Saturday, 12 September 2009

The character requirement

Another one of my Australia visa application worries, is the requirement to declare any past criminal convictions.   My concern is two pronged.  Firstly, will my criminal record prevent me from obtaining a residency visa for Australia?  And secondly, I know I have a criminal record but what is it for?  It was so long ago, I certainly couldn't detail it on a visa application form.  I also wonder, will it matter that on my last two tourists visits to Australia, I ticked 'no convictions' on my entry card and eVisa?

The first answer was easier to obtain.  According to the DIAC website all partner visa applicants need to meet a Character Requirement these are described on Factsheet 79 as:

The character test

A person will fail the character test where:
  • they have a substantial criminal record
  • they have, or have had, an association with an individual, group or organisation suspected of having been, or being, involved in criminal conduct
  • having regard to the person's past and present criminal conduct, the person is found not to be of good character
  • having regard to the person's past and present general conduct, the person is found to be not of good character
  • there is a significant risk that the person will engage in criminal conduct in Australia, harass, molest, intimidate or stalk another person in Australia, vilify a segment of the Australian community, or incite discord in the Australian community or in a segment of that community, or represent a danger to the Australian community or a segment of that community.
    See: Fact Sheet 78 - Controversial Visa Applicants

Substantial criminal records

A person is deemed to have a substantial criminal record if they have been:
  • sentenced to either death or life imprisonment
  • sentenced to a term of imprisonment for 12 months or more
  • sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more
  • acquitted of an offence on the grounds of either unsoundness of mind or insanity and, as a result, the person has been detained in a facility or institution.

Discretionary powers and Ministerial Direction 41

When a visa applicant or visa holder does not pass the character test, decision-makers will decide whether to refuse the application or to cancel a visa. Exercise of this discretion will take into account a wide range of factors, including the protection of the Australian community, whether the person began living in Australia as a minor, the length of time the person has been living lawfully in Australia, Australia's international law obligation. Other factors such as the person’s family ties in Australia, the person's age, their health and level of education will also be taken into consideration.
The exercise of the discretion is guided by Ministerial Direction 41 made under section 499 of the Act.
See: Ministerial Direction 41 (1.2MB PDF file)
Put simply, unless you've spent more than a year in prison or have an extensive criminal record you should be okay.

To demonstrate that you meet the requirement, you are required to supply a police certificate that details the status of your criminal record.  In the UK a police certificate can be obtained (for a fee!) from the Association of Chief Police Officers.

As to the question: what will your police certificate reveal?  The answer to that seems quite complicated.  All recent convictions will listed.  If, like me, you have spent convictions or those which have been stepped down your certificate will state "No Live Trace".  You are still expected to declare these convictions and you may be requested to fill in an additional Form 80.  Those with no criminal record will receive a certificate that says "No Trace".

Unfortunately, "No Live Trace" isn't enough information for me to complete the form and answer my second initial question (what is my criminal record?).  Luckily you have another option.  Under the Data Protection Act anyone has the right to request (for a nominal £10) fee details of any computer records held about them, from any company, government body, local authority and the Police.  In my case it was a simple as downloading a Subject Access Request form from my local Police force website and presenting myself with my passport, driving licence and recent bank statement for ID at my nearest Police station.  Once you've handed the desk sargeant your form and cheque (cash may add an extra delay I was told) all you have to do is wait up to forty days.

I received a print out within a week, before the cheque had even cleared.  It was embarrassing to see it all in black and white and to share it with my partner.  But at least I now know what to write on my visa application form.  I will still have to wait and see whether my previous failure to declare will have an impact on my new application.

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