Character waivers

Last reviewed: April 2021

Introduction to character waivers

Section 501 of the Migration Act 1958 (Cth) (the Act) gives discretionary power to the Minister for Immigration and
Border Protection (or another Minister appointed to administer the Migration Act 1958 (Cth)) (the Minister), or a s
501 delegate, to refuse or cancel the associated visa if the individual does not satisfy the decision maker that he or
she passes the character test. See Character requirements.
References: s 501, Migration Act 1958 (Cth)

If a person is assessed as a person who does not pass the character test set out in and 501(6) of the Act, the “s
501 delegate”, in exercising his/her discretion to cancel or refuse a person’s visa, must follow Direction No 90 made
pursuant to s 499 of the Act (the Direction).
References: s 499, Migration Act 1958 (Cth)
s 501(6), Migration Act 1958 (Cth)

In December 2014, mandatory visa cancellation was introduced where a visa holder objectively fails the character
test on certain grounds. Where a visa is cancelled under the mandatory cancellation provisions on character
grounds (s 501(3A)), there is scope for the Minister to revoke the cancellation decision in accordance with s 501CA.
See Character Requirements topic for further information.
References: s 501(3A), Migration Act 1958 (Cth)
s 501CA, Migration Act 1958 (Cth)

Practice Tip: If the Minister acts personally, he/she may refer to the Direction but is not obligated to follow it.

The Direction is comprised of five parts:

• Part 4 Interpretation — While a number of expressions used in the Direction are defined in s 5 of the
Migration Act 1958, additional defined terms used in the Direction are contained in Part 4 of the Direction.

References: s 5, Migration Act 1958 (Cth)

• Part 5 Preamble — contains the objectives of the Direction, general guidance for decision makers and the
principles that provide a framework within which decision makers should approach their task of deciding
whether to exercise the discretion to cancel or refuse a person’s visa under s 501 of the Act or to revoke a
mandatory cancellation under s 501CA.

References: s 501, Migration Act 1958 (Cth)

s 501CA, Migration Act 1958 (Cth)

• Part 2 — identifies the considerations relevant to visa holders in determining whether to exercise the
discretion to cancel a person’s visa, refuse a person’s visa application or considerations relevant to former
visa holders in determining whether to exercise the discretion to revoke mandatory cancellation of a
person’s visa. This includes ‘Primary Considerations’ as contained in section 8 and ‘Other Considerations’
as contained in section 9.
• Annex A — provides direction on the application of the character test set out in s 501(6) of the Act.

References: s 501(6), Migration Act 1958 (Cth)

Further Reading - you will need a LexisNexis© subscription

Australian Immigration Law > Compliance > Compliance Commentary > Refusal or Cancellation of Visas on the
 Character waivers

Basis of Failing the Character Test > [80,305] Decision made by the minister personally

Key principles of character waivers

When representing an applicant, it is important to understand the underlying principles of character waivers. The
key principles are as follows:

• Being able to enter and/or remain in Australia is seen as a privilege and is accompanied by an expectation
of law-abiding individuals.
• The severity and nature of crimes committed is highly relevant in the delegate’s consideration.
• The victim profiles of past criminal conducts are also highly relevant, with crimes against vulnerable people
seen as being most severe.
• Risk assessment of any potential recidivism should be included in any submissions put forward to the
delegate.
• The length of time the applicant/holder has participated and/or contributed to the Australian community is
relevant in the delegate’s consideration.
• The visa holder’s conduct while in Australia is considered when assessing any permanent residence
application.
• Consequences of the decision, including its effect on family members in Australia, particularly young
children, are taken into consideration when deciding to refuse or cancel a visa
• Overall, it is a balance of assessment of:
◦ past conduct and severity;
◦ future risk of recidivism and potential severity/harm; and
◦ harm minimisation analysis of a visa cancellation/refusal against the wider Australian community.

The primary considerations as to whether to cancel or refuse a person’s visa under s 501, or to revoke a mandatory
cancellation under s 501CA are set out in section 8 of Pt 2 of the Direction whereas the considerations to refuse a
person’s visa application are set out in section 9. Separating the considerations for visa holders and visa applicants
recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to
remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa
application will be approved.
References: s 501, Migration Act 1958 (Cth)
s 501CA, Migration Act 1958 (Cth)

Part 2 of the Direction — Exercising the discretion

Part 2 provides that a decision maker must take into account the considerations identified in sections 8 and 9,
where these are relevant to the decision. Section 7 provides additional guidance to the extent that section 8 of Part
2 of the Direction sets out the primary factors for the Minister to take into consideration when deciding whether to
refuse a person’s visa.

These are:

• Protection of the Australian community from criminal or other serious conduct including:
◦ the nature and seriousness of the person's past and present conduct; and
◦ risk of recidivism to the Australian community.
• Whether the conduct engaged in constituted family violence.
• The best interests of minor children in Australia who are affected by the decision.
• The expectations of the Australian community.
 Character waivers

Section 9 outlines other considerations such as:

• whether Australia has international non-refoulement obligations to the person;

• the extent of impediments on the person if removed from Australia;
• the impact on the victim/s or their family members;
• links to the Australian community, including the strength, duration and nature of the person’s ties to
Australia, such as the person’s immediate family in Australia and long low the person has resided in
Australia, including whether they arrived in Australia as a young child; and
• the impact on Australian business interests.
Further Reading - you will need a LexisNexis© subscription

Australian Immigration Law > Compliance > Compliance Commentary > Refusal or Cancellation of Visas on the
Basis of Failing the Character Test > [80,285] The exercise of the discretion

Preparing a character waiver submission

The following practical tips and considerations are useful to assist in preparing a character waiver submission:

• Obtain police clearances for the country in which the offence had occurred (state and federal if necessary).
• Consider whether police clearances for all other countries visited are necessary.
• Obtain relevant police records, court proceedings, judgments and/or sentencing records.
• Have the person prepare a statutory declaration detailing the circumstances leading up to the offence, any
recollection of the event/s, any applicable court proceedings, applicable serving of sentences (and conduct
while incarcerated), and concluding personal remarks regarding the offence/s. For a Commonwealth
statutory declaration template, see the Attorney-General ’s Department.
• Consider any necessary supporting letters from family members and/or community members attesting to
the person’s present character.
• Focus on the nature and frequency of the offence/s, timeframe lapsed since last offence, any previous non-
disclosures to the Department, likelihood of recidivisms and potential impact.
• If the offence was committed overseas, consider the severity of the offence if it had occurred in Australia
and the likely sentencing for such an offence.
• Consider seeking expert or counsel advice on certain crimes committed.
• Consider the use of evidence or information from independent and authoritative sources.
• Outline any past, present or future commitments of positive contributions to the wider Australian
community.
Further Reading - you will need a LexisNexis© subscription

Australian Immigration Law > Compliance > Compliance Commentary > Refusal or Cancellation of Visas on the
Basis of Failing the Character Test > [80,315] Effect of decision to refuse or cancel a visa under Migration Act ss
501, 501A or 501B

End of Document