Can I Obtain a Visa into Australia If I Have a Criminal Record?

by Ugur Nedim

In July 2013, then 21-year old Patrick O’ Farrell pleaded guilty to manslaughter for killing 20-year old biomedical student Andrew Dolan in a street in Mullingar, Ireland on New Year’s Day in 2012.

During the sentencing proceedings, the court viewed CCTV footage which showed Mr O’Farrell’s victim with his hands up in a defensive manner and his body in retreat, asking ‘Don’t hit me, what did I do?, before O’Farrell engaged in a “violent assault of some duration” and “administered two blows” to his victim, one of which was fatal.

The presiding judge described the incident as “a serious attack against a man who at all times was uninvolved and in retreat”.

Mr O’Farrell’s plea of guilty to manslaughter was accepted on the basis that he did not intend to inflict death or grievous bodily harm on his victim.

He showed remorse both immediately after the attack and in the lead-up to the sentencing hearing, and the judge ultimately sentenced him to three-and-a-half years in prison.

He spent three years behind bars before being released on parole in July 2017.

Visa granted

Some time after his release (the Department of Home Affairs has declined to provide details), the Irish national applied for, and was granted, a student visa to enter Australia.

The visa grant was notwithstanding section 501(3A) of the Migration Act 1958 which states that the Minister must refuse a visa if the applicant has a ‘substantial criminal record’, which is defined by subsection (7) as where:

(a)  the person has been sentenced to death; or

(b)  the person has been sentenced to imprisonment for life; or

(c)  the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)  the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

(e)  the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

(f)  the person has:

(i)  been found by a court to not be fit to plead, in relation to an offence; and

(ii)  the court has nonetheless found that on the evidence available the person committed the offence; and

(iii)  as a result, the person has been detained in a facility or institution.

The Minister was required to refuse Mr O’Farrell a visa due to the operation of subsection 7(c).

Fresh allegations

After three weeks on the run, Mr O’Farrell attended his criminal lawyer’s office in Parramatta on Wednesday, 30 September 2020 and was later arrested pursuant to a warrant.

He was charged with assault occasioning actual bodily harm in relation to an alleged punching attack on a 56-year old man in a beer garden of a Matraville hotel which rendered the man unconscious, and wounding with intent to cause grievous bodily over an alleged stabbing attack in the company of four other persons in Randwick on 29 August 2020, during which a man’s ear was partially severed.

He was brought before Parramatta Local Court the day where he did not apply for bail.

He has been remanded in custody to appear in Waverley Local Court on 2 December 2020.

The charges

Assault Occasioning Actual Bodily Harm is an offence under section 59 of the Crimes Act 1900 which carries a maximum penalty of 5 years in prison, or 7 years where committed with another person.

To prove the offence, the prosecution must establish each of the following:

  1. That the defendant committed an act of violence towards another person, and
  2. That act caused physical injuries that were more than ‘transient or trifling’, or the act caused very serious mental harm, and
  3. The other person did not consent to the act, and
  4. The defendant’s actions were intentional or reckless.

Examples of Actual Bodily Harm include:

  • Deep scratches or lasting bruises,
  • a ‘black eye’, and
  • a psychiatric condition.

Wounding or Causing Grievous Bodily Harm with Intent is an offence under section 33 of the Crimes Act 1900 which carries a maximum penalty of 25 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

  1. Caused grievous bodily harm to another person, or wounded another person, and
  2. Intended to do so.

‘Grievous bodily harm’ (GBH) is defined as ‘very serious harm’ it includes, but is not limited to:

  1. Any permanent or serious disfigurement
  2. The destruction of a foetus, other than by a medical procedure, and
  3. Any grievous bodily disease

‘Wounding’ is the breaking of both layers of the skin being the dermis and epidermis and includes a ‘split lip’.

The offence carries a ‘standard non-parole period’ of 7 years, which is a reference point for the sentencing judge when deciding how long an offender must spend behind bars before being eligible to apply for release on parole.

Defences to the charges

In addition to having to prove the listed essential elements (or ingredients) of the charges, the prosecution is required to disprove beyond reasonable doubt any valid legal defence that is raised on the evidence before the court.

The defences include:

  1. Self-Defence
  2. Duress
  3. Necessity, and
  4. Lawful correction of a minor 

Why was O’Farrell granted a visa?

As stated, the Department of Home Affairs has so far declined to comment on Mr O’Farrell’s case.

However, NSW Police Commissioner Mick Fuller has taken it upon himself to declare on 2GB radio that O’Farrell had lied on his visa application and would be “kicked out once he’s served his time”.

As these matters are within the jurisdiction of the Commonwealth Department of Home Affairs and not the state’s police commissioner, perhaps Mr Fuller would be well-advised to stay within the bounds of his portfolio rather than grandstanding on sensationalist talkback shows.

That said, the Minister for Home Affairs, Peter Dutton, certainly has questions to answer; including why this person was allowed into Australia when the Minister has been aggressively targeting asylum seekers who’ve leen left to languish in immigration detention for more than seven years despite having committed no crime.

Author

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

Your Opinion Matters