Partner Visa Overseas Convictions

A partner visa overseas conviction does not automatically stop an applicant from being granted a partner visa in Australia. A conviction recorded in another country is assessed under the same character test as an Australian conviction, and the Department of Home Affairs looks at the sentence, the conduct, the time that has passed and the person's circumstances. What matters most is that the partner visa overseas conviction is disclosed fully and explained properly from the start.

This guide explains how the law treats a partner visa overseas conviction. It covers the character test in section 501 of the Migration Act 1958, the meaning of "substantial criminal record", public interest criterion 4001, police certificates from every country where the applicant has lived, what to do when a country will not issue a certificate, translations, and whether expunged, spent, pardoned, quashed or juvenile records must be disclosed. It also explains the notice of intention to consider refusal, the Ministerial Direction that guides the decision, and review rights if the visa is refused.

The article applies to the onshore Subclass 820 and 801 partner visa, the offshore Subclass 309 and 100 partner visa and the Subclass 300 Prospective Marriage visa. For the wider framework, see the firm's complete guide to partner visas in Australia. Partners of New Zealand citizens applying for the Subclass 461 visa face similar character questions. This article is narrower. It deals only with criminal records from outside Australia. Australian charges, drink driving matters and section 501 cancellations of visas already held raise different questions.

Does an overseas conviction stop you getting a partner visa?

No. An overseas conviction does not, by itself, prevent the grant of a partner visa. The Department must decide whether the applicant passes the character test, and if the applicant does not, whether the visa should still be granted. Many applicants with a minor or old foreign conviction are assessed and granted a visa in the ordinary way.

The answer depends on three questions. First, does the partner visa overseas conviction give the applicant a "substantial criminal record" under section 501(7)? Second, if it does not, does the applicant's past and present criminal conduct or general conduct show that the applicant is not of good character? Third, if the applicant fails the character test, does the decision maker exercise the discretion to refuse, after weighing the factors in the current Ministerial Direction?

A minor fine for a traffic or public order offence many years ago is very different from a prison sentence for a violent offence. Most of the partner visa overseas conviction matters that come to the firm fall somewhere between those two points. The outcome in each case depends on the facts, the documents and how the record is presented. That is why a partner visa overseas conviction should be reviewed before the application is lodged, not after the Department raises it. The firm's general guide to what an immigration lawyer does explains when early advice is most useful.

The firm's guide on why partner visas get refused and its article on the most common reasons for Subclass 820 refusals explain how character issues sit alongside the relationship requirements. A genuine relationship does not cure a character problem, and a clean record does not cure weak relationship evidence. Both parts of the application must be right.

The character test in section 501: how a partner visa overseas conviction is assessed

The character test is set out in section 501(6) of the Migration Act 1958. A person does not pass the character test if any one of the listed grounds applies. If none applies, the person passes. Every partner visa overseas conviction is measured against these grounds.

The grounds most relevant to a partner visa overseas conviction are:

• the person has a substantial criminal record, as defined in section 501(7) (section 501(6)(a));
• having regard to the person's past and present criminal conduct, the person is not of good character (section 501(6)(c)(i));
• having regard to the person's past and present general conduct, the person is not of good character (section 501(6)(c)(ii));
• there is a risk that the person would engage in criminal conduct in Australia or harass, molest, intimidate or stalk another person, among other listed risks (section 501(6)(d)); and
• the person has been convicted of, or found guilty of, a sexually based offence involving a child (section 501(6)(e)).

Other grounds deal with associations with criminal groups, immigration detention offences, people smuggling and similar matters, security assessments and Interpol notices. They arise less often in a partner visa overseas conviction case, but the application form asks about each of them.

Substantial criminal record under section 501(7)

A person has a substantial criminal record under section 501(7) if the person has been sentenced to death, sentenced to imprisonment for life, sentenced to a term of imprisonment of 12 months or more, or sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. Being acquitted on the ground of unsoundness of mind, or found unfit to plead, and then detained in a facility or institution, is also covered.

