Visa Cancellations and Criminal Convictions – How does a criminal conviction affect my visa status?
The topical question of how a criminal conviction affects our client’s visa is a regular and common question for our team at Potts Lawyers. As in most areas of law, the answer will always depend on your individual circumstance and factors that are given weight by the courts. If your criminal matter has migration aspects, our Criminal team will refer your matter to our in-house registered migration agent to ensure your matter is promptly addressed.
If you have received a Notice of Cancellation you are an unlawful non-citizen and should urgently seek legal advice.
If you have received a Notice of Intention to Consider Cancellation your visa has not yet been cancelled. There is a strict prescribed time period to respond to the notice and we recommend that you seek legal advice before the period ends.
Remaining in Australia with a Criminal Conviction as a Non-Citizen
Visa cancellations for non-citizens, including permanent residents and special category visa holders (New Zealanders), having a criminal conviction may lead to deportation or involuntary removal from Australia.
A criminal conviction (even if no conviction is recorded) may also affect those on work or travel visas.
Grounds for Visa Cancellation: The ‘Character Test’
Failing to satisfy the requirements of the character test affords the Minister with an automatic and mandatory mechanism to exercise its powers.
Section 501(3A) of the Migration Act 1958 (Cth) states that the Minister must cancel a visa that has been granted to a person if the person does not pass the ‘character test’.
A person will fail the character test if:
- the person has a ‘substantial criminal record’ or they have been convicted of a sexually based offence against a child; and
- the person is currently serving a sentence of imprisonment for an offence.
What is a ‘Substantial Criminal Record’?
A person has a ‘substantial criminal record’ if, among other things, they have been sentenced to a term of imprisonment of 12 months or more.
A term of imprisonment includes a suspended sentence or release on parole after serving a portion of the sentence. It does not matter if the period of actual custody is less than 12 months. What is relevant is whether the whole of the term of imprisonment imposed is 12 months or more. If you are sentenced on multiple offences, to be served concurrently, they will be counted cumulatively. For example, if you received sentences of 6 months imprisonment on two charges, to be served at the same time, they will be counted as 12 months for the purposes of deportation, even though you will be released from prison after 6 months.
Ultimately, this means that, if you are a non-citizen of Australia, and you are serving a term of imprisonment of 12 months or more, the Minister must cancel your visa or permanent residence.
Failing to Satisfy the Character Test
If you do not pass the character test, you will be placed in immigration detention until a final decision is made about whether or not you can remain in Australia which generally occurs immediately upon your release from prison. Depending on the offence, you may be prohibited from returning to Australia for a period of time or indefinitely.
Requirements to Revoke a Visa Cancellation by the Minister
A person who has had their visa cancelled due to a criminal conviction may seek a ‘revocation’ under section 501CA (4) of the Migration 1958 Act (Cth).
The Minister must either be satisfied that:
- the person passes the ‘character test’; or
- there is another reason why the original decision should be revoked.
In determining whether to revoke the decision, the Minister has three (3) considerations:
- the protection of the Australian community from criminal or other serious conduct;
- the best interests of minor children in Australia; and
- the expectations of the Australian community.
Reviewing a Revocation by the Minister
If the visa cancellation notice was issued by a delegate of the Minister, you may also appeal the decision to the Administrative Appeals Tribunal. Strict time limits apply from receiving your visa cancellation notice to appeal the decision to the Administrative Appeals Tribunal.
The Minister has a broad range of powers that can be exercised to cancel a visa and remove or deport a non-citizen from Australia. In most circumstances, the convicted offence is not determinative on its own and there are other factors that may require consideration before your visa is cancelled.
As such, you should contact Potts Lawyers or seek legal advice immediately after your sentence to discuss the prospects of contesting or appealing your residency status in Australia.
There can be long term consequences of a criminal conviction that apply long after your case has finalized. These can include immigration, employment, occupational regulation, family law and travel consequences.
We often act for clients who are not citizens or may have other circumstances in which convictions can impact their lives beyond the finalisation of the criminal case. We can provide you with confidential advice about the particular facts of your case, and develop a strategy to minimize the long term impact on your life.
Please note that strict time limits apply depending on the power invoked by the Minister pursuant to the Migration Act 1958 (Cth). Please seek legal advice immediately or contact us for a free twenty (20) minute consultation with our registered migration agent, Craig DoRozario (MARN 1910298).
Please note that this advice is for general background information only and is not intended as a legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who can provide advice on your matter.