Mandatory Visa Cancellation for Child Exploitation Materials in Queensland

By Tom Foran

On 15 September 2020, the Queensland government made amendments to the Penalties and Sentences Act 1992. The changes to subsection 9(4)[1] to that Act are relevant to this post.

That subsection provides the requirements for a Court when determining the appropriate sentence for a person that has committed any offence of a sexual nature in relation to a child under 16 years of age, or in relation to a child exploitation material offence.

The first requirement for the Court is to have regard to sentencing practices, principles, and guidelines that apply when the sentence is being imposed, and not when the offence was committed. That means that a person that committed an offence years ago will be subject to the new provisions if their sentencing hearing occurs any time from now going forward.

When sentencing an offender, Courts normally must have regard to the principle that imprisonment should only be imposed as a last resort, and that a sentence that allows the offender to remain in the community is to be preferred. The second requirement for the Court is to disregard this principle. A Court should not consider imprisonment as a last resort.

The final new requirement is the direction that the Court is to impose an actual term of imprisonment upon the offender. A period of imprisonment would not occur only if there are exceptional circumstances particular to the offender.

This article examines how these changes can result in mandatory visa cancellation. This information should be considered general in nature and not legal advice nor immigration assistance. For details about how these changes might impact upon you or someone you know, please contact the Potts Lawyers Immigration Law team.

[1] ss 9(4) Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years or a child exploitation material offence—

(a) the Court must have regard to the sentencing practices, principles and guidelines applicable when the sentence is imposed rather than when the offence was committed; and

(b) the principles mentioned in subsection (2)(a) do not apply;

 

How this change might impact upon you

Anyone found to have committed an offence of a sexual nature against a child (or the offence of possession of child exploitation material) and who is to be sentenced in Queensland will be impacted (regardless of any term of imprisonment). But Australian permanent residents, temporary visa holders, and New Zealand citizens that are not also Australian citizens are impacted in an additional way. Their Australian visas will be cancelled.

Mandatory visa cancellation can only occur when a visa holder is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. This is the first limb. Mandatory cancellation will not occur if a person is not in jail. Discretionary cancellation does not have this limitation, and may still apply.

If a person is in jail, then mandatory cancellation will occur if a second statutory limb is also met. That will occur in only four circumstances – though only three are relevant.

The irrelevant circumstance involves the death penalty. The death penalty does not currently exist in Australia so this mandatory visa cancellation provision cannot apply unless the death penalty is reinstated. Being sentenced to death remains one of the ways that a person could have a substantial criminal record for the purposes of the ‘character test’ in subsection 501(7) of the Migration Act 1958 (‘the Act’) despite the current impossibility of that sentence ever being imposed.

The second and third circumstances in which a person can be subject to mandatory visa cancellation is if that person is sentenced to life imprisonment, or if they are sentenced to 12 months of imprisonment or more. They will also meet the definition of having a substantial criminal record and meet the second limb of mandatory visa cancellation. In short, people that are in jail and that have been sentenced to a jail term of a year or more will be subject to mandatory visa cancellation.

The last circumstance is the situation where a person has offended in contravention of paragraph 501(6)(e) of the Act: a conviction of one or more sexually based offences involving a child (whether or not the offence occurred in Australia), or alternatively found guilty of such an offence, even if the person was discharged without a conviction. If the person is in jail and has committed a sexual offence against a child, or possesses child exploitation material, then the mandatory visa cancellation provisions will apply.

Before this change, it was possible for a person to have plead guilty to a charge of a sexually based offence involving a child but not necessarily be sentenced to a term of imprisonment. The Court would have followed the principle that imprisonment should only be a last resort. There would have previously been offenders that were punished but not necessarily imprisoned. The change now compels the Court to impose imprisonment (unless there are exceptional circumstances). That means that automatic mandatory visa cancellation provisions will become enlivened more frequently than in the past.

 

What happens if mandatory visa cancellation occurs?

If a visa is cancelled due to the mandatory visa cancellation provisions, the former visa holder will be able to provide written reasons to seek revocation of the cancellation. Successful representations would mean that the visa would be reinstated. The person would be released back into the Australian community upon release from jail (or from immigration detention).

Strict deadlines apply which cannot be extended. The offender would be given a notification (usually delivered by hand) to inform them that their visa had been cancelled and provided some instructions regarding what they can do about it. If this happens to you or someone you know, please be in contact with us immediately so that we can provide the legal advice they need.

 

Conclusion

This change means that more people will face mandatory visa cancellation. It impacts upon those that will be sentenced in Queensland for possession of child exploitation material or for committing a sexually based offence against a child.

 

We Can Help

We welcome enquiries from those that want to know more. Our immigration lawyers are experienced in handling visa cancellation matters so book a free initial consultation today.

Time limits are strict so should this apply to you or someone you know, contact us without delay.

 

References

[1] ss 9(4) Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years or a child exploitation material offence—

(a) the Court must have regard to the sentencing practices, principles and guidelines applicable when the sentence is imposed rather than when the offence was committed; and

(b) the principles mentioned in subsection (2)(a) do not apply; and

(c) the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.