Criterion 4001 is satisfied where the person satisfies the Minister that they pass the character test, or where the Minister is satisfied after appropriate inquiries that there is nothing to indicate they would fail to do so, or where the Minister decides not to refuse the visa despite a suspicion or a lack of satisfaction about the test. The test itself sits in section 501 of the Migration Act 1958.
This page sets out how that works for an applicant and their family. Sponsors are assessed separately and under different rules — see sponsor character checks.
Who is assessed?
The applicant, under clause 820.223(1)(a). Each member of the family unit who also applies for the visa, under clause 820.224(1). And, on the terms of clause 820.224(1A), each member of the family unit who is not an applicant must satisfy criteria 4001, 4002, 4003 and 4004 as well. Criteria 4002 and 4003 sit alongside the character test: an ASIO security assessment, and determinations by the Foreign Minister.
What is the character test?
Subsection 501(6) sets out the grounds. A person does not pass the character test if any of the following applies:
- they have a substantial criminal record, as defined by subsection 501(7);
- they have been convicted of an offence committed in, or during or after an escape from, immigration detention, or an offence against section 197A;
- the Minister reasonably suspects they have been or are a member of, or associated with, a group, organisation or person involved in criminal conduct;
- the spreading hatred and extremism ground in subsection 501(6A) applies, covering membership of or association with a terrorist organisation, a state sponsor of terrorism or a prohibited hate group, conduct constituting a hate crime, and certain public statements disseminating ideas based on superiority over or hatred of others on the basis of race, colour or national or ethnic origin;
- the Minister reasonably suspects involvement in people smuggling, trafficking in persons, genocide, a crime against humanity, a war crime, or a crime involving torture or slavery, whether or not anyone has been convicted;
- having regard to past and present criminal conduct or general conduct, the person is not of good character;
- there is a risk the person might engage in criminal conduct in Australia, harass, molest, intimidate or stalk another person, vilify or incite discord in a segment of the community, or represent a danger to it;
- a court in Australia or overseas has convicted them of a sexually based offence involving a child, or found them guilty or the charge proved without a conviction;
- they have been charged with or indicted for genocide, a crime against humanity, a war crime, a crime involving torture or slavery or another crime of serious international concern;
- they have an adverse ASIO security assessment, or an Interpol notice is in force from which it is reasonable to infer a risk to the Australian community.
Otherwise, the person passes. Subsection 501(11A) says the limbs do not limit each other, so more than one can be engaged at once.
Substantial criminal record
Subsection 501(7) defines it. A person has a substantial criminal record if sentenced to death, to imprisonment for life, to a term of imprisonment of 12 months or more, or to two or more terms totalling 12 months or more. It also covers acquittal on the grounds of unsoundness of mind or insanity followed by detention, and a finding of unfitness to plead where the court found the offence was committed and detention followed.
Watch out
Subsection 501(7A) says that where terms are served concurrently, the whole of each term counts towards the total. Two concurrent six-month sentences total 12 months for the character test, even though only six months is served. Periodic detention and court-ordered residential drug rehabilitation or mental health programs are also converted into terms of imprisonment by subsections 501(8) and (9).
Under subsection 501(10), a sentence or conviction is disregarded if the conviction has been quashed or nullified, or if the person has been pardoned and the effect is that they are taken never to have been convicted.
Police certificates
Regulation 2.03AA of the Migration Regulations prescribes an additional criterion where criterion 4001 or 4002 applies: if the Minister requests them, the person must provide a statement from an appropriate authority in a country where they reside or have resided showing whether they have a criminal history, and a completed approved form 80. A police force is the example the regulation gives. The Minister may waive the statement requirement where it is not reasonable to expect the applicant to provide it.
The Department applies that power through its own checklist, which sets out which countries an applicant must obtain certificates from and the period of residence that triggers one. The commonly stated rule is every country lived in for 12 months or more over the last 10 years, but confirm it against the Department's current checklist for your own case, because the procedure differs by country. See police certificates and police certificates by country.
The Department says police certificates are valid for 12 months from the date of issue for immigration purposes, and that it may ask for them again if they expire before a decision.
