A criminal record can make an Australian Partner visa application more complex, but it does not automatically prevent a visa from being granted. The legal position depends on the applicant’s complete history, the relevant character provisions and the evidence before the decision-maker.
Partner visa applicants must satisfy applicable character requirements. Public interest criterion 4001, contained in the Migration Regulations 1994, connects visa criteria with the character test and decisions made under section 501 of the Migration Act 1958.
The outcome is not determined by the existence of a conviction alone. The type of offending, sentences imposed, time since the conduct, evidence of rehabilitation, current risk and personal circumstances may all require careful consideration.
How the section 501 character test applies
Section 501 sets out several grounds on which a person may not pass the character test. A substantial criminal record is one ground, but it is not the only one. Other grounds concern matters such as past and present criminal or general conduct, certain associations and specified risks to the Australian community.
Under subsection 501(7), a person has a substantial criminal record in several circumstances, including where the person has been sentenced to:
- death or imprisonment for life;
- a term of imprisonment of 12 months or more; or
- two or more terms of imprisonment totalling 12 months or more.
The legislation focuses on the sentence imposed. It is not limited to the period actually served in custody.
| Circumstance | Possible character issue | Evidence that may be relevant |
|---|---|---|
| A sentence of 12 months or more, or multiple sentences totalling 12 months or more | The substantial criminal record ground may apply. | Complete court records, sentencing material, police certificates and evidence addressing rehabilitation and current risk. |
| Convictions involving shorter sentences | The substantial criminal record ground may not apply, but other parts of the character test may still be relevant. | Accurate disclosure, court outcomes, an explanation of the conduct and evidence of later circumstances. |
| Violent, sexual, family violence or other serious conduct | The conduct may be assessed under one or more character grounds, even if it did not produce a sentence of 12 months. | Detailed records and evidence addressing the nature of the conduct, risk, rehabilitation and community protection. |
Not passing the character test does not, by itself, mean that every visa application must be refused. Section 501 includes discretionary refusal powers. The decision-maker must apply the legislation and any binding ministerial direction in force when the decision is made.
Direction 110 commenced on 21 June 2024 and replaced Direction 99. It addresses visa refusal and cancellation under section 501 and revocation decisions under section 501CA. Because directions can change, applicants should check the direction applying when their case is considered rather than relying only on the direction in force when the application was lodged.
There is no automatic exemption based on rehabilitation or a genuine relationship. Evidence of rehabilitation can nevertheless be important when the decision-maker assesses matters such as current risk, community protection and the applicant’s individual circumstances.
Success story: Partner visa granted despite a significant criminal history
By Sali Romie, Solicitor
A criminal record does not automatically prevent a person from building a future in Australia. Every case deserves to be assessed on its own facts. Rehabilitation, personal growth and the surrounding circumstances can be just as important as past mistakes.
We assisted a client with a partner visa application involving a significant criminal history, including offences committed from childhood through to early adulthood. The client’s background included juvenile offending, multiple interactions with police, periods of probation and serious allegations that had shaped much of their early life.
Rather than attempting to minimise their past offending, we prepared comprehensive submissions that confronted every offence directly and honestly. Our submissions went far beyond simply listing convictions. We carefully explained:
- the circumstances surrounding each offence;
- the client’s upbringing and the challenges they faced during childhood;
- the impact of being involved with the criminal justice system from a very young age;
- the significant rehabilitation they had undertaken over many years;
- the positive influences that helped them completely change the direction of their life;
- their stable employment history;
- their genuine and committed relationship with their Australian partner; and
- the insight, remorse and maturity they had developed since their offending.
We presented the client’s life as a whole rather than allowing isolated incidents from their past to define them.
Importantly, our submissions demonstrated that the offending occurred many years earlier and that the client had taken genuine steps to rebuild their life. Through detailed evidence, we showed that the client had become a productive member of the community, maintained stable employment, formed a genuine long-term relationship and was committed to living a law-abiding life.
The Department carefully considered the material we prepared and ultimately granted the Partner visa.
