# criminal conviction



## susanmck (Jan 22, 2014)

Need some advice please, currently,applying,for a prospective marriage visa through London..the problem is, I've recently had my police checks done, and a drink driving charge from a few years back has come back on it, having been misinformed that,this wasn't a criminal,offence, I never declared it in previous visas for Australia, will this be an issue now with the pmv, even of I declare it this time? Thank you for taking time to read and reply..s


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## CollegeGirl (Nov 10, 2012)

Hmmm... a conviction of that type normally isn't an issue (they're only concerned about convictions that carry sentences of 12 months or longer, generally). Will they come back and ask why you didn't declare it previously? Possibly. What I would do is just explain in the "additional information" section that you were misinformed that it wasn't a criminal offense and that's why you didn't include it previously. Hopefully it will be okay... If you want to be positive, you can always consult a professional migration agent.


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## susanmck (Jan 22, 2014)

Thanks for your help college girl, I've read that migration advisors sometimes give advice via this forum, would it be possible for them to advise or share their opinion on this matter...?? Thanks s


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## CollegeGirl (Nov 10, 2012)

Susan, they might not necessarily see this thread right away. When you have a few more posts here, you'll be able to send private messages. You can send one to CCMS or to Mark Northam or Adam Grey - any of the three could probably help if they don't see this thread on their own.


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## littlekitty (Jul 24, 2012)

The same thing happened to my husband from the UK.

He declared no convictions on his application - then sent off the application while awaiting the police certificate. 

Police cert came back from ACPO, with TWO convictions - one from a juvenile offence (that we understood would not be on his record) and one from a date when he was travelling in Australia (later ACPO confirmed this was a complete mistake).

Anyway, he immediately contacted his CO in London to say that he had ticked 'No' to Question ___ mistakenly as he was under the impression that his juvenille offence would not be on his certificate, and that he did not wish to hide anything etc etc. The CO replied that he would need to write a statement regarding the nature of the offence, when and where it happened, and how he was punished and how he has moved on from it.

He wrote the statement (meanwhile he also had to state that he was following up the mistake on the record) and got it signed by a JP and submitted it to the CO. The statement was about a page an a half.

He was granted his PMV, and now his partner visa in Aus.

I'm not sure how they treat drink driving offences, but I would contact your CO immediately to explain you have made an error in judgement and wish to amend it.


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## littlekitty (Jul 24, 2012)

Oh and the CO also said he would need to declare his juvenille offence when entering/reentering Australia forever, as it would now be on immigration record. 
I'm not sure how good this advice was from the CO, but when he ticks 'yes' on the criminal convictions part of an incoming passenger card, immigration always ask about it, he says it was a juvenille offence and they pretty much ignore him. So I feel like we're wasting border immigrations time saying 'yes'.... but thats just what we were told to do.


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## MarkNortham (Dec 19, 2012)

Hi All -

Best to declare this on the additional info, and communicate that you were confused as to whether this would need to be declared or not. Excellent posts by littlekitty and CG on this thread as well - as noted, you will need to declare these going forward on the incoming passenger cards, etc when you return to Australia going forward.

However this situation doesn't come anywhere close to triggering a character refusal concern, so no need to be concerned about that - the bigger issue is making an explanation about why it was not declared before.

Hope this helps -

Best,

Mark Northam


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## susanmck (Jan 22, 2014)

Thank you all for your replys, 
Mark; would the fact that I hadn't declared be a likely issue for refusal, I understand that the crime isn't actually an issue in so much as the failed declaration...thank you,,s


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## susanmck (Jan 22, 2014)

Hi again, can anyone clarify if the fact that I didn't declare the offence in previous visa applications make this a reason for refusal on the pmv? Thanks s


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## susanmck (Jan 22, 2014)

Also, will I need to inform the embassy now, as I am currently holding a TV 600, before I can travel to Australia again


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## MarkNortham (Dec 19, 2012)

Hi Susan -

Sorry for the delay - was traveling last week. If DIBP harshly enforced PIC 4020 of the Migration Regulations, it might create a problem in your case. Note:

_(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made._

It would require a careful examination of your case to make a conclusion as to whether the conviction was "material" or not - normally materiality could be interpreted as whether disclosure of this fact on a previous application would or could have caused a change in the result of that previous application.

Hope this helps - please feel free to contact me directly if I can assist further (contact info on website listed in my email signature below) -

Best,

Mark Northam


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## susanmck (Jan 22, 2014)

Hi Mark,
Thank you for this information, however I feel even more confused, but what I make of the law you cited is that the offence wouldn't haven't made a difference to the granting of previous visas so it shouldn't make a difference now? Am I,right?


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## susanmck (Jan 22, 2014)

And if that law was enforced what kind of problem could this cause exactly?


