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Criminal History | How Does It Affect My Visa Application?

VisaOne
2 November, 2017

Q: I’ve had criminal convictions in the past. How or will this affect my visa application?

 

Character Criteria

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.

 

Appeals (Review)

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).

 

For professional assistance with your visa case, please email us at solutions@VisaOne.com.au.

If you have an urgent case matter which requires immediate assistance, please call us on 1300 61 99 77 (or +61 7 3181 5588)

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48 comments on “Criminal History | How Does It Affect My Visa Application?”

  1. Hello,

    I would like to seek your advise. I am currently holding a work visa and wanted to apply for permanent visa later on. I was caught not touching on the tram and an infringement notice was sent via mail. That was an honest mistake but I am really confused about the touching on and off. Now I am worried if that would affect my current work visa and my future plan to apply for permanent residency.

    Thanks in advance.

  2. I have being offered sponsorship and I want my boyfriend to go defacto on my Visa. He has a 2 year suspended prison sentence from when he was 19. He is now 26. Will there be a problem with this?

  3. Hi
    My rsms application is opened and my family is asked for police check, but unluckily my husband is charged recently with comman and sexual assaults , and they are false. We r going to court soon .
    What’s effect on my rsms result , should we withdraw my husband’s application ?

  4. Me and my husband we fight and I got a conviction with 2 years community corrections order and now community corrections order suspended me they said I don’t I am being good so . And me and my husband still we are happy in our relationship. We try to withdraw cases but police don’t listen to us. I am in student visa and I got a email 1 weeks before from immigration about notice of visa cancellation. Now we appeal the cases . Our court date is on 7 th of August 2019. Now what to do

  5. Hello there,
    I need some advice about if my criminal background will hinder in attaining 489 visa.

    I have been in Australia for 11 years and overs the years, I have got into bit trouble on three different occasions. I'll list the charges down below.
    1. Oct 2014- [Dm] Possessing Dangerous drugs /court outcome- Without conviction. Released on entering recognizance self $150 to be of good behaviour for 4 months.
    2. April 2014- [Dm] Possessing Dangerous drugs /court outcome- Without conviction. Released on entering recognizance self $150 to be of good behaviour for 4 months.
    3.May 2017- [Ppra] 790(1) Assault or obstruct police officer/ court outcome- Without conviction fined $330.

    These are the charges showing up in my AFP national police check. These incidents happened in Queensland and I live in Tasmania now. The drug charges are pot related carring about 1.5 grams both times.
    I was on a student visa when this all happend and as I finished my studies, I applied for 485(graduation visa) and had to go through police check. All of these charges showed on there but yet was granted the visa by Department of Home Affairs.
    Now, I am going to apply for 489 visa and feeling very anxious with the outcome of it.
    Can someone please advice me on this, I will be very grateful to you.

    Kind regards
    Manu

    1. Hi Manu,
      We have received your enquiry. One of our visa experts will be in touch with you via email.

  6. Hello, I wanted to know if I need to disclose my criminal record when applying for student visa and whether I would be categorized as having a substantial criminal history. I have a case with suspension of prosecution verdict 10 yrs ago related to cannabis use from Korea. Also I have 3 DUI records one from 10 yrs ago and the other two from 5 yrs ago. I was fined in each occasions by amount of approximately $700, $4000, $6000 AUD respectively. Please let me know if getting a student visa is feasible for my case.

    1. Hi Myungsoo,
      We have received your enquiry. One of our visa experts will be in touch with you via email.

  7. Hello, I wanted to know if I need to disclose my criminal record when applying for student visa and whether I would be categorized as having a substantial criminal history. I have a case with suspension of prosecution verdict 10 yrs ago related to cannabis use from Korea. Also I have 3 DUI records one from 10 yrs ago and the other two from 5 yrs ago. I was fined in each occasions by amount of approximately $700, $4000, $6000 AUD respectively. Please let me know if getting a student visa is feasible for my case.

    1. Hi Daniel,
      We have received your enquiry. One of our visa experts will be in touch with you via email.

  8. Hello , Please help

    I am thinking of migrating permanently to Australlia as I am a qualified electrician and my trade is on the long term shortlist.

    My concern is that aged of 14 (18 years ago), I recieved a police caution/reprimand for ABH (actual bodily harm) a playground fight at school resulting in a graze to the other person

    I was taken to the station and signed acknowledgement of the caution and that was the all. No court case, no charge, no community service. I was under impression this would be wiped at 18 years but this is not the case.

    Where do I stand now with regards to gaining permanent residence
    into Australia

    Also, am I correct in saying I will be asked again on the flight over if I have a conviction, and will have to have another interview at the airport on arrival, with the potential to be sent back on their discretion??

    Please help , any advice or guidance would be greatly appreciated

    Many thanks

  9. Hi. I would like to ask a question. I was applying a de facto already last year june and i have charges as a theft and i plead guilty and i have to go to court on sept. Now my question does ita affect to my visa when i plead guilty? Hoping to hear from you. Thank you!