Four points about this definition matter in a partner visa overseas conviction assessment:

• It is the sentence imposed that counts, not the time actually served. A sentence of 12 months that was suspended, or that ended early on parole or release, still meets the definition.
• Concurrent sentences are treated as if they were served one after the other. Two sentences of 6 months served at the same time can add up to 12 months for this purpose.
• A fine, a bond, community service or a good behaviour order is not a term of imprisonment. A partner visa overseas conviction that resulted only in a fine does not create a substantial criminal record, although it can still be relevant to general conduct.
• The definition applies to sentences imposed by courts outside Australia in the same way as Australian sentences.

If an applicant has a substantial criminal record, the applicant does not pass the character test. That does not mean refusal is automatic. It means the decision maker must decide whether to exercise the discretion to refuse. The firm's page on visa cancellations and character decisions explains how section 501 operates more generally.

Past and present criminal conduct and general conduct

An applicant whose partner visa overseas conviction falls below the 12-month threshold can still fail the character test under section 501(6)(c). The decision maker looks at the person's criminal conduct and general conduct as a whole, both past and present. The question is whether the person is "not of good character" at the time of decision.

Departmental practice gives weight to the seriousness of the conduct, how recent it was, whether it was repeated, and whether the person has shown remorse and rehabilitation. A single old conviction followed by many years of lawful life is assessed very differently from a recent pattern of offending. Evidence of the person's present character, including work history, community involvement and supporting statements, can be as important as the record itself. In a partner visa overseas conviction matter, the relationship statement can also show the stable life the couple have built, which is relevant to present conduct.

Do foreign convictions count under Australian migration law?

Yes. Section 501(12) of the Migration Act defines "court" to include a court of a foreign country, so a sentence imposed overseas counts in exactly the same way as a sentence imposed in Australia. A partner visa overseas conviction is not discounted because it was recorded in another legal system.

The same subsection gives "conviction" and "sentence" a wide meaning. Under the Act, a reference to a conviction includes a finding of guilt where no conviction was recorded, and a sentence includes any form of determination of the punishment for an offence. Imprisonment includes any form of punitive detention in a facility or institution. These definitions are designed to capture foreign outcomes that use different labels.

This is why the visa application forms ask whether the applicant has "been convicted of an offence in any country (including any conviction which is now removed from official records)". That question appears in Form 80, which the firm explains in its guide to completing Form 80 without errors, and in the character questions of the online partner visa application. The words "in any country" and "now removed from official records" are deliberate. They mean an applicant cannot answer "no" because the partner visa overseas conviction is old, foreign, minor or no longer appears on a local certificate.

Foreign legal systems use different words. A court in one country may "impose a penalty", in another "record a conviction", and in another "find the accused guilty without conviction". Some systems use administrative penalties for conduct that Australia treats as criminal, and others treat as criminal conduct that is not an offence in Australia. The correct approach is to disclose the outcome, describe it accurately, attach the court documents and explain what the outcome means under the law of the country where it was imposed. A partner visa overseas conviction described in vague terms invites further questions and delay.

PIC 4001 and the partner visa character requirement

Public interest criterion 4001 is the character criterion that every partner visa applicant must satisfy. It is satisfied if the applicant satisfies the Minister that the applicant passes the character test, or the Minister is satisfied after appropriate inquiries that there is nothing to indicate the applicant would fail to satisfy the Minister that the applicant passes the character test, or the Minister has decided not to refuse the visa despite the applicant not passing or being suspected of not passing the character test.

PIC 4001 is part of Schedule 4 to the Migration Regulations 1994. It applies to partner visas through the Schedule 2 criteria for each subclass:

• Subclass 820: clause 820.223, with clause 820.224 applying the same requirement to members of the family unit;
• Subclass 801: subclause 801.223(1);
• Subclass 309: clause 309.225, with clause 309.228 applying to members of the family unit;
• Subclass 100: clause 100.222; and
• Subclass 300: clause 300.223.

In practice, PIC 4001 is the reason the Department asks for police certificates. Departmental policy describes penal checking as part of the procedure for establishing whether an applicant meets the character requirements in PIC 4001. Where an applicant has a partner visa overseas conviction, the police certificates and court records form the core evidence on which PIC 4001 is assessed.

