lizz12341 Posted November 9, 2014 Share Posted November 9, 2014 Hi all, I have tried to find my answers in previous posts however there is lots of conflicting information and not an answer to a specific question that I have so here goes... I am about to apply for a skilled independent 189 visa, and I am adding my de facto partner to the application We are living in Australia at the moment on a WHV, I have all required to apply... skills assessment, qualifications, ID, medicals completed, UK police checks and although we have not lived in Aus we have Aus police checks just incase, IELTS completed for points etc Our UK police checks came back and although mine is fine, no trace; my partners has a stepped down caution for possessing a class A drug in 2012. He is going to contact the Uk police for further information as I have read this is commonly asked for He tells me that he has also been arrested in the past, 4 times for being drunk and disorderly, was taken to the police station and issued a fine with no further action My questions are 1 - where does he actually declare this? We have looked at the application form and character reference stat dec many times, it states has be a conviction therefore we initially said no as it is only a caution 2 - If he requests a subject access from ARCO, does this just list all information held against him, or will it provide more information about this particular issue which I assume DIBP will require more information for 3- Does he declare the other arrests? Should we be worried about these past issues? 4- Should he write a letter and upload this with our application, explaining his guilt and how he is a reformed character which he genuinely is? Any help would be greatly appreciated, at present we are finding it difficult to locate an appropriate RMA and we also are having difficulty visiting a RMA as we work long hours and are not in a position to take time off at present Cheers Link to comment Share on other sites More sharing options...
VERYSTORMY Posted November 9, 2014 Share Posted November 9, 2014 I would consult an agent as there are new stricter rules concerning convictions for drug offences. Link to comment Share on other sites More sharing options...
Que Sera Sera Posted November 9, 2014 Share Posted November 9, 2014 Yes you have to declare everything and yes you really need an agent to help you with this. Link to comment Share on other sites More sharing options...
wrussell Posted November 9, 2014 Share Posted November 9, 2014 Hi all, I have tried to find my answers in previous posts however there is lots of conflicting information and not an answer to a specific question that I have so here goes... I am about to apply for a skilled independent 189 visa, and I am adding my de facto partner to the application We are living in Australia at the moment on a WHV, I have all required to apply... skills assessment, qualifications, ID, medicals completed, UK police checks and although we have not lived in Aus we have Aus police checks just incase, IELTS completed for points etc Our UK police checks came back and although mine is fine, no trace; my partners has a stepped down caution for possessing a class A drug in 2012. He is going to contact the Uk police for further information as I have read this is commonly asked for He tells me that he has also been arrested in the past, 4 times for being drunk and disorderly, was taken to the police station and issued a fine with no further action My questions are 1 - where does he actually declare this? We have looked at the application form and character reference stat dec many times, it states has be a conviction therefore we initially said no as it is only a caution 2 - If he requests a subject access from ARCO, does this just list all information held against him, or will it provide more information about this particular issue which I assume DIBP will require more information for 3- Does he declare the other arrests? Should we be worried about these past issues? 4- Should he write a letter and upload this with our application, explaining his guilt and how he is a reformed character which he genuinely is? Any help would be greatly appreciated, at present we are finding it difficult to locate an appropriate RMA and we also are having difficulty visiting a RMA as we work long hours and are not in a position to take time off at present Cheers You MUST declare all police matters; cautions, convictions fines and so on for all applicants. If you fail to do this, you are dead in the water. Under the new ministerial guidelines any 'substance-related' matter is likely to involve serious consequences. An adverse Section 501 (character) decision made by a ministerial delegate is reviewable on the merits, an adverse decision made by the minister acting personally is not. All such decisions are reviewable on a point of law in a federal court, this is VERY costly. From what you have posted, it seems likely that in due course you might receive a Section 501 Notice of Intention to Consider Refusing a visa. There are several grounds (too complex to list here) under which the minister (or a ministerial delegate) can refuse a visa if s/he reasonably suspects the applicant does not pass the character test. I suggest that you declare all relevant matters in your application and take professional advice from a registered migration, experienced in 501 case, about preparing to respond to a Section 501 Notice. It is unlikely that you will have time to prepare an adequate response after you have received a Section 501 Notice. Link to comment Share on other sites More sharing options...
Quinkla Posted November 10, 2014 Share Posted November 10, 2014 If your partner is already in Australia on a WHV and did not declare these police matters in his WHV application then he is in a world of pain, especially since they are recent and drug related. He is liable to end up with his existing visa being cancelled and being deported with a ban on future visits to Australia. Link to comment Share on other sites More sharing options...
