Partner Visa Undisclosed Convictions: Addressing Omissions

What is a partner visa undisclosed conviction?

A partner visa undisclosed conviction is a criminal conviction that the applicant was required to declare in a partner visa application, or in Form 80, but did not declare. A partner visa undisclosed conviction creates two separate legal problems. The first is the conviction itself, which is assessed under the character requirements. The second is the omission, which can be treated as false or misleading information under Public Interest Criterion 4020, and which may be more serious for the application than the conviction ever was.

Many applicants who face a partner visa undisclosed conviction did not set out to deceive anyone. Some thought an old or minor conviction did not count. Some believed a conviction removed from their record no longer existed. Some relied on someone else to complete the form. Others were embarrassed and hoped it would not matter. The law treats all of these situations seriously, but it does not treat them all the same way. The key questions are whether the conviction was required to be declared, whether the omission was purposeful or an innocent mistake, and what the applicant does once the omission is known.

This guide explains which convictions must be declared, how a partner visa undisclosed conviction usually comes to light, what sections 101 to 105 of the Migration Act require, how PIC 4020 and the character test apply, what can happen if the visa has already been granted, and how to correct the record. It applies to the onshore Subclass 820 visa and Subclass 801 visa and the offshore Subclass 309 visa and Subclass 100 visa. The wider requirements are explained in the complete guide to partner visas in Australia.

Two problems, not one

It helps to separate the two issues from the start. A conviction is assessed against the character test in section 501 of the Migration Act and Public Interest Criterion 4001. Many applicants with a conviction still meet the character requirements, especially where the offence was minor or long ago. The omission is assessed against PIC 4020, which is about the integrity of the information given. The Department's own policy says that a PIC 4020 assessment of an undeclared conviction is not about the actual offence or whether the applicant would have passed the character test. It is about the fact that the decision maker could not make an informed decision because the information was withheld.

Which convictions must be declared on a partner visa?

Every conviction in any country must be declared on a partner visa, including a conviction that has since been removed from official records. Form 80, the personal particulars form used in partner visa applications, asks whether the applicant or any other person in the application has ever been convicted of an offence in any country, "including any conviction which is now removed from official records". The application form asks equivalent character questions. A conviction that is old, minor, from another country, or no longer on a police record still falls within the question.

The character questions on the forms

The character questions go well beyond convictions. Form 80 asks whether the applicant has ever been charged with an offence that is currently awaiting legal action, been convicted of an offence in any country, been charged or convicted of family or domestic violence offences, been the subject of a domestic or family violence order or other order for the personal protection of another person, been the subject of an arrest warrant or Interpol notice, been found guilty of a sexually based offence involving a child including where no conviction was recorded, or been named on a sex offender register, among other questions. If the answer to any of these is yes, the form asks for details, including the date of the charge, the outcome and any penalty imposed, and asks for court documents such as sentencing remarks.

The Form 80 guide explains how to complete the form without errors. The point for this guide is simple. If there is any doubt about whether something must be declared, it should be declared and explained. A partner visa undisclosed conviction almost always does more damage than the same conviction declared openly.

Convictions removed from records and spent convictions

A common cause of a partner visa undisclosed conviction is the belief that a spent, expunged or removed conviction does not need to be mentioned. The wording of the form answers this directly: it asks about convictions now removed from official records. Applicants who have relied on a spent convictions scheme in another context, such as an employment check, should not assume the same rule applies to a visa application. The Commonwealth spent convictions scheme contains exclusions, and the Department's forms ask for the full history. Anyone unsure about a spent or removed conviction should get advice before answering, not after.

Overseas convictions

Convictions from another country must be declared in the same way as Australian convictions. Applicants are often unsure whether a minor offence in their home country counts, particularly where the legal system is different or the penalty was small. The form asks about convictions in any country, so the safe answer is to declare the conviction and explain it. The overseas police certificate will often reveal the conviction anyway.

