Ministerial Direction 123 (“Direction”) is a new set of rules, commencing on 31 October 2026, that tells decision-makers how to handle visa refusals and cancellations on character grounds under section 501 of the Migration Act. It replaces Direction 110 and places more weight on community protection and domestic and family violence. Ties to Australia are demoted to an “other consideration”, business interests are removed as an expressly identified other consideration, and future risk is now assessed on whether a person “might” engage in specified conduct.

The Direction will replace Ministerial Direction 110, which has applied since 21 June 2024. For people facing visa refusal or cancellation on character grounds, the Direction can significantly influence the outcome of their case. It does not change the law, but it tells decision-makers which factors to prioritise when deciding whether a person can remain in Australia.

Quick Overview: Key Changes from Direction 110 to Direction 123

What is Ministerial Direction 123?

It is a written direction issued by the Minister for Immigration and Citizenship under section 499 of the Migration Act 1958 (Cth) (“Act”). It guides relevant administrative decision-makers when considering whether to refuse to cancel a visa under section 501 or to revoke a mandatory visa cancellation under section 501CA of the Act.

In practical terms, it tells Departmental officers and the Administrative Review Tribunal (“ART”) what factors should be given the most weight when deciding whether a person can remain in Australia following a character-related visa refusal or cancellation.

Importantly, the Direction does not change the law itself. It does not create new cancellation powers or alter the existing character test. Rather, it sets out the framework decision-makers must use when exercising powers that already exist under the Act.

The purpose of the Direction is to promote consistency and ensure similar cases are approached similarly. Decision-makers are generally required to follow the Direction when making visa cancellation and revocation decisions.

Passing the Section 501 Character Test

Section 501 of the Act contains the “character test”. A person who does not pass the character test may have their visa application refused or their current visa cancelled. The test is broad and extends beyond criminal convictions alone.
A person may fail the character test if they:

• Have a substantial criminal record.
• Are not considered to be of good character having regard to their past and present criminal or general conduct.
• Pose a risk of engaging in criminal conduct or causing harm to the Australian community.
• Have been convicted of certain offences committed while in immigration detention.
• Have associations with persons or organisations involved in criminal conduct.
• Have been involved in serious conduct such as people smuggling, people trafficking, war crimes or crimes against humanity.
• Have been convicted of sexually based offences involving a child.
• Are the subject of an adverse security assessment.

What Defines a Substantial Criminal Record?

The most common basis for failing the character test is having a substantial criminal record. Under section 501(7) of the Act, a person will have a substantial criminal record if they have been:

• Sentenced to death;
• Sentenced to life imprisonment;
• Sentenced to a term of imprisonment of 12 months or more; or
• Sentenced to two or more terms of imprisonment that total 12 months or more.

Importantly, failing the character test does not automatically mean a person will lose their visa. The decision-maker must still consider a range of factors, including those set out in the Direction, before finally determining the case.

Who may be affected by Ministerial Direction 123?

Visa holders who have a substantial criminal record as defined under the Act are the most likely to be seriously impacted by the Direction. Other groups that may be affected include those that are suspected to fail the character test due to:

• A pattern of misconduct.
• Domestic or family violence.
• Association with organised crime.
• Hate-related conduct.
• Public statements.
• An assessed risk of specified future conduct.

You do not need to be convicted of an offence to fail the character test. Similarly, a conviction does not always lead to failing the character test, but it will always be a relevant consideration for the decision-maker.

The Primary Considerations Under the New Framework

The Direction identifies four (4) primary considerations that must be considered by decision-makers; they are as follows:

• Protection of the Australian community from criminal or other serious conduct;
• Whether the conduct constituted domestic or family violence;
• The expectations of the Australian community; and
• The best interests of minor children in Australia, including the interests of child victims.

Protection of the Australian Community

Community protection remains given the most weight under the Direction. Factors the decision-maker may consider include:

• The nature and seriousness of the conduct.
• The sentence imposed.
• The harm caused.
• Whether the conduct constitutes a pattern of behaviour.
• The risk of future criminal or other serious conduct.

The Direction places additional emphasis on hate-crime conduct. It also identifies drug and property offences that attract a sentence of five (5) years or more as conduct to be treated very seriously.

The sentence imposed can now be considered across offence categories. Its significance will still depend on the nature of the offending, the sentencing remarks, and the circumstances in which the conduct occurred.

Evidence of rehabilitation is an important consideration, but general claims that a person has changed are unlikely to address the relevant character concerns. The person must present evidence showing understanding and insight into their offending, sustained behavioural change, compliance with treatment or supervision, and a practical plan for managing future risk.

Domestic and Family Violence

The new Direction’s definition is not limited to physical domestic and family violence. It encompasses a broader range of conduct, including coercive or controlling behaviour, psychological and economic abuse, stalking, image-based abuse, neglect, withholding necessary care, and breaches of relevant court orders. It also recognises a wider range of relationships, including some caregiving and cultural family groups.

The new framework gives close attention to the impact of domestic and family violence on victims and witnesses, particularly when a child is involved.

A criminal conviction is not required for domestic and/or family violence conduct to be relevant in the decision-maker’s assessment. Protection orders, police records, court material, and other reliable information can be considered, even though they may not be a criminal matter.

Hate-related conduct and public statements

The Direction provides guidance on membership of, or association with, terrorist organisations, state sponsors of terrorism, and prohibited hate groups. It also addresses hate-crime conduct and certain public statements that make, endorse, or encourage hateful views.

