Partner Visa With a Criminal Record

A partner visa with criminal record history can be granted in Australia, but the criminal record must be dealt with properly from the first day of the application. Every partner visa applicant must satisfy the character requirements, and a conviction, a charge or a past sentence of imprisonment can bring the character test in section 501 of the Migration Act 1958 into play.

For many couples, the question of a partner visa with criminal record concerns is the most stressful part of the whole process. The relationship may be genuine and long-standing. The couple may have children together. Yet one conviction, sometimes many years old and sometimes from another country, can decide whether the applicant is allowed to stay in Australia. The law does not treat every partner visa with criminal record history the same way, and the outcome depends on what the record is, how it is disclosed, and how the applicant's case is put to the Department of Home Affairs.

This guide explains how the character test works for the onshore Subclass 820 visa and the permanent Subclass 801 visa, and for the offshore partner pathway. It covers what must be disclosed, police certificates and Form 80, how the Department decides whether to refuse, the notice of intention to consider refusal, how a character submission is prepared, and review rights at the Administrative Review Tribunal (ART). For a broad overview of every partner visa subclass, see our complete guide to partner visas in Australia.

Can you get a partner visa with criminal record history?

Yes, you can get a partner visa with criminal record history, but the Department must either be satisfied that you pass the character test, or decide not to refuse your visa even though you do not pass it. A criminal record is not an automatic bar to a partner visa. Each partner visa with criminal record history is assessed on its own facts. It is a reason for the Department to look closely at the applicant's character, and in serious cases it is a reason the Department may refuse.

The practical answer depends on three questions:

• Does the record mean the applicant fails the character test in section 501(6) of the Migration Act, for example because of a substantial criminal record?
• If the applicant fails the character test, do the considerations in the relevant Ministerial Direction weigh in favour of granting the visa or against it?
• Has the record been fully and accurately disclosed, so that no separate problem arises under public interest criterion 4020?

Many people applying for a partner visa with criminal record history have minor matters, such as old fines, a good behaviour bond or a traffic offence. Those matters must still be declared, but they usually do not mean the applicant fails the character test. Others have served time in prison, have family violence convictions or have convictions in several countries. Those matters require careful legal preparation, because the Department has a discretion to refuse and it exercises that discretion seriously.

Our partner visa lawyers assess the criminal record before the application is lodged, not after the Department raises it. In a partner visa with criminal record matter, the order of steps is important: understand the record, decide how it will be disclosed, gather the evidence, and only then lodge. Our Subclass 820 visa requirements guide and our Subclass 820 partner visa guide explain the other criteria that must also be met.

The character test in section 501 of the Migration Act

The character test is set out in section 501(6) of the Migration Act 1958, and a partner visa applicant does not pass it if any of the grounds listed in that subsection applies to them. The Department of Home Affairs states that the character requirements are set out in section 501 and that applicants must meet them to receive a visa and to remain in Australia.

Section 501 gives the Minister, and the Minister's delegates in the Department, power to refuse a visa if the applicant does not satisfy the Minister that they pass the character test. This power sits alongside the ordinary partner visa criteria. A person can meet every relationship requirement and still face refusal of a partner visa with criminal record history under section 501.

Substantial criminal record

A person who has a substantial criminal record does not pass the character test. In general terms, a person has a substantial criminal record if they have been:

• sentenced to death;
• sentenced to imprisonment for life;
• sentenced to a term of imprisonment of 12 months or more;
• sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more; or
• acquitted on the grounds of unsoundness of mind or found unfit to plead, and as a result detained in a facility or institution.

Two points are often misunderstood. First, it is the sentence imposed that matters, not the time actually served. A suspended sentence of 12 months or more is still a sentence of imprisonment. Second, separate shorter sentences can be added together. Two sentences of eight months each can amount to a substantial criminal record.

A person who does not have a substantial criminal record has not automatically passed the character test. The other grounds still apply. Equally, a person who has a substantial criminal record has not automatically lost their partner visa with criminal record history. The decision maker must still decide whether to refuse.

The other grounds of the character test

Section 501(6) contains other grounds, which apply whether or not the person has a substantial criminal record. In general terms, they include where:

• the person has been convicted of certain offences connected with immigration detention;
• the decision maker reasonably suspects the person has been a member of, or associated with, a group, organisation or person involved in criminal conduct;
• the decision maker reasonably suspects the person has been involved in people smuggling, people trafficking or crimes of serious international concern;
• having regard to the person's past and present criminal conduct, or past and present general conduct, the person is not of good character;
• there is a risk that the person would engage in criminal conduct, harass or stalk another person, or endanger the community in Australia;
• the person has been convicted or found guilty of sexually based offences involving a child;
• the person has been the subject of certain adverse security assessments or an Interpol notice from which it is reasonable to infer a risk to the community.