Driving offences, fines and minor matters

Many people do not think of a driving offence or a small fine as a criminal conviction. Some driving offences do result in a conviction, and some do not. Because the answer depends on the offence and the court outcome, applicants should check court records rather than guess. In Bautista (Migration) [2021] AATA 606, the issues recorded included criminal history statements from the home country and Australia, and driving disqualifications and fines that were disclosed. Disclosure of minor matters is the normal course, not an admission that the applicant is of bad character.

Pending charges and court orders

A charge that has not yet been decided must also be declared if it is awaiting legal action. So must certain protection orders, even where no criminal conviction was recorded. These questions are separate from the conviction question, and leaving them out creates the same kind of problem as a partner visa undisclosed conviction.

How does a partner visa undisclosed conviction come to light?

A partner visa undisclosed conviction usually comes to light through police certificates, through information the Department already holds, or through inconsistencies between the forms and other documents. The Department checks the character of partner visa applicants as part of every application, so an omitted conviction is likely to be found.

Police certificates

Partner visa applicants are generally asked for police certificates from Australia and from countries where they have lived for a significant period. A police certificate that shows a conviction the applicant did not declare is the most common way a partner visa undisclosed conviction is discovered. Several Tribunal decisions record police certificates provided late or only on review, including Collier (Migration) [2023] AATA 1840, where the issues recorded were criminal history and Australian and Canadian police certificates provided upon review.

Information the Department already holds

The Department may already hold information from a previous visa application, a previous entry to Australia or another government source. If the applicant declared a conviction in an earlier visa application and leaves it off the partner visa application, the inconsistency will be obvious. The reverse also happens: a conviction omitted from an earlier visitor or student visa application may be revealed when the partner visa application declares it correctly.

Questions from the Department

The Department may ask for more information under section 56, or may invite comment under section 57 where it holds adverse information. A request for court documents, or a question about a specific offence, often means the Department already knows about a possible partner visa undisclosed conviction. The guides to responding to a section 56 request and the s57 natural justice letter for a partner visa explain those processes.

Common situations that lead to a partner visa undisclosed conviction

Most partner visa undisclosed conviction problems arise in a small number of recurring situations. Recognising the situation helps the applicant understand how the Department is likely to see the omission and what explanation will be needed.

The applicant thought the conviction did not count

The most common situation is an applicant who believed a minor, old or overseas conviction did not need to be declared. This often happens with a conviction where no prison sentence was imposed, a conviction from many years ago, or a conviction the applicant was told would be removed from their record. The form's wording makes clear that these convictions must be declared, but the applicant's genuine misunderstanding can still be relevant to whether the omission had the quality of purposeful falsity.

Someone else completed the form

Another common situation is an application completed by a family member, a friend or another person helping the couple. The applicant may have told that person about the conviction, or may not have been asked. Whatever happened, the applicant signed the declaration that the information was true and correct. The guides to Form 956 and to partner visas, migration agents and lawyers explain who may lawfully give immigration assistance, and the guide on how to change your immigration lawyer explains how to move a matter to a new representative.

An earlier visa application was wrong

A partner visa undisclosed conviction sometimes begins with an earlier application, such as a visitor visa or student visa, where the conviction was left off. When the applicant later applies for a partner visa and declares the conviction correctly, the earlier omission is exposed. Applicants moving from a tourist visa to a partner visa should check what they declared in the earlier application before lodging.

The application was lodged in a hurry

Some couples lodge quickly because a visa is about to expire, or because they are trying to apply before a condition takes effect. Rushed applications are more likely to contain errors in every section, including the character questions. The guides to the Subclass 820 visa, the Subclass 820 visa requirements and documents, the partner visa document checklist and how to create an ImmiAccount explain what should be checked before lodgement.

The applicant was afraid of the consequences

Some applicants leave a conviction off because they fear it will end the application. That fear is understandable, but it reverses the real risk. A declared conviction is assessed on its merits under the character requirements. A partner visa undisclosed conviction adds an integrity issue under PIC 4020 on top of the character issue. In most cases, open disclosure with a full explanation is the stronger position.

What do sections 101 to 105 of the Migration Act require?

