Summary
- Australian businesses must be aware that visa applicants with criminal records may face significant barriers to entry, which can affect hiring decisions for overseas workers.
- Certain visa types have strict character requirements under the Migration Act 1958, and a substantial criminal record can result in visa refusal or cancellation.
- Employers should understand their obligations and the potential impact on their workforce when sponsoring or employing visa holders with criminal histories.
- This article is a plain-English guide to Australian visa requirements involving criminal records, written for business owners operating under Australian immigration law.
- It has been prepared by LegalVision, a commercial law firm that specialises in advising clients on immigration and employment matters.
Tips for Businesses
Review the character requirements under the Migration Act 1958 before sponsoring overseas workers. Check whether a candidate’s criminal history meets the threshold for a substantial criminal record. Maintain clear internal policies for assessing visa eligibility and keep records of due diligence steps taken during the hiring process.
On this page
- What is a Criminal Record?
- What is the Character Test?
- When Might I Fail the Character Test?
- What Constitutes a Substantial Criminal Record?
- What Constitutes a Person that is ‘Not of Good Character’?
- I Need to Apply for a Visa, But I Have a Criminal Record. What Do I Do?
- My Visa Was Refused or Cancelled on Character Grounds. What Should I Do?
- Key Takeaways
- Frequently Asked Questions
Applying for an Australian visa with a criminal record requires careful attention to disclosure rules. What you must declare depends on the nature of your offence and the visa you are applying for. This article will define key terms and explain the rules around visas and criminal records. It will also set out the next steps to help you achieve your immigration goals.
What is a Criminal Record?
First, it is important to define some terms that you might come across. These include:
- criminal offence;
- criminal conviction; and
- criminal record.
Generally speaking, if you break the law, you can be charged with a criminal offence and taken to court. If the court finds you guilty, this means you may have a criminal conviction. This can then appear on your criminal record.
In special circumstances, the court might find you guilty, but will not enter a criminal conviction in your criminal record. Additionally, you might have a previous criminal conviction that no longer appears in your criminal record, known as a ‘spent conviction’. It is important to understand these different terms to know if you have a criminal record.
What is the Character Test?
Suppose you wish to successfully apply for a visa to visit, work or move permanently to Australia. In that case, you will need to show the Department of Home Affairs (DHA) that you are a person of good character and that you pass the character test. Passing the character test is important:
- when you are applying for an Australian visa; and
- while you hold an Australian visa.
If you fail the character test or if the Minister or their delegate reasonably suspects you will fail it, they can:
- reject your visa request; or
- cancel your existing visa.
Sometimes, the Minister may be required to cancel your visa. For example, this can happen if you are serving a full-time prison sentence in Australia for specific offences.
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When Might I Fail the Character Test?
Criteria for whether you pass or fail the character test can be found in legislation. For example, you will not pass the character test if you:
- have a substantial criminal record;
- committed an offence concerning your time in immigration detention;
- are associated with an organisation that was or is involved in criminal conduct;
- have been involved in serious crimes such as trafficking, genocide, crimes against humanity, war crimes, torture, slavery or any other crime that is of serious international concern;
- are at risk of engaging in criminal conduct or harassing, molesting, intimidating or stalking people in Australia;
- have been convicted or found guilty of a sexual-based offence involving a child;
- represent a danger or risk to any group of the Australian community;
- are deemed to be a person that is ‘not of good character’; or
- have been found by organisations such as ASIO and Interpol to be a risk to the Australian or international community.
What Constitutes a Substantial Criminal Record?
You have a substantial criminal record if you have been sentenced to:
- death;
- imprisonment for life; or
- imprisonment for a term of 12 months or more.
Additionally, you will also have a substantial criminal record if a court acquits you of an offence on the grounds of insanity or finds that you are not fit to plead, and you are detained in an institution as a result.
Example:
John is serving two terms of six months imprisonment for two offences. The court sentenced him to serve these two offences concurrently (at the same time). Unfortunately for John, for the purposes of the character test, the total of those two terms is 12 months. This means he would fail the character test, and the DHA would refuse or cancel the visa.
What Constitutes a Person that is ‘Not of Good Character’?
As seen in previous court cases, the DHA will take into account any past or present criminal and general conduct when determining if you are ‘not of good character’.
Therefore, even if you do not have a substantial criminal record, other minor criminal records and general bad conduct may be taken into account as a way of achieving a holistic picture of your character.
I Need to Apply for a Visa, But I Have a Criminal Record. What Do I Do?
If you are thinking of applying for a visa and you have any prior criminal offences, court appearances or uncertainty about any past convictions, you should consider whether these offences will fall under the substantial criminal record criteria. Specifically, consider the 12-month sentence threshold.
If you do not have a substantial criminal record, you may still pass the character test. If your record meets the requirements to be substantial, it is highly likely that your visa will be refused on character grounds. However, in the event that you do have any criminal offences, it is best to contact an immigration lawyer or migration agent. They will consider what the DHA’s position would be regarding your:
- character;
- likelihood of re-offending;
- considerations that will aggravate or mitigate your situation;
- the impact of a visa refusal or cancellation on your family or businesses in Australia; and
- the strength, nature and duration of your ties to Australia, among other considerations.
You should always be truthful and forthcoming in your visa application. This means that you should be honest regardless of how small you think the past offence has been.
You should disclose any ‘spent convictions’ or other criminal convictions, even if these have been cleared from your criminal record. This is very important, as not being truthful and not disclosing information can have serious consequences.
My Visa Was Refused or Cancelled on Character Grounds. What Should I Do?
Suppose your visa application has been refused or cancelled by the DHA due to not passing the character test. In that case, you may apply to the Administrative Appeals Tribunal (AAT) to have the decision reviewed, provided you have a right of review. Your decision letter will explain whether the AAT can review your decision. If the AAT cannot review the decision, your other option could be to appeal to the Federal Court of Australia. For mandatory cancellations, your lawyer or agent can also assist in revoking the cancellation. However, you must do this within 28 days.
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Key Takeaways
You can apply for an Australian visa if you have a criminal record. The key factor is to look into your criminal record to ensure that you pass the character test. This involves determining if you have a substantial criminal record. If you have any criminal offences or a criminal record, it would be best to contact an experienced immigration lawyer or migration agent to assist you.
LegalVision provides ongoing legal support for businesses through our fixed-fee legal membership. Our experienced immigration lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee. To learn more about LegalVision’s legal membership, call 1300 544 755 or visit our membership page.
Frequently Asked Questions
If you fail to disclose a criminal conviction, your visa application may be refused or your visa could be cancelled, even if the conviction is minor. It’s essential to be transparent about any past convictions to avoid serious consequences.
Having a criminal record can affect your visa application, especially if your total sentence is 12 months or more. In such cases, your application may be denied. However, each case is considered individually, and seeking legal advice can help you navigate the process.
Yes, you can apply. The DHA assesses your character using the character test, which considers whether you have a substantial criminal record.
You can appeal to the Federal Court of Australia.
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