Can you get permanent residency in Australia with a criminal record?

To apply for a permanent residency visa in Australia, you must pass the good character test. The Department of Home Affairs (DoHA) has the discretional power to refuse and cancel a visa if the applicant does not satisfy DoHA that they pass the character test.

What is the character test?

The purpose of the character test is to protect the Australian community from the risk of harm posed by criminal activity or other serious conduct by non-citizens, in line with community and government expectations, and to maintain the integrity and public confidence in the character framework. It sets out in section 501 of the Migration Act 1958. You must pass the character test to be able to apply for permanent residency in Australia.

Failure to meet the requirements

You may not meet the character test requirement if:

  • You have a substantial criminal record. You have a substantial record if you have been:
    • sentenced to death or imprisonment for life
    • sentenced to a term of imprisonment of 12 months or more
    • sentenced to two or more terms of imprisonment (even if served concurrently) where the total is 12 months or more
    • found by a court to not be fit to plead in relation to an offence but found to have committed the offence and detained in a facility or institution
  • You have committed an offence while, during or after escaping from the immigration centre.
  • You have been or are a member of a group that the Minister reasonably suspects of being involved in criminal conduct.
  • The Minister reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether or not you have been convicted of such an offence.
  • Your past and present criminal or general conduct shows that you are not of good character.
  • There is a risk that you would engage in criminal conduct in Australia if you were allowed to enter or to remain in Australia.
  • You have been convicted of sexually-based offences involving a child in Australia or a foreign country.
  • You have been assessed by the Australian Intelligence Organisation to be a security risk.
  • You are subject to Interpol notice.

How does DoHA check your character?

DoHA has a variety of methods or avenues of enquiry to check whether the applicant passes or fails the character test. Some of the potential checks conducted by the DoHA are:

  • Self-declaration on character issues on visa application forms.
  • Police certificates from Australia and foreign countries.
  • Prisoner list provided by corrective services agencies
  • System checks with other government agencies.

It is important that you are honest in your dealings with DoHA. If it is found that you did not disclose a criminal record, DoHA has the power to refuse or cancel your visa application. It is also crucial to ensure consistency in your applications. For example, in your temporary visa application, you declared that you did not have a criminal record. You then apply for a permanent residency visa and is asked by DoHA to provide police certificates for every country you have lived in for at least 12 months in the past ten years. On the police check, it is revealed that you have a criminal record. This would jeopardise your permanent residency application.

What are your review rights?

The Administrative Appeals Tribunal (AAT) can review the DoHA’s decision to refuse to grant or to cancel a visa. Strict time limits apply. If you are in Australia, you have 9 days after receiving the notice to apply for an appeal. If you are outside Australia, you have 28 days.

Besides the AAT, your matter may also be reviewed by the Federal Court or High Court.

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