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## MarkNortham (Dec 19, 2012)

Hi Susan -

Sorry to add to the confusion! I don't know if disclosure of the offence would have been material to any previous visa applications - would need to study those to form an opinion there. Worst case situation if they concluded that it was or would have been material to a previous application could be a refusal based on PIC4020 grounds, which can mean a 3 year exclusion period on applying for any other visa that has PIC 4020 as a condition that must be met for the visa to be granted. However, this is all based on whether the disclosure would have been material to the previous visa application - if, for instance, the offence had been punished by a 12 month jail sentence (even if suspended), that would very likely be considered material since it would invoke the character provisions of the migration law. But lesser offences may well be considered non-material and therefore unlikely to attract a PIC4020 situation.

Hope this helps -

Best,

Mark Northam


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## Star Hunter (Jun 29, 2012)

Obviously Mark is the expert in these matters so I can't really add much except that I think it would be best to advice DIBP ASAP because the longer you delay in telling them, the more likely it is that they will think you were looking for ways to avoid telling them.


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## susanmck (Jan 22, 2014)

Thanks for the reply star hunter, but it is quite a sensitive matter, ie. My future plans May be in jeopardy, so I do believe my approach is warranted!!


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## susanmck (Jan 22, 2014)

I have just found a form on dibp website "1023 notification of incorrect answers" I guess this is what I will use to inform the department of my error!


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## MarkNortham (Dec 19, 2012)

Hi Susan -

I applaud you taking a careful approach to this and obtaining whatever professional advice you feel is necessary to give you the confidence you need going forward. You've got 2 issues to sort out: the sensitivity of the matter re: your application, and the complexity of the migration laws and policy - bottom line: there are no simple answers, so it may be best to take things piece by piece and work out the various aspects to this to formulate the best plan (and most strategic plan) going forward to minimise any issues in the future.

Best,

Mark Northam


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## susanmck (Jan 22, 2014)

Hi Mark, 
I really don't want to mess up my chances of a pmv grant, however I realise the seriousness of my error, but from what I can gather, owning up now before pmv application, should minimise the fallout, considering that the offenses wouldn't have warranted a refusal to the previous visas, do you think that the above mentioned form is the best approach?


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## Star Hunter (Jun 29, 2012)

susanmck said:


> Thanks for the reply star hunter, but it is quite a sensitive matter, ie. My future plans May be in jeopardy, so I do believe my approach is warranted!!


I wasn't suggesting that you do anything without getting appropriate advice, but leaving it too long is not going to be good either. I was just saying that you needed to make getting advice and acting on that advice a priority, because your previous drink driving issue is not going away and it is, IMO, a very serious matter.

Also, at risk of sounding insensitive, your future is in jeopardy because you chose to drink and drive and subsequently put innocent people at risk. I have personally experienced the devastating consequences of such a choice (I was not the drunk driver, or the victim but my close friend nearly lost his life and spent 3 months in ICU and is now blind in one eye and suffers daily excruciating pain). I do find it rather incredible that you didn't consider it an issue that warranted declaration. You seem surprised that the charge came up on your criminal history and that does disturb me a little.


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## susanmck (Jan 22, 2014)

Star hunter, don't think you know. enough of my circumstances to make a judgement, or to risk being insensitive!


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## MarkNortham (Dec 19, 2012)

Hi Susan -

Impossible to say, as I don't have enough information. There are many factors that could affect things - ie, severity of the offence, extenuating circumstances of the offence, specific punishment given (including any suspended punishment), number of times that incorrect information was provided to DIBP (ie, all previous passenger cards on flights into Australia where this was not declared, any previous visa applications, etc), how old the conviction was, any additional history since the conviction that could be seen as relevant, etc. While the Incorrect Information form may be the correct method to correct the information for any current, unfinalised applications, there is a bigger strategic question of how to explain and handle any previous incorrect info provided to DIBP - how to do that is dependent, in my view, on considering all the factors including those listed as examples above, etc.

Hope this helps -

Best,

Mark Northam



susanmck said:


> Hi Mark,
> I really don't want to mess up my chances of a pmv grant, however I realise the seriousness of my error, but from what I can gather, owning up now before pmv application, should minimise the fallout, considering that the offenses wouldn't have warranted a refusal to the previous visas, do you think that the above mentioned form is the best approach?


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## Star Hunter (Jun 29, 2012)

susanmck said:


> Star hunter, don't think you know. enough of my circumstances to make a judgement, or to risk being insensitive!


No, you're right. I'm sorry for allowing my emotions to take over.

I am clearly not someone who should be commenting on a thread of is nature, given my previous painful experiences. I did let my emotions get the best of me and this is neither the time or the place to express those feelings.

I apologise. I hope you find the information you seek to help you with your application and I'm sure you will on this forum


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