If you are living in Australia as a non-citizen on a temporary or permanent visa and you are found guilty of a crime, this may affect your visa. Depending on the sentence you receive and how long you have been living in Australia, together with a range of other factors, your visa may be cancelled, and you may be deported. This may be done under Section 201 of the Migration Act or under Section 501.
Section 201 of the Migration Act
Section 201 of the Migration Act 1958 provides that the Minister for Home Affairs may order the deportation of a person who is a non-citizen and who has committed a criminal offence in some circumstances. If the person has been found guilty of an offence and sentenced to imprisonment for a period of 12 months or more and the person has been living in Australia for less than 10 years or for two or more periods totaling less than 10 years, they are at risk of deportation.
The character test
Under Section 501 of the Migration Act, the Minister has the power to cancel a person’s visa if they fail the ‘character test’. One of the reasons a person may fail the character test is because they have a substantial criminal record.
A person has a ‘substantial criminal record’ if they have:
- Been sentenced to life imprisonment;
- Been sentenced to imprisonment for 12 months or more;
- Been sentenced to two or more terms of imprisonment, totaling 12 months or more;
- Been acquitted of an offence based on mental impairment and as a result, being detained in a mental institution;
- Been found unfit to plead to an offence where the evidence supports a finding of guilt, and the person has been detained in a mental institution.
If a person has a substantial criminal record, the Department of Homes Affairs will consider whether to revoke their visa based on a range of circumstances including the nature of the offence, the circumstances of the offence, the penalty imposed, the person’s prospects of re-offending and public interest considerations.
If the Minister is satisfied that the visa holder fails the character test because of their substantial criminal record, he or she must cancel their visa. If the Department is considering cancelling a visa, it will generally interview the person and ask them for all relevant information.
If a person is sentenced to imprisonment for an offence committed in Australia, they will generally be required to serve their sentence in Australia and will subsequently face the possibility of deportation. If a Deportation Order is made, this will usually be received in prison.
What happens after visa cancellation?
If your visa is cancelled because you fail the character test, you will be placed in immigration detention until you can be removed from Australia. You will be informed of the reasons for the decision. You will be prohibited from applying for another visa and from returning to Australia in the future.
Can I appeal the decision?
Whether you can appeal a deportation order or a cancellation order will depend on how the decision was made. If the Minister decides to cancel your visa under Section 201 of the Migration Act, you can seek a review of this decision from the Administrative Appeals Tribunal (AAT). You can also seek a review from the AAT if a delegate of the Minister decides to cancel your visa under Section 501, but you must do so within 9 days of the date you were notified of the decision. If you file an appeal with the AAT, you should ask for a ‘stay’ of the order under the review has been decided. You can also ask for a statement of the reasons for the decision and order.
If the Minister personally ordered the cancellation of your visa under Section 501, you will not be able to seek a review of this decision by the AAT. Your only avenue of appeal will be judicial review from the Federal Court of Australia.
If you require legal advice about an immigration matter or any other legal matter, please contact Go To Court Lawyers.