New rules commencing 31 October 2026 could make it more difficult for non-citizens with criminal histories to retain their Australian visas, even where they have lived in Australia for many years.
Introduction
Australia is introducing significant changes to the way visa refusals, cancellations, and revocation requests are assessed on character grounds.
On 31 October 2026, Ministerial Direction No. 123 (Direction 123) will commence, replacing Ministerial Direction No. 110. Issued under section 499 of the Migration Act 1958 (Cth), the new Direction provides binding guidance to relevant decision-makers—including delegates of the Minister and the Administrative Review Tribunal (ART), when considering character-related decisions under sections 501 and 501CA of the Act.
The changes reflect a stronger emphasis on protecting the Australian community from serious criminal conduct, domestic and family violence, and conduct involving hatred or extremism. Crucially, the new Direction also reduces the weight generally afforded to an individual’s longstanding connections with Australia.
For permanent residents and temporary visa holders facing visa cancellation, refusal, or mandatory cancellation proceedings, these changes carry substantial legal consequences.
1. What Is the Character Test Under Section 501?
Under section 501 of the Migration Act 1958, the Minister or a delegate may refuse to grant a visa or cancel an existing visa if a person does not satisfy the character test and the applicable statutory requirements are met.
A person may fail the character test for several reasons, including:
- Having a substantial criminal record, including sentences of imprisonment totalling 12 months or more.
- Having associations with individuals, groups, or organisations involved in criminal conduct.
- Presenting a risk of engaging in criminal or harmful conduct in Australia.
- Having engaged in conduct involving domestic or family violence.
- Falling within statutory grounds relating to national security, hate-related conduct, or extremism.
A person sentenced to imprisonment for 12 months or more has a substantial criminal record under section 501, even if part of the sentence was suspended or the actual period served was shorter.
Furthermore, section 501(3A) requires mandatory cancellation of a visa if the person fails specified character grounds and is currently serving a full-time sentence of imprisonment. Where mandatory cancellation occurs, the individual may make representations seeking revocation under section 501CA within strict statutory timeframes.
Failing the character test does not lead automatically to visa refusal or cancellation; decision-makers must exercise discretion guided by the applicable Ministerial Direction.
2. The Most Significant Change: Australian Ties Receive Less Weight
One of the most consequential shifts introduced by Direction 123 concerns the assessment of a non-citizen’s ties to the Australian community.
Under the previous Direction 110, the strength, nature, and duration of a person’s ties to Australia served as a primary consideration. This allowed decision-makers to give substantial weight to factors such as:
- Having lived in Australia since early childhood.
- Having an Australian citizen spouse or de facto partner.
- Having Australian citizen or permanent resident children.
- Having parents, siblings, and extended family residing in Australia.
- Having established deep social, employment, and community ties over decades.
Under Direction 123, these connections remain relevant but have been reclassified as other considerations rather than a primary consideration. Because primary considerations generally carry greater weight in the decision-making framework, this change is substantial.
While family ties and long residence remain part of the holistic assessment, affected visa holders will now require significantly stronger supporting evidence addressing risk reduction, rehabilitation, and exceptional hardship to outweigh adverse character factors.
3. The Four Primary Considerations Under Direction 123
Direction 123 sets out four primary considerations that decision-makers must evaluate:
- Protection of the Australian Community: The nature and seriousness of the conduct, the harm caused, and the risk of future harm or reoffending.
- Family and Domestic Violence: A reinforced focus on conduct involving family violence, encompassing a broader range of abusive behaviours and relationships.
- Expectations of the Australian Community: Community standards expecting non-citizens to respect Australian laws and refrain from serious crime or extremist behaviour.
- Best Interests of Minor Children in Australia: The impact of a refusal or cancellation on children under 18 years of age, including child victims or dependants.
4. Stronger Focus on Domestic and Family Violence
Direction 123 places heightened focus on protecting victims of family and domestic violence. The framework explicitly recognises non-physical and coercive behaviours, such as:
- Stalking and surveillance.
- Image-based abuse and digital harassment.
- Breaches of family violence intervention or protection orders.
- Controlling, manipulative, or financially coercive behaviour.
The revised Direction also recognises that domestic abuse can occur outside traditional spousal or intimate-partner relationships, extending to family members, dependents, and formal caregiving relationships.