The duty to disclose
Section 101 of the Migration Act requires an applicant to complete the form so that all questions are answered and no incorrect answers are given. Section 103 prohibits giving a bogus document. Section 104 requires a person to inform an officer in writing, as soon as practicable, where circumstances change so that an answer already given is incorrect. Criterion 4020, applied by clause 820.226, deals with bogus documents and information that is false or misleading in a material particular.
The practical consequence is straightforward. A conviction disclosed and explained is a character question. The same conviction found later is a character question and a disclosure question, and the second is harder to answer. See telling Home Affairs about changes.
What happens where there is a criminal history?
Nothing is automatic. A history that engages a limb of the test means the person does not pass it; subsection 501(1) then gives the Minister a discretion to refuse the visa, not an obligation. Whether that discretion is exercised is a separate judgement, made against the Department's policy and the circumstances of the case, including the Australian family. The mandatory power in subsection 501(3A) applies to cancelling a visa already held by a person serving a full-time sentence, not to refusing an application.
A delegate's decision under section 501 can be reviewed by the Administrative Review Tribunal under section 500(1)(b). A decision the Minister makes personally under subsection 501(3) is made without natural justice and is not reviewable in the same way.
Why professional help matters here
Character cases are won or lost in the response, not the application form. What a sentence actually was, whether concurrent terms tip the total over 12 months, how a foreign conviction translates, what to disclose and how to frame it — all of that is submission work against a deadline set by the Department. An application prepared by an immigration lawyer is more likely to succeed where there is any criminal history, because these decisions turn on discretion and on the quality of the material put in front of the decision maker. No one can promise an outcome.
What to do next
Order police certificates once you understand the timing, not before: read police certificates and check the 820 visa document checklist. If there is anything in your history at all, get advice before you answer the character questions. The health requirement is assessed at the same point in the process.
Common questions
What is the character test for a partner visa?
It is the test in section 501 of the Migration Act 1958. Subsection 501(6) lists the grounds on which a person does not pass it. They include having a substantial criminal record, convictions for offences committed in immigration detention, association with a group or person involved in criminal conduct, conduct involving people smuggling or crimes of serious international concern, not being of good character having regard to past and present criminal or general conduct, a risk of certain conduct in Australia, sexually based offences involving a child, being charged with or indicted for crimes such as genocide or torture, an adverse security assessment, and an Interpol notice indicating a risk to the Australian community. A limb added in recent years also covers spreading hatred and extremism.
What counts as a substantial criminal record?
Subsection 501(7) of the Migration Act defines it. A person has a substantial criminal record if they have been sentenced to death, to imprisonment for life, to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment totalling 12 months or more. It also covers people acquitted on the grounds of unsoundness of mind or insanity and detained as a result, and people found unfit to plead where the court nonetheless found the offence was committed and they were detained. Where sentences are served concurrently, the whole of each term is counted.
Do I need a police certificate from every country I have lived in?
The Department of Home Affairs requires police certificates from the countries where an applicant has lived, and regulation 2.03AA of the Migration Regulations 1994 allows it to ask for a statement from an appropriate authority in any country where the person resides or has resided, along with a completed form 80. The Department publishes the periods of residence that trigger a certificate for each country in its own document checklist, so check the requirement for your own case rather than assuming.
How long is a police certificate valid?
The Department says police certificates are valid for 12 months from the date of issue for immigration purposes. If a certificate expires before a decision is made, the Department may ask for it again, which is why it tells applicants to check processing times before obtaining one.
Will an old conviction stop a partner visa?
Not automatically. A criminal history is relevant, but the question is whether the person passes the character test, and if they do not, whether the discretion to refuse under section 501 is exercised. Convictions that have been quashed or nullified, and convictions covered by a pardon that means the person is taken never to have been convicted, are disregarded for the purposes of the character test. Disclosure is still required, and failing to disclose creates a separate problem.
Sources
Keep reading
Genuine and Continuing Relationship: How Home Affairs Assesses It
How Home Affairs decides if a partner visa relationship is genuine and continuing — the four matters in the Migration Regulations and what case officers look for.
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Spouse (Married Partner) Requirements for the 820
What married couples must show for the subclass 820 — the section 5F definition of spouse, a valid marriage, no 12-month rule, and why a certificate is never enough.
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De Facto Partner Visa 820: The 12-Month Rule
How the 12-month de facto rule works for the subclass 820, what counts towards the 12 months, and how time living apart is treated.
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