Partner Visa Section 501: Character Concerns

A section 501 partner visa issue arises when the Department of Home Affairs considers refusing a partner visa because the applicant may not pass the character test in section 501 of the Migration Act 1958. A section 501 partner visa refusal is not automatic, even where the applicant has a serious criminal record. The decision maker has a discretion, and that discretion must be exercised by weighing the considerations set out in a binding Ministerial Direction.

This guide explains how a section 501 partner visa matter works from start to finish. It covers the character test, the meaning of a substantial criminal record, public interest criterion 4001, the notice of intention to consider refusal, the current Ministerial Direction, the weight given to the Australian partner and children, and review at the Administrative Review Tribunal. It is written for couples who are about to apply, couples who have already applied and have received a character notice, and couples who have just received a refusal and can still act.

If you want the overview of every partner visa subclass first, read our complete guide to partner visas in Australia. If the character concern is one issue among several, our guide to the partner visa lawyers service explains how My Migration Lawyers approaches complex matters. This article focuses only on the character test and the section 501 partner visa process.

What is a section 501 partner visa refusal?

A section 501 partner visa refusal is a decision to refuse a partner visa under section 501 of the Migration Act 1958 because the applicant has not satisfied the decision maker that they pass the character test. Section 501(1) allows the Minister, or a delegate of the Minister, to refuse to grant a visa to a person if the person does not satisfy the Minister that they pass the character test.

The wording of section 501(1) matters. The burden is on the applicant to satisfy the decision maker. The Department does not have to prove that the applicant is of bad character. If the material before the decision maker shows that one of the character grounds in section 501(6) applies, the applicant does not pass the character test, and the question becomes whether the visa should be refused in the exercise of the discretion.

A section 501 partner visa refusal can apply to any of the partner visas: the onshore Subclass 820 partner visa and the permanent Subclass 801, the offshore Subclass 309 partner visa and the permanent Subclass 100, and the Subclass 300 Prospective Marriage visa. It can also arise at the permanent stage, because character is assessed again before the Subclass 801 or Subclass 100 is granted. Our article on Subclass 820 vs Subclass 801 explains the two stages.

There are two separate refusal powers that can apply to a person with a character concern. The first is section 501 itself. The second is a refusal under section 65 because the applicant does not meet public interest criterion 4001, which is one of the criteria for the visa. The two paths have different review consequences, which is why it is important to know which power the decision maker relied on. This is explained in more detail below.

The character test in section 501(6)

The character test is set out in section 501(6) of the Migration Act 1958. A person does not pass the character test if any one of the listed grounds applies to them. In a section 501 partner visa assessment, the decision maker works through each ground and asks whether it is engaged on the information available.

The main grounds in section 501(6) are:

• Substantial criminal record. The person has a substantial criminal record, as defined in section 501(7).
• Immigration detention offences. The person has been convicted of an offence committed while in immigration detention, during an escape from detention, or after escaping and before being taken back into detention.
• Association. The Minister reasonably suspects that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person, that has been or is involved in criminal conduct.
• Serious international crimes. The Minister reasonably suspects that the person has been involved in conduct such as people smuggling, people trafficking, genocide, war crimes or crimes against humanity, whether or not they were convicted.
• Past and present conduct. Having regard to the person's past and present criminal conduct, or past and present general conduct, the person is not of good character.
• Risk of future conduct. There is a risk that, if the person were allowed to enter or remain in Australia, the person would engage in criminal conduct, harass, molest, intimidate or stalk another person, vilify a segment of the Australian community, incite discord, or represent a danger to the Australian community.
• Sexually based offences involving a child. A court in Australia or overseas has convicted the person of, or found them guilty of, one or more sexually based offences involving a child.
• Other grounds. These include certain adverse security assessments and the subject of an Interpol notice from which it is reasonable to infer a risk to the community.

Most section 501 partner visa matters turn on the first ground, the substantial criminal record, or on the past and present conduct ground. The risk ground also arises often where there is a history of family violence orders or repeated offending.

