[Date: 11 September 2019]

Have you been charged for having committed a crime in Australia?

Did your criminal lawyer suggest you take what seemed like the easy option to avoid a conviction, that is, essentially a guilty plea with no conviction being recorded? Did they also tell you that in doing so it would not affect your ability to obtain a visa for the USA in future? Sadly, this might not be entirely true.

The power for a Court in Australia to find you guilty of a criminal offence but not to record a conviction is found in various State laws as set out below:

State Legislation
New South Wales section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
South Australia section 24 of the Sentencing Act 2017 (SA)
Victoria section 7 of the Sentencing Act 1991 (Vic)
Queensland section 12 of the Penalties and Sentences Act 1992 (Qld)
Western Australia section 45 of the Sentencing Act 1995 (WA)
Northern Territory section 8 of the Sentencing Act 1995 (NT)
Tasmania section 9 of the Sentencing Act 1997 (Tas)
Australian Capital Territory section 17 of the Crimes (Sentencing) Act 2005 (ACT)

Whilst each of the above State Acts vary, the fundamental basis behind the provisions is to grant a Court the ability to not record a conviction despite a finding of guilt.

The benefit of this is as a result of various State Acts, the convictions are considered to be immediately ‘spent’. A ‘spent conviction’ is  one that is not considered to be part of the person’s criminal history and generally would not show up in a police certificate search (which would show the offences the person has committed).

Whilst this is extremely beneficial for an individual in Australia who is governed by Australian law, these benefits do not necessarily extend when considering the laws of other countries.

For example, an application for a USA visa is governed by the laws of the United States, and not Australian law, and therefore you will be required to disclose your criminal history where required by the laws of the United States.

Furthermore, confusion can arise if your criminal lawyer has told you that if you obtain a ‘no conviction’ it will not affect your future immigration ability. You may think, therefore, that you do not need to disclose your criminal acts at the time of applying for a visa which in turn may cause you to inadvertently commit an additional crime in not disclosing it.

When it comes to US immigration, the reason the disclosure is necessary is that the law provides that not only are convictions relevant, but also admissions of guilt or admissions relating to committing acts which constitute the essential elements of the crime will count (see section 212(a)(2)(A)(i) of the Immigration and Nationality Act). Thus, if you have pleaded guilty and are seeking to have no conviction recorded, your disclosure obligation for the purposes of obtaining a US visa will still be enlivened.

Furthermore, when completing various immigration forms in the US, the questions that are posed vary but are usually termed in broader terms to provide for further disclosure obligations on the individual.

For example, in one form the question is framed as follows:

Have you ever been arrested or convicted for any offense or crime, even though subject or a pardon, amnesty, or other similar action?

This question requires you to disclose any arrests, not only convictions, and despite being subject to a pardon, amnesty or other similar action.

Another form provides a number of very detailed questions where it would seem impossible for one not to have to disclose the basis of criminal activity even where that lead to a ‘no conviction’. Some of these questions are as follows:

Have you ever committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime)?

Have you ever plead guilty to or been convicted of a crime or offense (even if the violation was subsequently expunged or sealed by a court, or if you were granted a pardon, amnesty, a rehabilitation decree, or other act of clemency)?

Have you ever been a defendant or the accused in a criminal proceeding (including pre-trial diversion, deferred prosecution, deferred adjudication, or any withheld adjudication)?

Only certain criminal activity will cause you to be inadmissible for US immigration purposes. Thus, the answers you provide in full and frank disclosure of your criminal history when answering those questions will not necessarily prevent you from obtaining your visa. However, being untruthful (even in situations where you mistakenly think you have the right not to disclose the criminal activity, for example, where you did not obtain a conviction) may actually lead to further issues in relation to your immigration matter.

The reason for this is that withholding information in your application for a visa could lead to a finding that you have acted fraudulently or you have misrepresented facts considered as part of your application. In doing so, you may be subject to a lifetime bar to adjusting to permanent residence or lawfully gaining admission to the United States (either as an immigrant or non-immigrant).

Section 212(a)(6)(C)(i) of the Immigration & Nationality Act states that foreign nationals, who by fraud or wilfully misrepresenting a material fact, seek to procure (or have sought to procure or have procured) a visa, other documentation, or admission into the United States or other immigration benefit are inadmissible.

Thus, to reiterate, you are doing yourself a disservice by not being truthful in relation to your criminal history as the crime you have committed will not necessarily cause you to be inadmissible into the US, but if you commit fraud or wilful misrepresentation, you can be subject to a lifetime bar.

In certain situations where your criminal history causes you to be inadmissible into the US, you may be able to apply for a waiver of inadmissibility.

The area of law relating to criminal history, inadmissibility and waivers of inadmissibility can be complex and you should consult an immigration attorney to obtain advice specific to your circumstances.

At Zed Legal, we are able to assist you in relation to potential immigration issues as a result of criminal history you may have. Contact us today to arrange a time to discuss your matter – hello@zed.legal

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