How a Criminal Conviction Can Affect Your Visa Status in Australia

A criminal conviction can affect a visa in two main ways: it can stop a new visa being granted, or it can lead to an existing visa being cancelled. This happens through the character test in section 501 of the Migration Act 1958 (Cth). If you are sentenced to 12 months or more in prison (on one charge, or added together across charges), you are likely to have a “substantial criminal record” and your visa may be cancelled — in some cases automatically, while you are still in custody. Other convictions can also be considered, even below that threshold. Strict time limits apply to any response, often 28 days, so early advice matters.

A visa concern connected to a criminal charge can feel overwhelming, particularly if you are also dealing with a Local Court matter. Caspian Legal can review your situation and explain your options before you make any decisions. Call 02 7264 3200 or contact our migration law team to arrange a consultation.

Can a criminal conviction affect my Australian visa?

Yes. Under section 501 of the Migration Act 1958 (Cth), a criminal conviction can be a reason to refuse a new visa application or to cancel a visa you already hold. This is assessed under what the Department of Home Affairs calls the character test. Not every conviction leads to cancellation, and the outcome depends on the sentence imposed, the nature of the offence, and other factors set out in law and government policy. The information below explains how the process generally works and what steps are usually involved.

Understanding the character test

The character test is the legal standard that a visa applicant or visa holder must meet under section 501(6) of the Migration Act 1958 (Cth). A person does not pass the character test if certain circumstances apply to them, the most common being a “substantial criminal record”. Public Interest Criterion 4001 (PIC 4001), found in Schedule 4 of the Migration Regulations 1994 (Cth), requires most visa applicants to satisfy the character test, or for the Minister to be satisfied there is nothing to indicate they would fail it, before a visa can be granted.

The key terms used in this area of law are explained in the table below.

Term	What it means
Character test	The standard in section 501(6) of the Migration Act 1958 (Cth). A person can fail this test for several reasons, most commonly a substantial criminal record.
Substantial criminal record	Defined in section 501(7). Broadly, this includes a sentence of imprisonment of 12 months or more (a single sentence or the total of two or more sentences), or being detained because a court found the person not fit to plead or not guilty due to mental impairment.
PIC 4001	Public Interest Criterion 4001 in Schedule 4 of the Migration Regulations 1994 (Cth). It requires most visa applicants to pass the character test before a visa can be granted.
Mandatory cancellation	Cancellation under section 501(3A). This applies automatically, with no discretion at that stage, where a person has a substantial criminal record and is serving a full-time custodial sentence.
NOICC	Notice of Intention to Consider Cancellation. Used for discretionary cancellations under section 501(2), inviting a response before any decision is made. A NOICC is not issued before a mandatory cancellation under section 501(3A).
Revocation request	A request under section 501CA asking the Minister or a delegate to reverse a mandatory cancellation. It must generally be made within 28 days of being notified, and this time limit cannot be extended.
ART	The Administrative Review Tribunal, which reviews most character-related visa decisions. It replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024.

What counts as a “substantial criminal record”?

Section 501(7) of the Migration Act 1958 (Cth) sets out when a person is taken to have a substantial criminal record. This is the most common reason people fail the character test.

Situation	Substantial criminal record?
Sentenced to imprisonment for 12 months or more (a single sentence)	Yes
Sentenced to two or more terms of imprisonment, adding up to 2 years or more in total	Yes
Sentenced to life imprisonment	Yes
Found not fit to plead, or acquitted due to unsoundness of mind, and detained in a facility as a result	Yes
A single sentence of imprisonment under 12 months, with no other relevant offending	Not automatically — but other parts of the character test may still apply
A suspended sentence, or periodic/aggregate sentencing, that meets the 12-month or 2-year thresholds above	Yes, generally — the head sentence is what counts, not time actually served

Even where a person does not meet this specific threshold, a visa can still be refused or cancelled on other character grounds — for example, involvement in certain criminal associations, a risk of future criminal conduct, or the Minister reasonably suspecting a person is not of good character based on their past and present conduct. These grounds involve more discretion and depend heavily on individual circumstances.

What happens if I am convicted and serving a custodial sentence?

If you are serving a full-time custodial sentence and you have a substantial criminal record, section 501(3A) requires the Minister’s delegate to cancel your visa. This is mandatory — there is no discretion at this stage, and no NOICC is issued beforehand. The process generally follows these steps.