What is a substantial criminal record?

A person has a substantial criminal record under section 501(7) if they have been sentenced to death, sentenced to imprisonment for life, sentenced to a term of imprisonment of 12 months or more, or sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. A person also has a substantial criminal record in some cases where they were acquitted because of unsoundness of mind or found unfit to plead and were then detained.

Several points about this definition are commonly misunderstood in section 501 partner visa matters:

• The sentence is what counts, not the time served. A sentence of 12 months or more is enough, even if the person was released on parole early.
• Suspended sentences can count. A term of imprisonment that was imposed and then suspended can still be a term of imprisonment for the purposes of section 501(7).
• Separate sentences can be added together. Two or more shorter sentences can together reach the 12-month threshold. Section 501(7A) deals with how concurrent sentences are counted.
• Overseas convictions count. A conviction and sentence in another country is treated in the same way as one imposed in Australia.
• Pardons and quashed convictions are disregarded. Section 501(10) provides that a conviction that has been pardoned or quashed is disregarded for the purposes of the character test.

A person who does not have a substantial criminal record can still fail the character test on another ground. A long list of minor offences, for example, can engage the past and present conduct ground even though no single sentence reached 12 months.

Past and present criminal and general conduct

The past and present conduct ground looks at the whole of the person's conduct, not only convictions. The decision maker considers the nature, seriousness and frequency of the conduct, how long ago it occurred, and whether there is evidence of rehabilitation or reform. In a section 501 partner visa matter, evidence of the time that has passed since the conduct, and of what the person has done since, is often decisive on this ground.

General conduct can include matters such as immigration fraud, deliberate breaches of visa conditions, or dishonesty towards the Department. That is one reason why honesty in the partner visa application itself matters so much. Our article on why partner visas get refused sets out the wider grounds.

How PIC 4001 links the character test to every partner visa

Public interest criterion 4001 is the criterion in Schedule 4 to the Migration Regulations 1994 that brings the character test into the partner visa criteria. Every partner visa applicant must meet PIC 4001, and so must family members included in the application. That is why a section 501 partner visa concern can arise in any partner visa application, including an application from a person with no criminal history at all who simply has not supplied the right police certificates.

PIC 4001 is met where:

• the person satisfies the Minister that they pass the character test;
• the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that they pass the character test;
• the Minister has decided not to refuse to grant the visa despite reasonably suspecting that the person does not pass the character test; or
• the Minister has decided not to refuse to grant the visa despite not being satisfied that the person passes the character test.

The last two limbs are important in a section 501 partner visa case. They mean that a person who does not pass the character test can still meet PIC 4001 if the decision maker decides, in the exercise of the discretion, not to refuse the visa. In other words, failing the character test is the start of the analysis, not the end of it.

PIC 4001 problems that are not really character problems

Many partner visa refusals on PIC 4001 have nothing to do with criminal conduct. They happen because a police certificate was not provided, was out of date, or came from the wrong authority. The Tribunal has dealt with many matters of this kind. In Lou (Migration) [2019] AATA 4665, a Subclass 820 matter, the reported issue was PIC 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 Lee (Migration) [2022] AATA 4648, also a Subclass 820 matter, the issue was the character test and a statement from an appropriate authority, being a certificate of good conduct issued by the High Commission of Malaysia.

These cases illustrate a practical point. A refusal for a missing police certificate is usually a refusal under section 65 because PIC 4001 was not met, and it is generally reviewed in the ordinary way as a partner visa refusal. A section 501 partner visa refusal is different, because it is made under the character power itself and has its own review regime. Our partner visa refusals page explains the ordinary review pathway, and our article on partner visa document checklists explains which character documents are usually requested.

Does a criminal record mean a partner visa will be refused?

No. A criminal record does not mean a partner visa will be refused. Even a person who fails the character test because of a substantial criminal record may still be granted the visa, because section 501(1) gives the decision maker a discretion and does not require refusal.

