News · Criminal law explainer
Criminal record and your Australian visa.
For a non-citizen, a criminal charge is not only a criminal matter, it is a migration matter. A sentence can lead to a visa being refused or cancelled under section 501 of the Migration Act 1958 (Cth). This note explains the character test, what counts as a substantial criminal record, when cancellation is mandatory, and why advice on both fronts matters. It is a general explainer, not migration advice.
By Aaron Kernaghan · Published 3 September 2026
For a non-citizen, a criminal sentence can put your visa at risk under section 501 of the Migration Act 1958. A sentence of 12 months or more, including a suspended or aggregate sentence, is a substantial criminal record and fails the character test. Where a person is serving a full-time custodial sentence and has a substantial record, cancellation is mandatory. This is why non-citizens facing charges should get advice on both the criminal case and immigration.
The character test
Section 501 lets the Minister, or a delegate, refuse or cancel a visa where a person does not pass the character test. A person fails the character test in several situations, the most common being that they have a substantial criminal record. Other grounds include associations, and being assessed as a risk to the community.
So for a non-citizen, the outcome of a criminal case can decide whether they can stay in Australia. The link between the sentence and the visa is direct.
What is a substantial criminal record?
A person has a substantial criminal record if they have been sentenced to imprisonment for 12 months or more. This includes a suspended sentence, and it includes an aggregate or combined sentence that totals 12 months or more. A sentence of death or life imprisonment also qualifies, as does certain other conduct.
The 12-month threshold is why the length of a sentence matters so much for a non-citizen. A sentence just over the line can trigger the character test where a shorter one would not.
Mandatory cancellation
There is a mandatory cancellation power. Where a person is serving a full-time custodial sentence and has a substantial criminal record, the delegate must cancel the visa. The person can then seek to have the cancellation revoked, but the starting point is that the visa is cancelled.
This makes a custodial sentence especially serious for a non-citizen. The cancellation follows automatically, and the person is then in a process to try to have it undone.
Discretionary refusal and cancellation
Apart from mandatory cancellation, there is a discretionary power to refuse or cancel a visa where a person fails the character test. Here the decision-maker weighs a range of considerations, including the seriousness of the offending, the risk of reoffending, and the person's ties to Australia.
So even where cancellation is not mandatory, a criminal record can still lead to a visa being refused or cancelled after that weighing exercise.
Why non-citizens should get advice early
For a non-citizen, the criminal case and the visa are connected, and the way the criminal matter is resolved can affect the migration outcome. The length of any sentence, and whether a conviction is recorded, can be decisive. This needs to be understood before the criminal matter is finalised.
Migration law is a specialist area, and this note is general only. A person who is not a citizen should get advice from both a criminal lawyer and a migration specialist. Our note on sentences and the non-parole period explains the sentence side.
Frequently asked.
Can a criminal record cancel my visa?
Yes. Under section 501 of the Migration Act 1958, a visa can be refused or cancelled where a person fails the character test, most commonly because they have a substantial criminal record.
What is a substantial criminal record?
A sentence of imprisonment of 12 months or more, including a suspended sentence and an aggregate sentence totalling 12 months or more. It also includes life imprisonment and certain other conduct.
When is visa cancellation mandatory?
Where a person is serving a full-time custodial sentence and has a substantial criminal record, cancellation is mandatory. The person can then seek to have the cancellation revoked.
Does a suspended sentence count?
Yes. A suspended sentence of 12 months or more counts towards a substantial criminal record for the character test, as does an aggregate sentence totalling 12 months or more.
What should a non-citizen do if charged?
Get advice from both a criminal lawyer and a migration specialist. The length of any sentence and whether a conviction is recorded can affect the visa, so the two matters need to be handled together.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 3 September 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
More criminal-law commentary by Aaron Kernaghan.