Will a Past Criminal Record Destroy Your Australian Partner Visa?

Finding love is simple. navigating Australian migration law with a criminal record is not. 

For many couples, the joy of a Partner Visa application is quickly overshadowed by the fear of a past mistake destroying their future. The Department of Home Affairs maintains strict character requirements to protect the Australian community. However, a criminal record does not automatically result in a visa refusal. 

With a precise legal strategy and a deep understanding of Ministerial Direction No. 99, it is possible to present a compelling case for approval. This guide outlines the facts you must know to secure your future in Australia. 

 

 

The Legal Hurdle: Section 501 and the Character Test 

The foundation of every character assessment is Section 501 of the Migration Act 1958. This section grants the Minister (or their delegate) the power to refuse or cancel a visa if a person does not pass the “Character Test.” 

You will generally fail this test if you have a “substantial criminal record.” Under Australian law, this is strictly defined as: 

• A sentence of imprisonment of 12 months or more. 

• Two or more sentences of imprisonment (served concurrently or consecutively) where the total totals 12 months or more. 

• A suspended sentence of 12 months or more. 

If your partner falls into this category, the Department has grounds to refuse the visa. However, this is where the legal work begins. failing the test triggers a discretion. The decision maker must then weigh the negative character findings against the positive aspects of your application. 

 

 

The Game Changer: Ministerial Direction No. 99

When exercising discretion, case officers must follow strict binding rules. The current framework is Ministerial Direction No. 99. This legal instrument effectively instructs the Department on how to balance “negative” factors against “positive” ties to Australia. 

A strong application does not hide the record. It uses Direction 99 to argue why the visa should be granted despite it. We focus on building evidence across five primary considerations: 

• Protection of the Australian Community: We must prove the risk of reoffending is negligible. 
• Family Violence: The Department scrutinises any history of domestic violence heavily. 
• The Best Interests of Minor Children: This is often the strongest argument. If you have children in Australia who would be adversely affected by the applicant’s departure, this carries significant weight. 
• Expectations of the Australian Community: Would a reasonable Australian expect this visa to be granted? 
• Ties to Australia: The strength and duration of the relationship, community standing, and employment are critical factors. 

 

The Sponsor’s Record Matters Too 

It is a common misconception that only the visa applicant’s record matters. The Australian sponsor must also consent to a police check. 

If the sponsor has convictions for “relevant offences”—such as violence, harassment, or weapons offences—the Department may refuse the sponsorship application entirely. This is designed to protect visa applicants from potential family violence. In these cases, we must submit specific submissions proving the sponsor has rehabilitated and that there are compelling reasons to waive the bar. 

 

 

Four Steps to a Stronger Application 

If you or your partner has a criminal history, use this four point checklist to strengthen your position before you apply. 

1. Absolute Transparency is Non-Negotiable: Never omit a conviction, no matter how minor or how long ago it occurred. Public Interest Criterion 4020 allows the Department to refuse a visa for providing false or misleading information. A refusal on these grounds carries a three-year ban. It is always better to disclose and explain than to hide and be caught. 
2. Contextualise the Offence: We need to explain the “who, what, where, and why” of the offence. Was it a singular lapse in judgment or a pattern of behaviour? Was the applicant young and immature at the time? We draft detailed legal submissions to frame the offence in the context of the applicant’s entire life, ensuring the case officer sees the person, not just the police check. 
3. Prove Rehabilitation: Time helps, but active rehabilitation wins cases. We recommend gathering independent evidence such as:

• • References from employers and community leaders attesting to good character. 

• • Certificates from courses or counselling (e.g., anger management or drug rehabilitation). 

• • A history of steady employment and tax compliance. 

4. Leverage “Compelling and Compassionate” Circumstances: If the visa is refused, what is the human cost? We must document the emotional, financial, and psychological impact separation would have on the Australian sponsor and any children involved. This is often the tipping point for a favourable decision.

 

Next Steps 

A criminal record adds complexity, but it does not make a Partner Visa impossible. It simply requires a higher standard of evidence and a precise legal argument. 

At NB Migration Law, we specialise in complex character cases. We assess your police checks, apply the principles of Direction 99, and build a strategy to keep your family together. 

Don’t leave your future to chance. Contact NB Migration Law today for assessment.