• Commit a crime on a visa? Know your rights and what to do.  

     

    The Migration Act 1958 (Cth) (the ‘Act’) sanctions the removal of unlawful non-citizens who enter Australia. An unlawful, non-citizen, includes persons who commit a crime or:

    • enters Australia by deception, misrepresentation or without a visa;
    • breaches the conditions of their visa, for example, by overstaying their visit on a temporary visa or working without the appropriate visa type; and
    • does not pass the ‘good character’ test.

    Persons must be of good character to enter and remain in Australia. Essential to the character test is a person’s past and present criminal conduct as well as their conduct in general.

    The need for good character reflects ongoing national security concerns and aims to protect all citizens and residents of Australia. It forms part of the Public Interest Criterion (PIC) conditions which must be fulfilled prior to being granted entry.

    Non-citizens have an obligation to disclose material information in their visa applications and on their passenger cards. Material information includes details of past charges and convictions for crimes in or outside of Australia. Non-disclosure of this information or misrepresentation of certain facts that are later discovered can lead to deportation or visa cancellation.

    Engaging in criminal conduct whilst holding an Australian visa, whether temporary or permanent, will have a significant effect on your plans. Consequently, it is important to understand what happens if you commit a crime whilst on a visa.

    What happens to me if I commit a crime?

    In other words, will getting a criminal record result in deportation and cancellation of your visa?

    The Minister for Immigration may order the deportation of a non-citizen who has been in Australia as a permanent resident for less than 10 years and has been convicted in Australia of an offence for which the person was sentenced to a period of 12 months imprisonment or greater. The 10-year period is determined by an ongoing period of residency or, by aggregating each isolated period spent in Australia.

    Once the visa holder has been convicted it is deemed that the person has failed the character test and the onus is then on the visa holder to prove otherwise.

    The direct power to deport a visa holder on these grounds is in addition to other powers to cancel a person’s visa for failing the character test generally. This applies to all visa holders, no matter how long they have been in Australia. For example, a visa holder may not have disclosed his or her past criminal conduct in the visa application. If this fact is later discovered, then it is deemed that the visa holder did not meet the character test and may face deportation on these grounds.

    Generally, persons deported from Australia after having a visa cancelled on character grounds will be permanently excluded from re-entry.

    Is there a ‘second chance’ if I commit a crime?

    A conviction and prison sentence of 12 months or more does not always result in automatic deportation and visa cancellation.

    The Department of Immigration usually considers several factors before making a deportation determination. An interview between an Immigration Officer and the visa holder is usually arranged before making a decision.

    The factors that will be considered before making a deportation order include:

    • the type of offence committed and the surrounding circumstances – violent crimes, drug trafficking and crimes relating to injury, corruption and sex offences against children are considered the most serious;
    • the view of the Magistrate or Judge who heard the criminal matter;
    • the nature and length of the penalty imposed;
    • the visa holder’s previous criminal history, rehabilitation efforts, and the likelihood of reoffending;
    • the need to prevent other persons from committing the same type of offence;
    • the family and relationship circumstances of the visa holder and the effect that deportation would have on members of the applicant’s family, particularly minor children;
    • public interest considerations;
    • Australia’s international law obligations relating to refugees.
    What happens if a deportation order is issued against me?

    The Department usually issues the visa holder with the deportation order whilst the prison sentence is being served or as soon as it ends. Once the prison sentence ends and the deportation order issues, the deportee is required to leave Australia immediately and must pay the costs of the deportation.

    If you have had a deportation order issued against you and are arrested by a detaining officer, you must be told the reasons for your detention. You also have a right to request details of the deportation order.

    If you are wrongly arrested (i.e. not the person named in the deportation order) then you must advise the arresting officer within 48 hours, so you can be brought before a Court to explain your situation and have the validity of the order determined.

    If you are held in immigration detention, you have a right to be given reasonable access to use facilities to seek legal advice.

    Can a deportation order or cancellation order be appealed?

    Your rights to appeal a deportation or cancellation order depend on the circumstances leading to the making of the order against you.

    If you have received a deportation order based on criminal conduct during your stay in Australia, you may be eligible to lodge an appeal with the Administrative Appeals Tribunal. This is an independent body established to review administrative decisions which will determine the merits of your appeal by assessing the relevant facts and circumstances.

    If the decision to refuse your visa was made personally by the Minister of Immigration on the grounds of failing to meet the character test, you will not have a right to appeal with the Tribunal however may have judicial avenues available.

    Strict time limits apply for appeals.

    Conclusion

    If you believe you are at risk of having a deportation order issued against you, or you have had such an order made, you should obtain urgent legal advice. Immigration law is technical and complex and there are strict time limits and procedural requirements for lodging appeals.

    If you or someone you know wants more information or needs help or advice, please contact us on 02 9299 5815 or email info@brettslater.com.

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