Disclosing Spent Convictions

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Disclosing Spent Convictions


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Old 07-24-2019, 09:24 PM
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Disclosing Spent Convictions

Hi

For many years travelling to Australia I never once shared that I had a criminal record. Why? Because it was a youth record and from well over 10 years ago.

According to what I understand under the spent convictions scheme. I have a right to non-disclosure. Even under oath I have the right to claim I have not been charged with or convicted of the offence. If I'm asked on a visa application whether or not I have been convicted of an offence in any country (including any conviction which is now removed from official records), I have a right to non-disclosure. This is how I see it.

Even in my many travels to the USA, I never shared my youth record and always said that I had no criminal record. I never got questioned in the USA because it doesn't show in my police records. I even know of many many people who have got pardons so that could claim they have no criminal record when they travel to the USA or any country.

According to my migration agents service agreement I need to disclose my juvenile record and according to her I should have disclosed that every time I entered Australia on the customs card!

After doing a look through various acts, I do see that there are exclusions to the spent convictions scheme.

I'm not so sure if I'm confused about the exclusions or if my migration agent is. How I read this is that the exclusion applies to the individual who MAKES a decision under the Australian Citizenship Act 2007 or the Migration Act 1958. In other words, someone who is applying to BE a migration agent or a case officer has to disclose their spent convictions.

I can be mistaken because some of these acts are a bit difficult to read but here are the links that I found (unfortunately I don't have the ability to post urls but just search for these titles in www8 . austlii . edu . au )
:

CRIMES ACT 1914 - SECT 85ZZH Exclusions

MIGRATION ACT 1958 - SECT 279 Part VIIC of the Crimes Act 1914 to apply to this Part

MIGRATION ACT 1958 - SECT 290 Applicant must not be registered if not a person of integrity or not fit and proper

Please let me know how you understand this exclusion.


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Old 07-24-2019, 09:49 PM
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For Australian immigration/citizenship purposes all police matters whether juvenile, spent, resulting in a caution or a fine MUST be declared. Failure to declare is a serious issue that can result is adverse outcomes.

For the most part the USA ignores juvenile convictions and Australia ignores spent convictions for most purposes other than immigration/citizenship.

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Last edited by wrussell; 07-30-2019 at 09:42 PM. Reason: sp

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Old 07-25-2019, 12:29 AM
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Quote:
Originally Posted by wrussell View Post
For Australian immigration/citizenship purposes all police matters whether juvenile, spent, resulting in a caution or a fine MUST be declared. Failure to declare is a serious issue that can result is adverse outcomes.

For the most part the USAA ifnores juvenile convictions and Austrsalia ignores spent convictions for most purposes other thsn immigration/citizenship.
This really isnt outlined very well. How about for customs cards? It asks if one has had any criminal convictions.

I'm telling you right now that most people who have had juvenile or spent convictions will say no on their customs cards. This isn't even clear on most travel visa applications... And for anything on the immi website the only time it mentions anyone having to declare spent convictions is when one is applying for citizenship.

So I think that if it is true and that one was supposed to declare their youth record and they only found out now that they could just write a statement stating that there was nothing made clear that one has to disclose even if they believe they have a right to non-disclosure. Most people think they have a right to non-disclosure.

There are hundreds if not thousands of people that don't declare they have spent convictions just because immigration isn't outlining what they want declared properly by stating that by law there is an exclusion to the spent convictions scheme.


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Old 07-25-2019, 01:04 AM
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Quote:
Originally Posted by Manannan View Post
This really isnt outlined very well. How about for customs cards? It asks if one has had any criminal convictions.

I'm telling you right now that most people who have had juvenile or spent convictions will say no on their customs cards. This isn't even clear on most travel visa applications... And for anything on the immi website the only time it mentions anyone having to declare spent convictions is when one is applying for citizenship.

So I think that if it is true and that one was supposed to declare their youth record and they only found out now that they could just write a statement stating that there was nothing made clear that one has to disclose even if they believe they have a right to non-disclosure. Most people think they have a right to non-disclosure.

There are hundreds if not thousands of people that don't declare they have spent convictions just because immigration isn't outlining what they want declared properly by stating that by law there is an exclusion to the spent convictions scheme.
The page on "Character requirements for visas" does state to declare all criminal conduct.


They do not say to leave of anything you consider to be too long ago.

I assume you are referring to this on the Citizenship page:
  • You are, therefore, required to disclose to the department any Ďspent convictionsí or findings of guilt recorded against you.


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Old 07-25-2019, 03:31 AM
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Originally Posted by JandE View Post
The page on "Character requirements for visas" does state to declare all criminal conduct.

It does say that but it doesn't say "Even if you believe you have the right to non-disclosure for spent convictions you need to share your spent criminal history because [...]" Otherwise there are many many people who will read that and think that they have the right to say no because they have a destroyed youth record and they are protected.


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Old 07-25-2019, 03:54 AM
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Not sure if the forms 40 and 47 are different to when we did them, but ours asked:

47SP Partner Visa Application.
Q72: Have you been convicted of an offence in any country (including any conviction which is now removed from official records)?

40SP: Sponsor Form for Partner Visa.
Q40: Have you ever been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?

It was pretty clear when we applied, for both applicant and sponsor.


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Old 07-25-2019, 07:51 AM
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I am not sure if you are aware of it, but Wrussell, is a well established and respected Registered Migration Agent, who freely gives advice on this forum,
I would discount his advice at your own peril. Your belief in regards to your obligation to disclose or not disclose past convictions, has no bearing on the requirements the department can and does impose.
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Old 07-26-2019, 08:03 AM
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What I am trying to say here is that most people who have spent convictions or juvenile records have been told that they have a right to non-disclosure even if they are asked by various authorities if they have spent convictions. This is why myself and probably thousands of others didnít disclose their spent convictions to immigration when asked.

So its not fair that if I or anyone else gets a penalty for this when the immigration website or the custom cards are not highlighting any acts which show that by law this is that rare time where you do not have a right to non disclosure.

Right now Iím going through quite a stressful time because Iíve been so careful, organized, and honest to immigration through out the years. It would destroy me if Iím ever red flagged. I just thought I had a right to say no when asked.


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Old 07-26-2019, 08:18 AM
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Maybe that may be the case in the country you were convicted in, however in Australia there are quite a few situations where spent convictions are considered. However all may not be lost if your convictions were minor, in the ETA application it states "You must not have any criminal convictions for which you have been sentenced for a total combined period of 12 months or more, whether or not you served the sentence/s." if that is the case for you, you may be able to claim that is why you did not previously disclose them. Personally I think it would be wise to consult a Registered Migration Agent for a possible course of action

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Last edited by aussiesteve; 07-26-2019 at 08:25 AM.

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Old 07-30-2019, 09:09 PM
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I called the Justice Youth Court to ask for my youth records because my Migration agent was asking for them and I was told to a lawyer to understand my rights. They forwarded me to a lawyer who specializes in this within my country and she also happened to have been from Australia.

The lawyer told me that my youth records were already long expired and that only certain people can get access to anything in my youth record. She said that even if some how the Australian Immigration Department had access to my youth record then they would be breaking the law.

She also said that in CRIMES ACT 1914 - SECT 85ZP it states:

Nothing in this Part authorises a person or body to disclose or take into account a conviction of an offence if to do so would contravene any Commonwealth law, State law, Territory law or foreign law.

In my country I have a right to non disclosure of my youth records.

She also told me that there would have been a "sentencing of guilt" within the youth record rather than a conviction. So I never even had any convictions.

Therefore, I am protected to say no to any question asking of criminal convictions including saying no when asked if I had convictions which had been deleted from records.


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