    1. Hi Jane,
      We have received your enquiry. One of our visa experts will be in touch with you via email.

  10. Hi
    I have been offered a job in Australia. I do not have a criminal record but my partner does. Will his record affect my visa? Thanks

    1. Hi Anon,
      We have received your enquiry. One of our visa experts will be in touch with you via email.

  11. I had a misdemeanor shoplifting charge 17 years ago. No time served or sentenced to, only community service and fees. Was dropped to infraction. My husband had a minor marijuana paraphernalia charge (misdemeanor) with no time charged or served, just a fee. Do we need to answer yes on the ETA visa criminal conviction question?

    1. Hi Jenn,
      We have received your enquiry. One of our visa experts will be in touch with you via email

  12. Hi guys, a friend asked me one night if I had any substances left and I sold to him in a one off and got arrested. i now have a recorded conviction of supply against me. Other than that I have a clean slate. I am on a student vida which expires in June and would like to know how this affects me when reapplying for a student visa.

  13. I was recently convicted of domestic violence and I am on a 457 visa with my wife and son. My employment has been terminated & employer said they will inform immigration. What options are left for me, I have no survival means going back to my country of origin. Please advise

    1. Hey Hi,

      Did you tell your employer about this or they got informed by Police/Court/Immigration Department.
      What conviction sentence was given to you.

      Thanks
      Pradan

  14. Hi,
    My partner and i are both seafarers and we will be embarking on board a crew ship and our port of entry will be in Sydney, Australia. And so we need to apply for an mcv and transit visa. His ex-wife recently filed a case against him about not giving support to his children. But actually he has already given monthly support since last year. His ex wife said that she will withdraw the case against him but until now the case is still pending. He wasn't convicted of anything and the other party never appeared in court. Is he going to have a problem getting approved for a transit visa? Is it going show in his records? Does he need to disclose this iin his visa application? He needs to go back to work so he can give monthly financial support to his children. I hope you can give an answer. Thanks you.

  15. Hi,there
    I have a stealing criminal record before in Australia and I pleaded guilty, then I was fined for $500 . In the meantime, I ask the judge to give the spent conviction and I got it,which as the crime wasn't a big deal but I made a mistake to collect some auto parts from a wrecking car on Hwy. I want to inquire that is this some kind of substantial crime that will affect my 482 work visa in Australia ?
    I have no other criminal record before inside or outside of this country.
    Thanks.

  16. Hi, My partner and I applied for a partner visa about two years ago we have been placed on hold due to some things from my past coming back to haunt me and going through the courts at the moment but looks like I will spend some time in person maybe two years. What are the chances our partner visa will be refused what can we do about it. My partner has been living with me in Australia for over two years we are getting married next year in January.
    Thanks very much Jeffery Williams.

  17. Convicted of possession of firearm as an illegal alien in USA after living there 15 years due to the fact that my Visa expired two months before the arrest. Was not sentenced to any prison or jail time but I was deported back to Colombia where I was born. Can I still apply for an Australian Visa with this conviction even if I was not sentenced to any jail time?

  18. Hi my partner lives in the uk and I live in Australia, we have been talking about getting married now for a while but if he isn’t going to ever be aloud in Australia then the relationship will have to come to a end as I can visit the uk but cannot move there for good because of my family, he has served 8 months all up in jail but has been sentenced 14 months total, what are our options ?

  19. I am wanting to travel to Perth Australia from Auckland New Zealand to visit my Sister whom is terminally ill. I have past criminal convictions, The earliest was 3 years ago and understand this will be a hurdle in the process! Please say there is hope, All advice and help needed ASAP please!

  20. Hi,I have already applied for ICHC from Saudi Arabia,U.A.E and India(Countries where in stayed for more than 12 months for job) for AHPRA registration last July 2018.

    My question is,do I need to apply for ICHC again for my TSS 482 visa or PR application in Australia?What should I do for my ICHC?

  21. Hello,
    I need some advice .Cause some misunderstood,my husband fight me and I called the police.Now we tring to fix the relationship and going to apply for the PR. But He got a 12 months good behaviour bound from court. Shall we still can lodge the documents? What should we do for next ?

  22. Please help!

    My father was last imprisoned in 2009 for only 3 months in reman. Hes in New Zealand and we want to apply for a visa for him to come visit his childten. Can you please give me an indication of what are his chances of getting his visa approved please? Thanks

  23. Hi, I am looking to apply for a 1 year visa, leading to a skilled independent visa or nominated, I have a criminal record in which I recieved a 12 month suspended sentence which occurred around 10 years ago, I am a bricklayer which falls under the skills shortage list and I am lookin to work when I arrive do you think I’ll still be able to get a visa?

  24. Hello I need some advice/ help. My partner and I applied for 190 visa 2 months ago now for PR. A few months ago he was involved in a fight and went to court today and has been given a section 10 and a section. 9 for affray with both 12 months good behaviour bond. Please advise our next steps. As out migration agent is overseas. Do we declare this now?

    1. Hi Rose-Megan Horner,
      We have received your enquiry. One of our visa experts will be in touch with you via email. 🙂

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