If you are intending to travel to the United States or Canada from Australia you may be concerned about whether a criminal conviction on your record will impede your access to to these countries. If you are a Australian Citizen and want to travel to either of these countries, you will need to be aware of any potential issues before you set out – avoid being stuck at the gate and denied entry!

The USA and Canada have a very rigid entry process and the border patrol check every single visa application for criminal activity, from felonies to misdemeanours. It is important to ensure that you are truthful and honest on your visa application, as every visa is extensively checked prior to entry, and any lies or mistruths will be dealt with harshly.

Travelling to the United States of America

Australia is a member of America’s Visa Waiver Program (VWP) which allows citizens of participating countries to travel to the United States for tourism or business up to 90 days without obtaining a visa. However, not all Australian citizens are eligible to enter the U.S. automatically. Any prior convictions such as charges that have not yet come before the court, or even a previously refused visa may make you ineligible to travel on the VWP.

According to section 212 of the Immigration and Nationality Act (U.S.)  there are a number of serious criminal offences that if committed would deny the applicant entry to the United States. Some of which include (but are not limited to):

  • A crime involving moral turpitude such as murder, rape, theft and fraud
  • A conviction for two or more criminal offences at any stage of your life
  • Drug trafficking
  • Solicitation or prostitution
  • Human trafficking
  • Money laundering
  • Terrorist activities

While any of these above crimes will disqualify you from entering the United States, minor offences and spent convictions (that occurred more than 10 years ago) are not recognised by the U.S. For example, minor traffic offences that did not result in an arrest or offence (such as speeding tickets or section 10’s) may travel visa free, provided that there are no other factors that would make them ineligible.

According to the US Customs and Border Protection, the U.S. does not deny entry to persons with a Driving Under the Influence (DUI) conviction, although if the individual has many of these convictions, it may be flagged in their application.

The American electronic system for travel authorisation will assess your eligibility for travel to the United States under the Visa Waiver program. The assessment includes questions regarding previous arrests and/or convictions.

Travelling to Canada

As Canada is a member of the Commonwealth, normally Australian citizens will encounter little to no problems entering this country. However, a caveat to this rule is that you are not allowed to enter or stay in Canada if you are deemed ‘Criminally Inadmissible’.

Criminally Inadmissible means that if you have ever committed a criminal offence and have been convinced, you may be declared criminally inadmissible.

This includes both serious and minor offences such as, but not limited to:

  • Theft
  • Fraud
  • Assault
  • Dangerous driving or driving under the influence of drugs or alcohol
  • Possession or trafficking in drugs or controlled substances

However you do have options. If you are deemed inadmissible you may become admissible again if you:

  • Satisfy Canadian immigration law that you meet the legal requirements to be deemed rehabilitated
  • Apply for individual rehabilitation and are approved
  • Receive a pardon or record suspension
  • Are offered a temporary resident permit

You will also be allowed access to Canada if the deem you rehabilitated. Being deemed rehabilitated depends on a number of criteria, including the type of crime that was committed, and how much time has passed since the completion of the sentence of the crime. Canadian immigration take into account whether you have committed one or more crimes, and if the crime is punishable in Canada by a maximum prison sentence of less than 10 years.

You can be assessed for admissibility and rehabilitation by a Canadian visa law office, and more information can be found on the Canadian Government’s website.

If you would like to know more about travelling to the United States or Canada from Australia with a criminal conviction, please don’t hesitate to talk to one of our Immigration Law experts.  Please be aware that due to the nature of these cases, payment of approximately $1000 will be required upfront. Please don’t hesitate to contact us on 1800 770 780.