Character issues in partner visa applications
A conviction does not end a partner visa application. An undisclosed one can. This page explains what the Department of Home Affairs looks at, what you must tell them, and how we prepare a case that is written to the court record and built to survive a delegate’s scrutiny.
Most people with a criminal record can still be granted an Australian partner visa. The character test in section 501 of the Migration Act 1958 fails you automatically only for a substantial criminal record, which in practice means a sentence of 12 months or more in prison. Below that, the Department weighs the offence, the time since, your rehabilitation and your family here. What decides these cases is honesty, documents and the quality of the submission.
You are applying for, or have already lodged, a subclass 820/801 or 309/100 partner visa, and one of these is true:
Not the offence. The tick box. Applicants who lodged themselves answer No to “have you ever been convicted of an offence in any country” because they believed a community order or a fine was not a conviction, or because they simply ticked the wrong box. The Department will find it on the police certificate. What matters is who tells them first.
You do not need to master them, but you should recognise them when they appear in a Department letter.
Migration Act s 501(6)
A list of grounds on which a person does not pass. The decisive one is a substantial criminal record (s 501(7)): a sentence of imprisonment of 12 months or more, or terms adding up to 12 months or more. Below that, the Department can only rely on the broader ground that your past and present conduct shows you are not of good character, which looks at the whole person at the time of decision.
Migration Regulations, Schedule 4
Every partner visa applicant must satisfy PIC 4001 at the time of decision. It is met if you satisfy the Department that you pass the character test, or if the Minister decides not to refuse the visa even though not satisfied that you pass.
Migration Regulations, Schedule 4
There must be no evidence that you gave false or misleading information in a material particular. The Full Federal Court has held that “false” means purposely untrue; an innocent mistake is not false information. But the Department has to be persuaded it was innocent, and a correction you make yourself is the best evidence of that. Our guide to PIC 4020 refusals covers what happens if it goes wrong.
Made under s 499, in force 21 June 2024
Where the delegate is not satisfied you pass the character test, this binding direction sets out how the discretion to refuse is exercised: five primary considerations (protection of the Australian community, family violence, ties to Australia, the best interests of children in Australia, community expectations) and other considerations including the legal consequences of refusal and the impediments you would face if removed.
Section 105 of the Migration Act requires you to notify the Department in writing, as soon as practicable, of any incorrect answer and the correct one. That is done on Form 1023. Spent conviction schemes under state law do not apply to Migration Act decisions, and the Australian Federal Police certificate issued for immigration purposes shows spent convictions. Everything comes out. Our job is to make sure it comes out from you, in full, with the court’s own documents and an explanation the Department can accept.
A good submission answers every one with a document, not an adjective.
How serious was the conduct, how often, and what is the risk of it happening again. Violent offences, offences against children and family violence are treated as very serious whatever the sentence.
Any conduct that coerces, controls or causes fear in a family member, whether or not there was a conviction. Weighed by its seriousness, its pattern, and the rehabilitation since.
For a refusal, the impact on your immediate family members who are citizens or permanent residents.
For each child under 18 in Australia: your relationship with them, your parental role, and what separation or relocation would do to them.
The Government’s stated view of what the Australian community expects. Delegates apply that view rather than form their own.
What follows in law from a refusal, what you would face in your home country, and the impact on any Australian business.
Every character file at Skyline runs the same way, because the sequence is what protects you.
If you applied yourself, we go through the application line by line and find every answer that needs correcting, before the Department does.
Under your written authority we obtain the certificate of conviction, the court orders, the police facts and any pre sentence report from the court that dealt with you. Your memory of what happened is not the evidence. The record is.
Where an answer was wrong we prepare a Form 1023 with a schedule that sets out each correction and the document that proves it. It goes in before any request from the Department.
We compare what you told us with what the court file says and resolve every difference with you, in your own words, before anything is signed. Memory softens over years; the file does not.
Your own account of the offence, what followed, and your life since, in a form the Department treats as evidence. Your partner, and where appropriate the people affected, speak for themselves. Witnesses do the same in their Form 888 declarations.
A legal submission written to the record: the offence in full, what the court found, the years since, why you pass the character test, and, if the delegate disagrees, every Direction 110 consideration addressed with documents. Settled by our principal lawyer before it is lodged.
Disclosure, record, declarations and submission are lodged as one package, with the police certificates, the court file and the relationship evidence. We then supplement it as further records arrive and update the relationship evidence every two months until decision.
General guidance only. Five questions, no personal details, nothing stored or sent anywhere.
Often, yes. A criminal record does not automatically fail the character test. Refusal is automatic in practice only where you have a substantial criminal record, which usually means a sentence of imprisonment of 12 months or more. Below that threshold the Department looks at the whole person: what happened, how long ago, what you did about it, and your life since.
Yes. State spent conviction schemes do not apply to decisions under the Migration Act, and the Australian Federal Police check issued for immigration purposes discloses spent convictions. Disclose everything and explain it.
Section 105 of the Migration Act requires you to notify the Department in writing of the incorrect answer and the correct answer as soon as practicable. That is done on Form 1023. Correcting an honest mistake before the Department raises it is treated very differently from being caught out, and it is the first thing we do.
A written legal submission to the Department that sets out your criminal history from the court’s own record, what the court found about you at the time, your rehabilitation and life since, and why you pass the character test in section 501(6) of the Migration Act. If the delegate is not satisfied you pass, it also addresses the considerations in Ministerial Direction 110 that govern the discretion to refuse.
Direction no. 110 is the Minister’s binding direction on how delegates decide visa refusals and cancellations under section 501. It sets five primary considerations, including protection of the Australian community, family violence, ties to Australia, the best interests of children and community expectations, and other considerations such as the legal consequences of the decision and impediments to removal.
Yes. Sponsors of partner visas must provide a police check, and a sponsorship can be refused where the sponsor has a significant criminal record for a relevant offence, such as violence, offences against children or breaches of protection orders. Traffic matters and minor offences are not relevant offences, but they must still be disclosed.
Applications with character issues are usually referred to a specialist area of the Department and take longer than standard partner visas. Lodging the disclosure, the court records and the submission with the application, rather than waiting to be asked, is the best way to shorten that time.
A letter under section 57 or a notice of intention to consider refusal comes with a deadline, usually 28 days. Do not answer it yourself. The response is the submission described on this page, and it has to be right the first time.
Sources: Migration Act 1958 ss 57, 105, 501, 501E and 501F; Migration Regulations 1994 Schedule 4, PIC 4001 and 4020, and regulation 1.20KC; Direction no. 110 (7 June 2024); Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42. Current at 14 September 2026. Migration law changes frequently; confirm the current position with us before acting. Related: bridging visas while you wait.
A short consultation tells you where you stand and what the file needs. Fixed fees, agreed in writing before any work starts.
An Australian legal practice.
Deepika Khurana, Principal Lawyer
Ossama Kanjo, Migration Lawyer
470 St Kilda Road
Melbourne VIC 3004
03 8108 8748
info@skylinemigrationlawyers.com.au
The information on this website is general information only. It is not legal advice and it does not take your circumstances into account. Migration law changes frequently. Please obtain advice from Skyline Migration Lawyers before acting or applying. Liability limited by a scheme approved under Professional Standards Legislation.
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