You want to come to Australia to live with your partner, but you’ve got a bit of a past. It probably comes as no surprise that a criminal record – especially where you’ve served time in prison – can make getting your visa a little bit more challenging.
Not impossible, however, by any means.
There are various conditions under which you may be able to get a partner visa even if you or your sponsor has a criminal record. The first question is one of degree – if a person is not considered to have a ‘substantial criminal record’, they will not automatically have character problems.
The Australian Migration Act 1958 outlines a ‘substantial criminal record’ as having been sentenced to a single term of imprisonment or two or more terms of imprisonment, adding up to a total of 12 months or more.
In the case of partner visas, this definition comes directly into play. ‘Sentencing’ is the operative word here, since a sentence may have been suspended, or the person pardoned, but is still considered to have been ‘sentenced’. A substantial criminal record results in an automatic failing of the Character Test but there are options to be considered.
Case officers may have no discretion as far as imposing the Character Test is concerned but they do have the discretion to take into account your past and present conduct and behaviour. If a substantial criminal record results in you failing the Character Test of your partner visa application then there will be a further assessment and the above factors will be considered to allow a waiver in individual cases.
Your past criminal behaviour will be weighed against demonstrated good behaviour since the sentencing. The decision will be based on the findings of this assessment. If the officers find that your behaviour has been reformed genuinely they may decide to waiver Character Test section. The opposite of which may lead them to believe that you are still a threat to Australia and your visa may be refused. In case of partner visa, this is as applicable to a sponsor as it is to an applicant.
Another point to consider here is the presence of strict laws with respect to incidences of family violence. The safety and security of visa applicants is the priority for the Australian government.
The most important first step is to seek advice from an experienced immigration expert. Their role is to guide you through a successful partner visa application process when you have a criminal record.
Every detail needs to be discussed transparently so that there is full disclosure during the visa application process. Though some applicants might be tempted to hide facts in the hope to get the visa quickly, this is likely to have very dire consequences.
The need to provide police checks will make hiding any criminal record impossible. Do not give any misleading and false details to the Department – which will lead to not only refusal of visa but could constitute a criminal offence.
Getting a partner visa with a criminal record is not an impossible feat – provided you are upfront and aware that this might make processing a bit longer.