soft

Hello,

Myself Ash, have studied Masters in Australia for 2 years and applied for 485 Temporary Visa and also 489 Family Sponsor Visa on January2014 as well. Right now Both r in pending.

I had small indecent 1 year back and have got pending Court hearing Case for this meanwhile I applied for Temporary visa on March 2014 and still its pending due to outcome of my court Case.

My Lawyer said to me that we have 70% chances of win this case as there wasn't my fault at all in pending Charges.

My lawyer also suggest me to have "Diversion" option as well. In this case, I have to be sign "Good Behaviour bond" for 6 months. And I will be getting "Clear Records" in my Australian Police Clearance Certificate. But It might take up to 6 months get Clear Records.

And another option is to go ahead with Court case and Win the case.
Can you please help me on some of my queries please ?

1. Will I get Temporary Visa If I will choose Diversion option and I will be getting Clear Police Clearance Record?

2. Do I have to go ahead with case and Win the Case for Police Clearance records, then only I will get Temporary Visa?


So, my main question is If I will select Diversion step, Will it get any problem to grant my 485 Temporary Visa ?

Or should I go ahead with Case and Win Case, But I don't want to take 30% risk, If I lost case then I have to go back to my country.

But If I choose Diversion then I will get my Police clearance as "Clear Records"

Waiting for reply asap, as I have to decide in couple of days.

Thanks in advance

Cheers
Ash

Waiting for your reply

Pollyana

I suggest you speak to a registered migration agent accustomed to dealing with criminal/character issues. But even an agent isn't going to be able to tell you if you will still get a visa.

soft

Thanks for your advice.

I just had talk with Immi dept on phone, they said that mine Temporary visa application still will be on hold until I submit Australian Police Clearance Certificate.

And also she said that 485 visa process will take average 12 months to grant, So If I haven't received any dead line from immi dept in email, then my visa application will still on hold until I get police clearance certificate or any outcome from the Court.

However, still my question is should I go for Case and Win case (75% chance of winning ) or Should I take Diversion Process in which I will get Police Clearance after 6 months???

I have to decide in 2-3 days and inform my decision to my Lawyer.

So, Pls any advice or any other options are very helpful for me.

Thanks

Pollyana

That really is going to be a decision that only you can make. in all the years I've been on here I can honestly say we have never had anyone in your position. You are waiting for the result of a case of indecency and you are on a temporary visa. I wouldn't be taking any guesses on how your case for PR would go.

campervanfan

Polly- I have a feeling he may have meant 'incident' rather than 'indecent' ( not funny really I know ........)

Pollyana

He may have done, but I can only go on what he has written here - and if he can make an error like that on here, maybe its a salutory lesson not to make the same error when filling in forms for DIBP.
Whatever the offence, I wouldn't want to hazard a guess about the visa. Especially after a couple of recent cases where people have seen citizenshio refused due to minor offences.

Bermudashorts

OP, as you can see the word "indecent" is very alarming to most westerners. It was the word in that opening post that stuck out to me too. You need to take much greater care with your writing.

As to whether you win your case, I do not see how people on BE can comment on that.

But if it were me, implications on a visa application would not be determining how I handle a court case. I care about my police and civil record more than a visa. If I were innocent, I would not plead guilty and sign a good behaviour bond or whatever just because it means my visa is processed faster.

YoSemite

Hi Ash,

I quickly want to note that I am a qualified, practising solicitor with experience in Victorian criminal law, HOWEVER the information below is just information and is absolutely NOT advice. I have not seen your charges nor any of the police material and I'm not going to tell you whether you should take any of the options your lawyers has suggested to you.

Can you please clarify with your lawyer whether they're indicating you should take part in a diversion program, or whether you should plead guilty and ask for a good behaviour bond. I'm a bit confused based on what you've said above, and the two are TOTALLY separate things!

A diversion program means you have to do things like (depending on circumstances) write apologies to any victims, do some education courses (e.g. drink driving courses - again depends on the circus), do some community work, maybe some counselling (e.g. anger management), donation to charity or other things that the police and your lawyer may agree on. If you complete those tasks to the satisfaction of the police, then the charges against you are dropped. Currently, charges that are dealt with by diversion do not show up on a police record check.

A good behaviour bond is a written undertaking not to commit any further offences with the period of time that the bond operates. If you do commit a further offence in that time, you can also be charged with a breach of good behaviour bond.

Although a good behaviour bond means that a conviction is not recorded, you will still have a criminal record as a good behaviour bond is considered by Victoria Police to be a 'finding of guilt' and findings of guilt are released by Victoria Police when a criminal record check is requested. Although it will show up on your record, it will also show that a conviction was not recorded (indicating that it was thought by the court to be an offence at the less serious end of criminal conduct).

I also need to note that although your lawyer can ask the court to impose a good behaviour bond, there is no guarantee the Magistrate would decide to take this option. You should definitely ask what the likely penalty (sentence) would be if you went to court and lost.

It is common practice that a plea of guilty attracts a lesser penalty than taking a matter to a contested hearing and then losing. This is also something you would need to discuss with your lawyer and then consider.

I agree with Polly that you need to speak to someone who is experienced in migration issues. I would recommend finding an immigration lawyer (as opposed to a migration agent) who also understands Victorian criminal law issues and whether a good behaviour bond/ finding of guilt would mean that your visa would be refused.

You may also want to consider a second opinion on your criminal charges. I don't know who your lawyer is (and I don't want to know!), but if he or she is not a specialist criminal lawyer i.e. someone who practices exclusively (or almost exclusively) in criminal law, then I would recommend seeking secondary advice from someone who is.

Good luck whatever happens...

Pollyana

Hey, thanks for an excellent post which will hopefully give the OP some guidance. Interesting to red abut the Diversion programme - I'm just wondering, if someone participates in it to the satisfaction of the police, and thus it does not apear on a police check, does it have to be declared at all to DIBP when they ask about cautions, convictions etc?

YoSemite

possibly! It depends how the question is phrased, e.g. "have you ever been charged with an offence?", the answer is yes - you were charged but the charges were dropped.

My theory (not advice!) would be that if it doesn't show up on a criminal record, and didn't fall into the category of an offence that was expunged or otherwise 'spent', then why would you disclose it? Another theory is, however, that by not making a full disclosure, are you truly of 'good character'? (personally I think that's a bit hard line, but DIBP may have another view)