Q: I’ve had criminal convictions in the past. How or will this affect my visa application?
Anyone who wishes to travel to Australia has to meet the character requirements for their visa as per Section 501 of the Australian Migration Act. This includes visa applicants, sponsors and even non-migrating family members.
Regardless of what visa you are applying for, you have to be honest about your criminal history, and you may sometimes need to provide police checks as part of your application to address the character requirements.
The Australian Department of Immigration has the power to reject your application or even cancel your visa if you fail to meet the character requirements.
However, depending on your situation, you can still pass the character requirements even if you have a criminal history because there are provisions to request for the Department to exercise their discretion to not cancel your visa.
Character Requirements (aka character test)
You cannot pass the character requirement if you have:
- a substantial criminal history (as per your police records)
- been convicted for an offence or if you have escaped from immigration detention:
- while you were in immigration detention
- during an escape from immigration detention
- after an escape, but before you were taken into immigration detention again
- been a member (or are a member) of any groups/organisations (even by just being associated with a person of a group/organisation) that Immigration suspects of being involved in criminal activities
- been involved (or reasonably suspected to be involved) in human trafficking/smuggling, genocide, war crimes, any crimes against humanity, torture or slavery crimes, or crimes that are of serious international concern (despite if you have or have not been convicted yet)
- shown that your criminal history (both past and present) or general conduct is not of good character
- a risk of when you are in Australia, that you would:
- engage in criminal activities
- harass, molest, intimidate or stalk anyone
- vilify any segment of the community
- incite discord in the community (even in a part of it)
- be a danger to the community (including just being a part of it)
- been convicted or found guilty for any sexually based offences involving a child
- been subject to a negative security assessment by the Australian Security Intelligence Organisation (i.e. ASIO)
- been subject to any Interpol notice/s, for which it is reasonable to assume that you may be a risk to the community (even a segment of the community)
What Is A Substantial Criminal Record?
A substantial criminal record is defined by the period of time of the sentence imposed upon you by a court of law (not the actual time that you have spent in prison).
Specifically speaking, for the character requirement, a person has a substantial criminal record if they have been:
- sentenced to death or a lifetime prison sentence
- sentenced for a period of 12 months or more of imprisonment
- sentenced to two or more separate periods of imprisonment (including any that you are serving at the same time), where the total of sentence periods equal 12 months or more
- found as “not fit” to plead towards an offence, by a court, and also found to have committed the offence (of which resulted in you being detained)
Exclusion Period (into Australia)
If you have been deported from Australia, a visa cancellation on character grounds (i.e. not satisfying the character requirement) means you will be permanently banned from being granted an Australian visa. You will also be excluded from applying for most visa types to remain in Australia.
If your visa has been cancelled as a result of a direct decision by the Minister (personally) then you will unfortunately not have any rights to appeal the decision to the Administrative Appeals Tribunal (AAT; formally known as the Migration Review Tribunal or MRT).
However, if an Immigration Officer (i.e. a delegate of the Minister) rejects or cancels your visa in Australia you will have a right to appeal the decision and have it formally reviewed by the AAT. If you are not in Australia, you still may have appeal/review rights (such as if your application had either a sponsor or nominator located in Australia).
Please note, if your visa has been cancelled due to a “mandatory” cancellation (due to serving a sentence of 12 months or more, whether currently or in the past, or due to a sexually based conviction involving a child), then you will have no rights to appeal to the AAT. Instead, you will be given 28 days as an opportunity to request to have the decision revoked (i.e. reversed) if you can satisfy the revocation requirements. This decision (of the revocation) can be appealed/reviewed by the AAT (as long as it was a decision made by an Immigration officer – delegate of the Minister).
If you are in Australia and you wish to seek an appeal/review, you must do so within 9 days from the time you were notified of the decision.
If you are outside of Australia, then your sponsor or nominator has 28 days to seek an appeal/review from the time notification of the decision.
The Small Print
If you have an application for an appeal/review with the AAT, please note that if no decision is made by the AAT WITHIN 84 days (from the date of decision notification), then the AAT will be legally deemed to have confirmed the original decision.
Regardless of whether you can or cannot make an appeal/review to the AAT, you can still seek a judicial review of the decision, if you think that the decision was made in error (i.e. not lawfully made).