Police Checks for a foreign illegal immigrant

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Police Checks for a foreign illegal immigrant


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Old 02-23-2013, 07:49 PM
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Police Checks for a foreign illegal immigrant

Hi all,

Very new to all this, but hope you can help me out!

I am an Australian, living in the UK. I met my husband 3 years ago and we were married (well, civil partnered) a year ago. Just in case it is relevant in any way to the discussion... we are a gay couple...

Now... my partner is not legal in the UK - he's from Brazil origially. So, we have decided to move to Australia so he can be free and we can live a more normal life hopefully as a result.

We're about to lodge our application for his visa as my partner, but it seems we may at some point in the process be asked for his police records for the past 10 years. We're a bit concerned about what we should do here. Obviously, asking for one from the UK now (being that we're still here) could cause unwanted issues before leaving. But are we able to just say to Aussie immigration "He cant provide one"?

Anyone have any advice on the best way to go about this?

Thanks in advance!


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Old 02-23-2013, 09:42 PM
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Hi -

The offshore police check is a requirement for the partner visa, no way around it. Although your partner may have not had a valid visa for the UK, that doesn't mean that his police record would reflect anything as a result of that unless he's been convicted of some sort of immigration offense. If you're concerned about the request for the police check alerting UK immigration to his presence, maybe consider getting him to Australia and lodging onshore here?

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Mark Northam

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Old 02-24-2013, 09:55 AM
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Quote:
Originally Posted by MarkNortham View Post
Hi -

The offshore police check is a requirement for the partner visa, no way around it. Although your partner may have not had a valid visa for the UK, that doesn't mean that his police record would reflect anything as a result of that unless he's been convicted of some sort of immigration offense. If you're concerned about the request for the police check alerting UK immigration to his presence, maybe consider getting him to Australia and lodging onshore here?

Best,

Mark Northam
Hey Mark,

Wouldn't it be difficult for him to apply for a visa to Australia from the UK when he is illegal?

Kttykat

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Old 02-24-2013, 10:03 AM
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Hi KK -

Yes, it could if DIAC discovered it, however interestingly DIAC does not ask evidence of legal entry into other countries. And he may have appeal/review rights available so even a current overstay situation in a foreign country doesn't mean that he necessarily couldn't convert that to a lawful presence there.

I'm sure if DIAC started digging they could determine his status overseas with their reciprocal arrangements with other countries, but unless his unlawfulnes has resulted in him being refused a visa, or having a visa cancelled, or it's reflected in some way on his police clearance certificate, simply overstaying (overseas) is not generally readily identifiable on the usual application forms.

Everybody ready for the 457 crackdown? Hold on to your hats!!

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Mark Northam

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Old 02-24-2013, 10:45 AM
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This a short term solution. DIAC passes situation like these onto ASIO and usually this surfaces up.
In my opinion, it would be much easier if you apply from Brazil, Australia.
Can't he get police certificates from UK? Usually police don't check you migration status when this happens. It would be also best to declare his status, not declaring might create serious complications down the road.
I'm personally for long term solutions rather than short term "fixes".
If you are in genuine relationship for a while DIAC should look at honesty favorably rather than them using it as an excuse to reject it later.
A mate of mine was rejected visa (partnership as well) because he didn't declare his NZ visa refusal and overstay.

Nothing mentioned in the application but DIAC found out. And their migration agent advised the same "don't mention anything". Once visa got rejected they couldn't even get their fees back from that person. Go figure.

This is not an immigration advice

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Old 02-24-2013, 11:17 AM
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Fair enough, Boboa, but to clarify, a refusal and an overstay are quite different in terms of providing information on DIAC forms. There is a specific question about any past visa refusals. If your mate provided an incorrect answer to the "ever been refused a visa" question, then obviously that's a big problem - providing inaccurate or false information in response to a visa application form question is clearly grounds for refusal. If your mate believed he received bad advice from a (registered) migration agent, he should make a complaint to MARA - there is a specific element in the Code of Conduct that refers to situations like this:

2.9 A registered migration agent must not make statements in support of an application under the Migration Act or Migration Regulations, or encourage the making of statements, which he or she knows or believes to be misleading or inaccurate.


The agent you mentioned was blatantly in violation of this provision, and deserves to be held accountable.

But in the case we're talking about, there is no question on form 80, 40sp or 47sp that asks about the current immigration status of the applicant. If a person has only overstayed, and has not had a visa cancelled, refused, or has not been deported or removed (or subject to a deportation or removal order and left the country to avoid this), not indicating they were currently overstaying in another country does not constitute false or wrong information on any of these forms that I can see.

I suppose a person could write on the additional information page, "I voluntarily admit that I am currently in violation of my previous visa and am unlawfully present in my current country." That being said, they could declare themselves in that country and hope that they aren't removed/deported/detained (and then have to answer the question affirmatively re: previous visa cancel/refuse/deport/remove/etc), and certainly there would be obvious advantages to having a lawful status in one's current country. And in regards to an ASIO security assessment, would merely an overstay be grounds for a negative ASIO security assessment?

But again, from what I can see, a person in this situation (overstay only) would not be providing any false information to DIAC on these three forms since the question is never asked, even indirectly. Their practical situation in the country they're in is, of course, another matter and I've always been clear in my posts here that I believe it is always better to be lawfully present in a country vs unlawful - the risks and hassle down the road are simply not worth it.

Best,

Mark Northam

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