The general conduct ground matters for many applicants seeking a partner visa with criminal record issues. A long pattern of minor offending, or conduct for which no conviction was recorded, can still be considered. A family violence order, repeated breaches of court orders or a history of dishonesty can be relevant to whether the person is of good character.

Public interest criterion 4001 and the partner visa

Public interest criterion 4001 is the character criterion that every partner visa applicant must meet, and it is satisfied where the Department is satisfied the applicant passes the character test, or where it has decided not to refuse the visa despite character concerns. The Department's policy guidance for the Subclass 820 visa confirms that the primary applicant must satisfy public interest criterion 4001, together with other public interest criteria including 4020 (the integrity criterion) and 4021 (the passport criterion).

In practical terms, public interest criterion 4001 can be satisfied in one of several ways. The applicant may satisfy the Department that they pass the character test. The Department may be satisfied, after appropriate inquiries, that there is nothing to indicate that the applicant would fail the character test. Or the Minister or delegate may decide not to refuse the visa even though the applicant does not pass, or has not shown they pass, the character test. That last pathway is how most applicants with a serious record obtain a partner visa with criminal record history. For an applicant who has served a prison sentence, the realistic goal of a partner visa with criminal record submission is usually to persuade the decision maker not to refuse, rather than to argue the character test is passed.

Family members included in the application

The character requirements apply to family members as well as to the primary applicant. The Subclass 820 policy confirms a "one fails, all fail" rule: the primary applicant cannot be granted the visa unless each member of the family unit who is also an applicant satisfies the character criteria, and some criteria also apply to family members who are not applicants. A dependent adult child with a conviction can therefore affect the whole family's application. The record of every person in the application must be assessed, not only the main applicant's. A family can find itself dealing with a partner visa with criminal record issues because of a family member, not the primary applicant.

When the criminal record belongs to the sponsor

This guide is about the applicant's own criminal record. A sponsor's criminal record raises a different set of rules, known as the sponsorship limitations, which can prevent approval of the sponsorship where the sponsor has convictions for relevant offences. Those rules are explained on our page about partner visa sponsorship limitations and in our article on when a sponsor cannot sponsor a partner visa.

What must be disclosed when applying for a partner visa with criminal record history

You must disclose every conviction you have in any country, including a conviction that has been removed from official records, and any charge that is awaiting legal action. The character questions in the Department's forms ask whether the applicant, or any other person included in the application, has ever been convicted of an offence in any country, and they expressly include any conviction which is now removed from official records.

The same question set asks whether the person has ever:

• been charged with any offence that is currently awaiting legal action;
• been charged with or convicted of family or domestic violence offences or similar offences;
• been the subject of a domestic or family violence order, or any other order of a court or tribunal for the personal protection of another person;
• been the subject of an arrest warrant or Interpol notice;
• been found guilty of a sexually based offence involving a child, including where no conviction was recorded;
• been removed, deported or excluded from any country, or overstayed a visa in any country.

Where the answer to any question is yes, the form asks for details, including the date of the charge, the outcome and any penalty, and asks for court documents such as sentencing remarks or court transcripts.

Spent, old and overseas convictions

The question is not limited by time, place or the age of the offence. A conviction from twenty years ago, a conviction in the applicant's home country and a conviction that would be treated as spent under an Australian spent convictions scheme are all within the question as the Department frames it. Many applicants for a partner visa with criminal record history assume an old matter no longer counts. In the immigration context, that assumption is dangerous.

Convictions recorded when the applicant was young, matters dealt with without a conviction, and convictions later quashed or pardoned can raise more technical questions about what the law counts and what the form asks. These are exactly the cases where the wording of the disclosure should be settled with advice before the form is signed. When in doubt, the safer course is to disclose fully and explain accurately. In a partner visa with criminal record history application, a short, accurate explanation of each matter is far better than a bare answer that invites suspicion.

Why full disclosure protects the application

A partner visa with criminal record history is rarely refused because of an honest disclosure of a minor matter. Applications are refused when the Department discovers something the applicant did not declare. Police certificates, fingerprint matches, overseas records and the applicant's earlier visa applications all give the Department ways to find out. Our guide to completing Form 80 without errors explains the character section of that form.