Community expectations may also apply where conduct involves hate speech, incitement to violence, or serious community discord. Online publications, public statements, and evidence of association may therefore be relevant even where the conduct has not resulted in a conventional criminal conviction. In these cases, the nature and duration of the association, the person’s knowledge, and conduct will all likely be relevant considerations.

Compliance with the Australian Migration Law

This instrument sets out an express principle that the Australian community expects non-citizens to comply with Australia’s migration laws and to leave Australia when their permission to remain has ended. The Direction also recognises that most non-citizens comply with those obligations.

A person’s immigration history may therefore be relevant to the assessment going forward, including:

• Periods without a valid visa.
• Failure to depart.
• Breaches of visa conditions.
• Other significant migration non-compliance.

Not all breaches carry the same weight. The decision-maker will consider the seriousness, duration, circumstances, and the person’s explanation.

The Best Interests of Minor Children

The best interests of minor children in Australia remain a primary consideration. The Direction provides more detailed guidance concerning children who may be affected by abuse, neglect, or exposure to domestic or family violence. It distinguishes between present and future risks and recognises psychological and economic abuse.

Each child’s circumstances are assessed individually and may include the child’s age, health, development, relationship with the person, level of dependence, and the practical consequences of separation. The interests of children in the same family may differ. A child who relies on the person for daily care may be affected differently from a child who has experienced or witnessed harmful conduct.

Importantly, if there were any children victims of the offending, this will weigh negatively in the decision-maker’s assessment.

Other considerations for Decision-Makers

Ties to Australia Are No Longer a Primary Consideration

One of the most significant changes is how the strength, nature, and duration of a person’s ties to Australia are treated. Under the previous direction (Direction 110), ties to Australia were a primary consideration. The new Direction has made them ‘other considerations’.

Australian ties still remain relevant to the assessment; however, this will be afforded less weight than the other primary considerations. Long residence, close family relationships, community ties, and limited ties to another country are still relevant to the decision-maker’s assessment. This change is particularly significant for long-term residents who arrived in Australia as children, have lived here for most of their lives, or have little practical connection to their country of citizenship.

Employment and business interests

The new Direction removes the impact on Australian business interests from the expressly identified ‘other considerations’. This may reduce the utility of an argument based solely on financial loss to a business or inconvenience to an employer.

Employment evidence may still be relevant for another purpose. A stable work history may support evidence of rehabilitation, responsibility, community contribution, or substantial ties to Australia.

Impediments to removal

The difficulties the person may face if removed from Australia remain relevant in the Direction. Those difficulties, or reasons against removal, may include health conditions, access to treatment, language barriers, cultural dislocation, limited family support, safety concerns, and the practical consequences of returning to a country after a long absence.

The Direction also provides guidance where removal to the person’s country of nationality may not be possible, but the person has permission to enter another country.

Assessment of future risk: The “Might” vs “Would” Shift

The Direction changes the wording in parts of its character-test guidance from whether a person “would” or “will” engage in specified conduct to whether the person “might” do so. This change applies to guidance concerning risks of future criminal conduct, harassment, intimidation, stalking, vilification, and other specified conduct.

The revised wording allows a decision-maker a broader range of possible future conduct. However, it does not mean that a remote, speculative, or unsupported possibility will necessarily be sufficient.

For instance, relevant matters may include the following:

• Nature and pattern of the person’s past conduct.
• Time since that conduct occurred.
• Compliance with court orders or supervision.
• Insight into the conduct.
• Completion of treatment.
• Current personal circumstances and any factors that increase or reduce the prospects of recurrence.

Ultimately, the assessment remains fact-specific. While the altered wording is important, it does not remove the decision-maker’s obligation to reach a rational conclusion based on the available relevant evidence and to provide procedural fairness where adverse information is relied upon.

Have you received a notice from the Department of Home Affairs?

If you have received a notice from the Department of Home Affairs regarding your character, it is important to act quickly. Strict time limits apply, and missing a deadline can have serious consequences for your visa status.

This is particularly important in mandatory visa cancellation cases. If you do not lodge a valid request to revoke the cancellation within the required timeframe, you may lose the opportunity to have the decision reconsidered.

Depending on the type of decision, you may have the right to apply to the ART for a merits review. However, decisions made personally by the Minister are generally not reviewable by the ART. In some circumstances, judicial review may be available, although the Court will not reconsider the merits of the decision. Instead, it will examine whether the decision was made according to law.

Successfully responding to a character concern requires more than providing character references or expressing remorse. A strong case often involves detailed evidence and carefully prepared legal submissions addressing the relevant factors under the Direction.

Contact Bell Legal Group Today

If you have received a character-related notice, visa cancellation decision, or invitation to comment from the Department of Home Affairs, contact our migration law team today. Our experienced migration lawyers can assess your circumstances, explain your options, and help you to stay in Australia.

Address: Level 5, 140 Bundall Road, Bundall QLD 4217
Postal: PO Box 5193, Gold Coast MC QLD 9726
Phone: +61 7 5597 3366
Fax: +61 7 5597 3988
Website: belllegal.com.au

Disclaimer:
Please note the topics discussed are general in nature. This does not constitute legal advice, nor should it be taken as such. If you have a legal query and would like advice or assistance, please call us on 07 5597 3366 or complete the ‘Contact Us’ form on our website.

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