Sections 101 to 105 of the Migration Act require visa applicants to give correct answers and to correct any answer that turns out to be wrong. These sections sit in Subdivision C of Division 3 of Part 2 of the Act, headed "Visas based on incorrect information may be cancelled". They apply to every partner visa applicant, and they continue to apply after the visa is granted.

Section 101: correct answers

Section 101 requires a non-citizen to fill in or complete the application form so that all questions are answered and no incorrect answers are given or provided. A partner visa undisclosed conviction is an incorrect answer to the character questions for the purposes of section 101.

Section 103: bogus documents

Section 103 provides that a non-citizen must not give, present, produce or provide a bogus document to an officer, the Minister or the Tribunal, or cause such a document to be given. This section is relevant where a document, such as an altered police certificate, has been used to hide a conviction.

Section 104: changes in circumstances

Section 104 requires a non-citizen to inform an officer in writing, as soon as practicable, if circumstances change so that an answer on the application form becomes incorrect. For an applicant in Australia at the time of grant, this applies to changes before the visa is granted, and subsection 104(4) says the obligation applies despite the grant of any visa. A new charge or conviction after lodgement is a change in circumstances that must be notified. The Form 1022 change of circumstances guide explains that process.

Section 105: correcting an incorrect answer

Section 105 is the provision that matters most for a partner visa undisclosed conviction. It provides that if a non-citizen becomes aware that an answer given in the application form was incorrect when it was given, they must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer. Subsection 105(2) says this applies despite the grant of any visa. In other words, an applicant who realises a conviction was left off is under a legal obligation to correct it.

The form used to correct an answer

The Department's Form 1023, Notification of incorrect answer(s), is used to tell the Department that incorrect information was provided in a visa application. The form explains that the obligation to correct incorrect information remains even after a visa is granted, and warns that a visa is liable to be cancelled if the requirements to advise the Department of incorrect information are not complied with. Form 1023 is different from Form 1022, which is used for changes in circumstances after lodgement.

Why the obligation does not depend on intention

The obligations in sections 101 to 105 are written in objective terms. They require correct answers and the correction of incorrect answers, whatever the reason for the error. That is why an applicant who discovers a partner visa undisclosed conviction should act on it promptly, even if the omission was an honest mistake. Whether the mistake was honest becomes important later, when the Department decides what consequence should follow.

Is a partner visa undisclosed conviction false or misleading information under PIC 4020?

Yes, a partner visa undisclosed conviction can be information that is false or misleading in a material particular under PIC 4020, unless the applicant can show the omission was an innocent mistake. PIC 4020(1) requires that there is no evidence the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular in relation to the current visa application, or in relation to a visa the applicant held in the 12 months before the application was made.

What "false or misleading in a material particular" means

PIC 4020(5) defines information that is false or misleading in a material particular as information that is false or misleading at the time it is given, and relevant to any of the criteria the Minister may consider when making a decision on the application, whether or not the decision is made because of that information. The Department's policy explains that false information is contrary to fact, and misleading information gives the wrong idea or creates a false impression, even if it contains some truth. The policy expressly lists the omission of facts as an example of false or misleading information.

Why an undeclared conviction is "material"

A partner visa undisclosed conviction is material because it is relevant to PIC 4001, the character criterion. The Department's policy uses this very example. It describes an applicant who answers "no" to the question whether any applicant has ever been convicted of an offence in any country, when Departmental systems show a previous conviction. The policy says this is false or misleading information in relation to the assessment of PIC 4001, and that the applicant should be given an opportunity to comment. If the decision maker is not satisfied by the response, or there is no response, the policy says the applicant would be refused under PIC 4020(1).

The policy then makes the point that surprises many applicants. It says the issue is not the actual conviction or offence, and not whether the applicant would have passed the character test. The issue is that the decision maker could not make an informed decision because the information was not given. A partner visa undisclosed conviction for a very minor offence can therefore still cause a PIC 4020 problem, even though the offence itself would never have affected the character assessment.