Non-disclosure risk: PIC 4020 and false or misleading information

Failing to disclose a conviction can lead to refusal under public interest criterion 4020, separately from any character concern, because the applicant has given information that is false or misleading in a material particular. The Department's policy on public interest criterion 4020 explains that it requires there to be no evidence that the applicant has given a bogus document, or information that is false or misleading in a material particular, in relation to the current application or a visa held in the 12 months before the application was made.

Information is false or misleading in a material particular if it was false or misleading at the time it was given and is relevant to any of the criteria for the visa, whether or not the decision is made because of that information. A "No" answer to a conviction question, when the true answer is "Yes", is relevant to the character criteria.

The consequences are significant. The policy confirms that a refusal under public interest criterion 4020 for false or misleading information can affect future visa applications for a period after the refusal, for the applicant and members of their family unit. A waiver is available only in limited circumstances, including compelling or compassionate circumstances affecting the interests of an Australian citizen or permanent resident.

This is why an application for a partner visa with criminal record history must be accurate from the start. The same care applies to the partner visa document checklist: every document lodged with a partner visa with criminal record history should be consistent with the declarations. A minor conviction disclosed honestly is usually manageable. The same conviction hidden and later discovered can turn a manageable case into a refusal on two separate grounds.

Correcting an earlier mistake

Where an earlier visa application or an earlier answer was wrong, the problem should be identified and addressed before the Department finds it. Our article on responding to a section 57 natural justice letter explains how the Department puts adverse information to an applicant, and our guide to the Form 1022 change of circumstances explains how changes are reported during processing.

Where our partner visa clients are located

My Migration Lawyers acts for couples dealing with a partner visa with criminal record history throughout Australia, and every consultation is conducted by video. Couples in New South Wales can read about our partner visa lawyers in Sydney and our partner visa lawyers in Parramatta. Couples in Victoria and Queensland can read about our partner visa lawyers in Melbourne, Brisbane and the Gold Coast. We also act for couples through our partner visa lawyers in Perth, Adelaide, Canberra and Hobart. The character test for a partner visa with criminal record history is the same in every state and territory.

Police certificates and Form 80 for a partner visa with criminal record history

Partner visa applicants generally need police certificates from Australia and from each country where they have lived for a total of 12 months or more in the last 10 years since turning 16, and the Department may also ask for Form 80. Police certificates are the Department's main tool for verifying what the applicant has declared in a partner visa with criminal record application. For an applicant seeking a partner visa with criminal record history, the police certificate and the declaration must tell the same story.

Australian and overseas police certificates

An Australian police certificate is obtained through the Australian Federal Police. Overseas certificates are obtained from the relevant authority in each country, and each country has its own process. Some take months. Some must be requested through an embassy. Some countries issue certificates that list only certain kinds of offences. For a partner visa with criminal record history, the applicant should also keep court documents, because a certificate alone rarely explains the circumstances of an offence. The Department's policy for the permanent Subclass 801 stage states that applicants must provide a current police certificate, generally valid for 12 months, for any country they have lived in for a cumulative period of 12 months or more since the Subclass 820 visa was granted.

The Tribunal's own decisions show how often police certificates decide partner visa cases. The Tribunal has remitted a number of partner visa refusals where a certificate that was missing or out of date before the Department was later provided at review. That is an avoidable delay. Planning the certificates early is one of the simplest ways to protect an application for a partner visa with criminal record history.

What a police certificate will show

A police certificate may disclose convictions the applicant had forgotten, matters they believed were removed, or offences recorded under a different name or spelling. Before lodging, the applicant's own declaration should be checked against what the certificates are likely to show. Where a certificate discloses an offence that was not declared, the Department will want an explanation, and the explanation must be truthful and consistent. This is one of the most common ways a partner visa with criminal record issues becomes a partner visa with an integrity problem as well.

Form 80 and Form 1221

Form 80 is the personal particulars form used for character assessment. It asks for the applicant's full address history, employment history, travel history, military service and character information. The Department often requests Form 80 where there is a criminal record, a gap in the history or a country of concern. Our guide to completing Form 80 explains each part. Requests for Form 80 usually arrive through a section 56 request, and our article on responding to a section 56 request for more information explains what to do when one arrives.

