Ministerial Direction No. 123 impact on the assessment of the visa related character test

Ministerial Direction No. 123 made under section 499 of the Migration Act 1958 will introduce a new character tests framework which will take effect  from 31 October 2026. It replaces Ministerial Direction No. 110 which was in place since June 2024.

The Department of Home Affairs will have to apply the new framework when considering the refusal of a visa under section 501, the discretionary or mandatory cancellation of a visa under sections 501 and 501(3A), and requests to revoke a mandatory cancellation under section 501CA of the Migration Act 1958.

The new Direction places considerable emphasis on protecting the Australian community from criminal and other serious conduct, expressly stating that community safety is the highest priority of the Australian Government.

Significantly, conduct no longer needs to result in a criminal conviction before it becomes relevant to a character decision. The Direction introduces and defines concepts such as "serious conduct" and "serious character concerns," which can capture behaviour that isn't a criminal offence at all. Character assessments would extend beyond a person's formal criminal record.

Four primary considerations

1. Protection of the Australian community

Department of Home Affairs officers must look at both the nature and seriousness of a person's past conduct and the risk to the community if that person goes on to engage in further criminal or serious conduct. Violent and sexual offences, crimes against women and children, and domestic or family violence are all treated as conduct of particular seriousness, alongside forced marriage-related conduct, offences against vulnerable people or government officials, hate crime, certain conduct involving immigration detention, and drug or property offences carrying a sentence of at least five years' imprisonment. Crucially, the focus is on the risk of future offending rather than simply the historical record, which means evidence of rehabilitation — including how far someone's risk of reoffending has reduced by the time of the decision — remains genuinely relevant.

2. Domestic and family violence

One of the most significant features of the new Direction is that domestic and family violence is now its own primary consideration, defined broadly to include physical, sexual, emotional, psychological and economic abuse, coercive or controlling behaviour, stalking, harassment, image-based abuse, threats, neglect, breaches of protection orders, and exposing children or other relatives to violence. This consideration can apply even without a criminal conviction — decision-makers may draw on independent sources such as protection orders or police attendance records. They must also weigh how often the conduct occurred, whether it escalated over time, its cumulative effect, the person's rehabilitation and acceptance of responsibility, and the impact on victims and witnesses, particularly children.

3. Expectations of the Australian community

The Direction states that the community expects non-citizens to obey Australian law and comply with the migration framework, and identifies conduct that engages this expectation — domestic or family violence, forced marriage-related conduct, serious crimes against women, children and vulnerable people, crimes against officials, human trafficking, people smuggling, serious international crimes, worker exploitation, and hate speech or incitement. Importantly, this consideration isn't limited to cases involving a measurable risk of physical harm, and decision-makers are directed to apply the Government's stated view of community expectations rather than forming their own view case by case.

4. Best interests of minor children

This remains a primary consideration, but the new Direction gives much more detailed guidance on what to examine: the nature and duration of the child's relationship with the non-citizen, whether that person has played or is likely to play a positive parental role, the impact of past conduct on the child, the likely effect of separation, whether someone else already fulfils a parental role, the child's own views (having regard to age and maturity), any evidence of abuse or neglect and the risk of it recurring, exposure to domestic or family violence, and any trauma the child has experienced. Where more than one child is involved, their interests must be considered individually if those interests differ — something especially important in cases involving Australian citizen or permanent resident children.

Australian family ties remain relevant

The Direction doesn't ignore a person's connections to Australia. The strength, nature and duration of those ties must still be considered as an "other consideration," including the impact on immediate family members who are Australian citizens, permanent residents, or hold an indefinite right to remain. Length of residence, arrival as a young child, positive community contributions, and family and social connections can all count in a person's favour — although the Direction indicates that length of residence carries less weight where someone began offending soon after arriving in Australia or soon after turning 18.

Rehabilitation still matters

A person's conduct since their offending remains relevant, and the Direction specifically requires rehabilitation to be considered when assessing future risk and domestic or family violence. Relevant evidence includes the time since the most recent offence, whether there has been further offending, acceptance of responsibility, understanding of the conduct's impact, efforts to address its causes, and evidence of genuine character reform. One practical point worth noting: the Direction says decisions shouldn't be delayed simply to let someone finish a rehabilitative course, so this kind of evidence is best developed and presented as part of the person's response from the outset, rather than left until later.

