# Spent Convictions No One Knows



## UKTraveler (May 12, 2016)

This is a question I don't expect anyone can answer. And may I politely ask that no one leaves "I think" or Maybe "answers". I need actual valid information, not guesses! 

In the UK, Australian and the Commonwealth, there are various laws / acts saying you don't have to disclose spent convictions.

However; VISA applications always asks you to to include them.

So my questions are.

Do I legally or lawfully have to admit I have SPENT convictions or can I legally lie with no repercussions? After all, that's the whole purpose of the SPENT Scheme!

In the VISA application it says. If you have any criminal convictions, you must supply a police certificate. If I do have to provide details of my SPENT convictions do I also have to provide a police certificate for SPENT convictions?

The other question is. What is classed as spent? In the UK, my convictions are spent. But do I go by UK law or Australian law? If I have to go via Australian law how do I know if they are spent?

My conviction was Drink Driving (DR10) in 2008. 8 Years ago.

The issue I have is. I don't have a permanent address so I don't qualify for a police certificate. And without police certificate I can't get an Australian VISA (temporary residence sponsorship partner visa). So I would rather answer NO to the do you have any criminal convictions question!

This is probably a question for a legal professional who speaks legalise. My VISA agent doesn't even have an answer!

Any help is very appreciated! 

Thanks


----------



## Aussie83 (Oct 15, 2015)

I'm surprised that you can't get an answer.
No you cannot legally lie with no repercussions. You can have your visa candles and be deported if you are in the country.
Regardless if you answer yes or no you must provide a police check.
How long was your sentence for the drink driving? So long as it was less than a year you should be fine.


----------



## Aussie83 (Oct 15, 2015)

Sorry I re-read what you put, I could be wrong about the requirement for it, on of the senior members familiar with the visa can confirm.
But the rest is true. Also keep in mind even if you don't provide a check they can perform their own, why risk getting caught out?


----------



## Jeremy Hooper (Jul 10, 2014)

You must answer yes to that question and provide them with documentary evidence. Regarding spent convictions in Australia it depends on the offence, sentence and State of the conviction. If you were sentencedvr to Lee's that 12 months jail you should be fine.


----------



## UKTraveler (May 12, 2016)

It was a conviction in the UK. I received a driving ban for 27 months a £500 fine and a few weeks of unpaid work / community service. They are very tough on drink driving in the UK.

The VISA guy we're using says I only need a police certificate if I have criminal convictions.

The Commonwealth Spent Convictions Scheme says I don't have to tell them if 10 years has past. However; I'm not sure if this is the same for UK spent convictions.

I would appreciate if people could back their answers up with evidence. Without evidence, it's just hearsay! 

oaic.gov.au/individuals/privacy-fact-sheets/general/privacy-fact-sheet-41-commonwealth-spent-convictions-scheme

Thanks


----------



## UKTraveler (May 12, 2016)

Also. Just because a form says "you MUST provide", it doesn't mean you are legally or lawfully required to do so. That's the whole point in my question.

If I legally and lawfully answer NO to the question, even if it says I "MUST" answer yes, I am well within my rights and any discrimination I receive from doing so is a breach of my human rights.

This is why I said that this question is best suited to a legal professional who speaks legalise.

I need to know if I can legally lie. Which is legalise for... I'm lawfully allowed to answer NO to the question.

So the word to focus on here is "MUST". Does "MUST" have any lawful backing or it is just to get you to disclose information you don't actually have to? If so, I need to see that documentation.

If I have the right to say NO because I am protected by spent conviction laws, then I want to use that right!

*And just to remind everyone. I have no issue in supplying my spent conviction, but if I do so, I might need to provide a police certificate which I can't do because I don't have a permanent address because I'm traveling. To find a permanent place to live and get all the evidence together to get a police certificate then wait another 40 days for the certificate to arrive will be 3 or 4 months. That is just not an option when the employer requires the position to be fill in a reasonable time!

That is why I want to answer NO lawfully!


----------



## Aussie83 (Oct 15, 2015)

But the link you provided answers your question quite clearly.
The spent convictions part b.
From what you said there was no imprisonment. There's no legal double talk there.
What they are looking for is prison sentences.


