For an Australian partner visa application, both the sponsor (the Australian citizen, permanent resident or eligible New Zealander) and the applicant (overseas national) must meet character requirements associated with this visa type.
This sometimes comes as a surprise to sponsors as they presume it’s only the visa applicant who needs to meet these requirements. This most definitely isn’t the case.
Sponsor
In November 2016, it became a requirement for sponsors to provide both Australian and overseas police clearances, for any country they have spent at least 12 months in over the past 10 years. For many sponsors this is just Australia, but for those who have worked abroad or travelled extensively, this may mean obtaining several different police clearances. The sponsor must also consent to any offences being disclosed to the applicant.
Any offences committed by the sponsor will be looked at under two areas: the relevancy of the offence and the significance of the criminal record.
Broadly speaking, relevant offences include violence, harassment, human trafficking and people smuggling. Immigration will not automatically refuse a partner visa application if the sponsor has convictions in these areas, but does not have a significant criminal record.
What is a significant criminal record?
A significant criminal record is generally defined as:
– A life sentence
– A sentence of 12 months or more
– Two or more terms of prison that total over 12 months.
For sponsors with both a relevant offence and a significant criminal record, Immigration will refuse the visa application unless there are compelling reasons not to. These might include the length of the partner relationship, best interests of any children and how long ago the offences took place.
Generally, sponsors are judged on a case-by-case basis when it comes to meeting the character test.
Applicant
Just like the sponsor, an applicant must provide both Australian and overseas police clearances for any country they have spent at least 12 months in over the last decade.
Character issues cover serious offences such as involvement in criminal gangs, escaping from Immigration detention, slavery, drug trafficking and sexual harassment, as well as less serious offences, such as minor theft and resisting arrest.
The Case Officer will consider your police records to determine whether you are likely to engage in criminal activity in Australia, including committing crimes, harassment, vilification, inciting discord or being dangerous to the Australian community. The Case Officer will also consider any sentences you have had – whether or not they were serviced.
Don’t hide your past
Don’ lie. We absolutely cannot stress this enough. Time and again we hear from people who didn’t disclose offences on their partner visa application or on previous visa applications.
It is best to be upfront with any character issues, even if you believe that are minor. This includes charges, pending charges, spent convictions and anything removed from official records. Do not assume that a spent conviction or a conviction from many years ago is no longer relevant – it is to Australian Department of Home Affairs.
Immigration looks at your previous visa applications and landing cards to confirm that you have answered all questions honestly. If you tick ‘No’ to criminal records on one visa application (this may be a 417 visa where a police clearance is not mandatory) – whether inadvertently or not – and you then lodge a further visa requiring police clearances, you may face a PIC 4020. PIC 4020 allows Immigration to refuse to grant your visa as you are deemed to have “provided information that is false or misleading”.
This sounds serious – and it really is.
If Immigration learns of your character issue, and you didn’t previously declare it, your application may be subject to false information provisions and this can result in a ban of up to three years from future visa applications.
Drunk and disorderly, fighting outside a pub and theft of public property (street signs) are some of the charges we have seen on police records. These charges are often viewed as an adolescent rite of passage or a poor decision by an immature teenager. As many offences like this happen at the beginning of adulthood and were influenced by factors that no longer exist (mixing with the wrong crowd, being out of work, family tension), the applicant is very unlikely to reoffend and is often well-established in employment, has a family and had not recommitted as an adult.
The issue is not the offence itself – it is the fact that it was not disclosed.
Refusal based on character grounds
If you do not meet the character requirement of a partner visa, your case will go to the Visa Applicant Character Consideration Unit (VACCU) for further assessment. Immigration will allow you to provide further information. This is where you need to demonstrate to Immigration that you have learnt from your criminal convictions, shown remorse and lead a lawful existence.
A detailed submission is required and it may include letters of support from employers, friends, family members, religious organisations, sporting clubs (such as coaching the soccer team) and involvement in the community (charities, committees or work groups). It can take many months for the VACCU assessment and can be very stressful.
If the VACUU does not see reason to overlook your character record, the visa will be refused. You could then need to appeal the decision through the Administrative Appeals Tribunal (AAT). Again, you’re facing a very long wait if your case does proceed to the AAT.