For an applicant with convictions, the Form 80 character section should not simply say "Yes". It should identify each matter, the court, the date, the charge, the outcome and the penalty, and it should attach the court documents the form asks for, such as sentencing remarks.

How the Department decides a partner visa with criminal record history

The Department decides whether to refuse a partner visa with criminal record history by first deciding whether the applicant passes the character test, and then, if they do not, deciding whether to refuse by applying the Ministerial Direction made under section 499 of the Migration Act. That Direction binds delegates of the Department and the ART. The Department's current guidance refers to Direction No. 110, titled "Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA", which commenced on 21 June 2024.

The Direction does not require refusal. It sets out the considerations a decision maker must weigh. A strong case on those considerations can lead to a decision not to refuse, even where the applicant has a substantial criminal record. That is why the Direction is the framework for every serious partner visa with criminal record submission.

The primary considerations

Direction No. 110 lists five primary considerations for a decision to refuse a visa under section 501:

• the 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 the person's ties to Australia;
• the best interests of minor children in Australia; and
• the expectations of the Australian community.

Protection of the community involves the nature and seriousness of the conduct and the risk of the person reoffending. Rehabilitation, the time since the last offence and the person's insight into their conduct all go to risk. Family violence is treated as a separate consideration because of the seriousness with which it is viewed, and it is often the decisive issue in a partner visa with criminal record history involving domestic offending. Ties to Australia include the relationship with the sponsor, children and other family. The best interests of minor children include the applicant's own children and stepchildren, and the effect of refusal on them.

The other considerations

Direction No. 110 also lists other considerations, including the legal consequences of the decision, the extent of any impediments the person would face if removed from Australia, and the impact on Australian business interests. These are weighed with the primary considerations, although the primary considerations generally carry greater weight.

Lower tolerance for visa applicants

The Direction states that Australia has a low tolerance of criminal or other serious conduct by visa applicants and by non-citizens who have been in the Australian community only for a short period. It allows a higher level of tolerance for non-citizens who have lived in Australia for most of their life. For most people applying for a partner visa with criminal record history, this principle works against them. The application therefore has to show, with evidence, why the other considerations outweigh the low tolerance the Direction describes.

Minor offences and serious offences

Minor offences rarely lead to the refusal of a partner visa with criminal record history on their own, but serious offences, repeated offending, violence and family violence can. The difference lies in whether the applicant fails the character test, and if so, how the Direction's considerations fall.

Matters that usually do not cause the applicant to fail

A single fine, a good behaviour bond, a community order or a short suspended sentence well below 12 months will not, without more, give a person a substantial criminal record. Unless there is a wider pattern of conduct that raises the general conduct ground, the applicant will usually pass the character test. These matters must still be disclosed in full. For this kind of partner visa with criminal record history, the main task is accurate disclosure with court documents, not a lengthy submission.

Traffic and drink driving offences

Traffic matters and drink driving convictions are among the most common disclosures in partner visa applications. A single drink driving offence with a fine and licence disqualification does not, by itself, create a substantial criminal record. Repeated drink driving, driving while disqualified, or offences involving injury can raise the general conduct ground or lead to a sentence of imprisonment, which changes the analysis. Each matter must be declared, and the court outcome should be documented. A partner visa with criminal record history built around traffic matters is usually manageable if it is disclosed properly.

Matters that create real risk

The risk of refusal increases sharply where the applicant has a sentence of imprisonment of 12 months or more, convictions for violent offences, family violence convictions or protection orders, sexual offences, drug supply offences, or a long history of offending in Australia or overseas. In these cases, an application for a partner visa with criminal record history should not be lodged without a plan for the character submission. Where the applicant already holds a visa, the same record can also expose that visa to cancellation, and our page on visa cancellations explains that process.

The notice of intention to consider refusal

A notice of intention to consider refusal is a letter from the Department telling the applicant that it is considering refusing the visa under section 501, and inviting them to respond before a decision is made. It is the most important document in a partner visa with criminal record history matter, and it should be read the day it arrives. It sets out the information the Department relies on, usually explains which ground of the character test is engaged, and gives the applicant a period of time to respond.

The time to respond is set by the notice and is usually short. Requests for more time may be considered, but they may be refused, and the applicant should not plan on an extension. The response should be prepared immediately.

What the notice usually contains

A notice of intention to consider refusal commonly includes the applicant's criminal history as the Department understands it, police certificates and court records the Department holds, the character test ground relied on, and a copy of or reference to the Ministerial Direction. It may also ask the applicant to provide specific documents, such as sentencing remarks or evidence of rehabilitation.