1. You are convicted and sentenced to 12 months or more (or an aggregate reaching that threshold), and you begin serving a full-time custodial sentence.
2. The Department identifies that you may have a substantial criminal record and are serving that sentence.
3. Your visa is cancelled under section 501(3A). This can happen while you are still in custody, and you are not asked for submissions before this first decision is made.
4. You are given written notice of the cancellation, along with an invitation to request revocation under section 501CA.
5. You (or your representative) have 28 days from the date you are taken to have received the notice to lodge a revocation request. This deadline is strict and generally cannot be extended.
6. A delegate (or, in some matters, the Minister personally) decides whether to revoke the cancellation, based on whether you pass the character test after all, or whether there are compelling reasons to revoke it in the national interest.
7. If revocation is refused, the decision can generally be reviewed by the Administrative Review Tribunal (ART), subject to its own time limits.

Because the 28-day period runs from the date of deemed notification rather than the date you personally read the letter, and because it cannot usually be extended, getting advice as early as possible is important.

What if I have a conviction but I am not in custody?

Where a person is not serving a full-time custodial sentence, a visa may still be refused or cancelled, but this is generally a discretionary decision rather than an automatic one. In these situations, the usual process is:

1. The Department issues a Notice of Intention to Consider Cancellation (NOICC), setting out the character concerns and inviting a response.
2. You are given an opportunity to provide submissions and supporting material before any decision is made.
3. A delegate considers your response, together with the primary and other considerations in the relevant Ministerial Direction, before deciding whether to cancel the visa.
4. If the visa is cancelled, review rights may be available through the Administrative Review Tribunal (ART), subject to time limits set out in the notice.

For new visa applications, a criminal record disclosed on the application (or discovered through police checks) can also lead to refusal under PIC 4001, following a broadly similar process of notice and an opportunity to respond.

What factors are considered when there is discretion?

Where a decision-maker has discretion — for example, when deciding whether to cancel a visa, refuse an application, or revoke a mandatory cancellation — they must apply the current Ministerial Direction. Direction No. 110, which commenced on 21 June 2024 and replaced the earlier Direction No. 99, sets out the primary and other considerations that apply. These generally include, among others:

• The protection of the Australian community, which is given the greatest weight.
• The nature and seriousness of the offending, including whether it involved family or domestic violence.
• The best interests of any minor children in Australia affected by the decision.
• The person’s ties to the Australian community, including family and length of residence.
• Australia’s international obligations.
• The impact of the decision on victims and the broader Australian community.

Every case turns on its own facts, and the weight given to each factor is a matter for the decision-maker (or, on review, the Tribunal). You should obtain legal advice about how these considerations may apply to your specific circumstances.

What documents should I gather?

If you are responding to a NOICC or preparing a revocation request, the following documents are commonly relevant. Not every item will apply to every matter.

• The cancellation notice, NOICC, or refusal letter, and any attachments.
• Court documents, including the sentencing remarks, court attendance notice, and any facts sheet.
• Evidence of ties to Australia, such as proof of residence, employment, and family relationships.
• Evidence relevant to any minor children affected, including birth certificates and care arrangements.
• Character references and evidence of rehabilitation, such as completed programs or counselling records.
• Evidence of hardship or risk if removed from Australia, where relevant.
• A personal statement addressing the circumstances of the offending and the steps taken since.
• Any prior correspondence with the Department of Home Affairs about the matter.

What not to do

• Do not ignore a NOICC, cancellation notice, or revocation invitation. Time limits are strict and are usually not extended, even where the consequences are serious.
• Do not assume a short sentence, a suspended sentence, or a sentence already served means your visa is unaffected — the character test can still apply.
• Do not submit a revocation request or response without addressing the considerations in the current Ministerial Direction — a general statement is unlikely to be enough.
• Do not rely on advice from non-migration sources, including general internet forums, for a matter with consequences this serious.
• Do not delay seeking legal advice while a criminal matter is still before the court — the visa consequences of a plea or sentence should be understood beforehand where possible.

Common mistakes and misunderstandings

“My sentence was less than 12 months, so I’m safe.” A single sentence under 12 months does not automatically create a substantial criminal record, but other character test grounds can still apply, and multiple shorter sentences can add up to the 2-year threshold.

“I served my time, so it’s finished.” Migration consequences are separate from the criminal sentence and can arise, or continue, after release from custody.

“I’m a permanent resident, so this doesn’t apply to me.” The character test applies to visa holders generally, including many permanent visa holders. Only Australian citizens are outside its reach.

“I’ll just explain it to the case officer over the phone.” Responses to a NOICC or a revocation invitation should generally be made in writing, in the manner and within the time set out in the notice, supported by evidence.

