Important information for Kiwi’s living in Australia on the Subclass 444 Special Category Visa

As a New Zealand citizen, when you enter Australia you apply for what is known as a Subclass 444 Special Category visa (unless you’ve already applied and have been granted another type of visa). If you’re a Kiwi currently living in Australia on a subclass 444 visa, you should be aware of potential issues that can arise if you are convicted of a criminal offence or have previous convictions that haven’t been declared before.

If you are convicted of a criminal offence in Australia

If you are convicted of a criminal offence or otherwise breach the Department’s character provisions, the Department of Immigration has the power to cancel your visa. For more information on receiving a Notice of Intention to Consider Cancellation (NOICC) from the Department, see our blog from 23^rd August 2013.

If you receive this notice and the Department decides NOT to cancel your subclass 444 visa, this means you will be able to continue living and working in Australia on your subclass 444 visa. However, it’s important you understand that this is only a temporary visa and it will cease as soon as you leave Australia.

Previous Convictions Not Disclosed

If you’ve entered Australia previously on a subclass 444 visa and you did not disclose criminal convictions from overseas (even if they are considered ‘spent’ convictions), you should be aware that there is now increased communication between countries. This means you may run into issues if you have to leave Australia and try to re-enter, as the Department of Immigration now has the facilities to check your criminal history (including ‘spent’ convictions).

For ALL Special Category Visa Subclass 444 visa holders

If you have previous convictions from overseas or you have committed an offence in Australia, this means:

• If you leave Australia even for a short time (EG to go back to New Zealand to see family or to attend a funeral), you will no longer hold that same subclass 444 visa and therefore would be applying for a new one when you were coming back to Australia;
• Due to your conviction or other breach of the character provisions, you will no longer be eligible for a subclass 444 visa as you will be unable to meet the character requirements – you’ll need to apply for another type of visa (for example, if your partner is Australian you may want to look at partner visas).

So, if you leave Australia (even for a weekend) and try to fly back without holding another visa, you will most likely be refused entry at the airport. Unfortunately there is limited discretion available to Department staff to grant you a subclass 444 visa in these circumstances, even if you have a house and job in Australia and have lived here for a long time.

Generally, the only option for you if you were refused entry at the airport would be a temporary Subclass 773 Border visa, which may be granted in certain circumstances. This would only allow you 28 days in Australia, and you would then need to either apply for another type of visa or leave Australia again within the 28 days.

We strongly recommend you apply for another visa and try to secure permanent residency as soon as possible. This means you will be able to leave Australia at short notice, if needed, and ensure you have a visa to come back to Australia on.

If you’d like assistance either with a NOICC or an assessment of what your other visa options are, please contact our Migration Team.