Importantly, decision-makers may assess domestic violence allegations under character provisions even if the conduct has not resulted in a criminal conviction, provided the allegations meet procedural fairness standards and are substantiated by credible evidence.
5. Heightened Scrutiny on Hate-Related Conduct and Extremism
Direction 123 incorporates recent legislative changes targeting extremist and hate-based activities. It addresses:
- Active membership in or public support for banned organisations or hate groups.
- Direct or indirect associations with terrorist organisations.
- Hate crimes or hate speech directed toward specific communities.
- Public statements inciting violence, vilification, or hatred.
Character assessments under section 501 extend beyond formal convictions. Depending on the ground invoked, public conduct and documented statements can directly affect character assessments.
6. Evidence of Rehabilitation and Risk Mitigation
Where an individual has a criminal record, establishing genuine rehabilitation is critical to countering the risk of future harm.
Under Direction 123, decision-makers scrutinise whether an individual presents an unacceptable risk to the Australian community. In response, submissions should include cogent, verifiable evidence such as:
- Independent psychological or psychiatric risk assessments.
- Certificates of completion for relevant treatment or rehabilitation programs (e.g. alcohol, drug, or anger management courses).
- Reports from corrective services, probation officers, or prison authorities detailing positive custodial conduct.
- Documented compliance with parole or community-based supervision orders.
- Demonstrated insight, remorse, and formal acceptance of responsibility.
- Verified arrangements for stable accommodation, employment, and pro-social community support upon release.
Independent expert reports from qualified clinical or forensic psychologists are often vital to addressing statutory risk thresholds under the Direction.
7. Impact on Pending Revocation Requests Under Section 501CA
A critical procedural issue affects individuals with pending revocation applications.
If an individual submitted representations under Direction 110, but the Minister or ART has not made a decision before 31 October 2026, the decision must generally be made under Direction 123 (subject to specific transitional rules).
Representations heavily focused on the duration of residence or family ties may be vulnerable under the new framework. Affected individuals should urgently review their submissions with a migration lawyer to assess whether supplementary representations and refreshed evidence are necessary.
8. Consequences of Visa Cancellation
The cancellation or refusal of an Australian visa under section 501 carries severe consequences:
- Immediate unlawful non-citizen status and potential placement in immigration detention.
- Permanent separation from Australian family members and children.
- Inability to apply for most other Australian visas due to section 501 exclusion criteria.
- Formal deportation or removal from Australia.
- Long-term or permanent exclusion periods preventing re-entry.
9. Steps Affected Visa Holders Should Take
Anyone facing section 501 proceedings should not assume that long-term residence or Australian citizen children will protect them from visa cancellation.
- Meet Deadlines Strictly: Revocation requests under section 501CA carry strict, non-extendable statutory timeframes (typically 28 days from receipt of notification). Missing a deadline removes the statutory right to seek revocation.
- Review Pending Submissions: Submissions drafted under Direction 110 should be evaluated against Direction 123 criteria immediately.
- Gather Independent Evidence: Prioritise clinical assessments, rehabilitation reports, and character references that address future community protection.
- Seek Experienced Legal Representation: Early legal advice is essential to framing submissions that address the updated hierarchy of considerations.
How Rostron Carlyle Lawyers Can Assist
Rostron Carlyle Lawyers provides strategic advice and representation in complex Australian migration law matters, including:
- Responding to Notices of Intention to Consider Cancellation (NOICC).
- Mandatory cancellation revocations under section 501CA.
- Character-based visa refusals.
- Appeals before the Administrative Review Tribunal (ART).
- Migration judicial review applications in the Federal Court of Australia.
If you or a family member is facing character-related visa issues under Ministerial Direction 123, reach out to Special Counsel John Siong at our office on 0401 668 989 or via email at j.siong@rclaw.com.au for clear, confidential guidance.
Legislation and References
- Migration Act 1958 (Cth), ss 499, 501, 501CA.
- Ministerial Direction No. 123 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commencing 31 October 2026).
- Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024).
Disclaimer: This article provides general information current as at October 2026 and does not constitute legal advice. Migration law and policy are subject to frequent change, and the application of Ministerial Direction 123 depends entirely on the specific facts and legal requirements of each case.
