Will a Criminal Record Affect My Visa?

by Ugur Nedim

Holders of ‘temporary visas’ such as ‘student visas’, ‘work visas’ and ‘sponsored visas’ often ask:

  • Will a criminal conviction (or ‘criminal record’) make me lose my visa? or
  • Will a criminal conviction (or ‘criminal record’) stop me from getting permanent residency?

The answer is: It depends on whether you pass the ‘character test’!

Section 501 of the Migration Act 1958 says that an existing temporary visa may be cancelled, or a visa application may be refused (including an application for ‘permanent residency’), if a non-citizen fails to pass the ‘character test’.

What is the ‘Character Test’?

The ‘character test’ is contained in section 501(6) of the Migration Act.

A person fails the character test if:

  • the person has a ‘substantial criminal record’ (see the definition below), or
  • the person was convicted of a criminal offence while a detainee, or
  • the person is or was associated with an individual or group reasonably suspected of being involved in criminal activity, or
  • the person is otherwise not of ‘good character’ because:

– of current or past criminal conduct, or

– there is a significant risk that the person would:-

(1) commit a crime in Australia, or

(2) harass, molest, intimidate or threaten stalk another person, or

(3) ‘vilify’ a segment of the Australian community (eg promote racism), or

(4) ‘incite discord’ (eg promote community or cultural divisions), or

(5) represent a ‘danger’ to the Australian community through ‘violent’ or ‘disruptive’ activities.

The Minister for Immigration – or those to which he ‘delegates’ (gives) authority decide whether a person passes the ‘character test’.

What is a ‘Substantial Criminal Record’?

A ‘substantial criminal record’ is defined by section 158(7) as where:

  • a person has been sentenced to death in any country, or
  • a person has been sentenced to life imprisonment in any country, or
  • a person has been sentenced to a term of imprisonment of 2 years or more in any country (since the writing of this article, this has been reduced to 12 months), or
  • a person has been sentenced to more than one term of imprisonment, the total of which is 2 years or more, or
  • the person has been acquitted of any offence due to ‘unsoundness of mind’ or ‘insanity’ and detained in an institution.

Can I Appeal Against a Decision to Cancel or Refuse a Visa?

Generally Yes, an appeal can be lodged to the Administrative Appeals Tribunal (AAT).

However, there is no right to appeal against a decision by the Minister to cancel or refuse a visa on the grounds of ‘national interest’.

Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience in criminal defence. He is the Principal of Sydney Criminal Lawyers®.

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