Charged, Not Convicted: Does it Affect My Visa or Citizenship Application?
Being charged with a crime can be a stressful experience, especially if you are a non-citizen holding a temporary Australian visa aiming for permanent residency (PR) or seeking Australian citizenship. The question of how a pending charge, without a conviction, will impact your immigration status is and should be a concern.
Character Test: The Core Consideration
A criteria within assessing a visa application is the Character Test as outlined in the Migration Act 1958. This test requires applicants to demonstrate good character and show they do not pose a risk to the Australian community. While a criminal conviction is a clear factor, a pending charge can also raise concerns among the case officers.
Related: PR at Risk? What to Do When the Department Investigates Your Past Conduct
How Does a Charge Impact My Visa/Citizenship Application?
While it is true that you haven’t been found guilty yet a pending charge on record may still affect your visa/citizenship application because it raises concerns about your character and potential risk to the public.
The Department of Home Affairs (DoHA) will consider the severity of the alleged offense and any potential harm it could cause to the community.
Authorities will review all available information, including police reports, court reports and more.
The applicant's honesty and transparency in disclosing the charge are essential, failure to disclose any charges, may result in a visa refusal under Public Interest Criterion (PIC) 4020.
What Will Happen to My Visa/Citizenship Application If I Don’t Meet Character Due To My Charge?
Depending on the severity of the charge, especially those leading to substantial criminal records or significant jail time, could cause a failure of the character test and result in a visa/citizenship refusal or a mandatory visa cancellation.
Less serious charges may not automatically result in a visa refusal or a mandatory visa cancellation. Yet, their visa/citizenship application will still be closely assessed. Visa applicants may receive a Notice of Intention to Consider Cancellation (NOICC) or a Notice of Intention to Consider Refusal (NOICR) or even an invitation to comment (S57) letter from DoHA. When visa applicant received one of these letters/notices, they only have a limited period to respond to address DoHA’s concerns before the application reach a decision.
Alternatively, the visa application may be referred to Visa Application Character Consideration Unit (VACCU), a specialised unit team within DoHA. When a visa application is referred to VACCU, applicants can expect a delay in processing time.
What Steps Can I Take to Avoid a Visa Refusal/Cancellation due to My Pending Charge?
Seek tailored professional advice from an Accredited Specialist in Immigration Law on your next best steps. If your visa/citizenship application is refused or your visa is cancelled due to character issues, you may have options to seek merits review with the Administrative Review Tribunal (ART).
Related:
Visa Options After Character Cancellation – Is There Still Hope?
Do I Need a Migration Agent or an Immigration Lawyer? Understanding the Difference
Do I Need to Disclose Minor Offences or Spent Convictions on My Visa Applications?
Can I Apply for Australian Citizenship After a Visa Cancellation on Character Grounds?
How Can Agape Henry Crux Help
It is best to take action as soon as possible before it gets too late. Read our latest clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling. AHC Lawyers’ team of immigration lawyers specialise in handling highly complex matters. You can schedule an appointment with one of our lawyers to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin, and Cantonese. If this isn’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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