Can you get a visa with a criminal record?
You might think you can’t get an Australian visa with a criminal record, but that’s not always the case. Our legal experts explain what affects your application.
How a criminal record can affect getting an Australian visa
A criminal record can affect getting an Australian visa because all Australian visa applicants must meet Public Interest Criterion (PIC) 4001, containing a character test. Small offences, or offences that were committed many years ago (as a minor, for example) may not cause you to fail your character test and prevent the grant of your visa, but more serious convictions (such as being sentenced to imprisonment of 12 months or more for a criminal offence or criminal offences, or if you have committed sexual offences or family violence) can lead to a visa refusal.
A criminal record can make the visa application process more difficult, because your application will face greater scrutiny by the Department of Home Affairs (DOHA). However, this alone doesn’t mean your visa will be refused. When reviewing your application, the DOHA will weigh the balance of positive factors against the risks to the Australian community.
This includes factors like:
- The seriousness of the offence/s
- Your pattern of behaviour and rehabilitation since the offence/s were committed
- If, overall, you are still of acceptable character to be granted a visa
What does the DOHA consider when deciding whether to grant a visa to Australia with a criminal record?
If the DOHA determines that you have failed to meet the character test due to your criminal record, your visa application may be refused, irrespective of whether you meet the other requirements for grant of the visa.
This can happen if:
- You have a substantial criminal record
- You have been convicted of committing a sexually based offence against a child or family violence
- You have been convicted of committing offences while in immigration detention
- The DOHA determines that you may engage in criminal behaviour or pose a danger to the Australian community
Above all, protection of the Australian community is the highest priority in cases with a character issue.
“It is possible to still pass the character test despite having a criminal record,” says Mario Amor, Principal Lawyer at PAX Law and a solicitor member of the Law Society of New South Wales. “Some factors the DOHA will consider are if the offences were not serious, were isolated, or if you can demonstrate rehabilitation or strong ties to the Australian community.”
What information do you need to provide about your criminal record?
When applying for an Australian visa, it’s important to declare all criminal charges, provide answers to all questions in the application form and supply supporting documents. The DOHA may also request further information during the visa processing period, like a police certificate or a Form 80.
The DOHA will consider all the circumstances of your case, so it’s important to clearly explain your circumstances, especially where offences have been committed, or your past conduct indicates that you fail (or may fail) to meet the character requirements for grant of the visa. If you provide false or misleading information as part of your application, these are further grounds to refuse your visa application. You risk having your visa cancelled and being banned from applying for further Australian visas for a period of time if your undisclosed criminal history is discovered later.
Getting an Australian tourist visa or working holiday visa when you have a criminal record
The same character requirements apply to temporary visas, like a tourist visa or a working holiday visa, as they do for permanent residency visas. The primary consideration for the DOHA is whether the applicant poses a risk to the Australian community. If there are reasonable grounds to believe that a risk exists if DOHA grants you the visa, your application will be refused. Factors such as your rehabilitation, ties to the Australian community, and the best interests of minor children in Australia will also be considered, though these rarely outweigh serious criminal conduct.
When applying for a tourist or working holiday visa, police clearances and other documents in relation to your character are not normally required to be submitted, however you must declare your criminal history. If you have a criminal record, it’s important to provide full and accurate information about your history and supply any supporting documents that relate to your past conduct, including minor offences and those that may be seen as spent, upfront at the time of lodgement of your application to prevent processing delays, as the DOHA may ask you for additional information during processing if it’s not already supplied. This is the case, irrespective of what type of visa you are applying for.
PAX Law can help you apply for a visa when you have a criminal record
If you have a criminal record, speaking to an immigration professional can be a big help. A criminal history can increase your chances of a visa refusal, and these can stay on your immigration record and affect future visa applications.
At PAX Law, we’re by your side throughout the whole process. First, we’ll assess your eligibility for an Australian visa by carefully reviewing your criminal history against the requirements of the visa, and we’ll provide legal advice on which visa pathway will work best for you. We’ll also make sure you understand any risks of refusal related to your situation. Our team will manage your visa application form on your behalf, and guide you on any documents that may be needed to support your application, such as court records and character references. We’ll prepare a detailed submission to the DOHA, explaining the circumstances of your criminal offending, highlighting the evidence provided to support your case.
If you’ve had a visa refused due to a criminal record, we can also represent you by lodging a review application with the Administrative Review Tribunal, seek a Ministerial Intervention, or act on your behalf in judicial review proceedings.
Our experienced immigration lawyers make sure that your history is presented in a complete and detailed way, including clearly setting out how the criminal offending fits within the context of your overall application, with strong supporting evidence, giving you the strongest possible chance of achieving a successful outcome on your application.
FAQs
If you have some family in jail, you will not fail to meet the character test, but for certain visa subclasses to be granted to you, non‑migrating members of your family unit (including your spouse, de facto partner or child) must satisfy PIC 4001, meaning they must also meet the character test. In these cases, having some family in jail will not result in you failing the Australian character test, but your visa can be refused if a family member does not meet PIC 4001.
If you have a character issue, such as a criminal record, the types of documents to provide with your visa application may include police clearances, court records, evidence that you have completed court‑ordered programs, character records, and a statutory declaration completed by you, explaining the offence, circumstances, rehabilitation, your future plans, etc.
At PAX Law, we ensure that we submit a thorough application with all required supporting documents so that the DOHA has all the information that it needs to make a decision.