The Federal Court on materiality

The Department's policy refers to Khan v Minister for Immigration and Citizenship [2011] FCA 75, where the Federal Court said information is material if it might influence the conclusion the decision maker might reach, and, because it is false or misleading, might underpin or contribute to a decision that might not have been made had the true position been known. The policy emphasises the word "might". The question is not whether the decision maker would have decided differently, only whether they might have.

Purposeful falsity: can an innocent mistake be explained?

Yes. An innocent mistake can be explained, and if the decision maker accepts the explanation, PIC 4020 can be satisfied despite a partner visa undisclosed conviction. The Department's policy, drawing on the Full Federal Court decision in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42, says a refusal under PIC 4020 requires the information to have the quality of purposeful falsity. In plain English, the policy describes purposeful falsity as being intentionally untrue or incorrect.

What the Department's policy says about mistakes

The policy states that a visa application cannot be refused under PIC 4020 where the applicant can explain an innocent mistake in information provided by them or on their behalf. It also says the onus is on the applicant, in response to an invitation to comment, to explain why they did what they did and to show their actions were a genuine mistake. Decision makers are told to consider whether the information was provided with an intent to deceive, or whether information was omitted with an intent to deceive.

The Department's own example of no purposeful falsity

The policy gives an example that is directly relevant to a partner visa undisclosed conviction. It says that if an applicant answers "no" to a character declaration but declares the criminal history in a different part of the application form, and provides a police certificate showing the conviction with the application, it would be difficult to argue there was purposeful falsity in the "no" answer. The "no" answer is more likely to be an error. However, the policy adds that if the police certificate was not provided with the application, and was only provided after a request, a natural justice letter may be needed to assess purposeful falsity.

That example shows why early, voluntary disclosure matters. An applicant who discloses the conviction elsewhere in the application, or corrects the form before the Department asks, is in a far stronger position than an applicant whose partner visa undisclosed conviction is discovered by the Department.

Who completed the form

Applicants often say that a relative, friend or adviser completed the form for them. Under Trivedi, it is not necessary for the applicant to be knowingly or directly involved in giving the false information for PIC 4020 to apply, but the information must still have the quality of purposeful falsity. If someone else made an honest error, that can be explained. If someone else deliberately left the conviction off, the applicant may still be affected. Every applicant should read and check every answer before signing the declaration, because the applicant is responsible for the truth of what is lodged.

The 12-month window and previous visas

PIC 4020(1) covers false or misleading information given in relation to the current application, or in relation to a visa the applicant held in the 12 months before the application was made. The Department's policy gives an example of an applicant who failed to declare a conviction on an earlier visa application, held that visa within 12 months before the current application, and declared the conviction in the current application. The policy says the applicant must be invited to comment and may be refused if no compelling or compassionate circumstances justify grant. A partner visa undisclosed conviction can therefore arise from an earlier visa, even where the partner visa application itself is correct.

What happens if PIC 4020 is not met?

If PIC 4020 is not met, the partner visa must be refused unless the requirement is waived. A refusal under PIC 4020 also has consequences beyond the current application. The Department's policy explains that PIC 4020 requires the applicant to satisfy the decision maker that neither they nor a member of their family unit was refused a visa under PIC 4020 for bogus documents or false or misleading information in the three years before the current application was made. A refusal for a partner visa undisclosed conviction can therefore affect later applications by the applicant and family members.

PIC 4020 is a refusal ground, not a cancellation ground

The Department's policy states that failure to satisfy PIC 4020 is a ground for visa refusal, not for visa cancellation. That does not mean a granted visa is safe if a conviction was omitted. Other provisions of the Migration Act deal with cancellation where incorrect information was given, as explained later in this guide.

Natural justice must be given first

Before refusing under PIC 4020, the Department must give the applicant an opportunity to comment. The policy says the natural justice letter should identify the information considered false or misleading, how it was provided, how it is false or misleading, and which criterion it is relevant to. A refusal decision must not be made until the information is given, the applicant says they do not wish to give it, or the time to respond ends. Any response received before a decision is made must be considered, even if it arrives late. The response to a natural justice letter about a partner visa undisclosed conviction is often the most important document in the whole application.

