Question of the Week
Will a court decision affect my visa application?
Category: No Category
Question asked
Hi
I have to apply for 489 visa and i have one problem
My brother in law put a false on me in court for arguments. What if I have been charged?
Is this will affect my visa?
Answer provided by Migration Agent
Hello MA,
Thanks for your question.
Any applicant for 489 visa subclass needs to satisfy condition 4001 as per Cl 489.211 of Sch 2 of Migration Regulations 1994. Condition 4001 is explained below which essentially means applicant needs to satisfy character test which will require you to send police clearance from all countries where you stayed in total and answer questions regarding current, past convictions in your country or any other country. You have to be honest about your criminal history regardless of what visa you are applying for.
4001
Either:
(a) the person satisfies the Minister that the person passes the character test; or
(b) the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character test; or
(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character test; or
(d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.
However, depending on your situation, you can still pass the character requirements even if you have a criminal history because there are provisions to request for the Department to exercise their discretion to not cancel your visa.
As per Migration Law, Case officer can refuse to grant a visa to a person based on his discretion if:
(c) the Case officer reasonably suspects that the person does not pass the Character test; and
(d) the Case officer is satisfied that the refusal or cancellation is in the national interest.
However, you can’t pass character test and you visa will be refused if:
(i) applicant have substantial criminal record (As per police records)
A persona has substantial criminal record if:
a. Sentenced to death or a lifetime prison sentence
b. sentenced for a period of 12 months or more of imprisonment
c. sentenced to two or more separate periods of imprisonment (including any that you are serving at the same time), where the total of sentence periods equal 12 months or more
d. found as “not fit” to plead towards an offence, by a court, and also found to have committed the offence (of which resulted in you being detained)
(ii) or sexually based offences involving a child
or the purposes of this section, a person does not pass the character test if:
the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
(i) an offence related to people smuggling;
(ii) an offence of trafficking in persons;
(iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or
(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) 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; or
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
(f) the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(v) a crime that is otherwise of serious international concern; or
(g) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
The best position is to disclose all convictions, arrest warrants, pending charges, and court appearances no matter how small or big it is. I can’t comment on court case, but if you are confident that it will get proved in court that you are innocent very soon, it may be better option to wait and get acquitted. Otherwise you may choose to continue with application and disclose all information with explanation.
If you chose to go ahead with application, I'm happy to help you throughout the application process. Please let me know if I can be of any further assistance
If you need further services from myself, please contact Amy at amy.jacobson@ask-an-agent.com.au or visit https://www.ask-an-agent.com.au/visa-quote. Remember to mention your Question ID so that I can keep providing immigration services to you
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