Can I Get a Partner Visa If I Have a Pending Criminal Charge?

Does a pending charge stop me getting a partner visa?

A pending charge does not by itself stop a person getting a partner visa, because the character test generally turns on convictions, sentences and conduct rather than on the fact of an allegation. The Department will, however, want to know the outcome before it decides, because a conviction and sentence may change the character assessment entirely. Our article on partner visa pending charges explains how the Department usually deals with unresolved matters.

Do I have to tell the Department about a pending charge?

An applicant must tell the Department about a pending charge, because the application forms ask about charges as well as convictions and the law requires applicants to notify changes in their circumstances. A charge laid after lodgement must be reported, usually through a change of circumstances notification. Failing to disclose a charge can raise PIC 4020 concerns that are more serious than the charge itself. Our article on Form 1022 and changes of circumstances explains how to report it.

Will the Department wait for the court outcome?

The Department will often wait for the court outcome before deciding a partner visa, because the result determines whether the applicant has a conviction, a sentence or no criminal record at all. Applicants should keep the Department informed of court dates and provide the final court documents promptly. A delay is usually better for the applicant than a decision made on incomplete information. Our article on partner visa processing delays explains other reasons a decision may be held.

What happens if the charge leads to a conviction?

If the charge leads to a conviction, the Department assesses the conviction and sentence under the character test, including whether the applicant now has a substantial criminal record under section 501(7). A substantial criminal record does not mean automatic refusal, but the Department must then consider whether to refuse, taking into account factors such as the seriousness of the offence, the risk to the community and the interests of the Australian partner and any children. Our article on partner visa character requirements explains these factors.

Should my criminal lawyer and migration lawyer work together?

A criminal lawyer and a migration lawyer should work together where a visa applicant faces a charge, because decisions made in the criminal case, such as how a plea is entered and what sentencing material is filed, can have migration consequences. The criminal court may also take the migration consequences into account in some cases. Early coordination prevents surprises once the court process ends. Our article on a partner visa with a criminal record explains how earlier convictions are assessed.

How does My Migration Lawyers support applicants with a pending charge?

My Migration Lawyers prepares the disclosure of the charge, keeps the Department informed as the court process moves forward and, with the client's consent, liaises with the criminal lawyer about the migration effect of possible outcomes. If the result raises a character concern, the firm prepares the response to the Department's notice with evidence about the applicant's circumstances and the Australian family. Applicants can speak with our partner visa lawyers about their position.