Can PIC 4020 be waived for a partner visa undisclosed conviction?

Yes. The requirements of PIC 4020(1), and the three-year non-grant period in PIC 4020(2), can be waived under PIC 4020(4) if the decision maker is satisfied that compelling circumstances exist which affect the interests of Australia, or that compelling or compassionate circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen justify granting the visa. There is no waiver for the identity requirements in PIC 4020(2A) and (2B).

Why the waiver matters for partner visas

The waiver is particularly relevant for partner visas because every partner visa has a sponsor who is an Australian citizen, Australian permanent resident or eligible New Zealand citizen. The effect of refusal on the sponsor, and on any Australian citizen children, can be a compelling or compassionate circumstance. The Department's policy says applicants must be invited to provide reasons why the waiver should be exercised, because an applicant cannot be expected to know they need to address the waiver unless asked.

What a waiver does and does not do

The policy explains that a waiver applies only to the application being considered. It does not mean the false information is accepted as true, and the applicant must still meet every other criterion. For a partner visa undisclosed conviction, that means the conviction itself must still be assessed against the character requirements, and the relationship must still be genuine and continuing.

Tribunal decisions on waiver

Several Tribunal decisions record the waiver being considered in partner visa matters. In HASSAN (Migration) [2019] AATA 6523, a Subclass 300 matter, the issues recorded were that the applicant had given false or misleading information, that the requirements of PIC 4020 were waived, and that a dependent child had been born of the relationship. In PALASIT (MIGRATION) [2026] ARTA 1914, the issues recorded were false or misleading information, a previous relationship not declared, an element of fraud or deception, and the discretion to waive the criterion. In Udeh (Migration) [2025] ARTA 2009, the issues included false or misleading information and bogus documents, non-compliance conceded, and the discretion to waive. In Fajloun (Migration) [2023] AATA 2639, the issues recorded were an Australian citizen sponsor and children, compassionate circumstances affecting the interests of Australian citizens, and that the applicant did not meet PIC 4020. Each matter was remitted to the Department, and none of these headnotes should be read as a promise that a waiver will be granted in another case.

How is the conviction itself assessed under the character test?

The conviction itself is assessed under the character requirements, separately from the question of the omission. Partner visas require the applicant to satisfy PIC 4001, which relates to whether the applicant passes the character test in subsection 501(6) of the Migration Act. A partner visa undisclosed conviction does not automatically mean the applicant fails the character test. The answer depends on the offence, the sentence and the applicant's wider history.

The character test in section 501

Subsection 501(6) sets out when a person does not pass the character test. One of the grounds is that the person has a substantial criminal record, which is defined in subsection 501(7) and includes being sentenced to a term of imprisonment of 12 months or more. Other grounds include certain associations, past and present criminal or general conduct showing the person is not of good character, and a risk that the person would engage in certain conduct in Australia. Where an applicant may not pass the character test, the Department's policy is to refer the case for specialist character assessment.

Minor convictions and the character test

Many convictions, such as a single minor offence with a fine or a good behaviour order, do not come close to a substantial criminal record. For those applicants, the conviction itself would usually not have been a barrier to the visa. That is what makes a partner visa undisclosed conviction for a minor offence so frustrating: the omission can create a PIC 4020 problem that the conviction itself never would have created. This is also why the explanation for the omission matters so much.

More serious convictions

Where the conviction is more serious, the character assessment becomes central, and a partner visa undisclosed conviction may be seen as part of the overall picture of the applicant's conduct. Decisions about refusal on character grounds are made under section 501, and a Ministerial Direction made under section 499 guides how the discretion is exercised. These matters need careful legal advice. This guide keeps the character test at summary level, because the focus here is the omission.