This matter demonstrates an important principle: having a criminal record does not automatically mean a visa application will fail. Presenting the full story, supported by evidence explaining the person’s rehabilitation and current circumstances, can be important to the assessment.
At Jameson Law, we prepare detailed submissions that do more than describe a client’s past; we demonstrate who they have become.
Evidence for a Partner visa character assessment
A character submission should be accurate, evidence-based and tailored to the applicant’s circumstances. Depending on the case, relevant material may include:
- complete police certificates and criminal history records;
- court orders, sentencing remarks and evidence showing the outcome of every charge;
- a clear chronology of the conduct and sentences imposed;
- evidence of completed probation, parole, treatment or rehabilitation programs;
- medical or psychological reports where relevant and properly obtained;
- employment, study and community participation records;
- references from people who understand the criminal history;
- evidence of remorse, insight and behavioural change;
- information about the applicant’s partner, children and other family relationships; and
- material addressing any risk of further offending.
No single document determines the outcome. The appropriate evidence depends on the relevant character ground, the applicant’s history and any questions raised by the Department of Home Affairs.
Full and accurate disclosure is essential
Applicants should answer character questions completely and accurately. They should not assume that an old, spent, juvenile, overseas or non-custodial matter can be omitted without first checking the wording of the question and obtaining advice where necessary.
False or misleading information may create separate visa issues. The consequences depend on the facts, the relevant statutory provisions and the stage of processing. Applicants should correct an inaccurate answer promptly and retain evidence explaining the correction.
The Department’s current Partner visa guidance also requires relevant character documents. For example, an onshore Subclass 820 applicant who has spent a total of at least 12 months in Australia during the relevant period may need an Australian Federal Police complete disclosure certificate. Overseas police certificates may also be required for countries in which the applicant has spent the specified period.
Individual assessment matters
A criminal record can affect a Partner visa application even where the substantial criminal record threshold is not met. Conversely, meeting that threshold does not mean the decision-maker can disregard the statutory discretion and the applicant’s evidence.
The correct approach is to identify the precise character concern, obtain the complete records and address the applicable legislation and direction. Rehabilitation should be supported by evidence rather than assertion.
Previous results cannot predict another applicant’s outcome. Each case depends on its own evidence, visa criteria and decision-making context.
Get advice before lodging or responding
If you or your partner has a criminal history, early advice can help identify missing records, disclosure issues and the evidence needed to address the character requirements. This can be particularly important where the Department has issued a request for information or a notice concerning possible refusal.
Contact Jameson Law to arrange an assessment of your circumstances. Our Sydney immigration lawyers can review the criminal history, visa pathway and supporting evidence before advising on the next steps.
Frequently Asked Questions
Can I obtain an Australian Partner visa with a criminal record?
Possibly. A criminal record does not automatically prevent a Partner visa from being granted. The outcome depends on the character test, the nature and history of the conduct, the sentences imposed, current risk and the evidence provided.
What is a substantial criminal record under section 501?
It includes several circumstances specified in subsection 501(7) of the Migration Act 1958. These include a sentence of imprisonment for 12 months or more, or two or more terms of imprisonment that total 12 months or more. Other categories also apply.
Does a suspended sentence count towards the 12-month threshold?
It may. Section 501 focuses on the sentence imposed, and the statutory rules concerning imprisonment must be applied to the particular order. The sentencing documents should be reviewed rather than relying on whether time was actually served.
What evidence can show rehabilitation?
Relevant evidence may include sentencing records, completion of court orders or treatment, employment history, reports from qualified practitioners, informed character references, evidence of community participation and material demonstrating insight and behavioural change.
Should old or juvenile offences be disclosed?
Applicants must answer each character question accurately and according to its wording. They should not assume an old, juvenile, spent or overseas matter can be omitted. Obtain advice if there is uncertainty and provide complete supporting records where requested.
Does failing the character test automatically mean refusal?
Not in every case. Section 501 contains discretionary refusal powers, although particular visa criteria and other provisions may affect the decision. The decision-maker must apply the legislation and any binding ministerial direction in force at the time.
