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Urgent — strict deadlines apply

Criminal Record Problems

A criminal record doesn't have to end your Australian dream.

Nilesh Nandan

Immigration Lawyer · BBus(Accy) LLB MBA · Last updated March 2026

Overview

Having a criminal record can create significant challenges for your visa application, but it does not automatically mean your visa will be refused or cancelled. The character test under section 501 of the Migration Act considers multiple factors, and a well-prepared submission addressing these factors can make the difference between staying in Australia and being removed.

Verify all deadlines independentlyThe criminal record problems deadlines and time limits referenced on this page are general guidance only and may not reflect your specific circumstances. Appeal periods and response deadlines vary depending on the visa type, the basis of the decision, and how and when the decision was notified to you. Always check your decision letter for the exact deadline that applies to your case and seek independent legal advice before relying on any date. Getting a deadline wrong can permanently affect your appeal rights.

The character test under s501 of the Migration Act considers whether a person has a 'substantial criminal record' (defined as a sentence of 12 months or more imprisonment), whether they are associated with criminal organisations, and whether their past and present conduct indicates they are not of good character. A person who fails the character test may have their visa refused or cancelled.

However, failing the character test does not automatically result in visa refusal or cancellation. The decision-maker must also consider factors including: the nature and severity of the offending, the risk of re-offending, rehabilitation, the impact on Australian citizen family members (particularly children), the person's ties to Australia, and the best interests of any children affected by the decision.

I have extensive experience defending clients against character-based visa refusals and cancellations. I prepare detailed submissions that address every relevant factor, gather evidence of rehabilitation and community ties, and present compelling arguments for why the visa should be granted or reinstated despite the criminal record.

Key Facts

Character TestSection 501 of the Migration Act

Substantial Criminal Record12+ months imprisonment

s501 Appeal Deadline9 days only

Key FactorsRehabilitation, family impact, community ties

Ministerial InterventionAvailable under s501J

How I Work — Step by Step

Criminal History Review

I review your full criminal history and assess how it affects your visa eligibility under the character test.

Evidence of Rehabilitation

I gather comprehensive evidence of your rehabilitation, community ties, employment, family situation, and character references.

Character Submissions

I prepare detailed written submissions addressing every relevant factor in the character assessment framework.

Hearing Representation

I represent you at ART hearings with oral and written advocacy tailored to the character test criteria.

Escalation

If the ART is unsuccessful, I advise on Federal Court judicial review and ministerial intervention under s501J.

What I Do

Assess how your criminal record affects your visa eligibility under the character test
Prepare detailed submissions addressing all relevant factors in the character assessment
Gather evidence of rehabilitation, community ties, and family impact
Respond to Notices of Intention to Consider Cancellation (NOICC) on character grounds
Represent you at ART hearings for character-based refusals and cancellations
Appeal to the Federal Courts if the ART decision is unfavourable
Apply for ministerial intervention in compelling cases

Who Is This For?

›Visa applicants with criminal convictions in Australia or overseas
›Visa holders who have received a NOICC on character grounds
›Visa holders whose visa has been cancelled under s501
›People in immigration detention following character-based visa cancellation
›People with spent convictions who are unsure how they affect their visa

Recent Case Outcome

I recently represented a client whose permanent residency visa was cancelled under section 501 of the Migration Act after a criminal conviction. We lodged an appeal with the Administrative Review Tribunal (ART), where I presented extensive evidence of the client's rehabilitation and deep ties to the Australian community. The ART found that despite the conviction, the client's positive contributions and family connections outweighed the character concerns, and the decision to cancel the visa was set aside.

* Details anonymized to protect client confidentiality.

Common questions about

Will a criminal record prevent me from getting a visa?+

Not necessarily. The character test considers multiple factors beyond just the criminal record, including the nature and severity of the offending, your rehabilitation, the risk of re-offending, and the impact on your family (particularly Australian citizen children). A well-prepared submission addressing these factors can result in a favourable outcome despite a criminal record.

What is a 'substantial criminal record'?+

Under the Migration Act, a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more (whether or not the sentence was suspended), or if they have been sentenced to two or more terms of imprisonment that total 12 months or more. This automatically triggers the character test.

What if my conviction is 'spent'?+

Spent convictions (convictions that are no longer on your criminal record under state or territory law) may still be relevant to the character test under the Migration Act. The Department can consider spent convictions when assessing character. However, the fact that a conviction is spent may be a relevant factor in your favour. I can advise on how spent convictions affect your specific situation.

I have a criminal conviction with a 12-month sentence, but it was fully suspended. Will this still be considered a 'substantial criminal record' for my Australian visa application?+

This is a very important and common question. Under Section 501 of the Migration Act 1958, a 'substantial criminal record' includes a sentence of imprisonment for 12 months or more. The critical point is that for immigration purposes, it does not matter whether the sentence is served or suspended. The full length of the sentence is what the Department of Home Affairs considers. Therefore, a 12-month suspended sentence will cause you to fail the character test on the basis of having a substantial criminal record. However, this is not automatically the end of the road. I can help you prepare a detailed submission to the Department, arguing for the exercise of their discretion to grant the visa despite the character concern. We would focus on your ties to Australia, any mitigating circumstances of the offence, and evidence of your good character since the conviction.

My permanent visa was granted years ago, but I was recently convicted of an offence. Can my visa still be cancelled on character grounds?+

Yes, it is crucial to understand that even long-term permanent residents can have their visas cancelled on character grounds. The Minister for Immigration has the power under Section 501 of the Migration Act 1958 to cancel a visa if the holder is deemed not to pass the character test, regardless of how long they have held the visa. This can happen if you are sentenced to 12 months or more in prison, or if the Minister otherwise believes you are not of good character. If you receive a Notice of Intention to Consider Cancellation, you have a very limited time to respond. I have extensive experience in these matters and can help you prepare a robust response, arguing against the cancellation by presenting evidence of your strong ties to the Australian community and other compelling reasons why your visa should not be cancelled.

Your Visa Was Refused — What Now?

I wrote a free guide covering the 5 most common refusal reasons, your appeal options, and the deadlines you cannot miss. It is the same advice I give clients in their first meeting.

This matter has strict legal deadlines. Act immediately.

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The information on this page is general in nature and does not constitute legal advice. Thoughts only — not legal advice.