Police certificates and court documents

To assess character, the Department will usually ask for police certificates and, where there is a conviction, court documents such as sentencing remarks. Where a police certificate was not provided to the Department, it can sometimes be provided later. Several Tribunal decisions record police certificates provided on review, including Lou (Migration) [2019] AATA 4665, where the issues recorded were PIC 4001, an authorised criminal clearance certificate not provided to the delegate, and a Canadian police certificate provided to the Tribunal, and Bernhardt (Migration) [2019] AATA 2462, where the issues recorded were that information relating to character and criminal history had not been provided and that the applicant had since provided relevant police certificates.

The sponsor's convictions

The sponsor's criminal history is assessed under different rules. A sponsor with certain convictions may face limits on sponsorship, which is a separate issue from the applicant's character. The firm advises on partner visa sponsorship limitations, and the guide on when a sponsor cannot sponsor a partner visa explains the detail. This guide is about the applicant's partner visa undisclosed conviction.

How do you correct a partner visa undisclosed conviction before a decision?

You correct a partner visa undisclosed conviction before a decision by notifying the Department in writing, as soon as practicable, of the incorrect answer and the correct answer, and by providing the evidence the Department will need to assess the conviction. Section 105 of the Migration Act requires this, and the Department's Form 1023 is designed for it. Doing it before the Department raises the issue is the single most important step an applicant can take.

What the correction should include

A proper correction of a partner visa undisclosed conviction usually includes four things. First, a written notification identifying the question that was answered incorrectly and giving the correct answer. Second, the details the form asks for: the offence, the date of the charge, the court, the outcome and any penalty. Third, supporting documents, such as police certificates, court records and sentencing remarks, translated where needed. Fourth, a clear and honest explanation of why the conviction was not declared originally.

The explanation must be true

The explanation is the part that decides whether a partner visa undisclosed conviction is treated as an innocent mistake. It must be true, it must be in the applicant's own words, and it must be consistent with everything else in the application. A lawyer can help the applicant understand what the Department will be looking for and make sure the explanation addresses the right questions, but the account must be the applicant's own. An explanation that is later shown to be untrue creates a second false or misleading statement, which is far worse than the first.

Updating Form 80 and the application

Where the original Form 80 or application form contained the incorrect answer, the correction should make clear which answers are now correct, and may include a corrected Form 80 if the Department requires one. Every other document in the application, including the relationship statement, should be checked for consistency with the corrected information. If the conviction relates to events the couple described differently in the relationship statement, that must also be addressed.

Timing

Section 105 requires notification as soon as practicable. Delay makes it harder to show the omission was innocent, because the applicant knew of the error and did not act. An applicant who discovers a partner visa undisclosed conviction, whether because a police certificate arrives or because they re-read the form, should get advice and correct the record promptly.

What if the Department has already raised the conviction?

If the Department has already raised a partner visa undisclosed conviction, the applicant must respond to the request or natural justice letter within the time allowed, and the response should deal with both the omission and the conviction itself. At this point the applicant can no longer say they came forward voluntarily, so the quality of the explanation and the supporting evidence becomes even more important.

Responding to a natural justice letter

A natural justice letter about a partner visa undisclosed conviction will usually identify the answer the Department considers false or misleading and the criterion it relates to, and will invite the applicant to comment. The response should address purposeful falsity directly, with an explanation of how the omission happened. It should also address the waiver under PIC 4020(4), setting out any compelling circumstances affecting the interests of Australia, and any compelling or compassionate circumstances affecting the sponsor, Australian citizen children or other Australian citizens or permanent residents. Finally, it should address the conviction itself and why the applicant meets the character requirements.

Evidence that supports the response

Useful evidence may include court documents showing the minor nature of the offence, evidence of rehabilitation, references, evidence of the sponsor's circumstances and the effect refusal would have on the sponsor and any children, and any evidence showing the omission was a mistake, such as a disclosure elsewhere in the application. The guide to the s57 natural justice letter for a partner visa explains how these responses are structured.

What if the partner visa has already been granted?

