A criminal history does not automatically disqualify you from an Australian visa. In many cases, a character waiver application is available, and with the right preparation and evidence, it can succeed.
Here is what you need to understand about how character waivers work.
What Is the Character Test?
Under section 501 of the Migration Act, a person fails the character test in several circumstances, including if they have a substantial criminal record (defined as a sentence of 12 months or more, an indeterminate sentence for mental illness, or two or more sentences totalling two years or more), if they have been found guilty of certain offences regardless of sentence length, or if they have associations with criminal groups. Experienced Migration Agents can help applicants understand how these character requirements may affect their visa application.
Failing the character test does not mean automatic visa refusal or cancellation. It means the decision-maker must then consider whether to exercise their discretion to refuse or cancel the visa.
What Is a Character Waiver?
For mandatory visa refusal or cancellation cases under section 501, the Minister (or their delegate in some cases) can choose not to refuse or cancel a visa if they are satisfied that doing so is in the national interest. This is the character waiver.
For other character-related decisions under section 501(6), the decision-maker exercises general discretion taking into account a range of factors, and the applicant can make submissions going to those factors. This is not technically a waiver but achieves a similar outcome.
Who Can Apply?
Anyone who fails or may fail the character test on the basis of a criminal history can make submissions or a waiver request. Whether you are applying for a new visa and need to disclose your criminal history, or you are facing cancellation of an existing visa, the same framework applies.
What Decision-Makers Consider
Direction 110 (or the current Ministerial Direction in force) sets out the factors that decision-makers must weigh when exercising their discretion in character cases. The primary considerations include:
The protection of the Australian community from criminal or other serious conduct. The best interests of minor children in Australia. The expectations of the Australian community.
Other considerations include the nature and seriousness of the conduct, the risk of reoffending, the strength of ties to Australia, the impact on the individual and their family, any impediment to removal if not a citizen, and the individual’s contribution to the Australian community.
Building a Strong Character Waiver Case
The evidence you provide needs to speak directly to the factors in the Direction. A strong case typically includes:
A detailed personal statement covering the circumstances of the offence, what has changed since, evidence of rehabilitation, and the impact of refusal or cancellation on you and your family. Evidence of rehabilitation: this might include completion of rehabilitation programs, consistent employment, positive conduct since release, and correspondence from people who can speak to your changed circumstances. Evidence of ties to Australia, particularly Australian citizen or permanent resident family members, especially minor children. Country information if removal to your country of origin would create genuine hardship.
What Does Not Work
A generic character reference from an employer or family member that does not specifically engage with the offence and rehabilitation factors is worth little. Vague expressions of remorse without specific evidence of changed behaviour are similarly unpersuasive.
The decision-maker has seen many of these submissions. What stands out is specific, credible evidence that directly addresses the factors they are required to weigh.
Section 501 Ministerial Intervention
In some section 501 cases where the mandatory bar has been applied, only the Minister personally can lift the bar. Ministerial intervention requests require specific grounds and are decided at Ministerial discretion. This is not a routine option, but it is available in genuine cases involving exceptional circumstances.
Frequently Asked Questions
Does a spent conviction count for character waiver purposes?
The character test in the Migration Act operates differently from spent conviction schemes in state and territory law. In some cases, conduct or convictions that are technically spent under criminal law can still be relevant for migration purposes. Get specific advice on your situation.
Can I apply for any visa if I have a significant criminal history?
Certain visas are more amenable to character waiver discretion than others. The circumstances of the offending, how long ago it occurred, and what has happened since are all relevant to which visa pathways are realistic.
How long does a character waiver decision take?
Processing times for character cases are longer than standard applications because they require careful assessment and may involve consultation. Expect extended processing times.