That discretion is real, but it is not unstructured. The decision maker must weigh the considerations in the current Ministerial Direction made under section 499 of the Migration Act 1958. Those considerations cut both ways. Protection of the Australian community and the expectations of the Australian community weigh towards refusal where the conduct is serious. The impact of a refusal on the Australian partner and other immediate family members in Australia, and the best interests of minor children in Australia, often weigh against refusal.

A section 501 partner visa matter is therefore a balancing exercise. The quality of the material put before the decision maker on each side of that balance is what decides the case. A short apology letter and a single Form 888 statement rarely carry the weight needed where the offending was serious. A structured response that deals with each consideration, supported by evidence, gives the decision maker something real to weigh.

There is no rule that a particular offence or sentence length will always lead to refusal, and there is no rule that a long relationship will always lead to grant. Every section 501 partner visa decision depends on the facts.

Who must meet the character requirement in a partner visa application?

Every applicant in a partner visa application must meet the character requirement, including family members such as dependent children who are included in the application. Police certificates are generally requested from applicants aged 16 and over, from each country where they have lived for a significant period as an adult, and from Australia where relevant.

The Australian partner is not a visa applicant, so the Australian partner does not need to pass the section 501 character test. However, the sponsor's own criminal history is assessed separately under the sponsorship limitations in the Migration Regulations 1994. That is a different legal test, with its own considerations, and it is not a section 501 partner visa issue. Our page on partner visa sponsorship limitations and our article on when a sponsor cannot sponsor a partner visa in Australia explain the sponsor side.

Where both partners have a criminal history, both tests may be engaged at once: the character test for the applicant and the sponsorship limitations for the sponsor. Each must be dealt with on its own terms.

Character and the de facto or married relationship

Character concerns do not change the relationship criteria. A couple in a section 501 partner visa matter must still prove that they are spouses or de facto partners and that the relationship is genuine and continuing. Where one partner has been in custody, the couple may need to explain periods apart and how the relationship continued. Our guides on partner visa relationship evidence, the de facto partner visa and the 12-month rule and the partner visa relationship statement explain those requirements.

The relationship evidence also does double work in a section 501 partner visa case. The same evidence that proves the relationship is genuine also shows the impact that a refusal would have on the Australian partner, which falls within the ties to Australia primary consideration in the Ministerial Direction. A relationship that is well documented helps on both questions.

What is a notice of intention to consider refusal?

A notice of intention to consider refusal is a letter from the Department of Home Affairs telling a partner visa applicant that the Department is considering refusing the visa under section 501 and inviting a written response. It is the most important document in most section 501 partner visa matters, because it is usually the only chance to put the full case to the decision maker before a decision is made.

The notice normally sets out the character ground the Department believes applies, attaches the material the Department intends to rely on, and gives a deadline for the response. The material often includes criminal history records, court documents, police reports, sentencing remarks and information from other agencies. The applicant is entitled to see the adverse information that the decision maker proposes to rely on, so that it can be answered.

The notice is not a refusal. It is an invitation to respond. However, a section 501 partner visa matter in which the notice is ignored, or answered with a short letter, is very likely to end in refusal, because the decision maker will have little to weigh against the conduct described in the notice.

How long do you have to respond?

The time to respond is stated in the notice itself and is usually short. The deadline should be treated as fixed. If more time is genuinely needed, for example to obtain sentencing remarks, a psychological report or overseas documents, a written request for an extension should be made before the deadline expires, with reasons. The Department is not obliged to agree, so the response should be prepared on the assumption that the original date applies.

Is the notice the same as a section 57 letter or a section 56 request?

No. A notice of intention to consider refusal under section 501 is a separate procedural fairness process that applies to character decisions. It is different from an invitation to comment on adverse information under section 57, explained in our guide to the section 57 natural justice letter for a partner visa, and from a request for more information, explained in our article on responding to a section 56 request for more information. A Department request for police certificates or a Form 80 is often a section 56 request. A notice that refers to section 501 and the character test is a different and more serious step in the section 501 partner visa process.

