I have a criminal record – is this a problem?

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I have a criminal record - is this a problem

The Character Test

Australia requires visa applicants to pass the Character Test. The Character Test is the term for an enquiry into the existence of certain behavior in an applicant’s past that could suggest the person is not a desirable immigrant. The exercise begins when the visa applicants are required to complete questions on various forms and to provide police certificates from from every country they lived in for more than 12 months since they were 16 years old. This is not only required of the main visa applicant but anyone else coming to Australia with the main applicant, and also family members not coming to Australia.

One fails, all fail

In regard to the Character Test, there is a ‘one fails, all fail rule’. This means that if one family member fails, all family members are deemed to fail. In other words, if you are the main applicant and have no issues, you can still fail the character test as the result of a family member with a criminal record.

Does this mean I won’t get the partner visa?

Even if you fail the character test, you can still get the partner visa. This is because the case officer assessing your visa application has a discretion to decide to grant you the partner visa notwithstanding your failure to satisfy the character test.

You are given an opportunity to present an argument about why you should still get the visa. Should you manage to convince the case officer that the offending behaviour is not indicative of a criminal tendency or propensity for anti-social behaviour, or a reflection of your fundamental character or the character of a family member, then the case officer may grant you the partner visa.

An opportunity does not mean a probability, however, and it all depends on the quality of your submission and the quality and quantity of your supporting evidence. In other words, it is not easy. You have to prove it and a series of claims without strong supporting evidence will likely fail.

The exception to this possibility of still getting the partner visa even though you failed the character test is if you the Minister personally decides to refuse your partner visa application but this is not a common occurrence.

Forms and Police Certificates

The Immigration Department’s website has a list of organisations inside each country that provide police certificates. These often take a long time to get, so you should apply for one as soon as you start preparing the visa application. The link is below, but this could change as the Immigration Department update their website. A google search should be sufficient to find the page:
https://immi.homeaffairs.gov.au/help-support/contact-us/offices-and-locations/list

If you have been in Australia for more than 12 months since you turned 16, you will need a National Police Check from the Australian Federal Police. You can find out how to apply from their website. See here – https://afpnationalpolicechecks.converga.com.au/

You are also required to complete a Form 80, which is a form requesting detailed information about your history, including countries you lived in, places you worked, previous addresses, etc.

Do you have a substantial criminal record?

You will fail the character test if you have a substantial criminal record. This is defined as having been sentenced to a term of imprisonment for 12 months or more. This can be one sentence of 12 months or two or more sentences that are longer than 12 months.

If the sentence was not actually served but you were given a suspended sentence it is still classified as a term of imprisonment. Similarly, concurrent sentences (two or more served at the same time) are treated as two sentences and added together. Terms of periodic detention and court ordered terms in drug rehabilition programs are still considered as sentences. Good Behaviour Bonds are not considered prison sentences.

Just a criminal record?

If you don’t have a substantial criminal record but criminal convictions below this level or were found guilty without a conviction being recorded, you may still fail the character test under the category of past and present criminal and general conduct.

Other behavior of concern

There are various other grounds under which you can fail the character test, including a risk you could vilify a segment of the community, association with a group or person involved in criminal conduct, a risk you could stalk or harass a member of the community, or that there was a finding of guilt in relation to a sexual offence involving a child.

Procedure if a character issue is identified

If the case officer assessing your partner visa application finds evidence that indicates you either don’t, or may not, pass the character test – for example, the police certificate you provided from a country you lived in previously may show criminal convictions – they are required to notify you in order to give you an opportunity to respond.

Notice of Intent to Consider Refusal (NOICR)

You will be issued a Notice of Intent to Consider Refusal (NOICR) on character grounds. This letter will tell you that the case officer is considering refusing your visa on character grounds. It will detail the information that is the basis for the possible refusal, whether it be evidence of a criminal history on your police certificate or information that it has obtained through some other channel.

Submission

Importantly, it will give you the opportunity to comment on this information and respond in writing within 28 days. This is your chance to present an argument. The general tenor of the argument will be that, notwithstanding the fact you failed the character test, you should still be granted the partner visa.

You may explain the circumstances of the offending if these circumstances could provide a context that mitigates what happened. You may argue that what happened occurred long ago and that you are reformed as evidenced by your life since. You may argue you have close ties to Australia and that failure to grant the visa will adversely impact Australian citizens, especially minor children with which you have a strong supportive relationship. There are various factors that may come into play and could be highlighted depending on your individual story. Whatever claims you make will need to be supported by substantial evidence.

Ideally, this is something best not done alone. You should seek the help of a migration agent or immigration lawyer to prepare this submission for you. The case officer has the discretion to grant you the visa even though you failed the character test but this depends on the strength of the submission you make in response.

In certain cases, however, the criminal conduct or general conduct is such that even with a well-prepared submission from a migration agent or immigration lawyer, the case officer will not be persuaded and your visa will be refused.

As mentioned above, in some instances the refusal may come from the Minister and not the case officer, if the Minister thinks it will be in the national interest to refuse you the visa. In this case, the opportunity to respond will not be given and the visa will be refused outright. Generally, though, it will be the case officer that provides you with an opportunity to argue your case.

How will the case officer come to a decision?

The case officer will consider all the aspects of your situation against a piece of legislation the government has created which sets out what the case officer should take into account and what to give greater or lesser weight when balancing the various elements of your case.

This legislation is fairly detailed but some of the things the case officer will look at are the type of criminal conduct ,or other conduct; its seriousness, and the risk it could be repeated in Australia.

Violent or sexual crimes, crimes against women and children, or vulnerable people like the elderly, are viewed seriously.

Frequency and duration of offending, evidence of rehabilitation, and the effect of a refusal on minor children in Australia are also considered, among other things.

If you are successful, you will be granted the partner visa. If not, the visa will be refused.

Can I apply again, or apply for another visa?

No. The consequences of a visa refusal (or visa cancellation) on character grounds are severe. Any other visa you hold will be cancelled; any visa application you made will be automatically refused; and you will have to leave Australia. You will also be permanently excluded from the country.

Can I appeal?

Yes, if the decision to refuse your application for failure to satisfy the character requirement was made by a case officer and not the Minister personally, and you are inside Australia, you can have the decision reviewed, or appeal the decision. You have 9 days to lodge an application for a review (appeal) at the Administrative Affairs Tribunal (AAT). If you are outside Australia, your sponsor has a right of review. You will have 28 days to lodge an application for review after you are taken to have received the decision.

You will need an immigration lawyer to represent you at the AAT for this kind of appeal. As soon as you receive notification that the case officer refused your partner visa on the basis of a character issue, you should immediately contact an immigration lawyer.

Is that everything I need to know?

No, the above discussion provides only a generalised overview of the character test and the laws and issues associated with it. If you suspect you or your children will fail the character test, you need to disclose this upfront with your migration agent or immigration lawyer.

Most migration agents and lawyers will charge a higher fee for preparing a partner visa application where there is a character issue to be dealt with as it is complex and requires a considerable amount of work preparing a comprehensive submission to Immigration arguing that you should be granted the visa notwithstanding the fact you failed the character test.