For many visitors to Australia who are accused of committing crimes, navigating our legal system is an arduous task.
One of the most frequently asked questions by those on work and travel visas who are going through the courts is: how will a criminal conviction affect my visa? Or more specifically: will a criminal record get me deported?
The answer to the question is contained in section 201 of the Migration Act 1958, which states that a person who has been convicted of a criminal offence in Australia, and who was a non-citizen at the time that they committed the offence, can be deported in certain situations.
This section applies to both permanent residents and temporary visa holders.
For a person to be ‘eligible’ for deportation, he or she must:
- Have been convicted of an offence and sentenced to a period of 12 months imprisonment or more; and
- Have resided in Australia for a period less than 10 years, or for multiple periods that total less than 10 years.
However, an additional avenue for deporting non-citizens is contained in section 501 of the Migration Act, which gives the Immigration Minister the power to cancel a person’s visa if they do not pass the ‘character test.’
Subsection 6 sets out a whole range of situations that may cause a person to fail the character test, the most common of which is that the person has a ‘substantial criminal record.’
A person has a ‘substantial criminal record’ if they have been:
- Sentenced to death (which would obviously have had to occur in another country);
- Sentenced to life imprisonment;
- Sentenced to a term of imprisonment of 12 months or more;
- Sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
- 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
- Found by a court to not be fit to plead in relation to an offence, and the court has nonetheless found that on the evidence available the person committed the offence, and, as a result, the person has been detained in a facility or institution.
If the Immigration Minister is satisfied that a person does not pass the character test because they have a substantial criminal record, the Minister must cancel their visa.
Alternatively, if the Minister ‘reasonably suspects’ that a person does not pass the character test, the Minister may cancel their visa – in other words, the Minister has discretion to decide whether or not the person should be deported.
What If I Don’t Pass the Character Test?
If your visa is cancelled due to your failure to satisfy the character test, you will become an ‘unlawful non-citizen,’ and will be immediately placed in immigration detention until you are deported or removed from Australia.
You will be informed of the reasons for the decision and, if you are detained in an onshore detention centre, you will receive two copies of all relevant documents.
You will also be prohibited from applying for most types of visas while in Australia, and will generally be prohibited from returning to Australia in the future.
Will I Automatically be Deported if Sentenced to 12 Months Imprisonment or More?
If you have been sentenced to 12 months or more in prison, it does not automatically follow that you will be deported.
Rather, the Department of Immigration and Border Protection will consider a range of factors when deciding whether to deport you or revoke your visa.
- The nature of the offence;
- The circumstances of the offence;
- The magistrate or judge’s view of the offence;
- The type and length of penalty imposed;
- Any evidence, or lack thereof, of rehabilitation;
- Prospects of reoffending;
- General deterrence;
- Criminal history;
- Public interest consideration;
- Family circumstances; and
- Australia’s international law obligations relating to refugees.
If the Department is considering deportation, an Immigration Officer will normally interview you and asked for a range of information.
If the Department decides that you are to be deported, you will receive a ‘deportation order,’ or a ‘cancellation order’ if your visa is being cancelled. This is normally received whilst you are in prison, or immediately after your prison sentence ends.
Can I Appeal a Deportation or Visa Cancellation?
If you have received a deportation or cancellation order, the next question is usually ‘can I appeal the decision?’
The answer will largely depend on how the decision was made.
If the Immigration Minister signed a deportation order against you under section 201, you will be able to appeal the merits of the decision to the Administrative Appeals Tribunal (AAT).
You will also be able to seek a review from the AAT if a delegate of the minister decides to cancel your visa under section 501.
The AAT is an independent administrative review body which will consider all relevant facts and circumstances of your case before deciding whether the decision was valid.
If you decide to lodge an appeal to the AAT, you can ask for a ‘stay’ (suspension) of the deportation order until the review has been completed. You can also ask the AAT for a statement setting out the reasons for the decision and order, which must be supplied to you within 28 days.
If the decision to cancel your visa has been made under section 501, you will have only 9 days from the date you are notified to seek a review from the AAT. You must submit all relevant documents with your application, and a hearing will be allocated after the Minister has lodged all of the materials relied upon by Immigration. Written statements must be sent to the Minister at least two days before the hearing.
The AAT will then make a decision within 84 days after you were notified of the delegate’s decision.
If, however, the Immigration Minister personally decided to cancel your visa under section 501, you will not be able to appeal the decision to the AAT. You can, however, seek a judicial review from the Federal Court.
If you are a non-citizen and wish to receive case-specific immigration law advice, you may wish to consult a specialist Immigration Lawyer.