How Will a Criminal Offence Affect a Visa
Obtaining an Australian visa is a significant step towards reaching your professional and personal goals. However, you must be aware of the potential challenges that come with having a criminal history while applying for a visa.
Section 201: Deportation Risk for Non-Citizens
According to Section 201 of the Migration Act, non-citizens guilty of crimes may be deported. It describes the standards by which the government determines whether to deport someone. This covers the length of residency, which is inclusive of a non-citizen who has been in Australia for less than 10 years at the time of the offence, as well as the conviction and nature of the offence, which apply to those incarcerated for more than 12 months may be subject to deportation.
Section 501: The Character Test
Revocation of an offender is usually achieved by s.501 of the Migration Act to which provides that the Minister for Immigration and Border Protection may cancel or refuse a visa where the minister is satisfied that the individual failed to pass the character test, often due to a significant criminal record.
In a recent 2020 case in the Federal Court of Appeal involving QYFM v Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs, Mr QYFM sought to challenge the cancellation of his visa based on his character assessment. The court deliberated on whether the Minister’s action constituted a judicial exercise and ultimately upheld the cancellation under section 501(3A), which permits visa cancellation for failing the character test. Given QYFM’s extensive criminal history, including drug offenses, the court found the cancellation lawful, rendering him liable for removal from Australia due to his loss of legal residency status.
When Do I Fail this Character Test?
The following characteristics will determine whether you fail or pass the character test, based upon the Migration Act:
- If you have a substantial criminal record;
- You have committed an offence during time in a immigration detention centre;
- The Minister reasonably suspects you are a member of a crime related organisation;
- The Minister reasonably suspects you have been involved in serious crimes such as war crimes or trafficking;
- You intend to harass, molest, intimidate, or stalk people; or
- You represent a danger to any group of the Australian Community.
Defining a Substantial Criminal Record
A significant criminal history includes a range of situations, such as being found not guilty owing to mental illness or being judged unfit to plead, as well as sentences of 12 months or longer, or several stints of incarceration totalling 12 months or more.
Implications of Failing the Character Test
Failing the character test due to a substantial criminal record results in severe consequences. Visa cancellation leads to immigration detention, barring individuals from applying for further visas and re-entering Australia. However, avenues for appeal exist.
Appeals and Review Processes
When faced with the possibility of having their visa revoked, individuals have the option to seek recourse through the Administrative Appeals Tribunal (AAT) review process. Through this option, people can contest delegated visa cancellations made in accordance with Sections 201 or 501 of the applicable immigration laws. However, it is important to emphasise, that there are situations in which the Minister personally decided to revoke the visa in accordance with Section 501 which are not covered by this appeal option. People might decide not to use the AAT review process in these circumstances. For individuals navigating these intricate legal actions, it is therefore crucial to comprehend the subtleties of the legislative framework controlling visa cancellations.
Disclosure of Criminal History in Visa Applications
When applying for a visa it is crucial to fully disclose any criminal background and think about whether these offences fall under the substantial criminal record criteria. Minor transgressions such as traffic offences might affect character evaluations. Withholding such information may have serious consequences, such as the inability to apply for visas in the future.
If you have committed a crime to which falls under the substantial criminal record criteria, it is highly unlikely that you will receive a visa. If you have committed a minor offence, it’s advisable to reach out to an immigration lawyer. They will assess your circumstances in relation to your standing with the Department of Home Affairs and your prospects for obtaining a visa, considering factors such as your character, any past offenses and likelihood to reoffend.
Recent Developments and Enforcement
Recent directives, such as Direction No. 90 issued by the Hon Mr Alex Hawke, underscore the Australian government’s commitment to combatting criminal conduct. Instances of drug offenses, assault, and child sex offenses have led to visa cancellations, highlighting the stringent enforcement of character requirements.
Ensuring Success in Visa Applications
It is important to note that while criminal convictions have a significant effect on Australian immigration applications, you may improve your chances of being granted a visa and fulfilling your dreams of relocating and working in Australia by understanding the nuances of the law, disclosing all relevant information, and seeking professional assistance.
Navigating the complexities of substantial criminal records in Australian migration law demands expert guidance. At Elamine Lawyers our immigration lawyers are equipped with the necessary expertise can provide invaluable assistance, offering legal insights and strategies to navigate the visa application process effectively.