Every factual statement in the notice should be checked. Records can be wrong. A conviction may be attributed to the wrong person, or a sentence may be recorded incorrectly. Correcting an error at this stage can change whether the applicant fails the character test at all. In a partner visa with criminal record case, an error in the Department's records is not unusual, particularly with overseas convictions and names transliterated from another script.

Natural justice in other forms

Not every character concern is raised through a notice of intention to consider refusal. The Department may also ask questions through a section 56 request or put adverse information to the applicant through a section 57 letter. Each request should be treated as part of the character case. Our article on why partner visas get refused explains the other issues the Department raises in partner matters.

The character submission for a partner visa with criminal record history

A character submission is a written legal response that explains why the applicant passes the character test or, if they do not, why the visa should not be refused under the Ministerial Direction. It is the core document in any partner visa with criminal record history matter where the record is serious. It should address each primary consideration and each relevant other consideration, and it should be supported by evidence rather than assertion.

The submission presents the applicant's own account and evidence in the form the law requires. It should acknowledge the offending honestly. A submission that minimises the offending, blames the victim or contradicts the court's findings usually does more harm than good. The strongest partner visa with criminal record submissions accept the offending, explain what has changed, and prove it.

Rehabilitation evidence

Rehabilitation evidence is often the most persuasive part of a character submission because it goes directly to the risk of reoffending. Useful evidence can include:

• completion of courses or treatment ordered by a court or undertaken voluntarily;
• reports from treating professionals, where the applicant has undertaken treatment;
• compliance with parole, bonds or community orders;
• a stable employment history since the offending;
• the length of time since the last offence, with no further offending; and
• the applicant's own statement showing insight into the offending and its effect on others.

For family violence offending, the Direction directs attention to rehabilitation since the last known act of family violence, including whether the person accepts responsibility and understands the effect of their conduct on victims. Evidence of completion of a behaviour change course can be highly relevant.

References and the sponsor's evidence

References from employers, community members and others who know the applicant can support the case, provided the referee knows about the offending and says so. A reference from someone who does not know about the conviction carries little weight in a partner visa with criminal record case. Our article on Form 888 example answers and common mistakes explains why statements must be accurate and specific. The sponsor's evidence is central. The sponsor should explain the relationship, their knowledge of the offending, the effect of refusal on them and on any children, and why they support the application. The sponsor's statement in a character case is different from the relationship statement, and our guide to the partner visa relationship statement explains that separate document.

The children's best interests

Where there are minor children in Australia, evidence about their best interests should be specific. It can include the child's relationship with the applicant, the role the applicant plays in their care, school and health information, and the likely effect on the child of the applicant's removal. Reports from schools or treating professionals may be relevant. The best interests of minor children is a primary consideration, and it should be addressed with evidence, not general statements.

Ties to Australia

Evidence of ties to Australia includes the length of the relationship, joint finances and household, wider family in Australia, employment, community involvement and the applicant's time in Australia. Much of this evidence overlaps with the relationship evidence. Our guide to partner visa relationship evidence and our article on Form 888 supporting statements explain how that evidence is assembled, and our guide to preparing evidence of a genuine relationship explains how to keep it in good order. In a partner visa with criminal record history, ties evidence does double work: it proves the relationship and it weighs against refusal.

Timing: the Subclass 820 and Subclass 801 stages

The character requirements apply at both the temporary Subclass 820 stage and the permanent Subclass 801 stage, so a partner visa with criminal record history can be examined twice. Our Subclass 820 visa explainer sets out the two-stage structure. The Department's policy for the Subclass 801 stage requires applicants to satisfy public interest criterion 4001 again and to provide current police certificates for countries they have lived in for a cumulative period of 12 months or more since the Subclass 820 visa was granted.

This has two practical effects. First, passing the character test at the Subclass 820 stage does not end the question. Any new charge, conviction or family violence order during the period between the two stages must be disclosed and will be assessed at the Subclass 801 stage. Second, an offence committed while the applicant holds the Subclass 820 visa can also expose that visa to cancellation. For a partner visa with criminal record history, staying out of trouble between the two stages is as important as the first application. Our Subclass 820 vs Subclass 801 guide explains how the two stages relate.