----------



## CCMS (Oct 10, 2013)

UKTraveler said:


> I would appreciate if people could back their answers up with evidence. Without evidence, it's just hearsay! Thanks


If you want a legal opinion on this, then you should engage an Australian lawyer who specialises in immigration law. I could recommend a few. If you are after free legal advice on a public forum that is relevant and accurate and backed up by evidence and case law then you are wasting your time.

www.ausvisa.net.au


----------



## UKTraveler (May 12, 2016)

That is one provision, there are others. There is the the UK Rehabilitation of Offenders Act.

Is it not my human right to have my convictions forgotten globally if the country that sentenced me also gives me that option?

As an example. Lets say I committed a minor offence in the UK that is NOT an offence in Australia. That offence would be on my record for lets say 1 year under the Rehabilitation of Offenders Act in the UK. After that it is spent and I don't have to disclose it.

If Australia says my conviction is not spent for 10 years under the Commonwealth Spent Convictions Scheme, then this would mean that Australia has effectively handed me a higher sentence than the UK did for a crime that's not even a crime in Australia and taken away my human right to have my conviction forgotten.

Surely; as my crime and conviction was in the UK, UK law must be paramount and as such, my human right is to have my convictions forgotten? If Australia recognises my conviction, it must recognise my conviction is spent and I have the right not to disclose it?

If Australia doesn't recognise my right to to have my spent conviction forgotten, then surely they must also not recognise my conviction?

Swings and roundabouts.

The law has many contradictions. Many acts aren't compatible with many laws and many laws aren't compatible with many acts. Human rights and other protections are often forgotten.

So I am trying to work out if there is a LAWFUL path I can follow that can get me in to the country quicker, because time is of the essence.

If I have to look for and move in to a permanent address then get all my evidence set up to satisfy the proof of address criteria of the police certificate, it will be too late and my opportunity would have gone.

Alternatively. If I can get my police certificate without a permanent address and get it within 4 weeks (priority) then problem solved. But as it stand, it's going to take a lot longer than that and longer than the employer is willing to wait!

#frustrated #allthistechologybuttheworldsoslow


----------



## UKTraveler (May 12, 2016)

*Yes *



CCMS said:


> If you want a legal opinion on this, then you should engage an Australian lawyer who specialises in immigration law. I could recommend a few. If you are after free legal advice on a public forum that is relevant and accurate and backed up by evidence and case law then you are wasting your time.


Yes, you are right. This is something I am intending on doing. However; wanted to see what others are saying to give me more info to take with me.

It's always better to go fully armed with as much info as possible!

I didn't think I would get any technical answers on here as I'm looking at the more complex side of international criminal law, human rights and immigration. But was hoping for a miracle.

I know that when you dig deep you can always find a way. Law can be very helpful if you know how to work it


----------



## CCMS (Oct 10, 2013)

I think Australia is not too concerned about your human rights. If you want an opinion on the character requirements and establish your exact legal position your best bet is to engage a legal expert to provide you with the answer you seek. If you are just looking for an argument, you are really wasting your time.

www.ausvisa.net.au


----------



## UKTraveler (May 12, 2016)

And there is the reason I try and stay away from forums, Facebook and other such platforms. I've added valid content with substance and intellectually provoking questions. But I have been met with negativity and now personal attacks. Nothing helpful at all. My time IS wasted here. What a shame but not a surprise!


----------



## CCMS (Oct 10, 2013)

UKTraveler said:


> And there is the reason I try and stay away from forums, Facebook and other such platforms. I've added valid content with substance and intellectually provoking questions. But I have been met with negativity and now personal attacks. Nothing helpful at all. My time IS wasted here. What a shame but not a surprise!


Sorry I could not tell you what you wanted to hear. I provided you with a positive answer: go and seek legal advice as no one on this forum can properly answer your question, which involves interpretation of British and Australian law. I have not noticed any personal attacks.

www.ausvisa.net.au


----------



## Maggie-May24 (Jul 24, 2011)

Your visa application will ask if you have any convictions, spent or not, and you must provide a police check to substantiate your answer. If you choose to lie on that question, then you'll also need to lie when answering the question confirming that all your answers are truthful. If you choose to lie multiple times on your application, I assume you will find you have failed the character test and won't be given a visa.