Support for clients in Hornsby and the Upper North Shore

Caspian Legal is based in Hornsby and assists clients with both criminal and migration matters across the Upper North Shore, including Waitara, Asquith, Wahroonga, Normanhurst, Thornleigh, Pennant Hills, Berowra and Mount Colah, as well as clients Australia-wide. Because a criminal charge and a visa issue can arise from the same set of facts and often move on different timeframes, having a firm that can advise across both areas can help you understand the whole picture rather than only one part of it.

What happens in an initial consultation?

In an initial consultation, we generally review the relevant notices, court documents and visa details you provide, explain which part of the process applies to your situation, and outline the options and time limits that are relevant. This helps you understand what is at stake and what steps, if any, need to be taken and by when. We do not promise particular outcomes, as every matter depends on its own facts and on the exercise of discretion by the decision-maker or Tribunal.

Frequently asked questions

Will any criminal conviction affect my visa?

Not automatically. The character test in section 501 sets out specific grounds, the most common being a substantial criminal record (broadly, 12 months or more in prison, whether from one sentence or several added together). Other, more discretionary grounds can also apply to less serious matters, so it is worth getting advice regardless of the sentence.

What is the difference between a NOICC and mandatory cancellation?

A NOICC (Notice of Intention to Consider Cancellation) is used before a discretionary decision, and you are given a chance to respond first. Mandatory cancellation under section 501(3A) happens automatically, without a NOICC, where you have a substantial criminal record and are serving a full-time custodial sentence — your right to respond comes afterward, through a revocation request.

How long do I have to respond?

Time limits vary depending on the type of notice, but 28 days is common for both NOICC responses and revocation requests under section 501CA. These limits are strict and are calculated from the date you are taken to have received the notice, not the date you read it.

Can a decision be reviewed if my visa is cancelled or my application is refused?

In most cases, yes. Character-related visa decisions can generally be reviewed by the Administrative Review Tribunal (ART), which replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024. Strict time limits also apply to lodging a review application.

Does this apply to permanent residents, or only temporary visa holders?

The character test applies to non-citizens generally, which includes most permanent visa holders as well as temporary visa holders. It does not apply to Australian citizens.

Will pleading guilty affect my visa differently to being found guilty at trial?

The character test generally looks at the sentence imposed and the nature of the offending, rather than how the finding of guilt was reached. However, the circumstances of a plea can be relevant to sentencing, which in turn can affect whether the substantial criminal record threshold is met. If you are facing criminal charges as a visa holder, it is worth obtaining migration advice before you enter a plea.

What if my family is affected by a possible cancellation?

The best interests of any minor children in Australia are a primary consideration under the current Ministerial Direction, and family ties more broadly can also be relevant. These factors do not guarantee a particular outcome, but they should be addressed with supporting evidence in any response or revocation request.

Can I get legal advice while my visa is not yet affected, before I am sentenced?

Yes, and this is often the best time to get advice. Understanding how a likely sentence could affect your visa can inform decisions made during the criminal process, including at sentencing.

Sources

This article refers to the following primary and official sources, current as at the last updated date above:

1. Migration Act 1958 (Cth), section 501 (character test, refusal and cancellation) — AustLII
2. Migration Act 1958 (Cth) — full text (including section 501CA, revocation of mandatory cancellation) — Federal Register of Legislation
3. Migration Regulations 1994 (Cth), Schedule 4, Public Interest Criterion 4001 — AustLII
4. Direction No. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (made under section 499 of the Migration Act 1958, commenced 21 June 2024) — full text as published by the Department of Home Affairs, reproduced at ahclawyers.com.au
5. Administrative Review Tribunal — About the ART, commencement 14 October 2024 — art.gov.au
6. Attorney-General’s Department, Fact sheet: the new Administrative Review Tribunal

Where secondary commentary was consulted to help explain these provisions in plain English, it has been checked against the primary sources above (secondary source, used for explanatory context only).

General information only. This article provides general information about Australian migration law as at the date shown above. It is not legal advice and does not take into account your personal circumstances. Migration law changes regularly, and outcomes depend on the specific facts of each matter and the exercise of discretion by decision-makers or the Tribunal. You should obtain tailored legal advice before acting, or not acting, on any of the matters discussed here.

Contact Caspian Legal to discuss your options before taking the next step.
Caspian Legal Pty Ltd — Suite 1, 22–28 Edgeworth David Avenue, Hornsby NSW 2077
Phone: 02 7264 3200
caspianlegal.com.au
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