How to respond to a section 501 partner visa notice

A response to a section 501 partner visa notice should be a structured written submission that answers each issue raised in the notice and addresses each consideration in the Ministerial Direction, supported by documentary evidence. It should not be a general plea for sympathy. The decision maker is required to follow the Direction, so the response is most useful when it is organised around the Direction. Our article on when you need an immigration lawyer for a partner visa explains why legal submissions matter most at this stage.

A typical response in a section 501 partner visa matter contains the following parts:

• Legal submissions. These identify the character ground relied on, check whether it is correctly applied, and then deal with each primary and other consideration in turn.
• The applicant's own statement. This is the applicant's account, in their own words, of the offending or conduct, what led to it, what has changed, and their relationship with the Australian partner and family. It is reviewed and corrected by the applicant so that it is accurate.
• Court and criminal records. These include the charge sheets, judgment or sentencing remarks, the court outcome, and evidence that any sentence, fine or order has been completed.
• Rehabilitation evidence. This can include certificates for completed courses and programmes, treatment records, employment history and references from employers.
• Evidence about the Australian partner and children. This covers the relationship, the family's day-to-day life and the impact that refusal would have on each family member.
• Supporting statements from others. These come from people who know the applicant well and can speak to the relationship, the applicant's conduct and the effect of a refusal.

The applicant's statement in a section 501 partner visa response

The applicant's statement is often the document a decision maker reads most closely. It should accept responsibility for proven offending, without minimising it and without contradicting the findings of the court. Arguing that a conviction was wrong almost always damages the response, because the decision maker cannot go behind a conviction. The statement should explain the circumstances honestly, show genuine understanding of the harm caused, and set out concretely what the applicant has done since. A statement that sounds rehearsed or that is inconsistent with the court record will carry little weight in a section 501 partner visa assessment. The statement must also be consistent with the couple's partner visa relationship statement wherever the two documents describe the same events.

Sentencing remarks and court documents

Sentencing remarks are important because they show how the court assessed the seriousness of the offending, the applicant's level of responsibility, and the applicant's prospects of rehabilitation at the time. In a section 501 partner visa response, favourable findings by a sentencing judge can be relied on directly. Unfavourable findings must be addressed rather than ignored. Where the offending occurred overseas, translated court records should be obtained wherever possible, because the decision maker will otherwise rely on whatever summary the Department has.

Rehabilitation and risk evidence

The question of future risk is central to the protection of the Australian community consideration. Evidence that reduces the assessed risk is therefore some of the most valuable evidence in a section 501 partner visa response. This may include completed behaviour change or drug and alcohol programmes, a long period without further offending, stable employment, and, where appropriate, a report from a psychologist or other qualified professional who has assessed the applicant. A professional report is most useful where it is independent, based on a full review of the criminal history, and candid about any remaining risk.

Form 888 statements and other supporting statements

Supporting statements from the Australian partner, family members, friends, employers and community members can help show the impact of refusal and the applicant's conduct over time. For partner visas, people who know the couple often use Form 888 statements to support the relationship. In a section 501 partner visa response, a supporting statement is most useful where the writer confirms that they know about the criminal history, explains how they know the applicant, and gives specific examples. A statement from someone who does not know about the offending is easily discounted. Our article on Form 888 example answers and common mistakes explains what makes these statements credible.

Ministerial Direction No. 110 and the section 501 partner visa discretion

Ministerial Direction No. 110 is the direction under section 499 of the Migration Act 1958 that decision makers must apply when deciding whether to refuse a visa under section 501, and it commenced on 21 June 2024. It sets out the principles, the primary considerations and the other considerations that must be weighed in a section 501 partner visa decision. The Direction in force at the date of the decision is the one that applies, and Directions are replaced from time to time, so the current Direction should always be checked before a response is prepared.

