Society says that if someone commits a crime, they should be properly punished. But sometimes a crime, however minor, can have far-reaching and unintended consequences.
This can apply to people who wish to migrate to Australia, as the visa application process requires immigrants to be of good character. But the good news is that having a criminal record will not necessarily foil those plans.
Here’s a quick guide to moving to Australia with a criminal record, and how a police clearance for a visa in Australia works.
Visa applicants and their family members must satisfy the character test in order to be granted a visa.
The Migration Act sets out the requirements of the character test. Applicants will not pass the character test for many reasons, including:
- Having a substantial criminal record.
- Committing an offence while in, or escaping from, immigration detention.
- Reasonable suspicion of involvement with organised crime or terrorist organisations.
- Reasonable suspicion of involvement in a war crime, human trafficking, torture or genocide.
- The person’s conduct suggests they are not of good character.
- There is a risk that the person could engage in criminal conduct while in Australia.
- Being found guilty or convicted of a child sexual offence.
- A risk to national security or the Australian community.
The character requirement is ongoing – even after being granted a visa, the successful applicant and their family members must still be able to demonstrate that they are of good character. If at any time the character test is not satisfied, the visa can be refused or cancelled.
Definition of substantial criminal record
One of the most important aspects of the test is the definition of ‘substantial criminal record’. It’s fairly obvious, but any criminal record that includes a life or death sentence is considered to be substantial. The definition also includes:
- Any criminal record with a prison sentence of at least 12 months, or two or more sentences that total at least 12 months.
- Suspended sentences and those served in residential treatment facilities.
- Anyone who has been acquitted of an offence or has been deemed unfit to plead for mental health reasons, but has been found by a court to have committed the offence and has been detained in an institution.
This means that a visa applicant may still satisfy the good character requirements with a criminal record, as long as any offences are minor and haven’t resulted in more than 12 months of jail time.
The Australian Government recognises that while some criminal convictions create a genuine concern for the wellbeing and safety of the Australian public, other minor crimes should not have an ongoing impact.
Police clearances for a visa
Visa applicants are likely to be required to provide a police certificate with their visa applications. The list of countries this applies to and information on how to obtain the certificates can be found here.
Applicants who have spent at least one year since the age of 16 living in any of the specified countries during the past 10 years must provide a police certificate from that country. The certificate is basically a police check, and will show if any criminal offences were committed during the applicant’s period of residence.
Statutory declarations and Public Interest Criterion 4020
Applicants may also be asked to complete a statutory declaration attesting to their good character. These must be completed with as much detail as possible. The penalties for submitting false information can include imprisonment
Public Interest Criterion (PIC) 4020 applies to many popular visas. It requires that applicants provide sufficient evidence of their identity. Failure to provide sufficient evidence, or providing false and misleading information, will mean that the visa application is refused.
If you have a criminal record for an offence that is not considered serious, you may still be able to make a successful visa application. However, the process of proving your good character can be complicated, especially when it comes to obtaining police certificates, completing a statutory declaration and satisfying PIC 4020.
Move Migration is highly experienced in all of these elements and can guide you through the process.