PIC 4001 sits alongside PIC 4020, the integrity criterion. A partner visa overseas conviction that is not disclosed can lead to refusal under PIC 4020 even where the conviction itself would never have caused the applicant to fail the character test. That risk is explained later in this article.

The firm's guide to the Subclass 820 partner visa requirements and its explainer on Subclass 820 and Subclass 801 set out the other criteria that apply at each stage.

When the partner visa overseas conviction is assessed: the temporary and permanent stages

A partner visa overseas conviction can be assessed at both stages of a partner visa: the temporary or provisional stage (Subclass 820 or Subclass 309) and the permanent stage (Subclass 801 or Subclass 100). PIC 4001 is a criterion at both stages.

At the first stage, the applicant provides police certificates from each country where the applicant has lived for the required period. Departmental policy for the Subclass 100 stage states that applicants must provide a current penal clearance for any country they have lived in for a cumulative period of 12 months or more since being granted the Subclass 309 visa. The same logic applies at the Subclass 801 stage: a new overseas posting or a long period abroad after the first stage can mean a new foreign certificate is needed, and the Department can ask for fresh checks where its earlier checks are out of date.

The character requirement is assessed at the time of decision. An applicant who is granted a Subclass 820 visa must still satisfy PIC 4001 when the Subclass 801 is decided. Any new conviction, in Australia or overseas, must be disclosed at the permanent stage. Changes in circumstances, including new charges or convictions, should be notified to the Department, and the firm's guide to Form 1022 change of circumstances explains how that is done.

Couples planning the whole process should read the firm's guides to the Subclass 820 partner visa and the partner visa document checklist, which show where character documents fit among the other evidence.

Police certificates for a partner visa: which countries and when

A partner visa applicant must provide police certificates from every country where the applicant has lived for 12 months or more in the past 10 years since turning 16, as well as an Australian police check where required. The Department of Home Affairs states this rule in its published guidance on police certificates, and Department policy explains that shorter periods in the same country can be added together to reach 12 months.

For a partner visa overseas conviction, the police certificate is usually the first document that reveals the record. The certificate from the country where the conviction was recorded will normally show it. In some countries, however, older or minor records are removed from the standard certificate after a period of time. That does not change the disclosure obligation in the application form, which asks about convictions "now removed from official records".

Points to note about police certificates:

• Each certificate must come from the official authority of that country, usually the national police or a central criminal records office. A local station letter is not normally enough.
• Certificates must be issued in the applicant's full name, and should cover any previous names, including names before marriage.
• A certificate that is not in English must be accompanied by an English translation (see below).
• Certificates have a limited period of validity for the Department's purposes. Timing matters, and certificates obtained too early can expire before the Department assesses the application.
• The Department may ask for a certificate at any stage, including after lodgement. Departmental guidance states that where an applicant cannot provide a requested document, the reason should be explained in the application.

Applicants who previously had a visa refused for any reason should also read the firm's guide on applying for a partner visa after a visa refusal, because earlier refusals and earlier character answers will be compared with the new partner visa overseas conviction disclosure. The firm's Subclass 820 evidence checklist and its guide on creating an ImmiAccount explain where police certificates are uploaded and how they fit with the rest of the application.

What if a country will not issue a police certificate?

Where a country will not issue a police certificate, has no procedure for issuing one, or will issue one only to residents, the applicant must explain this to the Department and provide the best alternative evidence available. Departmental policy contains a procedure for cases where a certificate cannot be obtained, and a delegate can decide the application on other evidence in an appropriate case.

This problem arises often in partner visa overseas conviction matters and in applications with no conviction at all. Some countries require the applicant to apply in person. Some will not issue certificates through embassies. Some have no central criminal records system. In conflict-affected countries, the authority may not be functioning.

The correct response is not to leave the certificate out without explanation. It is to document every step taken: applications made, emails and letters sent, embassy responses, fees paid and refusals received. Department policy refers to a penal waiver process. As part of that process, the applicant is usually asked to make a character statutory declaration. This is one of the few places in a partner visa where a statutory declaration, rather than a Form 888 statement, is the document the Department's process uses. The declaration states that the certificate could not be obtained, describes the efforts made, and either confirms the applicant has no convictions in that country or gives full details of any convictions.

