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Migrating to Australia is sometimes complicated, and applying for a visa is occasionally stressful and time-consuming. On top of this, if you have made mistakes in the past, you can experience more uncertainty and confusion regarding what you should do. You may wonder what constitutes a criminal record and if you should disclose this during your visa application process. 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.

For the purposes of Australian immigration law, the character test is the key factor to consider.

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 not only important when you are applying for a visa but also while you hold a visa in Australia.

The consequences of not passing the character test – or if the Minister for Immigration, Citizenship and Multicultural Affairs or one of their delegates reasonably suspects that you do not pass the character test – are that the Minister or one of their delegates can refuse your visa application or cancel your current visa altogether. In some cases, the Minister must cancel your visa. This includes if you are serving a sentence in prison on a full-time basis in Australia for certain offences.

When Do I Fail the Character Test?

The following are a set of criteria that you can find in the Migration Act, which will determine if you fail or pass the character test. For example, you will not pass the character test if:

  • you have a substantial criminal record;
  • you committed an offence concerning your time in immigration detention;
  • the Minister reasonably suspects that you are a member of an organisation that has been or is involved in criminal conduct;
  • the Minister reasonably suspects that you have been involved in serious crimes such as people smuggling or trafficking, genocide, crimes against humanity, war crimes, torture, slavery or any other crime that is of serious international concern;
  • you intend to harass, molest, intimidate or stalk people in Australia;
  • you represent a danger or risk to any group of the Australian community; or
  • organisations such as ASIO and Interpol have found you 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 the court acquits you of an offence on the grounds of insanity or finds you not fit to plead, and you are detained in an institution.

There are set rules regarding counting a sentence period to determine if it reaches the threshold of 12 months or more.

For example, say that 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 are 12 months. This means he would fail the character test, and the DHA would refuse or cancel the visa.

I Need to Apply for a Visa, But I Have a Criminal Record. What Do I Do?

When you are about to apply for a visa and you have any criminal offences that appear in your PCC, had court appearances or are unsure of any past convictions, you should first think if these offences would fall under the substantial criminal record criteria set above – consider the 12 months sentence threshold.

If the answer is no to having a substantial criminal record, you might still pass the character test. If the answer is yes, it is highly likely that your visa will be refused on character grounds due to failing the character test. However, in the event that you do have any criminal offences appearing in your PCC, 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; and
  • the impact of a visa refusal or cancellation on your family or businesses in Australia, among other considerations. 

You should always be truthful and forthcoming in your visa application. You should be honest regardless of how small you think the past offence has been. 

For example, 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, particularly if your goal is to settle permanently in Australia.

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. 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 in the Federal Court of Australia. For mandatory cancellations, your lawyer or agent can also assist with applying to revoke the cancellation. However, you must do this within 28 days.

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. You should be truthful in your visa application. 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.

If you need help with your Australian visa, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Frequently Asked Questions

How do I find out if I have a criminal record?

The easiest way to find out if you have a criminal record is to order a Police Clearance Certificate (PCC). Please note that you will need to request PCCs at the state/province and national/federal levels for some countries. For more information, please visit the Department of Home Affairs (DHA).

Why do I need to disclose ‘spent convictions’ or minor traffic offences when applying for a visa?

In most visa applications, you need to answer the following question: “Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?”. Therefore, we suggest disclosing all prior criminal convictions even if these are ‘spent convictions’. Not doing so might trigger the Public Interest Criteria.

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