Charges that are not yet resolved

A charge that is awaiting legal action must be declared. Where criminal proceedings are pending, the Department may wait for the outcome before deciding. The timing of lodgement, the plea and the sentencing hearing can all affect the immigration outcome. Where the applicant is facing charges, advice on the immigration consequences should be obtained before the criminal matter is finalised, and the criminal lawyer should be told that the client is a visa applicant. A guilty plea entered without understanding its effect on a partner visa with criminal record history can have consequences the client did not expect.

Bridging visas while character is assessed

An onshore applicant generally remains on a bridging visa while the character assessment is carried out. Character assessments can add significant time to processing. Our articles on the Bridging Visa A and the Bridging Visa B for travel explain the applicant's position while waiting. An applicant with a pending character assessment should obtain advice before travelling. Our overview of bridging visas in Australia explains the different types.

ART review of a partner visa character refusal

A partner visa refused by a delegate under section 501 can generally be reviewed by the Administrative Review Tribunal, but the deadline to apply is short and strictly applied, and the Tribunal cannot accept a late application. Section 500 of the Migration Act provides for review of character decisions made by a delegate. The Department's guidance explains that most refusals made on character grounds are reviewed in the ART's General jurisdictional area, rather than in the Migration jurisdictional area that hears ordinary partner visa refusals.

Whether a particular refusal can be reviewed, and by whom, depends on whether the decision would have been reviewable if it had been made on another ground. Generally, where the partner visa application was made in Australia and the applicant was in Australia when refused, the applicant can apply. For an offshore partner visa, the sponsor in Australia is generally the person entitled to apply. Our page on visa refusals and our article on what to expect in an ART review explain the review process, and our guide to visa appeal lawyers explains how a review is prepared. Our analysis of why Subclass 820 partner visas are refused covers the other refusal grounds. A refused partner visa with criminal record history should be reviewed for both character and non-character issues.

How character reviews differ

Character reviews have their own procedures, and the Tribunal also has limited time to decide them. Evidence the applicant intends to rely on must generally be provided to the Tribunal and the Department within set times before the hearing. The applicant should be ready with the complete character case at the start of the review, not build it during the review. For a partner visa with criminal record refusal, the review is usually the last full opportunity to present the evidence on its merits. Our guide to partner visa refusal appeal options and our page on partner visa refusals explain the wider options.

When the Minister decides personally

Where the Minister personally refuses a visa under section 501, the ART cannot review that decision. The Minister also has personal powers to refuse a visa without first giving the applicant a chance to respond in some circumstances, and to set aside certain decisions of the Tribunal. These decisions are rare in partner matters, but where they occur the only avenue is usually judicial review in the courts. Our page on judicial review explains how the courts review migration decisions for legal error.

What the Tribunal has looked at in partner visa with criminal record cases

The Tribunal has remitted many partner visa matters where the character issue turned on documents, disclosure and evidence, rather than on the seriousness of the offending itself. The following decisions, each of which was remitted or set aside, illustrate the kinds of character issues the Tribunal has dealt with in partner visa with criminal record and police certificate matters:

• In Lou (Migration) [2019] AATA 4665, a Subclass 820 matter, the issue concerned public interest criterion 4001, where an authorised criminal clearance certificate had not been provided to the delegate and a Canadian police certificate was provided to the Tribunal.
• In Bautista (Migration) [2021] AATA 606, a Subclass 820 matter, the issue concerned criminal history statements, with statements from the home country and Australia provided to the Tribunal and driving disqualifications and fines disclosed.
• In Fouracres (Migration) [2024] AATA 61, a Subclass 820 matter, the applicant's Australian Federal Police certificate expired before the visa was finalised and a new certificate was provided to the Tribunal.
• In Puru (Migration) [2018] AATA 3444, a Subclass 820 matter, the issues included the Schedule 3 criteria, compelling reasons, previous convictions and the applicant's working life.
• In Pham (Migration) [2023] AATA 2643, a Subclass 820 matter, the issues included a valid marriage, criminal activities and whether the relationship was genuine and continuing.
• In Noor Dimbil (Migration) [2021] AATA 846, a Subclass 309 matter, the issue concerned a bogus police check document provided with help from a third party, where the applicant was said to be unaware of its bogus status.

Each decision turned on its own facts. Together they show three things. Police certificates must be complete and current. Disclosed minor matters, such as driving disqualifications and fines, are part of the record the decision maker considers. And the authenticity of a police document is itself an integrity issue, which is why certificates should be obtained directly from the issuing authority.