Criminal charges that haven't been finalised

Where a person is already known to fail the character test, other outstanding criminal matters won't necessarily stop the case from being considered. But where someone doesn't already fail the character test and is facing charges in Australia that haven't yet been finally determined, the Direction indicates they generally won't be considered under section 501 until those charges are resolved. Charges in another country are treated differently.

Hate and extremist conduct

The Direction contains detailed provisions on the character-test grounds relating to terrorism, prohibited hate groups, hate crime, and certain public statements — including conduct occurring outside Australia and public statements (including online statements) involving ideas of racial or ethnic superiority or hatred. At the same time, it acknowledges Australia's tradition of free expression and makes clear these provisions aren't meant to justify refusing entry or continued stay merely because someone holds or expresses an unpopular opinion. The real question is whether the statutory character-test requirements are actually engaged and whether the relevant risks and circumstances are established — not simply whether an opinion is unpopular.

What happens if a visa is cancelled?

The consequences can be serious. Decision-makers must consider the direct and immediate statutory consequences under the Migration Act, including that a person who becomes an unlawful non-citizen may face immigration detention and removal where the statutory requirements are met. The Direction also contains detailed guidance on non-refoulement obligations, which matter greatly for anyone who might face persecution or serious harm if returned to a particular country, and it distinguishes between people who already have a protection finding and those who raise protection-related claims during the section 501 or 501CA process.Where a protection finding has already been made, the Direction recognises its significance: in certain circumstances, a person can't simply be removed to a country covered by that finding if doing so would breach the statutory non-refoulement framework. However, an existing protection concern doesn't automatically prevent an adverse character decision — a character decision and a decision about where someone can lawfully be removed are treated as separate issues.

What this means for visa applicants and visa holders

The practical takeaway is that character matters need to be addressed carefully and comprehensively. Anyone facing a section 501 or 501CA decision should consider gathering evidence that speaks to both the concerns raised against them and the considerations that count in their favour — this can include sentencing remarks and court documents, evidence about the circumstances of the offending, rehabilitation, employment and community contribution, family relationships (including any Australian citizen or permanent resident children), the impact of the decision on family members, medical or other personal circumstances, ties to Australia, prospects if removed, and anything addressing an alleged risk of future offending. The quality and source of this evidence matters: the Direction expressly says information from independent and authoritative sources should be given appropriate weight.

Caution on the breadth of these powers

It's worth pausing on how far these provisions reach. From 31 October, the character test under section 501(6) can be engaged by a "reasonable suspicion" of conduct or association — rather than requiring a criminal conviction — a person can have their visa refused or cancelled, be placed in immigration detention, and ultimately be removed from Australia without ever having been found guilty of an offence by a court. Given that detention and removal are among the most serious consequences that can be imposed on a person, the framework has rather low evidentiary threshold, particularly where the "serious conduct" alleged is contested, historical, or based on material the person has had limited opportunity to respond to. On the question of who decides: for delegate decisions, the call is made by a departmental officer applying the Direction; but the Minister also holds a personal, non-delegable power under sections 501(3) and 501(3A) to refuse or cancel a visa, and decisions made personally by the Minister in this way are not subject to the ordinary merits review available for delegate decisions (currently through the Administrative Review Tribunal). This means that in some of the most consequential cases, there is no avenue to have the merits review of the decision. What remains available is judicial review, but that is confined to legal or jurisdictional error rather than a fresh look at the facts, and statutory limits on judicial review in migration matters have narrowed that avenue further.

In terms of guardrails, the framework does build in some procedural protections: affected people are generally entitled to natural justice, meaning they must be given an opportunity to respond to adverse information before a decision is made (except in limited circumstances, such as mandatory cancellation under section 501(3A), where cancellation happens automatically and the person's opportunity to respond comes only at the revocation-request stage under section 501CA). The Direction itself also requires that evidence come from "independent and authoritative sources" and sets out the considerations decision-makers must weigh, which can be used to challenge a decision that fails to genuinely engage with them. These safeguards operate within a system where the ultimate threshold for triggering the power remains suspicion rather than proof, and where the most serious decisions may sit outside independent merits review — a tension that is likely to remain a live point for any overseas national impacted by Direction No. 123.

This article is intended as general information only and does not constitute legal or migration advice. The application of Direction No. 123 will depend on the particular facts of each case and the provisions of the Migration Act 1958.

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