Impact of Migration Act on Visa Holders facing Criminal Charges

Our firm has on a number of occasions acted for overseas nationals who have committed criminal or traffic offences while living in Australia.  For these clients, the provisions of the Migration Act 1958 can affect whether the client’s visa is cancelled and potentially lead to them being deported from Australia.

This could lead to potentially devastating consequences for clients and their families who have resided in Australia on a visa for many years.  In some cases, visa holders facing criminal charges could have arrived in Australia as children and lived in Australia for the majority of their lives.  The may have found work, married and had children born in Australia.

The risk posed to visa holders living in Australia also extends to New Zealanders living in Australia.  Some New Zealanders we have spoken to believe that their residency in Australia is not subject to a visa.  This may in part be because New Zealanders are not required to apply for a visa upon arrival in Australia.  New Zealanders are instead automatically provided with a special category visa upon arrival in Australia.  This means that the provisions of the Migration Act also apply to our friends who have come from across the ditch.

Section 501 of the Migration Act is the relevant section of the Act that deals with the cancellation of a visa following a court conviction.

That particular section allows the Minister for Immigration the discretion to cancel a person’s visa in circumstances where the Minster reasonably suspects the person does not pass a character test and the person does not satisfy the Minister that the person passes the character test.

For the purposes of the section, a person will not pass the character test if the person has a substantial criminal record.

A person can be considered to have a substantial criminal record as defined by the section if: –

• The person has been sentenced to a term of imprisonment of 12 months or more; or
• The person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.

A sentence to a term of 12 months or more includes where a person sentence is wholly suspended and the person does not spend any actual time in custody.  Also if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (at the same time) the whole of each term is to be counted in working out the total of the terms.

In addition to the Minister’s discretion under the Act, the Minister must cancel a visa that has been granted to a person if a person is sentenced to a term of imprisonment of 12 months or more and 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.

If you are a visa holder who has been charged with a criminal offence or traffic offence, we strongly recommend that you contact our Mackay criminal defence lawyers for further legal advice in relation to your charge and the possible effect of the Migration Act before you elect to have your matters heard and decided by a Court.