People who come to see us about character matters often have the same reaction when they open the envelope. The criminal case was finalised months ago. The sentence was served, or is being served in the community. Life had moved on. Then a letter arrives from the Department of Home Affairs saying their visa has been cancelled, or is being considered for cancellation, on character grounds.
The provision behind those letters is Section 501 of the Migration Act 1958, and it reaches further than most people expect. It applies to permanent residents as well as temporary visa holders, and it can be triggered by a single sentence. This article sets out how the test actually works in New South Wales, where the deadlines sit, and what can still be done once a notice arrives — and we work through these matters with clients in English or Dari.
1. The Character Test Turns on a Single Number
A person does not pass the character test if they have what the Act calls a 'substantial criminal record'. That phrase is defined in Section 501(7), and for most people the line they cross is a sentence of 12 months or more.
A substantial criminal record covers any of the following:
- A sentence of death, or a sentence of imprisonment for life
- A sentence of a term of imprisonment of 12 months or more
- Two or more terms of imprisonment totalling 12 months or more
- An acquittal on the grounds of unsoundness of mind or insanity, where the person was then detained in a facility or institution
- A finding by a court that the person was not fit to plead, where the person was then detained in a facility or institution
A criminal record is not the only way to fail. The character test also has limbs dealing with association with people or groups involved in criminal conduct, risk of certain future conduct, sexually based offences involving a child, an adverse ASIO security assessment, and certain Interpol notices. A person only has to fail one ground to fail the character test as a whole — so there is no balancing exercise at this first stage. Your circumstances are weighed later, when the decision-maker considers what to do about it.
2. It Is the Sentence Imposed, Not the Time You Serve
This is the point that catches people most often. The test looks at the sentence a court imposed, not at how long anyone actually spent behind bars. Two consequences follow, and both surprise clients regularly.
First, where terms are ordered to be served concurrently, the whole of each term is counted when working out the total. Someone sentenced to two eight-month terms to be served concurrently would realistically be released after eight months — but for the character test, the total is sixteen months, and they have a substantial criminal record.
Second, a sentence does not have to be served in gaol to count. In New South Wales, a court making an intensive correction order must first impose a sentence of imprisonment and then direct that it be served by intensive correction in the community, under Section 7 of the Crimes (Sentencing Procedure) Act 1999. An ICO is capped at two years for a single offence and three years where an aggregate sentence is imposed. That means a twelve-month ICO still appears on the record as a twelve-month sentence of imprisonment, even though the person never entered a custodial institution.
So 'I never went to gaol' is not an answer to the character test. As the next sections explain, though, it does change which power the Department can use.
3. Aggregate Sentences: Pearson, and the Law That Reversed It
NSW courts frequently deal with several offences at once by imposing a single aggregate sentence rather than a separate sentence for each charge. For a period, that made a real difference to migration outcomes.
In Pearson v Minister for Home Affairs [2022] FCAFC 203, handed down on 22 December 2022, the Full Federal Court held that an aggregate sentence was not a sentence to 'a term of imprisonment of 12 months or more' for the purposes of Section 501(7)(c), and so could not support mandatory cancellation.
Parliament moved quickly. The Migration Amendment (Aggregate Sentences) Act 2023 commenced on 17 February 2023 and confirmed that a single sentence imposed for two or more offences is treated no differently from a sentence imposed for one offence. It applied retrospectively, validating cancellation and refusal decisions that Pearson had called into question. The Department also restored certain review and revocation rights to people affected by that judgment.
The practical position today is straightforward: an aggregate sentence of 12 months or more counts. We mention the case only because it still comes up in conversation, and it is no longer a defence.
4. Two Very Different Cancellation Powers
Failing the character test does not automatically end the matter. What happens next depends on which power the Department is using, and the difference is significant.
Discretionary refusal or cancellation — Sections 501(1) and 501(2)
A visa may be refused where the applicant does not satisfy the decision-maker that they pass the character test, and a visa may be cancelled where the decision-maker reasonably suspects the person does not pass it and the person does not satisfy them otherwise. The word that matters here is 'may'. There is a genuine discretion, and your circumstances are weighed before any decision is made.
Mandatory cancellation — Section 501(3A)
Cancellation is compulsory, with no discretion at that point, where two things are both true: the person fails the character test because of a substantial criminal record based on a sentence of death, life imprisonment or a term of 12 months or more (or because of a sexually based offence involving a child), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution.
