AUSTRALIA: Character Issues and the Fraud Criterion in Visa Applications

August 15, 2018

When applying for an Australian visa, all applicants will be asked the same question – “Have you ever been convicted of an offence?” How do you answer this thorny question?

What is a “Conviction”?

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 “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 authorities take the position that a finding of guilt – even with no conviction is recorded – constitutes the “complete orders made by a court” and is therefore a “conviction” under this definition.

If you were in the past required to attend court, were found guilty of an offence, and the court passed sentence – you have been convicted of an offence. So if you said no to the question on the visa application form, you’ve answered incorrectly.

How Will Answering Incorrectly Affect Your Visa Application?

This is where Public Interest Criteria 4020 “The Fraud Criterion” comes in. 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 – you may pass the PIC 4020 standard. However, if Immigration believes that the false information has been provided intentionally (either by yourself or a third party) – your application will likely be refused under PIC 4020.

To further compound things, 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 – absent compassionate and/or compelling reasons to grant a visa within the ban period.

What Does This Mean for Visa Applicants?

A question about convictions also appears on Incoming Passenger Cards for all travellers to Australia. As this is a legal document, it is important to answer the question correctly. It may seem insignificant at the time, but Immigration will check these when assessing future visa applications.

The Australian Government takes a tough stance on current visa holders who have previously provided incorrect responses in their visa applications or passenger cards. Immigration authorities routinely issue notices of their intention to cancel visas based on fraudulent responses.

When it comes to Australian Citizenship, the character provisions are assessed even more strictly than those for an Australian visa. Providing incorrect information about convictions or other criminal history (including traffic offences) will almost always lead to a refusal.

Bottom Line?

If you have any character concerns – it is always a good idea to be up front with Immigration authorities and provide any further information on the offence(s). Hiding these can only end up costing you your permanent residency visa or citizenship in the end.

Newland Chase has experienced Australian migration agents who can provide guidance and assistance for applicants with character issues, 4020 notices, or cancellation notices from Immigration. For more immediate or case-specific concerns, don’t hesitate to reach out to any one of our four Australia offices – located in Sydney, Melbourne, Perth, and Brisbane. (See contact information here.) Or email us at [email protected].

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