If the partner visa has already been granted, the obligation to correct the incorrect answer still applies, because sections 104 and 105 apply despite the grant of any visa. A granted visa can be cancelled where incorrect information was given. Form 1023 warns that a visa is liable to be cancelled if the requirements to advise the Department of incorrect information are not complied with, and that cancellation is not automatic, with a visa holder in Australia given an opportunity to comment before a final decision.

Cancellation for incorrect information

Subdivision C of Division 3 of Part 2 of the Migration Act allows the Department to give a visa holder notice of possible non-compliance with the requirements to give correct information, and to cancel the visa after considering the response. Section 116 also includes a separate cancellation power in subsection 116(1AB) for incorrect information not covered by Subdivision C. A partner visa undisclosed conviction discovered after grant can therefore lead to a cancellation process. The firm advises on visa cancellations, and any notice of intention to consider cancellation should be dealt with immediately.

The temporary visa and the permanent stage

Many applicants hold the temporary Subclass 820 visa or Subclass 309 visa while waiting for the permanent stage. The character requirements are assessed again before the permanent Subclass 801 visa or Subclass 100 visa is granted, and updated police certificates may be requested. A partner visa undisclosed conviction from the first stage will be visible at the second stage if it appears on a police certificate. The Subclass 820 vs Subclass 801 guide explains the two stages. Correcting the record before the permanent stage is far better than having the omission discovered during it.

New convictions after lodgement

A conviction or charge that arises after lodgement is a change in circumstances under section 104 and must be notified in writing as soon as practicable. It is not an undisclosed conviction in the same sense, because the original answer was correct when given, but failing to notify it creates the same kind of problem.

How is disclosure weighed by the Department?

Disclosure is weighed by looking at when and how the partner visa undisclosed conviction came to light, what explanation is given, whether the explanation is credible and consistent, and what the circumstances of the applicant and the sponsor are. The Department's policy does not set a formula, but the factors that appear in the policy and in Tribunal decisions are consistent.

Voluntary disclosure compared with discovery

An applicant who discovers a partner visa undisclosed conviction and corrects it voluntarily is in a stronger position than one whose omission is found by the Department. The Department's own example of no purposeful falsity involves an applicant who disclosed the conviction elsewhere and provided a police certificate. The further the facts move from that example, the more the applicant must explain.

Consistency and credibility

The explanation must fit the rest of the evidence. If the applicant says they did not understand the question, but declared the same conviction correctly in an earlier visa application, the explanation will be hard to accept. If the applicant says a relative completed the form, the decision maker may ask why the applicant signed the declaration without checking it. A credible explanation accepts responsibility and explains the circumstances honestly.

The sponsor and the family

Because partner visas involve an Australian sponsor, the effect of refusal on the sponsor and any children is often central to the waiver. The relationship statement, the Form 888 statements and the evidence of the couple's life together may all be relevant to showing that compelling or compassionate circumstances exist. The guides to partner visa relationship evidence and the partner visa relationship statement explain that evidence.

What Tribunal decisions show about undisclosed information

Tribunal decisions show that undisclosed information in partner visa matters is examined closely, and that the outcome depends on the explanation, the evidence and the waiver. The decisions below are remittals, which means the Tribunal sent the matter back to the Department to reconsider. They are described only by the issues recorded for each decision, and they do not mean any later outcome was a grant.

Undeclared relationships and earlier applications

In Pham (Migration) [2021] AATA 4350, the issues recorded were false or misleading information in a previous visitor visa application, an answer of "married" when the applicant was separated at the time and later divorced, and a credible witness and evidence. In TRUONG (Migration) [2024] AATA 680, the issues recorded included false or misleading information in a material particular in a previous visitor visa application concerning marital status. In 2107016 (Migration) [2022] AATA 2250, the issues recorded included a failure to disclose details of a previous relationship and a Subclass 300 visa application. These decisions show that the explanation and the evidence of what actually happened can change how an omission is assessed.