That second requirement is where community-based sentences fall outside the mandatory power. Serving a sentence 'on a full-time basis' does not include periodic detention or home or residential detention. So a twelve-month intensive correction order can cause a person to fail the character test and expose them to a discretionary decision, without triggering mandatory cancellation. It is a meaningful distinction, and it is worth getting it identified correctly at the outset.
5. After a Cancellation: 28 Days, and What Direction 110 Weighs
Mandatory cancellation usually arrives without any advance warning while a person is in custody. Once it happens, the person is notified and invited to make representations asking for the cancellation to be revoked under Section 501CA. The period prescribed for those representations is 28 days.
Under Section 501CA(4), the decision can be revoked if the decision-maker is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked. In most cases the character test is plainly failed, so the real work goes into that second limb.
In deciding it, the decision-maker must apply Ministerial Direction 110, which commenced on 21 June 2024 and revoked the earlier Direction 99. It sets out five primary considerations:
- Protection of the Australian community from criminal or other serious conduct
- Whether the conduct engaged in constituted family violence
- The strength, nature and duration of ties to Australia
- The best interests of minor children in Australia
- Expectations of the Australian community
Two things worth knowing about Direction 110
The Direction states that protection of the Australian community is generally to be given greater weight than the other primary considerations, and that primary considerations generally outweigh the other considerations — which include the legal consequences of the decision, the extent of any impediments the person would face if removed, and any impact on Australian business interests.
The family violence consideration is also broader than many people assume. The definition in Direction 110 extends well beyond physical assault to behaviour such as stalking, repeated derogatory taunts, unreasonably denying a family member financial autonomy, and preventing someone from keeping connections with their family, friends or culture. The Direction also treats 'serious conduct' as capable of including behaviour that is not a criminal offence at all. Representations need to engage with that framework directly rather than simply asserting that someone is a good person.
6. Nine Days to the Tribunal — and No Extensions
If a delegate refuses to revoke the cancellation, or makes a discretionary refusal or cancellation decision, merits review goes to the Administrative Review Tribunal, which replaced the AAT in October 2024.
These are expedited reviews, and the time limit is unforgiving. An application must be lodged within nine days after the day you received the decision and the accompanying documents from the Department. The Tribunal has no power to extend that period. Where the ninth day falls on a weekend or public holiday, the application is due the next working day. The Tribunal must then make its decision within 12 weeks of the day you were notified of the original decision.
A few practical points that make a real difference at this stage:
- The standard application fee is currently $1,195, reduced to $100 if you are in prison or immigration detention, hold certain concession cards, have been granted legal aid, or the Tribunal accepts that the full fee would cause financial hardship
- Written statements from you and each of your witnesses, plus any documents you want the Member to consider, must reach the Minister's representative at least two business days before the hearing — otherwise the Member cannot take that evidence into account
- The Tribunal arranges and pays for an interpreter if you need one, so give them notice of the language you speak
- The Member hearing your case must apply Direction 110, so your evidence should be built around its considerations
One caveat: the expedited process above applies to decisions made by a delegate of the Minister. Where the Minister has made the decision personally, the review pathway is different. That is something to confirm the moment a notice arrives rather than assume either way.
7. Where We Can Help
The most valuable time to get migration advice is before sentencing, not after it. Where a matter is still before the court, the difference between a sentence of eleven months and one of twelve can decide whether someone keeps their visa — and that is a conversation worth having while it can still affect the outcome. Where a notice has already arrived, the deadlines become the priority. We can:
- Read the actual sentencing record — what was imposed, whether terms were concurrent, and whether an aggregate sentence is involved
- Identify which power is in play: a discretionary decision under Section 501(1) or 501(2), or mandatory cancellation under Section 501(3A)
- Prepare revocation representations under Section 501CA built around the considerations in Direction 110
- Lodge and run an Administrative Review Tribunal application within the nine-day window
- Work alongside the criminal side of your matter so sentencing decisions are made with the migration consequences in view
Character cancellations are hard cases, but they are not hopeless ones. Revocation under Section 501CA and merits review at the Tribunal are genuine pathways, and people do keep their visas through them. What sinks most matters is not the strength of the case — it is a missed date, because 28 days and nine days pass very quickly when someone is in custody and trying to organise evidence from the inside.
If you have been charged, are waiting to be sentenced, or have already received a notice about your visa, bring us the paperwork as early as you can. We will tell you honestly where you stand and what the realistic options are, in English or Dari.
This article is general information about the law in New South Wales, not legal advice, and reading it does not create a solicitor–client relationship. Every matter turns on its own facts — please contact us or call 02 8764 7885 for advice about your specific circumstances.