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Are you concerned about the impact of your criminal record on your Australian visa application? Let’s delve into the complexities surrounding substantial criminal records and their implications in Australian migration law, with a focus on insights from the Department of Home Affairs (DHA).
Understanding “Substantial Criminal Record” in Australian Migration Law
In the context of Australian migration law, having a “substantial criminal record” involves meeting one of the following criteria:
1. Being sentenced to a term of imprisonment lasting 12 months or more.
2. Being sentenced to two or more terms of imprisonment, where the combined duration of these terms adds up to 12 months. For instance, if you’ve received two separate 6-month sentences, the DHA considers this as a 12-month sentence.
While these two categories cover most visa applicants concerned about their history of imprisonment, it’s important to note that there are additional circumstances that can contribute to a substantial criminal history. These include cases where individuals were acquitted of an offence due to mental illness or found unfit to plead in court.
Australian Visa Applications, Substantial Criminal Records, and the Character Test
If you’re a visa applicant or planning to apply for a visa and have a substantial criminal record as defined above, you will automatically fail the Character Test. The Migration Act outlines various grounds for failing the Character Test, and a substantial criminal record is one of them. Consequently, DHA case officers have no discretion in this matter and must reject your application on these grounds.
Certain “patterns of behaviour” (i.e. criminal behaviour) may also cause a person to fail the character test.
What Happens If You Fail the Character Test?
All may not be lost. While case officers cannot overlook a substantial criminal record in relation to the Character Test, they do have the discretion to consider any positive changes in your behavior since your last convictions.
If you fail the Character Test due to a substantial criminal record, your application will be forwarded to the character section (The Visa Applicant Character Consideration Unit (VACCU) ) of the DHA for assessment. Here, they will evaluate whether mitigating factors in your case warrant a waiver. The DHA will assess your overall character, giving weight to any positive behaviours and rehabilitation efforts since your last convictions. Based on this evaluation, they will determine whether your recent good behaviour outweighs your past offences.
If the DHA Character division remains unconvinced that you have reformed or may still pose a threat to Australia, your visa application will be refused. Sometimes, the Minister for Immigration makes the decision themselves.
What Should You Do If You Have a Substantial Criminal Record and Fail The Character Test?
If you find yourself in this situation, seeking expert guidance is crucial. Consult with an Immigration Lawyer experienced in handling character issues. Engaging an Immigration Lawyer provides you with Legal Professional Privilege, ensuring that your confidential information cannot be disclosed to third parties without your consent, including the DHA.
At AHWC, we offer the opportunity to speak with an Immigration Lawyer who will assess your situation and advise you on the best course of action. Our extensive experience includes preparing compelling submissions and arguments for cases involving substantial criminal records, increasing your chances of a successful application. By utilising our services, you can harness the DHA’s power to your advantage.
Don’t hesitate; book a consultation now for a confidential discussion and an honest evaluation of your situation. We possess the expertise, technology, and resources to assist you, regardless of your location, whether in Australia or anywhere in the world. Your journey towards a successful visa application starts here.