Criminal history and character

In Huang (Migration) [2018] AATA 3711, the issues recorded included evidence of criminal history, a conviction for use of a false identity, immigration fraud and evidence of a court conviction. In Pham (Migration) [2023] AATA 2643, the issues recorded included a valid marriage, criminal activities and a genuine and continuing relationship. In Puru (Migration) [2018] AATA 3444, the issues recorded included Schedule 3 criteria, compelling reasons and previous convictions. Criminal history is relevant in many ways beyond the character test, and every part of the application must deal with it consistently.

Character information provided on review

In Bautista (Migration) [2021] AATA 606, the issues recorded included criminal history statements and disclosed driving disqualifications and fines. In Collier (Migration) [2023] AATA 1840 and Lou (Migration) [2019] AATA 4665, police certificates were provided on review. The guide on what to expect at an ART review explains how new evidence is dealt with, and the guide to partner visa refused appeal options explains the review process. The review deadline is short and strictly applied.

How My Migration Lawyers handles a partner visa undisclosed conviction

My Migration Lawyers handles a partner visa undisclosed conviction by establishing the full criminal history first, identifying every answer that was incorrect, and then correcting the record in a way that addresses both PIC 4020 and the character requirements before the Department decides. The firm acts in many partner visa matters involving omitted convictions, previous visa applications with incorrect answers, pending charges and character concerns, and it regularly handles complex cases where PIC 4020, PIC 4001 and the waiver all need to be addressed together.

What the firm does on an omitted conviction

First, the firm takes instructions on the applicant's full criminal history in every country and obtains or reviews police certificates and court records. Second, it reviews the partner visa application, Form 80 and any previous visa applications to identify every incorrect answer. Third, it advises whether the omission is likely to be treated as false or misleading information and how purposeful falsity will be assessed. Fourth, it prepares the written notification of the incorrect answer under section 105, with the supporting documents. Fifth, it helps the applicant set out their own honest explanation of how the omission happened, and the applicant confirms it is true and complete. Sixth, it prepares submissions on the character requirements and on the PIC 4020 waiver, including the circumstances of the sponsor and any Australian citizen children.

Where the Department has already sent a section 56 request or a natural justice letter, the firm prepares the response within the time allowed. Where a visa has been refused, it reviews the decision and advises on partner visa refusals, wider visa refusals and Tribunal review. Where a visa has been granted and the Department is considering cancellation, it advises on visa cancellations, and where a Tribunal decision involves a legal error, on judicial review. The firm also advises on related issues in the same application, such as Schedule 3 waivers, the family violence provisions, a partner visa after a visa refusal and the status most onshore applicants hold under bridging visas in Australia. Where the firm is appointed to act, it lodges Form 956 so the Department corresponds with the firm.

When applicants come to the firm

Applicants come to My Migration Lawyers at different points. Some realise before lodging that they are unsure what to declare. Some lodged themselves and later found the error, which is covered in the guide to hiring an immigration lawyer after lodging your own application. Some want a second opinion from an immigration lawyer on a response prepared elsewhere. Others come with a deadline already running, and the guide to urgent immigration lawyer advice explains what to prepare. The guides on why partner visas get refused, the most common Subclass 820 refusal reasons and when a visa appeal lawyer is needed give further context.

Who handles your matter

Partner visa work at My Migration Lawyers is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers is an Australian immigration law firm, and more about its approach is on the About My Migration Lawyers page and the partner visa lawyers page. The guides on what a partner visa lawyer does, when you need an immigration lawyer for a partner visa and the role of an immigration lawyer explain the work in more detail. The firm acts for couples across Australia by video, including partner visa clients in Sydney, Melbourne, Brisbane, Perth, Adelaide, the Gold Coast, Canberra, Hobart and Parramatta. Couples comparing firms can read the guide to choosing the best partner visa lawyer in Australia, and the guide to booking an immigration lawyer consultation explains what happens at the first meeting.

Book a consultation about a partner visa undisclosed conviction

If you have a partner visa undisclosed conviction, or you are unsure whether something in your history should have been declared, the right time to get advice is now, before the Department raises it or before your response is due. Book a Consultation with My Migration Lawyers to have your application, your history and your options reviewed in confidence. You can also call 1300 040 300.