you are serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against an Australian law because you have:

• Been sentenced to death, imprisonment for life or imprisonment for longer than a year
• Been convicted of a sexually based crime involving a child by an Australian or foreign court
• Had a charge proven for a sexually based crime involving a child, even if you were discharged without conviction
• Been found guilty of a sexually based crime involving a child, even if you were discharged without conviction

If a visa is cancelled automatically under section 501(3A) of the Act, the person has the right to seek revocation of the decision.

Under section 501(1) or 501(2) of the Act, the Minister or their delegate can exercise discretion to refuse or cancel a visa if the person fails the character test.

Primary Consideration under Direction

DOHA must take following primary considerations and other considerations under Direction 110:

• Protection of the Australian community from criminal or other serious conduct
• Whether the conduct engaged in constituted family violence
• The best interests oof minor children in Australia
• Expectations of the Australian community
• Legal consequences of the decision
• Extent of impediments if removed
• Impact on Australian business interests

DOHA may ask you to:

• Provide a police certificate
• Complete Form 80 Personal particulars for character assessment
• Complete a Form 1563 – Statement of Character
• Provide a military certificate
• Provide a letter of good conduct from an employer