How Ministerial Direction 110 weighs character in a section 501 decision

Until 31 October 2026, Ministerial Direction 110 is the set of rules that decision-makers must follow when they decide whether to refuse or cancel a visa on character grounds. It tells delegates of the Minister and the Administrative Review Tribunal (ART) which considerations count, and how heavily each should weigh. Understanding how Direction 110 orders those considerations is the single most important step in preparing any character case.

Ministerial Direction 110 governs character decisions made before 31 October 2026. Direction 123, signed on 18 September 2026, is due to replace it from 31 October 2026 and applies to decisions made on or after that date, so check the current direction before relying on this article.

What Ministerial Direction 110 does, and who it binds

A ministerial direction is not a stand-alone power. The character powers themselves sit in section 501 of the Migration Act 1958: section 501(1) allows discretionary refusal, section 501(2) allows discretionary cancellation, and section 501(3A) requires mandatory cancellation where a person is serving a sentence of imprisonment and fails the character test on specified grounds. The character test is defined in section 501(6), and a “substantial criminal record” is defined in section 501(7).

Ministerial Direction 110 is made under section 499 of the Migration Act 1958. Section 499(2A) makes the direction binding on a person exercising a power under the Act, so a delegate deciding a refusal, a delegate deciding a request to revoke a mandatory cancellation under section 501CA, and the ART on merits review must all apply Direction 110. The direction replaced Direction 99 and has governed character decisions since 2024. You should confirm the current instrument and its commencement against the Department of Home Affairs’ published copy of Direction 110 before relying on any specific clause.

The direction does not bind the Minister when the Minister decides a character case personally, which is one reason the most serious matters are sometimes lifted out of the delegate stream and decided by the Minister directly.

How Ministerial Direction 110 orders the considerations

Direction 110 groups the relevant matters into primary considerations and other considerations. The primary considerations are the protection of the Australian community from criminal or other serious conduct, whether the conduct constituted family violence, the strength, nature and duration of the person’s ties to Australia, the best interests of minor children in Australia, and the expectations of the Australian community.

The other considerations are the legal consequences of the decision, including Australia’s international non-refoulement obligations, the extent of any impediments the person would face if removed, and the impact on Australian business interests. The impact on victims, which was a separate other consideration under Direction 99, now sits inside the primary consideration of protecting the Australian community.

The word “primary” matters. A primary consideration generally carries more weight than an other consideration, and the direction states that the protection of the Australian community is generally to be given greater weight than the other primary considerations, but the direction does not turn the exercise into arithmetic. The decision-maker must weigh everything together and reach an evaluative judgement on the individual facts. Two cases with similar offending can reach different outcomes because the family circumstances, the risk of reoffending, or the country of removal differ.

Why ties to Australia no longer carry the weight they once did

The most consequential shift under Direction 110 concerns the weight given to a person’s ties to Australia. The earlier approach was widely understood to allow very long residence to weigh heavily in a person’s favour, even where the offending was serious. This produced outcomes that attracted public and political criticism, particularly for people who had lived in Australia for most of their lives.

Direction 110 recalibrates this. It confirms that ties to Australia remain a primary consideration, but clause 8.3(2)(a) of Direction 110 directs that, in weighing how long a person has resided in Australia, less weight should be given where the non-citizen began offending soon after arriving, and more weight to the time the non-citizen has spent contributing positively to the Australian community. Clause 5.2(6) keeps the principle that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age; what the direction dropped was the earlier statement that the level of tolerance rises with the length of time spent in Australia. In serious cases, the protection of the community and the expectations of the Australian community are intended to weigh heavily against the person, and long residence will not on its own tip the balance.

The practical consequence for 2026 is direct. If your case previously would have rested largely on how long you have lived in Australia, that argument is now weaker. The stronger case addresses the seriousness of the conduct head on: rehabilitation, the actual risk of reoffending on the evidence, insight, and the concrete circumstances that reduce risk. Ties still matter, but they are most persuasive when tied to reduced risk, such as stable family support and settled employment.

The discretion is wide, and courts will not re-weigh it

A harsh outcome is rarely, on its own, an error of law. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, the Full Court of the Federal Court confirmed that the character discretion is wide, and that a decision is not legally unreasonable merely because another decision-maker, or another judge, might have reached a different result.

That principle shapes the strategy. Judicial review corrects legal error, such as a failure to consider a mandatory matter or a denial of procedural fairness, and offers no second opinion on the merits. A character case is decided on its merits at the delegate stage or, where available, on merits review at the ART, where the Tribunal can substitute its own decision after applying Direction 110 to the full body of evidence. The evidence you assemble early, and the review pathway you choose, therefore matter far more than any later argument that the outcome was too severe.

Making representations under section 501CA

If a visa has already been cancelled under section 501(3A), the usual next step is a request under section 501CA to revoke that cancellation. The time limits here are short and strictly applied, so the first task is to confirm the deadline and act within it. Missing the period can end the matter before the merits are ever considered.

The representations should be built around the structure of Direction 110. Address each primary consideration in turn, and put your best evidence against the ones that weigh against you rather than only reciting the ones in your favour. Where risk to the community is the central concern, provide independent material on rehabilitation, treatment completion, and current risk. Where children are involved, provide specific evidence of the parental relationship and the practical effect of removal on each child rather than general assertions. Where removal would breach a non-refoulement obligation, that must be raised squarely and supported.

Character decisions can affect any visa, from a partner visa built on a genuine relationship to an employer sponsored visa tied to ongoing work. The considerations under Direction 110 apply the same way, but the evidence that carries weight differs with your circumstances.

Because the balance struck by Direction 110 now favours community protection in serious cases, the margin for error in a character response is small. If you are facing a refusal, a cancellation, or a section 501CA revocation request, get advice on your evidence and your deadlines before you respond. Visa Plan Lawyers advises clients on character decisions and represents them at the ART. Contact our team through the employer sponsored visas page or ask about your specific situation, and confirm the current direction and any relevant dates against the Department of Home Affairs’ published copy of Direction 110 and the ART’s own guidance at art.gov.au.

General information only, current at the date shown. It is not legal advice on your situation. To get advice on your matter, book a consultation.