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WA Spouse Visa Chances of Approval with Criminal Record?

Discussion in 'Immigration Law Forum' started by Kat, 24 October 2014.

  1. Kat

    Kat Member

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    Hi. My fiance has a charge in America but has been closed and settled with suspended prosecution. How will this affect our application for spouse visa once we apply after getting married here in Australia? Is the case still considered pending? How badly will it affect our application if he has quite a bit of record?
     
  2. Victoria S

    Victoria S Well-Known Member

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    Hi @Kat
    Are you Australian?
    So he has a criminal record in the US, or the charges were dropped? Serious offence/s? Recent or when he was younger?
     
  3. Tim W

    Tim W Lawyer

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    Kat likes this.
  4. Kat

    Kat Member

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    Yes I'm australian. Recent drug charge but it is settled with suspended prosecution.
     
  5. Tim W

    Tim W Lawyer

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    I suggest that it is not "settled".
    Suspension of prosecution is a concept in some American states
    that provides for a prosecution to be postponed for a period
    (for example, three or six months, or a year), after which time,
    if there are no further offences, the suspended matter is either withdrawn, or is dismissed, or lapses.
    Although it is not a conviction, because there has not yet been a trial,
    the matter has not gone away.

    It is a matter that your partner should disclose on his/her application.
     
    CathL likes this.
  6. Sophea

    Sophea Well-Known Member

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    I don't know that it would necessarily preclude his ability to get a spouses Visa. A relative of mine married a Korean who had served a jail term in South Korea for taking a neutral position with respect to politics and refusing to do military service and he got a spouses visa. Admittedly though drug convictions may be more damning to a person's character profile.
     
  7. Kat

    Kat Member

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    Thanks for the reply Tim. Will this affect his application for visa? We will be totally honest with the application and his charges for sure but just wondering how badly it can affect his visa.
     
  8. Tim W

    Tim W Lawyer

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    The question is not so much
    "Is he entitled to apply?"
    Basically, he is.

    The actual question is,
    "So, if he does apply, does he have reasonable prospects of success?"
    (ie will he actually get a visa?)

    We are limited to generalities on here, so it's hard to provide meaningful detail in an answer.
    His chances depend on (among other things) the exact charge (no, don't tell us),
    and the penalty that could be imposed if he is ever convicted.

    I certainly encourage you/ him to be completely honest on his application.
    Overall, having any criminal matter in the mix is... less favourable.
    Concealing your back story from Australian authorities is worse.

    Among other things, he would need to satisfy the Immigration Department that he is
    not in fact simply fleeing the jurisdiction where he is being prosecuted.

    He may also have to consider the question of being able to leave America during the suspension period.
    That is a separate question to whether or not he would be allowed to enter Australia.
    Are you already sure that the US Government (at any level) has no problem with him leaving the country?

    One last thing - I encourage you to engage a WA lawyer who is also a Registered Migration Agent.
    If only because it's important to remember that
    it's a really bad idea to make big decisions
    based on what some guy says on the internet.

    Good luck.
     
    CathL likes this.

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