Twelve months is not always twelve months in custody

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A suspended sentence or concurrent terms can have migration consequences quite different from their custodial effect. The essential question is not simply whether a non-citizen will spend a year behind bars.

Hypothetical: A long-term permanent resident receives two six-month prison terms, wholly concurrent. His family hears “six months” and assumes the migration threshold has not been reached. Another client receives twelve months, wholly suspended, and assumes that walking out of court means her visa is safe. Both assumptions require correction. Neither client should be told that removal is inevitable.

The first consultation should establish citizenship, not merely length of residence. Obtain the client's passport, visa grant records and any Home Affairs correspondence. “Permanent resident” and “Australian citizen” are different answers to the immigration question. Section 501 of the Migration Act 1958 concerns refusal and cancellation of visas; years of residence are not a substitute for checking the legal status actually held. Migration Act, s 501

Three questions, not one threshold

Start with the character test. A “substantial criminal record” includes a sentence of imprisonment of twelve months or more, and two or more terms whose total is twelve months or more. Those are separate limbs: paragraphs 501(7)(c) and (d). Other limbs include death or life sentences and specified detention following findings concerning mental incapacity. The expression is a statutory definition, not an assessment of whether a practitioner regards the offending as “substantial”. Migration Act, s 501(7)

Next, identify the power. Under section 501(2), cancellation is discretionary where the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that they pass it. Failure of the test does not itself cancel a visa. Migration Act, s 501(2)

Mandatory cancellation under section 501(3A) requires more. The decision-maker must be satisfied of failure because of a substantial criminal record on the basis of paragraph (7)(a), (b) or (c), or the child-sexual-offence limb in paragraph (6)(e). The person must also be serving imprisonment, full-time in a custodial institution, for a Commonwealth, State or Territory offence. Paragraph (7)(d), the aggregation of shorter terms, is deliberately absent from that list. Migration Act, ss 501(3A), (6)(e)

Accordingly, the hypothetical client's two concurrent six-month terms satisfy paragraph (7)(d), but do not, by that arithmetic alone, satisfy the substantial-record limb of mandatory cancellation. That is a materially different advice from either “no problem” or “automatic deportation”. It remains necessary to examine earlier sentences and every other applicable character ground. Migration Act, ss 501(3A), (7), (7A)

Read the sentence, not the release date

The concurrent-sentence rule is explicit. Section 501(7A) counts the whole of each term, whether concurrency is complete or partial. The Act's example adds two concurrent three-month terms to produce six months. Time actually spent in custody is not the calculation required by that provision. Migration Act, s 501(7A)

A single sentence imposed for several offences is a different situation. Section 5AB requires the Act and Regulations to apply to it as they apply to a sentence for one offence. Its example expressly connects an aggregate twelve-month sentence with paragraph 501(7)(c). Do not treat an aggregate sentence as interchangeable with several shorter concurrent sentences. Migration Act, s 5AB

Suspension also requires care. The statutory language asks whether the person “has been sentenced”, rather than how many days they served. In Meng Kok Te v Minister for Immigration & Ethnic Affairs [1999] FCA 111 at [23]–[31], the Full Court counted the imposed sentence notwithstanding partial suspension. That decision concerned section 201(c), not today's mandatory-cancellation provision. The head-sentence approach was expressly applied to section 501(7)(c) in Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559 at [11]–[15]. The citation here is confined to that sentencing calculation. Te; Stretton

A twelve-month term wholly suspended therefore must not be treated as zero imprisonment for the substantial-record inquiry. But a person living in the community on that suspension is not, for that reason alone, serving full-time imprisonment in a custodial institution. The separate custody requirement remains. An earlier qualifying sentence can become important when the person later serves another Australian custodial sentence: section 501(3A) does not say the qualifying twelve-month term must be the term currently being served. Migration Act, ss 501(3A), (7)(c)

Below twelve months is not a safe harbour

The character test also addresses past and present criminal or general conduct, and specified risks of future conduct. The child-sexual-offence limb can apply to a finding of guilt or a proved charge even where the person was discharged without a conviction. A short sentence, or an outcome described as “no conviction recorded”, cannot responsibly be translated into “no migration consequences”. Migration Act, ss 501(6)(c)–(e), (11A)

For delegates and the Administrative Review Tribunal making the decisions covered by it, the current direction matters. Direction 123 commenced on 31 October 2026. It identifies community protection, domestic or family violence, community expectations and the best interests of minor children in Australia as primary considerations. Ties to Australia appear among the other considerations. Its weighting rules do not permit a promise that long residence or Australian children will determine the outcome. Direction 123, paras 2–3, 7–9.1

The practical handoff should occur before sentence where possible. Send the immigration practitioner the charge documents, complete criminal history, proposed sentencing orders and reliable visa records. Ask for a written distinction between character-test failure, mandatory cancellation and discretionary exposure. Any submission about migration consequences should accurately describe uncertainty rather than present a prediction as a statutory certainty.

After sentence, obtain the actual orders and reasons; do not rely on an attendance note saying “six months”. If cancellation follows, forward the decision, invitation and delivery details immediately. Section 501CA provides a revocation process for mandatory cancellation, subject to its requirements. Criminal appeal work and immigration response work need separate responsibility and coordinated timing. The successful handoff is the one that makes the next legal decision visible before the client mistakes release from court for security of residence. Migration Act, s 501CA

Sources and scope

Law and guidance checked as at 7 November 2026. This article concerns Australian migration law and the Queensland or federal practice intersections identified above; it does not determine an individual matter.

About the author

Chang Min Park is a Queensland Law Society accredited specialist in immigration law at Park & Co Lawyers. QLS register.

For advice about how these issues affect your circumstances, enquire about a consultation with Park & Co Lawyers through this website.

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