skip to content

Refine results


Search by

Search by Algolia
Law Handbook banner image

Visa cancellations under section 501 (character grounds)

Under section 501 of the Migration Act 1958 (Cth) a non-citizen’s visa may be refused or cancelled if they do not pass the character test.

What is the character test?

The character test is defined under section 501(6) and a person will fail it if they:

  • have a substantial criminal record;
  • have been convicted of escaping from immigration detention;
  • have committed offences whilst in immigration detention;
  • have been a member of, or had associations with, an organisation involved in criminal conduct;
  • is reasonably suspected of being involved with people smuggling, people trafficking, genocide, war crimes or crimes against humanity;
  • have convictions for one or more sexually based offences involving a child;
  • are the subject of an adverse assessment by ASIO;
  • an Interpol notice has been issued from which it would be reasonable to conclude that they present a risk to the Australian community.

The most common cause of failure of the character test is having a substantial criminal record.

What is a ‘substantial criminal record’?

Under section 501(7) a person has a substantial criminal record if they have been:

  • sentenced to death
  • sentenced to life imprisonment
  • sentenced to a term of imprisonment for 12 months or more
  • acquitted of an offence on the grounds of mental illness and, as a result, detained in a facility or institution
  • found by a court not fit to plead and the court has nonetheless made a finding of guilt on the evidence available and they have been detained in a facility or institution

Most non-citizens who fail the character test will do so as a result of having been sentenced to a term of imprisonment for 12 months or more. There can be multiple terms of imprisonment which together add up to 12 months or more [s 501(7)(d)]. The terms of imprisonment can also be served concurrently (at the same time), but still add up to 12 months for the purposes of the definition under section 501(7) [s 507(7A)]. They can also be a single sentence for multiple offences (aggregate sentences) which either alone, or together with other sentences, adds up to a term of imprisonment for at least 12 months [s 5AB].

If you are a non-citizen who has a substantial criminal record (or who is affected by one of the other provisions of the character test) you should seek legal advice. Those serving a prison sentence and who are either at risk of having their visa cancelled or who have already had their visa cancelled, could also benefit from referring to our Mandatory Visa Cancellation Kit

Visa cancellations under section 501 (character grounds)  :  Last Revised: Tue Feb 14th 2023
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.