THE IMPORTANCE OF DISCLOSING ANY PAST CRIMINAL OFFENCE WHETHER CONVICTED OR NOT

One of the most important things to remember when applying for your Australian visa is to disclose your criminal record honestly and accurately. Providing false, inaccurate, misleading or bogus information on your visa application can result in severe penalties such as a three year re-entry ban.

Common questions asked when completing your visa application include, but are not limited to:

·      Has any applicant included in this application been charged with any offence that is currently awaiting legal action?

·      Has any applicant included in this application been convicted of an offence in any country (including any conviction which is now removed from official records)?

It is important to disclose ALL previous criminal convictions, arrest warrants, court appearances and pending charges even if they were not substantial and occurred over 10 years ago. It is at the discretion of the Department of Home Affairs as to whether or not they will grant your visa and will depend on the seriousness of such convictions.


The Character Requirement

Anyone who wants to stay or enter Australia must satisfy the character requirement as per Section 501 of the Migration Act 1958. It is also a requirement for current visa holders to continue to satisfy the character requirement. You will not pass the character test if you have a substantial criminal record or engage in criminal activity in Australia. However it is up to the Minister or his delegate to decide whether or not to cancel a visa or to refuse a visa application or sponsorship by considering various factors. Some of these factors include the impact a visa cancellation or refusal would have on a person’s family in Australia and the protection of the Australian community.

For further information regarding the character requirement please see the Department of Home Affairs website:

CHARACTER REQUIREMENT

 


WHAT IS A SUBSTANTIAL CRIMINAL RECORD?

According to the Department of Home Affairs you will be deemed to have a substantial criminal record if you have been:

·         Sentenced to death or life imprisonment;

·         Sentenced to prison for more than 12 months;

·         Sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more (this includes all terms of imprisonment, including suspended sentences and those that are to be served concurrently);

·         Acquitted of an offence on the grounds of unsoundness of mind or insanity and, as a result, been detained in a facility or institution;

·         Found by a court not to be fit to plead in relation to offence but found to have committed the offence and as a result detained in a facility or institution.

You will automatically fail the character test if you have a substantial criminal record as defined above. Department officials do not have any discretion with respect to the imposition of the character test, however they do have discretion to take into consideration any good behaviour since your criminal conviction. The Department of Home Affairs Character Section will consider your past and present conduct, how much time has passed since your last conviction, how serious the conviction was and whether any good behaviour demonstrated since your criminal conviction can outweigh your previous criminal conduct. Your visa may be granted if you are able to prove your character has genuinely reformed. The Department will refuse your visa application or cancel your visa if they consider you a risk to the Australian community.

For further information regarding what a substantial record is please see the Department of Home Affairs website:

SUBSTANTIAL CRIMINAL RECORD

 


WHAT TO DO IF YOU HAVE A CRIMINAL RECORD

If you have had a prior brush with the law or have a substantial criminal record we recommend that you see an experienced migration agent to help you with your visa application to make sure you have the best chance of getting your visa granted.

Please contact one of our highly experienced migration agents at Legal Migration Services if you would like further advice regarding your visa application.