The Direction contains five primary considerations:

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

The Direction states that protection of the Australian community is generally to be given greater weight than the other primary considerations. It also lists other considerations that must be taken into account where relevant, including the legal consequences of the decision, the extent of impediments if the person is removed, and the impact on Australian business interests.

Protection of the Australian community

This consideration requires the decision maker to look at the nature and seriousness of the conduct and the risk to the Australian community if the person were allowed to enter or remain in Australia. Violent and sexual offending, offending against vulnerable people and family violence are treated as very serious. In a section 501 partner visa matter, the applicant's response should address both limbs: how serious the past conduct was, and why the risk of further offending is now low. A response that only discusses the relationship and does not deal with risk leaves the most heavily weighted consideration unanswered.

Ties to Australia in a section 501 partner visa decision

For a visa refusal, Direction No. 110 requires the decision maker to consider any impact of the decision on the person's immediate family members in Australia who are Australian citizens, Australian permanent residents or people with a right to remain in Australia indefinitely. In a section 501 partner visa matter, the Australian partner is usually the most important of those family members. The wider ties to the Australian community, such as length of residence and community involvement, are expressly required for cancellation and revocation decisions, but evidence of them is often still relevant to the overall assessment and to the other considerations.

Expectations of the Australian community

The Direction states that the Australian community expects the Government to refuse a visa to a non-citizen who has engaged in serious conduct, and that these expectations apply regardless of whether the person poses a measurable risk of causing physical harm. This consideration often weighs towards refusal where the conduct was serious. It can be balanced by the other considerations, but it should not be ignored in a section 501 partner visa response.

Other considerations

The legal consequences of the decision, the impediments the person would face if removed, and the impact on Australian business interests are other considerations. In a section 501 partner visa matter, impediments on return can include the applicant's age and health, the absence of family or support in the home country, language barriers and the difficulty of establishing a life there. These matters must be supported by evidence, not simply asserted. Where the applicant is in Australia, the effect of any refusal on their Bridging Visa A and their right to remain while a review is pursued should also be considered.

The Australian partner and children in a section 501 partner visa case

The Australian partner and any minor children are often the strongest considerations against refusal in a section 501 partner visa matter, because the Direction requires the decision maker to consider the impact of the decision on immediate family members in Australia and the best interests of minor children in Australia. Their evidence should therefore be specific, detailed and supported by documents.

Evidence about the Australian partner usually covers the history of the relationship, the partner's knowledge of the criminal history, the emotional, practical and financial effect of a refusal, the partner's own health, work and family commitments, and whether the partner could realistically relocate overseas. A refusal does not only affect the applicant. It may force the Australian partner to choose between the relationship and their life in Australia. That choice should be described honestly and concretely.

Best interests of minor children

Direction No. 110 requires the decision maker to determine whether a section 501 refusal is or is not in the best interests of each child affected by the decision, where the child is, or would be, under 18 at the time the decision is expected to be made. Where there are several children, each child's interests are considered individually. Relevant matters include the nature and duration of the relationship between the child and the applicant, the role the applicant plays in the child's life, the likely effect of separation, and whether the applicant's conduct has had a negative effect on the child.

Children do not need to be the applicant's biological children for this consideration to apply. Stepchildren, children of the Australian partner and other children with whom the applicant has a real relationship can be relevant. Evidence may include school and medical records, statements from the Australian partner and other carers, and, where appropriate, a report from a professional who has assessed the family. Our Subclass 820 partner visa guide explains how children are included in a partner visa application generally.

When the relationship itself is under pressure

A section 501 partner visa matter can take a long time and place real strain on the relationship. If the relationship ends during processing, that changes the legal position entirely, and the Department must be told. Our article on what happens if a Subclass 820 relationship breaks down explains the consequences, and our guide to Form 1022 change of circumstances explains how changes are notified.

Family violence and the section 501 partner visa assessment

Family violence is a separate primary consideration in Direction No. 110, and it is one of the most serious matters that can arise in a section 501 partner visa assessment. The Direction states that the inherent nature of certain conduct, including family violence, is so serious that even strong countervailing considerations may be insufficient to justify not refusing the visa.

