VIC Criminal Record in the US - Effect on My Trip to Australia?

[Ho Lam Lai]

I'm going to visit Melbourne in February. I was a Chinese student with an F-1 visa in the US. I charged with 4th-degree assault in Oct 2013 with a no contact order. Then, I broke the no contact order in January 2014 as well as gave false statements to the police.

After 3 days, the police brought me to the court and charged me with two more sentences which are the making of false statements and breaching the no contact order, each with maximum penalties of 364 days in jail and $5000 dollars fine.

I left the US in April 2014 and I have another charge for Failure to Appear in court as well as a warrant on me. I'm now in my home country (Hong Kong). As far as I know, I was not found guilty of the 3 charges (4th-degree assault, breach of no contact orders and false statements).

I'm so concern about how should I answer the question, "Do you have any criminal conviction?"

Should I answer yes or no? I will just be in Australia for a school trip.

Also, will the above sentences be substantial on my criminal record under Criminal Law? How much will it affect for me to get into Australia?

 

[Tim W]

Let me make sure I understand this.

1. You have committed some assault and breach no-contact order offences in the US, and
2. you have run away from the justice system in the US (which are further offences),
   which has caused the issue in the US (presumably in Washington state) of a warrant for your arrest, and
3. you want to know if that will be a problem for getting into Australia?

 

[Ho Lam Lai]

Let me make sure I understand this.

1. You have committed some assault and breach no-contact order offences in the US, and
2. you have run away from the justice system in the US (which are further offences),
   which has caused the issue in the US (presumably in Washington state) of a warrant for your arrest, and
3. you want to know if that will be a problem for getting into Australia?

Yes, exactly! I'm going to travel to Melbourne soon this Feb. Thank you so much for your reply. Also, I really want to know how I should answer the questions on the Incoming Passenger Card.

Thank you so much.

 

[TKC]

Tim, do you think that in relation to '1' and '2', it is likely to be the case where upon the warrant of apprehension being issued an ex parte application was made by the prosecution concurrently, especially because of the defendant being an alien when he was in the USA, and in which case the charges the OP was to appear for have been proved through his absence (and the issuing of the warrant), meaning those convictions are just that, recorded convictions?

Also, I really want to know how I should answer the questions on the Incoming Passenger Card.

If you do not declare your conviction, it is most likely that if Customs find out you will be denied entry. Keep in mind that criminal history checks are conducted for all visa applicants, and such a serious matter as yours is likely to be flagged for intercept. Also, USA authorities have a very good relationship with their counterparts in Australia, and have extensive information-sharing interfaces.

 

[Ho Lam Lai]

Tim, do you think that in relation to '1' and '2', it is likely to be the case where upon the warrant of apprehension being issued an ex parte application was made by the prosecution concurrently, especially because of the defendant being an alien when he was in the USA, and in which case the charges the OP was to appear for have been proved through his absence (and the issuing of the warrant), meaning those convictions are just that, recorded convictions?



If you do not declare your conviction, it is most likely that if Customs find out you will be denied entry. Keep in mind that criminal history checks are conducted for all visa applicants, and such a serious matter as yours is likely to be flagged for intercept. Also, USA authorities have a very good relationship with their counterparts in Australia, and have extensive information-sharing interfaces.

Thank you for the help. I believe what you said that it's easy for Australia to get my information. Two more questions, even if I declare my conviction, how possible will they let me into the Australia? Also, as far as I know, I haven't been found guilty of all my cases so why should I say I have been convicted of a crime?

Thank you so much. I appreciate your help.

 

[TKC]

If you can satisfactorily convince Customs why your visa should not be revoked upon making your conviction known and a subsequent interview taking place, then you will be permitted to pass through the border; and the fact that you will have declared your convictions will show that you are (can be) an honest person, who perhaps may have found himself in some unusual circumstances. I don't know.

Having said that, you have demonstrated that you are willing to take flight from justice. I don't know why you have done that, and whether you are planning on returning to go before authorities and defend yourself, however, you should ask yourself whether you would permit Lam Lai into his own country of Ho.

The reason why Customs in Australia protect the border against convicted people is because they have a responsibility to protect its (hard working, tax-paying) citizens from undesirable people who may be a threat to the community.

I'm not sure about the law in the USA, and I don't know the specific set-of-events for which you were before their courts, however, it is likely you have been found guilty of all the charges by simply absconding. This would have been done by an ex parte application, for the purposes, that if you would attempt to re-enter the USA again at a later time, you would be identified as a convict on their systems, and brought to justice.

Nevertheless, if you think you have been convicted then that is the best indicator about how you should answer that particular question on the Incoming Passenger Card. If your situation is an unfortunate set-of-events and you have a reasonable excuse to demonstrate why things are the way they are for you, then you may very well be permitted passage through the Australian border, even after indicating your situation in the way you will decide to answer the question.

 

[Ho Lam Lai]

If you can satisfactorily convince Customs why your visa should not be revoked upon making your conviction known and a subsequent interview taking place, then you will be permitted to pass through the border; and the fact that you will have declared your convictions will show that you are (can be) an honest person, who perhaps may have found himself in some unusual circumstances. I don't know.

Having said that, you have demonstrated that you are willing to take flight from justice. I don't know why you have done that, and whether you are planning on returning to go before authorities and defend yourself, however, you should ask yourself whether you would permit Lam Lai into his own country of Ho.

The reason why Customs in Australia protect the border against convicted people is because they have a responsibility to protect its (hard working, tax-paying) citizens from undesirable people who may be a threat to the community.

I'm not sure about the law in the USA, and I don't know the specific set-of-events for which you were before their courts, however, it is likely you have been found guilty of all the charges by simply absconding. This would have been done by an ex parte application, for the purposes, that if you would attempt to re-enter the USA again at a later time, you would be identified as a convict on their systems, and brought to justice.

Nevertheless, if you think you have been convicted then that is the best indicator about how you should answer that particular question on the Incoming Passenger Card. If your situation is an unfortunate set-of-events and you have a reasonable excuse to demonstrate why things are the way they are for you, then you may very well be permitted passage through the Australian border, even after indicating your situation in the way you will decide to answer the question.

Thank you

It might sound like excuses to a Custom about why this would happen but I will try my best to convince them.

My regards to you. You helped me a lot.

Thank you, again.

 

[TKC]

The operative word to be applied in terms of excuse/s is 'reasonable'. If you were to state that you absconded because you didn't want to be found guilty that that will be regarded differently, indeed adversely, from you stating that your intention is to return to the USA to answer the charges/convictions, and that you have evidence for corresponding with the relevant authorities about such an arrangement.

 

[Ho Lam Lai]

The operative word to be applied in terms of excuse/s is 'reasonable'. If you were to state that you absconded because you didn't want to be found guilty that that will be regarded differently, indeed adversely, from you stating that your intention is to return to the USA to answer the charges/convictions, and that you have evidence for corresponding with the relevant authorities about such an arrangement.

Got it!

So the best way to explain is to tell them I have a plan to go back and answer the charges.

Thank you so much.

 

[TKC]

No, the best way to explain it, is to provide evidence that you have, in the interim, taken steps to explain to American authorities of your intentions to return and explained why you absconded in the first place. Otherwise, just saying you will return without proving it, may be regarded as not very genuine and thus have a hollow ring.