Australian visa applications and Substantial Criminal Records. Do you have one? What can you do about it?

09 Jan


Do you believe you may possibly have a substantial criminal record? Would you like to know what that may mean for your visa application?

Then let’s have a look at the problems surrounding the issue of having a substantial criminal record from the perspective of the migration laws in Australia and the Department of Home Affairs (DHA).


What is a “substantial criminal record” under Australian migration law?

According to the Migration Act, having a substantial criminal record includes being: –

  • Sentenced to a term of imprisonment of 12 months or more; or
  • Sentenced to 2 or more terms of imprisonment where the total of those terms is 12 months (for example if you have been sentenced on two separate occasions, both being for a period of 6 months, as this equates to 12 months in TOTAL the DHA will consider this a 12-month sentence)

Generally speaking, the majority of visa applicants concerned about their history of imprisonment will fit into one of the categories above, although, there are other categories which make up a substantial criminal history. This includes being acquitted of an offence on the grounds of mental illness, as well as being found by a court as not fit to plead.


Australian visa applications, substantial criminal record and the Character Test

If you are a visa applicant (or a potential visa applicant) and you have a substantial criminal record as defined above, you will automatically fail the Character Test. The Migration Act sets out the grounds for automatically failing the Character Test, a substantial record being one of them. Therefore, DHA case officers who assess applications do not have any discretion with respect to this and must fail you on those grounds.


So, what happens if you fail?

Not all hope is lost! Fortunately, although case officers do not have discretion to look past a substantial record in respect to the Character Test, they do have discretion to take into account any good behaviors since your last convictions.

If you have failed the Character Test based on a substantial criminal record, your application will then be passed onto the Character section of the DHA for assessment, as to whether there are mitigating factors in your case which can result in a waiver. This means that the DHA will assess your character as a whole, giving weight to any good behaviors and rehabilitation since your last convictions. They will then make a decision on whether or not your good behavior since outweighs the bad, giving rise to looking past your substantial criminal record.

If the DHA Character division is not convinced, however, that your conduct indicates that you have reformed, or that you may pose an ongoing threat to Australia, you will not pass the Character Test and your visa will be refused.


You have a substantial criminal record, what should you do now?

First thing is first, you MUST seek sound advice and guidance from an Immigration Lawyer with experience in representing clients with character issues. By briefing an Immigration Lawyer as opposed to a Migration Agent it will provide you with Legal Professional Privilege, meaning that none of your confidential information can be divulged to a 3rd party without your permission, including the DHA.

Here at AHWC you have the option to speak to an Immigration Lawyer who will appraise your situation and advise you of the best course of action moving forward. We have experience with preparing relevant submissions and arguments in cases which involve substantial criminal records, in order to get them over the line. Engaging in our services will give you the best chance at succeeding with your application, as well as using the power of the DHA to your favour.


Book a Consultation now for a confidential discussion and an honest opinion as to the merits of your situations and the best course to follow. We have the ability, technology and expertise to assist you wherever you may be, in Australia, or around the world.

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