The family violence consideration can apply where the person has been convicted of or found guilty of an offence involving family violence. It can also apply where there is information or evidence from independent and authoritative sources indicating involvement in family violence, provided the person has been given procedural fairness. That means an apprehended violence order, a protection order or police reports can become relevant even without a conviction.

Family violence issues are particularly difficult in a partner visa because the Australian partner may be the person who was harmed, or may have been harmed in a previous relationship. A response must deal with this honestly. The decision maker will consider the seriousness of the conduct, how often it occurred, how recently, whether there is evidence of rehabilitation, and whether the person has re-offended after being warned. Couples in this position should read our guide to the partner visa lawyer's role before preparing any statement. Supporting statements from an Australian partner who was the victim must be approached with great care. Our page on family violence and partner visas explains the separate family violence provisions that protect applicants whose relationship has ended because of violence by the sponsor.

Disclosing criminal history in a section 501 partner visa application

Every conviction, charge and relevant court outcome must be disclosed truthfully in the partner visa application and in any Form 80 the Department requests. Non-disclosure turns a manageable section 501 partner visa issue into a much more serious problem, because it can also engage public interest criterion 4020, the integrity criterion, and it damages credibility on every other issue.

Many applicants assume that an old, minor or overseas conviction does not need to be mentioned, or that a conviction that was spent under a state scheme can be left out. That assumption is dangerous. The questions in the application forms are broad, and the Department receives police certificates from the relevant countries. The Tribunal has dealt with partner visa matters where false or misleading information about a criminal record was in issue. In 1804725 (Migration) [2021] AATA 4091, a Subclass 309 matter, the reported issues were false and misleading information in a material particular, a criminal record including a suspended term of imprisonment, and waiver of the requirement. In 1932846 (Migration) [2020] AATA 4032, also a Subclass 309 matter, the reported issues were false and misleading information, failure to disclose a criminal record, and waiver on the basis of compassionate or compelling circumstances. These matters were remitted, but they show how a disclosure failure becomes a second legal problem on top of the character issue.

Where a mistake has already been made in an earlier form, it should be corrected before the Department finds it. Our articles on why Subclass 820 partner visas are refused and on partner visa evidence of a genuine relationship explain how credibility problems affect the whole application.

What happens after a section 501 partner visa refusal?

After a section 501 partner visa refusal, the applicant receives a written decision and a statement of reasons, and the most urgent question is whether the decision can be reviewed and how quickly an application for review must be lodged. The time limits in character matters are very short and strictly applied, so the decision letter should be read immediately and advice obtained the same day if possible.

The first step is to identify exactly who made the decision and under which power. The answer determines the review options.

Was the decision made by a delegate or by the Minister personally?

A section 501 partner visa refusal made by a delegate of the Minister can generally be reviewed on its merits by the Administrative Review Tribunal. A decision made by the Minister personally under section 501 cannot be reviewed on its merits, although it may be challenged in the courts for legal error. The decision record will state who made the decision.

Was the visa refused under section 501 or for failing PIC 4001?

A refusal under section 65 because the applicant did not meet PIC 4001, for example because police certificates were not provided, is generally reviewed as an ordinary partner visa refusal. A refusal under section 501 itself is reviewed under the separate character process. The review pathway, the deadline and the procedure are different. Our guide to partner visa refused appeal options and our visa refusals page explain ordinary review.

Can a section 501 partner visa refusal be reviewed at the ART?

Yes. A section 501 partner visa refusal made by a delegate can generally be reviewed by the Administrative Review Tribunal, provided the person would have been entitled to seek review if the decision had been made on another ground. Partner visa refusals are generally reviewable, so a delegate's section 501 partner visa refusal is usually reviewable too. Section 500 of the Migration Act 1958 governs this review.