Consequences of a character refusal for future visas

A refusal under section 501 has consequences that go well beyond the partner visa itself. In general terms, a person refused a visa on character grounds while in Australia faces strict limits on applying for other visas while they remain in Australia, and a character refusal can also affect their ability to obtain visas to return to Australia in future. Those restrictions are stricter than the ordinary section 48 bar that follows a refusal, which our article on applying for a partner visa after a visa refusal explains.

This is why the response to a notice of intention to consider refusal matters so much. The stakes are not limited to one application. For an applicant pursuing a partner visa with criminal record history, the quality of the character submission can affect their immigration position for many years.

Applicants without a substantive visa

Where the applicant is in Australia without a substantive visa, the Schedule 3 criteria may also apply to the partner visa. A criminal record can be relevant to the compelling reasons case for not applying those criteria. Our page on the Schedule 3 waiver and our article on the Schedule 3 criteria for partner visa applicants explain those rules.

Family violence by the sponsor

The family violence provisions for partner visas protect applicants who are victims of family violence committed by the sponsor. They are a different issue from family violence offending by the applicant, which is a character concern. Our page on family violence and partner visas explains the protective provisions, and our article on what happens if a Subclass 820 relationship breaks down explains the general position after separation. A victim of the sponsor's violence who also has their own record faces both sets of rules in a partner visa with criminal record history.

Choosing a lawyer for a partner visa with criminal record history

A partner visa with criminal record history is a legal matter, because it turns on section 501, public interest criteria 4001 and 4020, and a binding Ministerial Direction. Our articles on when you need an immigration lawyer for a partner visa, the partner visa lawyer vs doing it yourself question and whether to use a migration agent or a lawyer for a partner visa explain when professional help is worth considering. Applicants who have already lodged and now face a character issue can read our guide to hiring an immigration lawyer after lodging your own application and our article on getting a second opinion.

Those comparing firms can read our guides to choosing a partner visa lawyer in Australia and, by city, choosing a partner visa lawyer in Sydney, Melbourne, Brisbane or Perth. For broader immigration matters, My Migration Lawyers also acts through our immigration lawyers in Sydney, Melbourne, Brisbane, Perth and Adelaide. Our article on what to expect at an immigration lawyer consultation explains how to prepare for advice on a partner visa with criminal record history. Applicants who have received a notice with a short response time can read our guide to urgent immigration lawyer advice.

How My Migration Lawyers handles a partner visa with criminal record history

My Migration Lawyers deals with complex partner visa matters and acts in many applications where the applicant has a criminal record, from old minor convictions to sentences of imprisonment and family violence matters. The firm is capable of handling a partner visa with criminal record history at every stage, from the first disclosure to a notice of intention to consider refusal and review at the ART, and it approaches each matter by settling the character position before anything is lodged.

In practice, the firm's work on a partner visa with criminal record history includes:

• Reviewing the applicant's full criminal history in every country, together with court outcomes, sentencing remarks and police certificates, to identify exactly what must be disclosed.
• Assessing whether the applicant has a substantial criminal record or is otherwise likely to fail the character test in section 501(6), and advising on the risk before lodgement.
• Preparing accurate disclosure in the application and in Form 80, consistent with the applicant's earlier visa applications, so that no separate public interest criterion 4020 problem arises.
• Planning police certificates from Australia and overseas so they are complete and current when the Department, or the Tribunal, needs them.
• Preparing a character submission that addresses each primary and other consideration in Ministerial Direction No. 110, supported by rehabilitation evidence, references, the sponsor's evidence and evidence of the children's best interests.
• Responding to notices of intention to consider refusal, section 56 requests and section 57 letters within the time allowed.
• Advising on ART review of a character refusal, and on judicial review where the law allows it.
• Monitoring the character position through to the Subclass 801 stage, including any new matter that arises after the Subclass 820 visa is granted.

Where the firm acts, it is appointed through Form 956, and our article on Form 956 and 956A explains how that appointment works. The firm is led by Weiwei Zhang, Principal Lawyer. More information about the firm's partner visa practice is on our partner visa lawyers page and our Subclass 820 visa page, and more about the firm is on our about page. Offshore applicants can read our Subclass 309 visa page. Consultations are conducted by video, so couples can obtain advice on a partner visa with criminal record history wherever they are in Australia.

If you are preparing a partner visa with criminal record history, or you have received a notice of intention to consider refusal, book a consultation online or call 1300 040 300.