Migrating to Australia can be a complex process, especially when it comes to applying for visas. The process can be stressful and time-consuming, and if you have had legal issues in the past, it can add layers of uncertainty and confusion. Understanding what constitutes a criminal record and how it might affect your visa application is crucial. This article aims to clarify key terms and explain the rules concerning visas and criminal records, and it outlines the steps you can take to progress toward your immigration goals.
What is a Criminal Record?
It is important to understand terms you might encounter, such as:
– Criminal offence
– Criminal conviction
– Criminal record
Generally, if you break the law, you can be charged with a criminal offence and taken to court. If found guilty, you have a criminal conviction, which may appear on your criminal record. In some cases, the court might find you guilty but choose not to record a conviction, resulting in a ‘spent conviction’ that does not appear on your record. Understanding these distinctions is crucial for determining if you have a criminal record.
The Character Test
To successfully apply for an Australian visa, you must demonstrate good character, which involves passing the character test. This test is crucial:
– When applying for any Australian visa
– While holding an Australian visa
Failing the character test, or even if there’s a reasonable suspicion of failure, can lead to visa refusal or visa cancellation. Sometimes, the Minister is compelled to cancel your visa, particularly if you are serving a full-time prison sentence in Australia for specific offences.
When Might I Fail the Character Test?
The legislation outlines specific criteria for failing the character test, including:
– Having a substantial criminal record
– Association with organizations involved in criminal conduct
– Involvement in serious international crimes such as genocide or trafficking
– Risk of engaging in criminal conduct or harmful behaviour in Australia
– Convictions involving sexual offences against children
– Representing a danger to any part of the Australian community
– Being deemed not of good character by authorities like ASIO and Interpol
What Constitutes a Substantial Criminal Record?
You have a substantial criminal record if sentenced to:
– Death
– Life imprisonment
– A term of 12 months or more
In case of a person with more than one sentence, the way sentences are counted can affect whether they meet the 12-month threshold for a substantial criminal record.
I Have a Criminal Record. What Should I Do?
If you’re considering applying for a visa and have any past offences, assess whether these might fall under the substantial criminal record criteria. Even if your record doesn’t meet these criteria, other minor offences and general conduct may still be evaluated to form a comprehensive view of your character.
Always be truthful in your visa application, disclosing all convictions, including spent ones. Failure to disclose can have severe consequences, potentially triggering Public Interest Criteria 4020.
My Visa Was Refused or Cancelled on Character Grounds. What Should I Do?
If your application is refused or cancelled, you might seek a review from the Administrative Appeals Tribunal (AAT) if eligible, or potentially appeal to the Federal Court of Australia. For mandatory cancellations, acting quickly to seek revocation is crucial, typically within 28 days or the timeframe provided by the Department of Home Affairs.
Important things to remember:
Having a criminal record doesn’t automatically disqualify you from obtaining an Australian visa, but it’s crucial to assess and understand your record in relation to the character test. If you need assistance, contact an experienced immigration lawyer or migration agent.
At Heenan & Browne Visa and Migration Services, we specialise in navigating complex visa applications, involving character test submissions. Our experienced team can provide comprehensive support and guidance to maximise your chances of a successful visa application. Book an appointment today to learn how we can assist you with your Australian visa needs.