When the document has a different name

Many countries do not call the document a "police certificate". It may be called a certificate of good conduct, a criminal record extract, a police clearance certificate, a certificate of no criminal record, or a judicial record. Some are issued by the police, some by the courts and some by the ministry of justice. What matters is that the document is issued by the official authority that holds criminal records for the whole country, and that it covers the period the applicant lived there.

The Department publishes country-specific guidance on which document to obtain. Where that guidance names a particular document, the applicant should obtain that document. Where the applicant obtains a different document, the application should explain why and how it covers the same information. A partner visa overseas conviction case is weakened if the certificate provided is not the one the Department expects, because the delegate cannot be sure the record is complete. Where an application is already lodged with the wrong document, a second opinion from an immigration lawyer can identify the gap before the Department does.

A statement from an appropriate authority

In some cases the relevant document is issued not by the police inside the country but by an embassy, consulate or high commission on the government's behalf. The Tribunal has dealt with these situations. Two Subclass 820 decisions that the Tribunal remitted illustrate the point. Lee (Migration) [2022] AATA 4648 was recorded as involving the character test, a statement from an appropriate authority, and a certificate of good conduct issued by the High Commission of Malaysia. Goh (Migration) [2022] AATA 4903 was recorded as involving a police certificate of good conduct issued by the government of Malaysia and PIC 4001.

Madade (Migration) [2023] AATA 3843, a Subclass 309 matter that the Tribunal remitted, was recorded as involving the character test, a statement from an appropriate authority, and Zimbabwe and South African police. Takemanu (Migration) [2023] AATA 936, a Subclass 820 matter that the Tribunal remitted, was recorded as involving a national police clearance certificate from Papua New Guinea.

These decisions show that the source and form of a foreign police document can become a live issue, and that the Tribunal will look at whether the document provided is a statement from an appropriate authority. They do not establish any rule beyond their own facts. Applicants should not assume that any document from an embassy will be accepted, and should check the Department's requirements for each country.

Translations and certified copies of foreign records

Any police certificate, court record or sentencing document that is not in English must be accompanied by an English translation. Departmental guidance states that where a police certificate is not in English, a certified translation must also be provided. In a partner visa overseas conviction case, the court documents are as important as the certificate, and they also need accurate translations.

Translation errors cause real problems. A word that means "fine" in one language may be translated as "penalty", "sentence" or "punishment". A suspended sentence may be translated as a sentence of imprisonment with no mention of the suspension. An administrative penalty may be translated as a conviction. Each of these errors can change how the record is assessed under section 501(7).

Good practice in a partner visa overseas conviction case includes:

• obtaining the full court judgment or sentencing record, not only the police certificate;
• obtaining evidence of the outcome, such as proof that a fine was paid, a bond was completed or a sentence was served;
• having every foreign document translated by a qualified translator, and checking that legal terms are translated consistently;
• where the meaning of an outcome under foreign law is unclear, obtaining a short explanation from a lawyer or official in that country; and
• keeping copies of the original documents and translations together so the Department can compare them.

The same care applies to the relationship side of a partner visa overseas conviction application. The firm's guide to preparing evidence of a genuine relationship and its guide to partner visa relationship evidence explain the same principle for relationship documents: quality, accuracy and consistency carry more weight than volume.

Must you disclose an expunged, spent, pardoned or quashed overseas conviction?

Yes, in almost all cases. The partner visa application form asks whether the applicant has been convicted of an offence in any country, including any conviction now removed from official records, so an expunged, spent or removed partner visa overseas conviction must still be disclosed. The legal effect of the record is a separate question from whether it must be declared.

Spent and removed convictions

Many countries, and every Australian state and territory, have laws that allow older convictions to become "spent" after a period without reoffending. A spent conviction usually does not have to be disclosed for employment or many other purposes. The Commonwealth spent convictions scheme in Part VIIC of the Crimes Act 1914 contains exclusions, and whether a particular spent record can be taken into account in a migration decision is a technical question that should be checked in each case. Foreign spent conviction laws do not bind the Australian Government.

