SCV (Subclass 444): What is a “Behaviour Concern Non-Citizen”?

The Special Category (Subclass 444) visa (SCV) is a free temporary visa that is granted to New Zealand citizens to remain in Australia indefinitely.

Normally, New Zealand citizens can obtain this visa on arrival to Australia or if necessary and eligible, can apply while inside Australia. To be eligible for the SCV, applicants must:

• have a valid New Zealand passport;
• not be a behaviour concern non-citizen;
• not be a health concern non-citizen; and
• if applying from inside Australia, not have a Condition 8503 (“no further stay”) on their current visa.

If eligible, the visa will be granted for the duration of their time in Australia (indefinitely) and will only cease if the New Zealand citizen:

• departs Australia;
• obtains a permanent visa or Australian citizenship;
• is no longer a New Zealand citizen; or
• if the SCV is cancelled for failing to meet ongoing character requirements.

Importantly, New Zealand citizens who are assessed as a ‘behaviour concern non-citizen’ (BCNC) will not be granted the SCV and will be refused entry into Australia.

What is a BCNC?

A BCNC means a non-citizen who:

1. has been convicted of a crime and sentenced to death or to imprisonment, for at least 1 year; or
2. has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least 1 year if:
   1. any period concurrent with part of a longer period is disregarded; and
   2. any periods not disregarded that are concurrent with each other are treated as one period;
   3. whether or not
      1. the crimes were of the same kind; or
      2. the crimes were committed at the same time; or
      3. the convictions were at the same time; or
      4. the sentencings were at the same time; or
      5. the periods were consecutive; or
3. has been charged with a crime and either:
   1. found guilty of having committed the crime while of unsound mind; or
   2. acquitted on the ground that the crime was committed while the person was of unsound mind;
4. has been removed or deported from Australia or removed or deported from another country; or
5. has been excluded from another country in prescribed circumstances, including:
   1. that the person refused or failed to present a passport on request by the competent authorities in that country in circumstances in which it would be unreasonable to refuse or fail to do so;
   2. that the person presented to those authorities a passport that was a bogus document;
   3. that the person was reasonably refused entry to that country on the ground that the person was not a genuine visitor; or
   4. that the authorities of that country considered the person to be a threat to the national security of the country.

For the purposes of BCNC, “sentenced to imprisonment” includes being ordered to be confined to a corrective institution.

What if I have a criminal conviction history?

You may be considered a BCNC if you are a New Zealand citizen with criminal convictions in any country, or if you have been deported, excluded, or removed from any country.

It does not matter how long ago the convictions or circumstance occurred, it will still need to be declared and assessed.

What if I am a BCNC? Can I apply for another visa to travel to Australia?

If you are a BCNC, you will not be granted a SCV and will need to apply for another visa to travel to Australia (if eligible). Most visa applications can be made through ImmiAccount.

Most Australian visas have a criteria that you must satisfy the “character test”. If you have been assessed as BCNC, you would most likely fail the “character test” which means that your visa application would likely be sent to the Visa Application Character Consideration Unit (VACCU) for a character assessment.

This will likely cause significant delays to your visa application, as the character assessment can take well over 6 months to process, or even longer depending on your circumstances.

More information?

At Hannan Tew Lawyers, we have assisted various individuals seeking assistance with character matters. If you need legal assistance or have an immigration related query, get in touch with our experienced team. Contact us by email at [email protected] or by phone at +61 3 9016 0484.

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.