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Australian Visas: full disclosure and false declarations

by Stephanie 22/11/2010 14:52:00

If you have not made a full declaration of
prior offences it may still be possible to
amend your application.

The Australian Government has a number of processes to promote visa integrity, so it is important that when making an Australian Visa application that you make full disclosure of all your circumstances.

False declarations or partial declarations may result in your visa being denied or cancelled, and the Australian Immigration department can check your application using a number of methods.

Of course, the visa process and the level of checking carried out varies depending on the country of origin, the visa class and conditions and the intended length of stay and purpose of the applicant’s stay in Australia. 

For example, your marital or relationship status declared in a spouse visa application may be checked against Facebook or MySpace profile, or if you live in a country with high incidences of fraud local embassy staff may make a house visit to confirm your address. 

Continued false declarations may be seen as an issue of poor character 

A series of false declarations may be viewed more harshly by the Australian Immigration department than the full declaration of a minor offence.

This may be particularly important to Britons who have a relatively minor offence on their record, but who declare they do not when making an Australian Working Holiday Visa or tourist visa application. 

If they later decide to emigrate to Australia permanently they will be required to submit a UK police report, and the immigration officer in charge of the case will compare this with previous applications and will be able to see that they have falsely declared or partially declared offences on previous occasions. This then becomes no longer an issue about the offence but a character issue and the series of lies that they proffered in their declarations.

If DIAC have concerns they can refer your case to the Character Unit, who may forewarn that your application maybe refused and give you the chance to prove you are rehabilitated and provide more information about the offences.

Recent Australian immigration court cases

There have been recent court cases that have highlighted the issue of making a false or partial declaration to the Australian Immigration Department.

In the case Hikawai vs Minister for Immigration in the Federal Magistrates Court of Australia (25 August 2010), the issue of the lack of full disclosure of a criminal record was considered.

The applicant Mr Karaitiana Hikawai, a New Zealand Citizen, sought to stop his deportation from Australia, to overturn the decision made by immigration to refuse him a visa, and be allowed to stay as a permanent resident and settle with family in Perth.

He arrived in Australia in August 2010 to make a new life for himself and his young family in Perth. On his incoming passenger card he declared that he had criminal convictions relating to one event and had spent three years in prison. He then made a criminal history declaration to Australian Immigration Officers and gave permission for the department to check these details.

When the department requested the New Zealand Police provide full details of Mr Hikawai’s criminal record in New Zealand they found it included three alcohol related offences – offences which he did not declare on his passenger card or in the full declaration to immigration officers. 

The department refused his visa, and this decision was upheld by the Court. Mr Hikawai was returned to New Zealand.   

The Court noted that these offences would not have meant he would have been seen as a behaviour concern under the Migration Act 1958, and the positive parole assessment in 2008 that indicated Mr Hikawai had left offending behind him was also in his favour, however the Court found that there was no error of law made by Minister’s delegate in refusing Mr Hikawai a visa.

Advice for Australian Visa applicants

It is always advisable to make a full disclosure of your circumstances and history, even if you think this may not be favourable to your application. As previously stated, offences may be considered minor issues to an application whereas making a false or partial declaration could be seen as a more serious issue of character.

If you believe you have failed to mention your circumstances or past offences accurately, for example if your offence was committed years ago and you forgot it when making your application, it is advisable to talk with your migration agent as soon as possible.   It’s advised to discuss issues even if they’re embarrassing or they occurred many years ago - many people have the false impression that their offences are spent if they occurred a long time ago.

Migration agents are experienced in addressing various types of character issues, and their advice can be sought regarding offences no matter at what stage of the visa process you are in, before or during, as well as if offences occur during the processing period.

- Stephanie Bradley is Content and Communications Editor for the Australian Visa Bureau.

Visa Bureau takes no responsibility and cannot be held accountable for action taken as a result of any information or comment provided on this blog, and we recommend that you always seek a number of opinions before making a decision regarding your migration or visa application. Please refer to the Visa Bureau terms of use for more information.

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