The practical rule is simple. The application form asks about convictions "including any conviction which is now removed from official records". An applicant who answers "no" because a partner visa overseas conviction is spent, expunged or no longer shows on a local certificate risks a finding that false or misleading information was provided. The safer course is to disclose the conviction, attach the evidence that it is spent or removed, and explain its age and circumstances.

Pardoned and quashed convictions

Section 501(10) of the Migration Act provides that a sentence or conviction is to be disregarded for the purposes of the character test if the conviction has been quashed or otherwise nullified, or if the person has been pardoned and the effect of the pardon is that the person is taken never to have been convicted.

The distinction matters. A conviction overturned on appeal is quashed. A full pardon that treats the person as never convicted is disregarded. But a pardon or amnesty that only releases a person from the remainder of a sentence, without wiping out the conviction, is not the same. Department policy draws this distinction and notes that a foreign pardon may have a more limited effect in Australia. Where a partner visa overseas conviction has been quashed or pardoned, the applicant should still disclose it and provide the appeal judgment or pardon document, with a translation, so the decision maker can see that section 501(10) applies.

Juvenile records and findings without conviction

An offence committed as a child is still a matter the application form asks about, unless the form's wording clearly excludes it. Many foreign systems deal with young people in separate courts and seal or destroy the records later. The fact that the record is sealed does not automatically remove the disclosure obligation. Because the Migration Act gives "conviction" a wide meaning that includes findings of guilt without a recorded conviction, outcomes such as a caution with a finding of guilt, a diversion order after a guilty plea, or a non-conviction order should be discussed with a lawyer before the form is completed.

The age at the time of the conduct, the length of time since, and the person's later life are all relevant to how much weight the record carries. An old juvenile matter is often of limited weight. It is the failure to mention it that tends to cause harm.

Conduct that is not an offence in Australia

Some partner visa overseas conviction records relate to conduct that is not a crime in Australia. Examples include offences relating to religion, political expression, sexuality, dress, or the consumption of alcohol, as well as offences under laws that treat adultery or same-sex relationships as crimes. Nothing in section 501(7) excludes a foreign sentence because the conduct would be lawful in Australia. A sentence of 12 months or more imposed for such conduct still meets the definition of substantial criminal record.

However, the nature of the conduct is highly relevant to how the record is weighed. Departmental policy on assessing sponsors under the child protection provisions gives an example of conduct that is an offence overseas but not in most Australian states and territories, and states that such an offence should be given no weight. That policy does not govern section 501, but it reflects a sensible approach. In a matter of this kind, the response should explain the foreign law, the conduct involved, and why it does not reflect on the person's character in Australia. A partner visa overseas conviction of this kind needs a careful written explanation. Couples in same-sex relationships with records of this kind may also find the firm's page on LGBTI partner visas relevant.

What happens if a partner visa overseas conviction was not disclosed?

An undisclosed partner visa overseas conviction can lead to refusal under PIC 4020, the integrity criterion, even if the conviction itself would not have caused the applicant to fail the character test. Department policy gives this exact scenario as an example: an applicant answers "no" to the question about convictions in any country, but Department information shows a conviction.

PIC 4020 is concerned with bogus documents and information that is false or misleading in a material particular. Department policy states that the question is not whether the conviction would have caused a character refusal. The question is that the decision maker could not make an informed decision because the information was withheld. A refusal under PIC 4020 can also carry a period during which certain visas cannot be granted.

Department policy also recognises that mistakes happen. Where an applicant answered "no" to a character question but disclosed the conviction elsewhere in the application and provided a police certificate showing it, the policy suggests it would be difficult to find the "no" answer was purposely false. The position is very different where the conviction was revealed only after the Department asked for a certificate.

If a partner visa overseas conviction was left out of an application that has already been lodged, the applicant should correct the record as soon as possible, before the Department raises it. A correction made voluntarily, with a clear explanation of how the error occurred, is assessed very differently from an omission the Department discovers. Where a representative is appointed to make the correction, the Department must be notified using the forms explained in the firm's guide to Form 956 and 956A. The firm's guide to hiring a lawyer after lodging your own application explains how the firm steps in on applications already in progress. The process for correcting incorrect answers is set out in the firm's guide to Form 1022 and, where the Department has already written, in its guides to section 56 requests for more information and section 57 natural justice letters.

