Clarity Law

Specialist Criminal Law Firm Queensland
Sunday, 29 October 2023 18:28

Will a Criminal Charge Affect a Visa Application?

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Will a Criminal Charge Affect a Visa Application

A foreigner who wishes to visit or remain in Australia must be of good character. Character requirements must be met if a person is to continue holding a visa, apply for a visa, or renew a visa. The Australian Department of Home Affairs manages immigration in Australia, and it is the Minister or her delegates who assess the character requirements as they apply to a visa holder or applicant.

 

What are the Character Requirements?

The main legislative section that refers to character requirements is section 501 of the Migration Act 1958.

The overarching requirement is for a person to pass a character test. To this end, the government applies a character test to those applying for a visa. The government may also apply the character test to cancel a visa that has already been granted.

One of the key indications of bad character is if a person has a substantial criminal record. A substantial criminal record, among other things, includes being sentenced to a single or combined term of imprisonment of 12 months or more (it does not matter how much time you serve in prison, if any, just that the head sentence was 12 months or more)

Other indicators of bad character include, but are not limited to:

  • A person has a proven sexual offence involving a child.
  • A person has been convicted of a domestic violence offence or has been subject of a domestic violence order.
  • Having regard to the person's past and present criminal conduct and the person's past and present general conduct, the Minister considers the person not to be of good character.
  • The Minister believes that, in the event the person was allowed to remain in Australia, there is a risk that the person would:
    • engage in criminal conduct in Australia; or
    • harass, molest, intimidate or stalk another person in Australia; or
    • vilify a segment of the Australian community; or
    • incite discord in the Australian community or in a segment of that community; or
    • represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

 

Significance for Criminal Law

There is no specific section of law that states a person’s visa application or visa status will be affected only by a criminal charge. It is possible, however, that the Department of Home Affairs my consider some allegations serious enough to influence a character assessment prior to a conviction.

Once a person is convicted of an offence, however, this can trigger the cancellation of a person’s visa depending on the nature of the offence, and the extent of the penalty.

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.

A cancelation or refusal of a visa can be appealed, if the decision was not made by the Minister personally.

 

Conclusion

The more serious the criminal conduct, the more likely it will affect a person’s visa status. A person is unlikely to have his or her visa cancelled for a speeding offence or a parking infringement. If the person is charged with a serious offence, however, it would be wise to obtain legal advice regarding the possible implications this may have for the person’s visa status.

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Jacob Pruden

Jacob is a former barrister and now criminal defence lawyer with over 8 years experience appearing in courts throughout South East Queensland representing clients charged with criminal offences.