Speeding fines, drunk and disorderly, fights in public or elsewhere, minor assault and theft… these are some of the charges that we have seen on a person’s police record during the migration process.
Quite often these charges are viewed as a kind of rite of passage; offences committed at the beginning of adulthood due to any number of factors, which no longer exist as the person is now on the straight and narrow, living the dream in Australia.
Whilst it is common to move on from your past to look to a bigger and brighter future, clients are often shocked to find out they are required to recount offences in great detail during the processing of a visa application. Sometimes the offences are more than 20 years old, but the Department of Immigration may still require an explanation about the circumstances surrounding the offence, particularly for more serious charges.
Before any visa is granted a person must satisfy immigration that they are of good character. The legal definition of good character spans over several pages and the policy interpretation flows to some 33 pages.
We are seeing a record number of visa and citizenship applications either refused or questioned further on the basis of information relating to a person’s character. Our colleagues have reported some interesting situations, such as when a person was refused Australian citizenship for failing to satisfy the Department of their good character – the decision came after the Department checked the person’s driving record which showed they had crashed a vehicle while on their Learner’s driving permit!
On a serious note, an assessment of a person’s character is significant. A character is more than mere adherence to road rules. Record numbers of character cases are currently under review at the Federal Court of Australia and 60 per cent of the applications relate to decisions made under character provisions in the Migration Act 1958.
The consequences are severe if a person is found to not be of good character. If a person is in Australia on a visa and they lodge another visa application, and that application is refused on character grounds, then any current visa is also cancelled. This follows the view that if a person is found to be not of good character then they should not be permitted to continue their stay in Australia.
Note that each country and each body of law has its own rules when it comes to “spent” convictions.
Certain serious convictions may be never removed from a person’s record even after a substantial amount of time passes since recording the conviction.
It is best to disclose any convictions, charges, pending charges, including spent convictions and anything removed from official records. For the purposes of migration to Australia, all convictions are relevant, whether or not they are spent or removed from official records. By disclosing convictions up front, you stand in a better position in a future visa application.
If the Department becomes aware of a character problem in the visa application and that information was not previously declared, a person can also be subjected to false information provisions. If false, misleading or bogus information and documents are provided in an application, a person can face a ban of up to three years from future visa applications. If the false, misleading or bogus information relates to identity documentation then the ban is for a 10 year period.
Much of the Department’s policies and operational framework reflects a global shift towards border management and protection. Existing laws are applied strictly while new laws relating to the same issues are debated in Parliament before coming into effect.
Strong supporting evidence from affected Australian citizens and/or businesses may be required to support an application with character concerns.
When dealing with registered migration agents or lawyers during the visa application process you are best advised to disclose everything up front, no matter how trivial or old the information may be. Your best chance of success lies in your ability to satisfy all the visa criteria but to do so you must ensure that you are being honest upfront and open about your history and identity.