What Tribunal decisions show about overseas police records

Tribunal decisions on review show that foreign police records can become a central issue in a partner visa matter, and that further records can be provided on review. Two further Subclass 820 decisions that the Tribunal remitted are relevant to the partner visa overseas conviction question.

Page (Migration) [2024] AATA 215, a Subclass 820 matter that the Tribunal remitted, was recorded as involving criminal history, with an Australian Federal Police clearance and an Alabama State Police clearance provided on review. Bautista (Migration) [2021] AATA 606, a Subclass 820 matter that the Tribunal remitted, was recorded as involving criminal history statements from the home country and Australia, with driving disqualifications and fines disclosed.

The common thread in the issues recorded for these decisions is documentary: foreign and Australian police records, and disclosure of criminal history. Each matter was remitted. These decisions are not guarantees of any result. Each case turns on its own facts, and in a section 501 refusal the review process is different and much faster, as explained below. But they show why a partner visa overseas conviction case should be built on complete records from the start. The firm's guide to partner visa refusal appeal options and its page on ART review after a refusal explain the ordinary review process.

The notice of intention to consider refusal and how to respond

When the Department considers refusing a partner visa under section 501(1) because of a partner visa overseas conviction, it usually sends a notice of intention to consider refusal before deciding. The notice sets out the information the Department relies on, explains why the applicant may not pass the character test, and invites the applicant to respond within a stated period. The period is short and strictly applied.

A delegate deciding under section 501(1) must give the applicant procedural fairness. The notice is the applicant's chance to put everything relevant before the decision maker. It is often the most important document in a partner visa overseas conviction case, because a well prepared response can lead the delegate to decide not to refuse, and a poor response becomes the record on which the refusal is made and reviewed.

The notice is different from an ordinary request for information. The firm's guides to section 56 requests and section 57 natural justice letters explain those letters. A character notice usually comes from a specialist area of the Department and is decided by a section 501 delegate, not the officer who processed the relationship evidence.

What the response should contain

A response to a notice about a partner visa overseas conviction should usually include:

• a clear account of the offence, in the applicant's own words, accepting responsibility where that is appropriate, and correcting any factual errors in the notice;
• the full court records, sentencing remarks and translations, so the decision maker sees the actual conduct and penalty rather than a summary;
• evidence that the sentence was completed, including payment of fines and completion of any order;
• evidence of rehabilitation and present good character, such as employment records, study, community involvement, and supporting statements from people who know the applicant well;
• where relevant, professional reports, for example on alcohol or anger management programmes completed;
• evidence of the relationship and of the Australian partner's dependence on the applicant, including the impact refusal would have on the sponsor and any children;
• a written statement from the Australian partner, who should confirm knowledge of the record; and
• legal submissions addressing each consideration in the current Ministerial Direction.

The response must be truthful and consistent with everything already given to the Department. Any inconsistency between the response, the application form and the police certificate will be noticed. Supporting statements from referees are evidence, and each referee should state how they know the applicant and that they know of the conviction. A character reference from someone unaware of the offence carries little weight. The firm's guide to Form 888 statements explains who can give a statement for the relationship, and the same care applies to character referees.

Ministerial Direction No. 110: what the decision maker weighs

The current Ministerial Direction for section 501 decisions is Direction No. 110, made under section 499 of the Migration Act. A delegate or the Tribunal deciding whether to refuse a partner visa on character grounds must apply it. It sets out primary considerations and other considerations that guide the exercise of the discretion.

In general terms, the primary considerations include the protection of the Australian community from criminal or other serious conduct, whether the conduct involved family violence, the strength, nature and duration of the person's ties to Australia, the best interests of minor children in Australia affected by the decision, and the expectations of the Australian community. Other considerations include matters such as any international non-refoulement obligations, the extent of impediments the person would face if removed, and the impact on Australian business interests.