Character review at the Tribunal is expedited and has features that do not apply to ordinary partner visa reviews:

• A very short deadline. For a person in Australia, the application must be lodged within a short statutory period after notification of the decision, and that period cannot be extended. A person who misses it loses the right to merits review.
• A fixed time for the Tribunal to decide. If the Tribunal does not make a decision within the statutory period, it is taken to have affirmed the refusal. The Tribunal therefore moves quickly, with little room for delay.
• Strict rules on evidence. There are rules limiting the Tribunal's ability to consider information or documents that were not provided in writing within set times before the hearing. Evidence must be ready early.
• The same Ministerial Direction applies. The Tribunal must apply the Ministerial Direction, just as the delegate did.

The Tribunal reviews the decision afresh. It considers the evidence before it at the time of its own decision, which means a weak response at the Department stage can be improved at review, but only if the new evidence is prepared and lodged within the strict timetable. Our article on what to expect after a visa refusal at the ART explains the Tribunal process generally, and our guide to visa appeal lawyers explains how representation works at review.

Applicants outside Australia

The rules are different for an applicant who is outside Australia. A Subclass 309 or Subclass 300 applicant refused under section 501 may still have review rights, because the review provisions depend on whether the decision would have been reviewable on another ground. Whether review is available, who can apply and the time limit should be checked against the decision record immediately. An offshore applicant should not assume that there is no review right, and should not assume that the onshore deadline applies either.

Can the Minister overturn a Tribunal decision?

Yes, in some circumstances. The Migration Act 1958 gives the Minister personal powers to set aside certain Tribunal decisions in the national interest. These powers are used rarely, but they are part of the legal landscape of any section 501 partner visa matter, and they are one reason why the response at every stage should be thorough.

Judicial review of a section 501 partner visa decision

Judicial review is a court challenge to a section 501 partner visa decision on the ground that the decision maker made a legal error, such as failing to consider a mandatory consideration, misapplying the character test, or denying procedural fairness. The court does not decide whether the visa should be granted. If legal error is established, the decision is usually set aside and the matter is decided again.

Judicial review can be the only option where the Minister made the decision personally, or where the Tribunal has affirmed a refusal. Time limits also apply. Our judicial review page explains the process.

Section 501 partner visa refusal or visa cancellation?

A section 501 partner visa refusal is different from a cancellation, although both use the same character test. A refusal happens when a person has applied for a partner visa and the decision maker decides not to grant it. A cancellation happens when a person already holds a visa, such as a bridging visa, a temporary visa or a permanent visa, and the visa is taken away.

Section 501 also contains a mandatory cancellation power. Where a person serving a full-time sentence of imprisonment has a substantial criminal record or has been convicted of certain offences, the visa must be cancelled, and the person can then ask for the cancellation to be revoked under section 501CA. A partner visa applicant in custody may face both processes at once: the cancellation of the visa they currently hold and the assessment of their partner visa application. Our visa cancellations page explains cancellation and revocation in detail.

A person refused a visa under section 501 while in Australia is also restricted from applying for most other visas while they remain in Australia. That restriction is one reason why it is important to address character at the earliest stage. The effect on a bridging visa held while the partner visa was being processed should also be checked, because the applicant's lawful status in Australia may change after the decision.

Can you reapply after a section 501 partner visa refusal?

A person refused a visa under section 501 can face serious and long-lasting restrictions on future visa applications, and in some cases the effect may be permanent. Whether a fresh partner visa application is possible, and from where it can be made, depends on the type of decision, whether the person is in Australia, and the criteria of the visa sought.

A fresh application is not a way around a section 501 partner visa refusal. The character issue will still be there, together with the earlier refusal. Any new application must deal with the earlier decision directly, and should present more and better evidence than was available before. Our article on applying for a partner visa after a visa refusal explains the general rules, and our page on Schedule 3 waivers explains the additional criteria for applicants in Australia without a substantive visa.

Before you apply: managing a section 501 partner visa risk

The best time to deal with a section 501 partner visa risk is before the application is lodged. A couple who knows that the applicant has a criminal history can prepare the character evidence at the same time as the relationship evidence, rather than waiting for a notice from the Department.

