Ministerial Direction 110 is the current operative direction governing how decision-makers must approach visa refusal and cancellation decisions under section 501 of the Migration Act 1958 (character test) and revocations of mandatory cancellations under section 501CA. Made under section 499 of the Act, Direction 110 commenced on 21 June 2024 and revoked the previous Direction 99 (which had applied from March 2023). Decision-makers exercising discretion under s501(1) or s501(2) must follow the Direction, as must decision-makers considering whether to revoke a mandatory cancellation. The Direction sets out a two-step framework: first, whether the person passes the character test; second, where they do not (or where discretion exists), how to weigh the various considerations in deciding whether to exercise the power to refuse or cancel (or not revoke). The Direction elevates community protection as the primary consideration while requiring decision-makers to consider the best interests of minor children and Australia's international non-refoulement obligations. This page explains the framework established by Direction 110 and how it applies to character-based decisions.

For the current Direction 110 text, refer to the Direction 110 PDF on the DHA website.

• Migration Act 1958, s 501(1) — discretionary power to refuse a visa application where the applicant does not pass the character test
• Migration Act 1958, s 501(2) — discretionary power to refuse or cancel a visa where the holder does not pass the character test (exercisable by the Minister personally or by a delegate)
• Migration Act 1958, s 501(3A) — mandatory cancellation of a visa where the visa holder is serving a full-time custodial sentence and has been sentenced to 12 months or more
• Migration Act 1958, s 501CA — process by which a person whose visa was mandatorily cancelled under s501(3A) can make representations seeking revocation of the cancellation decision
• Migration Act 1958, s 499 — authority of the Minister to issue directions to which officers exercising powers under the Act must give effect
• Ministerial Direction No. 110 — commenced 21 June 2024; revoked Direction No. 99 — immi.homeaffairs.gov.au/direction-110

Purpose and scope of Direction 110

Direction 110 applies to decision-makers exercising discretion under s501(1) and s501(2) of the Migration Act, and to decision-makers considering whether to revoke a mandatory cancellation under s501CA. It does not apply to the mandatory cancellation power in s501(3A) itself (which is triggered automatically and leaves no discretion) — it applies to the discretionary refusal/cancellation and the revocation process.

The Direction is binding — decision-makers must follow its guidance when exercising the discretionary character powers. A failure to properly apply the Direction may constitute legal error, which can be raised in review proceedings before the Administrative Review Tribunal (ART) or Federal Court.

Step one — the character test

The first step under the Direction's framework is determining whether the person passes the character test under s501(6) and s501(7). The character test is failed where, among other things:

• The person has a substantial criminal record (s501(6)(a)) — defined in s501(7) as a sentence of death, imprisonment for life, or a total of 12 months or more imprisonment
• The person has been convicted of a sexually based offence involving a child (s501(6)(e))
• The person has been sentenced to a period of detention in a facility for sexually based offences involving children
• The person is associated with criminal conduct or a criminal group in a way that calls into question their character (s501(6)(b)–(d))
• There is a risk the person will engage in criminal conduct in Australia (s501(6)(d))
• The person has been convicted of an offence while in immigration detention, or has escaped from immigration detention

If the person does not pass the character test, the decision-maker has the power (and in some circumstances the obligation) to move to step two.

Step two — weighing the considerations (Direction 110 framework)

Direction 110 requires decision-makers to weigh primary considerations and other considerations in exercising the discretion. The Direction establishes the following hierarchy:

Primary considerations

• Protection of the Australian community: the risk to the community from the person remaining in Australia — assessed by reference to the nature of the criminal conduct, the likelihood of reoffending, and the seriousness of the potential harm
• Expectations of the Australian community: the Direction recognises that Australians expect non-citizens who have engaged in criminal conduct to be subject to visa refusal or cancellation, particularly for serious or repeated offending
• Best interests of minor children in Australia: where the person has a close relationship with a minor child or children who are Australian citizens, permanent residents, or who have lived in Australia for a significant period, the best interests of those children must be a primary consideration
• Australia's international obligations: non-refoulement obligations under the Refugee Convention and against torture; the Direction requires decision-makers to consider whether removal would expose the person to serious harm

Other considerations

• The strength, nature, and duration of the person's ties to Australia — including family relationships, length of lawful residence, and ties to the community
• The impact on the broader Australian community of the person remaining in or being removed from Australia
• The extent of the person's links to the country of removal
• The person's health and any mental health conditions relevant to their offending
• Whether the person has been a victim of family violence (relevant to circumstances of offending)
• Any evidence of rehabilitation and the likelihood of reoffending

Section 501CA revocation process

When a visa is mandatorily cancelled under s501(3A), the person may make written representations to the Minister seeking revocation of the cancellation. The decision-maker must:

1. Consider whether the person passes the character test
2. If the person does not pass the character test, determine whether there is another reason to revoke the cancellation — applying the Direction 110 framework
3. Revoke the cancellation only if satisfied that revocation is warranted in the circumstances

Direction 110 structures the s501CA assessment in the same way as the discretionary refusal/cancellation assessment. A decision not to revoke leaves the mandatory cancellation in place and may be reviewed in the ART.

How Direction 110 differs from Direction 99

Direction 110 commenced on 21 June 2024, replacing Direction 99 (which had applied from March 2023). Direction 110 refined and updated the framework for character-based decisions, including adjustments to the weighting and expression of the primary considerations. Any s501 decision made on or after 21 June 2024 must be assessed under Direction 110 — Direction 99 no longer applies to current decisions but remains relevant to pre-June 2024 decisions under review. For the full text of Direction 110, refer to the DHA Direction 110 PDF.

Ministerial Directions under s499 are a significant feature of Australian immigration law — they are legally binding on delegates while giving the Minister flexibility to adjust the decision-making framework without amending the Act. The character test provisions in s501 have been the subject of extensive litigation, and the courts have closely scrutinised whether decision-makers correctly applied the operative direction. A decision that fails to properly apply Direction 110 — including by failing to consider a relevant consideration or by giving a consideration disproportionate weight — may be overturned on review. The ART has jurisdiction to review most s501 discretionary decisions and revocation decisions, and can substitute its own decision. The s501 character test and its application remain one of the most consequential areas of Australian immigration law, particularly for long-term residents who have committed criminal offences and face removal to countries they may not have lived in for many years. For the current direction text, refer to the Direction 110 PDF on the DHA website.