For a partner visa overseas conviction, several features commonly carry weight:

• The nature and seriousness of the offending. Violent offences, sexual offences, drug trafficking and family violence are treated as very serious. A dated property or traffic matter is usually treated as much less serious.
• The risk of reoffending. Time since the offence, completion of the sentence, rehabilitation and lack of further offending are relevant.
• Ties to Australia. The Australian sponsor and any Australian children are central. For a partner visa applicant, the relationship itself is a significant tie.
• Best interests of children. Where the couple have children, or the applicant has a role in the life of Australian children, their best interests must be considered.
• Whether the conduct would be an offence in Australia, and the circumstances in which the foreign conviction was imposed.

In a partner visa overseas conviction case, the relationship and the sponsor's circumstances are usually central to the ties to Australia consideration. The Direction does not dictate an outcome, and the decision maker must weigh all the considerations in the individual case. A section 499 direction is binding on decision makers when they exercise the relevant power, but it cannot require a particular decision. The weight given to each factor in a partner visa overseas conviction case depends on the evidence placed before the decision maker, which is why the response to the notice matters so much.

Review rights after a section 501 refusal of a partner visa

A decision by a delegate to refuse a partner visa under section 501 can be reviewed by the Administrative Review Tribunal, provided the decision would have been reviewable if it had been made on another ground. For a person in Australia, the time limit under section 500(6B) is very short, strictly applied and cannot be extended, so the review application must be lodged as soon as the decision is received.

The review of a section 501 refusal is different from the ordinary review of a partner visa refusal. Key features include:

• the application must be accompanied by a copy of the decision notice and the documents the Department provided with it;
• for a person in the migration zone, the Tribunal must decide the review within a fixed statutory period, and if it does not, the Tribunal is taken to have affirmed the refusal under section 500(6L);
• the Tribunal must give the Minister notice of the review before hearing or deciding the matter; and
• there are strict rules requiring the information and documents the applicant relies on to be given to the Minister before the hearing, and material not given in time may not be considered.

Where the applicant is outside Australia, for example in a Subclass 309 application, the position is different. Department policy states that where the visa requires an Australian sponsor, generally only the sponsor in Australia can apply for review. Different timeframes apply, and they are also short and strictly applied.

Because the time limits are so short, anyone who has received a section 501 refusal of a partner visa should seek advice immediately. The firm's pages on visa refusals and ART appeals, partner visa refusals and visa appeal lawyers explain the review process. Where the Tribunal affirms the refusal and there is an error of law, judicial review in the courts may be available. A refusal under section 501 also has consequences for future visa applications, so it should never be left unanswered.

A personal decision of the Minister is different

A decision made by the Minister personally under section 501 is not reviewable by the Tribunal. The Minister can refuse a visa personally under section 501(1) after giving natural justice, or under section 501(3) without giving natural justice where the Minister reasonably suspects the person does not pass the character test and is satisfied refusal is in the national interest.

Personal decisions are uncommon in partner visa overseas conviction matters, but they can occur in serious cases. Because there is no merits review, the only avenue is judicial review, which is limited to legal error. The Minister also has power under section 501A to set aside a delegate's or the Tribunal's decision not to refuse a visa, if satisfied it is in the national interest. These powers are a reason to present the strongest possible case at the first stage rather than relying on review.

When the sponsor has an overseas conviction

An Australian sponsor's overseas conviction is assessed under different rules from the applicant's. The sponsor does not have to pass the section 501 character test. Instead, the sponsorship limitations in Division 1.4B of the Migration Regulations, including regulations 1.20KC and 1.20KD, allow the Department to refuse to approve a sponsorship where the sponsor has been convicted of a "relevant offence" and has a "significant criminal record" for that offence.

Department policy states that a sponsor may be asked for police certificates from countries where the sponsor has lived, applying a similar 12 months in 10 years approach since turning 16. A significant criminal record is defined in similar terms to a substantial criminal record: a sentence of 12 months or more, or two or more terms totalling 12 months or more, in relation to a relevant offence. Relevant offences are focused on violence, including family violence, and similar serious offences. Even where those grounds exist, the Minister can approve the sponsorship if it is reasonable to do so.