Practical steps before lodgement usually include:

• obtaining the complete criminal history from every relevant country, rather than relying on memory;
• obtaining court records and sentencing remarks for each conviction;
• checking whether any sentence or combination of sentences reaches the substantial criminal record threshold;
• gathering rehabilitation evidence and supporting statements;
• preparing a full and accurate disclosure in the application and Form 80; and
• deciding which partner visa pathway is appropriate, including whether an onshore Subclass 820 or offshore Subclass 309 application suits the couple's circumstances.

The relationship evidence must still be complete. Our 820 partner visa evidence checklist, our Subclass 820 visa guide and our guide to Subclass 820 processing times help couples plan the rest of the application. Couples who are still deciding whether to apply should also read about whether to use a partner visa lawyer or apply yourself.

Common mistakes in a section 501 partner visa matter

The same mistakes appear again and again in section 501 partner visa matters. Each of them can be avoided.

• Treating the notice as routine. A notice of intention to consider refusal is not a form to fill in. It is the main opportunity to persuade the decision maker.
• Disputing the conviction. The decision maker cannot re-try the case. Arguing innocence of a proven offence usually reduces the weight given to the applicant's other evidence.
• Ignoring risk. A response that focuses only on hardship to the family, and says nothing about why the risk of re-offending is low, leaves the most heavily weighted consideration unanswered.
• Generic supporting statements. Statements that do not mention the offending, or that use the same wording, are easily discounted.
• Incomplete disclosure. An undisclosed conviction found later can create a second ground for refusal under PIC 4020.
• Missing the review deadline. In a section 501 partner visa refusal, the deadline for Tribunal review is short and strictly applied.

If an application has already been lodged without advice, it is not too late to get help. Our articles on hiring an immigration lawyer after lodging your own application, getting a second opinion from an immigration lawyer and urgent immigration lawyer advice explain what to prepare. Our guide to Form 956 and 956A explains how a lawyer is appointed to deal with the Department for you.

How My Migration Lawyers helps with a section 501 partner visa matter

My Migration Lawyers acts for couples whose partner visa applications are affected by character concerns, and a section 501 partner visa matter is one of the most demanding types of case we handle. These are complex cases. We act in many matters of this kind, at the application stage, in response to a notice of intention to consider refusal, and on review, and we are capable of managing the strict timetables, the volume of evidence and the legal analysis they require. Every case depends on its own facts, and no outcome can be promised.

On a section 501 partner visa matter, our work typically includes:

• A full character assessment before anything is lodged. We obtain and review the complete criminal history, court records and sentencing remarks, and advise whether the character test is engaged and on which ground.
• Checking the decision maker's analysis. We check whether the substantial criminal record definition has been applied correctly, whether the right power was used and whether the correct Ministerial Direction was applied.
• A structured response to the notice. We prepare legal submissions that deal with each primary and other consideration in the Ministerial Direction, supported by evidence.
• Organising the evidence. We help the applicant prepare their own statement in their own words, which they review and correct, and we identify the court records, rehabilitation evidence, professional reports and supporting statements that are most relevant.
• Presenting the Australian partner and children. We set out the impact of a refusal on the Australian partner and the best interests of each child clearly and with evidence.
• Acting quickly on review. If a section 501 partner visa refusal is made, we advise on review rights immediately and act within the very short deadline at the Administrative Review Tribunal.

Character matters are led by Weiwei Zhang, Principal Lawyer. You can read more about My Migration Lawyers and about our partner visa lawyers. We act for clients across Australia by video consultation, including couples in Sydney, Melbourne, Brisbane, Perth, Adelaide, Canberra, Hobart, the Gold Coast and Parramatta. Our immigration lawyers also act on cancellation and other character matters.

If you have received a character notice, or you are worried that a criminal history may lead to a section 501 partner visa refusal, early advice gives you the most options. Book a Consultation with My Migration Lawyers, or call 1300 040 300.