How an ICO or CCO Outcome Can Affect Your Migration Status?
One of the grounds for failing the character test under section 501(6) of the Migration Act 1958 (Cth) involves having a substantial criminal record, including a term of imprisonment of at least 12 months. However, if you have not been sentenced to imprisonment but instead received an ICO or a CCO, how would this affect your visa application?
What is an Intensive Correction Order (ICO)?
An Intensive Correction Order (ICO) is an alternative sentence to imprisonment, allowing a person to serve their sentence in the community subject to various conditions and supervision. An ICO means that you will have a greater degree of freedom compared to a prisoner. However, a sentencing judge will only grant an ICO if they believe that the community will be kept safe. An ICO can be quite flexible due to the ability to add various conditions based on an offender’s circumstances. Sentencing judges can only make an ICO for less serious offences, with a maximum term of imprisonment of 2 years for a single offence or 3 years for aggregate offences.
What is a Community Correction Order (CCO)?
A Community Correction Order (CCO) is a non-custodial sentence, unlike an ICO. It is given in cases that are not serious enough to warrant an ICO or imprisonment but require more than a fine. Supervision is not a mandatory condition for a CCO, whereas it is required for an ICO. The conditions attached to a CCO are flexible and tailored to help reduce an individual’s risk of reoffending, such as abstinence from drugs or alcohol or non-association with particular people.
Do they count towards having a substantial criminal record?
For the purposes of the character test, ‘imprisonment’ is defined as including any punitive detention in a facility or institution. Although ICOs and CCOs would not fall under this definition as they are served in the community, this definition is not exhaustive. Sentences within the ordinary meaning of imprisonment would also be included. As an ICO is an alternative sentencing option for a term of imprisonment, it can constitute having a substantial criminal record.
What other parts of the character test are relevant?
It is important to note that having a substantial criminal record by itself is not enough to warrant a mandatory visa cancellation under section 501(3A). The requirement for the minister to cancel a person’s visa is only met if an individual is serving a sentence of imprisonment in a custodial institution, such as a prison. Therefore, neither an ICO nor CCO will result in a mandatory visa cancellation.
However, there is still a discretionary power for the minister to cancel or refuse a visa if they believe that you are not a person of good character based on your past and present criminal conduct. When making this determination, the offending giving rise to your ICO and CCO will likely be taken into account. As the minister has a choice to cancel or refuse your visa, you can provide evidence to convince them not to do so. Relevant evidence can include positive character references, contributions to the community and proof of reform.
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How Can Agape Henry Crux Help You?
Speak with one of our Accredited Specialist Immigration Lawyers (s), our team of immigration lawyers and migration agents at Agape Henry Crux to assist with your character issues for your visa matter. The team specialises in handling highly complex matters. You can schedule an appointment with one of our Accredited Specialist lawyers for professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
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This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