A sponsor's partner visa overseas conviction question therefore turns on different definitions from the applicant's. Policy also explains that, with the sponsor's consent, the Department may disclose the sponsor's convictions for relevant offences to the applicant, so the applicant can make an informed choice about continuing. The firm's page on partner visa sponsorship limitations and its article on when a sponsor cannot sponsor explain these rules. Where the relationship involves family violence, the firm's page on family violence and partner visas explains the protections available to applicants.

Practical steps before lodging with a partner visa overseas conviction

The best time to deal with a partner visa overseas conviction is before the application is lodged. Many problems in this area arise from missing records, unclear translations, inconsistent answers or late disclosure, rather than from the conviction alone.

A careful approach usually involves:

• Obtaining the police certificate from the country where the conviction was recorded early, and checking whether the conviction appears.
• Obtaining the court file, judgment and sentencing record, and proof that the sentence was completed.
• Having every foreign document translated accurately, and checking legal terms.
• Working out whether the record meets the definition of substantial criminal record, by checking the sentence imposed, any suspension, any concurrent terms and whether section 501(10) applies.
• Answering every character question in the application and Form 80 consistently and completely, including about records removed from official files.
• Preparing a short character statement in the applicant's own words, explaining the circumstances, the outcome and the person's life since.
• Collecting evidence of rehabilitation and present good character, and supporting statements from referees who know of the record.
• Making sure the Australian sponsor knows the full history, because the sponsor will be asked about it and may need to give evidence.

Applicants who are already in Australia should also consider how the partner visa interacts with their current visa. The firm's guides to bridging visas, Bridging visa A and Bridging visa B explain the visas that apply while the application is processed. A section 501 refusal of the partner visa can also affect any associated bridging visa. Applicants considering a move from a visitor visa should also read the firm's guide on moving from a tourist visa to a partner visa, and those without a substantive visa should read about Schedule 3 waivers.

Applicants who are unsure whether they need legal help can read the firm's guides on whether a partner visa lawyer is worth it, when you need an immigration lawyer for a partner visa and what happens at an immigration lawyer consultation. Where a matter is urgent, the guide to urgent immigration lawyer advice explains what to prepare.

How My Migration Lawyers helps with a partner visa overseas conviction

My Migration Lawyers acts in many partner visa matters where the applicant has a conviction recorded outside Australia, and the firm is capable of handling complex character matters from the first application through to a notice of intention to consider refusal and review. A partner visa overseas conviction case requires careful work on foreign records, the character test and the relationship evidence at the same time, and the firm approaches each matter with that combined focus.

The work the firm does on a partner visa overseas conviction matter is specific to this problem. It includes:

• reviewing the foreign police certificates, court documents and translations to identify exactly what was imposed and whether it meets the definition of substantial criminal record under section 501(7);
• checking whether the record has been quashed, pardoned or otherwise falls within section 501(10), and how foreign spent or expunged records should be disclosed;
• advising which document the Department expects from each country, and what to do where a country will not issue a certificate or uses a different name for it;
• preparing the character questions in the application and Form 80 so that disclosure is complete and consistent across every document;
• presenting the client's own account of the offence and their life since, in the form the law requires, reviewed and corrected by the client;
• preparing responses to section 56 requests, section 57 letters and notices of intention to consider refusal, addressing each consideration in Ministerial Direction No. 110; and
• acting on Tribunal review where a delegate refuses the visa, within the short time limits that apply.

My Migration Lawyers is led by its Principal Lawyer, Weiwei Zhang. More about the firm is set out on the About My Migration Lawyers page and on the Partner Visa Lawyers page. The firm's guide to choosing a partner visa lawyer in Australia explains what to look for, and its Partner Visa Lawyer Australia guide outlines the work involved.

The firm acts for clients across Australia and overseas, with consultations by video. It assists partner visa clients in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta. For character matters and wider visa issues, the firm also acts as immigration lawyers in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta.

If you have a partner visa overseas conviction, or have received a notice about a foreign record, the earlier the firm reviews the documents, the more options remain open. Book a Consultation with My Migration Lawyers. You can also call 1300 040 300.