When applying for an Australian visa, all applicants will be asked the same question: “Have you ever been convicted of an offence?”
While there is no express definition of “conviction” in either the Migration Act or Migration Regulations, there is common law guidance as to what defines a “conviction”. The widely accepted definition is that a conviction is “the complete orders made by a court after finding an accused person guilty of an offence including both the finding of guilt and the sentence passed as a consequence”.
Immigration believes that a finding of guilt – even with no conviction recorded – constitutes the “complete orders made by a court” and is therefore a “conviction” as defined above.
So if you were required to attend court and were found guilty of an offence, and the court has passed sentence, then you have been convicted of an offence.
This means that if you said ‘no’ to the question on the application form, but you have been found guilty of breaking the law, then you have answered incorrectly.
How can this affect your application?
This is where Public Interest Criteria 4020 ‘The Fraud Criterion’ can be enlivened. Providing an incorrect response to Immigration – whether intentionally or unintentionally – can constitute fraud.
Immigration requires that:
‘There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.’
If you have made an innocent mistake and are able to explain this, then you may not fail to meet PIC 4020. However, if Immigration believes that false information has been provided on purpose (either by yourself or a third party), then the application will likely be refused under this PIC.
All family members included in the application will also be refused a visa, and all will be subject to a 3-year ban on the grant of any visas to Australia, unless there are compassionate and/or compelling reasons to allow for grant within the ban period.
Points to note:
A question about convictions also appears on Incoming Passenger Cards for all travellers to Australia, and as this is a legal document it is important to ensure the question is answered correctly. It may seem insignificant at the time, but Immigration will check these when assessing future visa applications.
The Australian Government has taken a tough stance on current visa holders who have previously provided an incorrect response in their visa applications and/or passenger cards, and are actively issuing notices of their intention to cancel the visa based on fraudulent responses.
The character provisions for Australian Citizenship are assessed differently than those for an Australian visa. Providing incorrect information about convictions or other criminal history (including traffic offences) will usually lead to a refusal.
If you have any character concerns, it is a good idea to be up front with Immigration and to provide any further information on the offence/s. Hiding these now can end up costing you your permanent residency visa or citizenship in the end.
AMVL Migrations has experienced agents who can provide guidance and assistance for applicants with character issues, 4020 notices, or cancellation notices from Immigration.
Please contact our office for further information.