I agree with the recommendation that you meet with a migration agent to assess your situation. If you find a migration agent who supports your idea that you lie on your application, that's not a migration agent I would recommend.


----------



## J&F (Nov 5, 2015)

I'm not a solicitor, but I spent 25 years as a para legal in crim and family law in Sydney and have done more PCA (Prescribed Concentration of Alcohol aka drunk driving) matters than you've had hot dinners, so feel I have some authority on this matter.

First in Australia we have three levels of PCA charges; low, mid and high range. Your conviction sounds like a mid range level (last mid range one I did carried a 12 month licence loss, $1,500 fine, driver rehabilitation course). Your matter sounds like mid range.

Your conviction is spent and it must be admitted. If you want the visa, you must admit it.

The police check, again, you must submit it, with or without a permanent residential address. You must also supply all your addresses for the required 10 years. Again, if you want the visa you must supply those details.

Australia and the UK work on the Westminster rule of law and are similar in most, if not all respects. I also worked for an international Senior Counsel (Queens Counsel) who worked from Sydney, Singapore, London and Durban in South Africa so again, I have a good knowledge of international law on that scale.

If you are embarrassed and feel indignant that you must admit this PCA charge, that's up to you. I feel sorry for you, but there's nothing that can be done about it.

As for your human rights, if you have the money to take on the Australian Federal Government and are willing to engage the services of solicitors and Senior Counsel (Barristers) both in the UK and in Australia, then by all means I would love to know the outcomes and arguments of the proceedings.

The outcome of this conversation is if you want the visa, and have a spent conviction, then just admit it. It's a bit like ripping a band aid off, hurts but will feel better once it's done.


----------



## CCMS (Oct 10, 2013)

As a registered migration agent my advice is : "declare everything" and when in doubt, declare it anyway. As I pointed out before, if you want to start some high level legal debate about it, you should consult legal experts, that means lawyers/barristers with extensive knowledge of both criminal and migration law.


----------



## wrussell (Dec 31, 2014)

> Do I legally or lawfully have to admit I have SPENT convictions


Yes. As far as Australian immigration is concerned, there is no such thing as a spent conviction.


----------



## ausharrold (Oct 28, 2015)

Have a look at the last paragraph that I have copied. Spent convictions are to be declared if you are dealing with the Migration Act

https://www.oaic.gov.au/individuals...heet-41-commonwealth-spent-convictions-scheme

Exclusions
In some cases an individual will not have a right to withhold information about a conviction that otherwise meets the requirements to be spent.

Similarly, some persons and authorities are permitted to request, disclose and take information on spent convictions into account in limited circumstances.

The most important exclusion from the Scheme enables a person who is assessing an individual's suitability to work with children to obtain, disclose and use information about that individual's spent conviction.

Other important exclusions relate to:

law enforcement agencies for the purpose of:
making decisions in relation to prosecution or sentencing matters
assessing prospective employees and consultants
making certain disclosures to another law enforcement agency
AUSTRAC and intelligence or security agencies, for the purpose of assessing prospective employees and consultants
courts or tribunals making decisions, including sentencing decisions
a person who makes a decision under the Australian Citizenship Act 2007 or the Migration Act 1958


----------



## ampk (Sep 21, 2013)

"I think" this is a bigger problem for you.

The issue I have is. *I don't have a permanent address* so I don't qualify for a police certificate. And without police certificate I can't get an Australian VISA.

*Your current residential address*
Note: *You are required to provide a residential address on this form for it 
to be a valid visa application*. Under legislation, a post office box address 
is not acceptable as a residential address

This makes it complicated, as reason to return form a visitor visa or any onshore application if refused. Even offshore would ring bells.

"Maybe" get a permanent address first - many before you have gotten Australian visas with DUI convictions.


----------



## J&F (Nov 5, 2015)

The OP doesn't really need legal advice, the heading of the thread says it all "Spent Convictions No One Knows". My guess is this poor kid didn't tell anyone what happened and now in the position of being "outed". I feel really bad for them but there's nothing anyone can do, the OP can fight all the way through Courts, can get legal advice all they want but that will just make it more and more public.


----------