Guest Posted November 10, 2014 Share Posted November 10, 2014 If your partner is already in Australia on a WHV and did not declare these police matters in his WHV application then he is in a world of pain, especially since they are recent and drug related. He is liable to end up with his existing visa being cancelled and being deported with a ban on future visits to Australia. Yiyr talking rubbish, I base this on experience Link to comment Share on other sites More sharing options...
Ozmaniac Posted November 10, 2014 Share Posted November 10, 2014 Yiyr talking rubbish, I base this on experience Please keep it polite. Also, if your experience was gained before 24 September 2014 when the new Migration Amendment (Character and General Visa Cancellation) Bill 2014 came into effect, it is probably irrelevant to the OP's situation. Link to comment Share on other sites More sharing options...
wrussell Posted November 10, 2014 Share Posted November 10, 2014 Please keep it polite. Also, if your experience was gained before 24 September 2014 when the new Migration Amendment (Character and General Visa Cancellation) Bill 2014 came into effect, it is probably irrelevant to the OP's situation. A failure to declare police matters, or providing false or misleading information on an incoming passenger card or on a visa application card could lead to serious issues. In this matter the OP would be ill advised act on advice from a public forum. The OP should put the full facts of the matter to a RMA, experienced in 501 cases. Link to comment Share on other sites More sharing options...
Quinkla Posted November 10, 2014 Share Posted November 10, 2014 ... before 24 September 2014 when the new Migration Amendment (Character and General Visa Cancellation) Bill 2014 came into effect... This is still a Bill and hasn't come into effect. It needs to be passed by Parliament, granted assent and then be commenced. It doesn't really relate anyway to the drugs situation. The real issue is that application of the character test is discretionary and the most recent instruction from ministers is to the effect that more consideration needs to be given to offences involving drugs - i.e. they are problematic even if they were disposed of with less than 12 months imprisonment. Anyone who has not declared a criminal issue is liable to have their visa cancelled even if that issue would not, in itself, have caused the character test to be failed. But if you don't declare something that would have failed the character test - or would now fail the character test - it is difficult to see anyone turning a blind eye. Link to comment Share on other sites More sharing options...
lizz12341 Posted November 10, 2014 Author Share Posted November 10, 2014 Thank you all for your responses When he applied for his WHV he was asked did he have any criminal convictions, he believed as did I that convictions are not the same as cautions and fines therefore answered no Again when we have completed the paperwork for our visas, the decloration and application form state do solemnly and sincerely declare that: (1) I have never been convicted of a crime or any offence in any country; (2) I have not been charged with any offence that is incomplete or awaiting legal action, nor am I aware of any investigation into my affairs that has the potential to lead to such charges; (3) I have not been acquitted of an offence on the grounds of unsoundness of mind or insanity; (4) I do not have any spent convictions under any spent convictions legislation in any country or any convictions on my police record; (5) I have not been involved in war crimes or crimes against humanity; (6) I have never been associated with anyone else who has been or could reasonably be suspected to have been, or is, involved in any activities referred to above; and (7) to the best of my knowledge I do not have any matters which are either unresolved or in which I have been, or am involved, that would bring into question whether or not I pass the character test(2) as defined at Section 501 of the Migration Act 1958. I have read section 501 and did not think that the caution would be included in this? So to clarify is recieving a caution being convicted of a crime? It is not that he has wanted to hide anything, we did not beleive that a caution or fine would be included in this and again on landing cards. Where we live we are quite isolated with limited options for meeting face to face with a RMA, I have looked online however I am reluctant to have a phone call consulatation, any advice or reccomendations? Thanks Link to comment Share on other sites More sharing options...
VERYSTORMY Posted November 10, 2014 Share Posted November 10, 2014 If he has received a fine, then he has been convicted. Cautions are similar and I belive are regarded as a spent conviction as it requires the person to admit guilt. Link to comment Share on other sites More sharing options...
Quinkla Posted November 10, 2014 Share Posted November 10, 2014 Oh dear. I fear this is not going to end well, especially if you think it would be too inconvenient to speak to a registered migration agent. You do realise that your partner is potentially in a lot of difficulty and your future together in Australia may depend on how well you handle the present situation, don't you? Link to comment Share on other sites More sharing options...
toNjus Posted November 10, 2014 Share Posted November 10, 2014 What does a spent conviction mean Link to comment Share on other sites More sharing options...
wrussell Posted November 10, 2014 Share Posted November 10, 2014 Where we live we are quite isolated with limited options for meeting face to face with a RMA Try email. Link to comment Share on other sites More sharing options...
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