Will A Criminal Offence Affect A Visa?

Having a criminal record can affect an application for a visa, and committing a crime while holding a visa can lead to the visa being cancelled and the holder being deported. Sections 201 and 501 of the Migration Act 1958 cover the effect of a criminal matter on a visa.

Section 201 and visa cancellation

This section covers non-citizens convicted of a crime. It states that the Immigration Minister can order the deportation of a non-citizen if that person:

• has been in Australia as a permanent resident for less than 10 years (which can be made up of periods added together); and
• has been convicted of an offence for which the penalty was death or imprisonment for life or for a period of more than one year.

Section 501 and the character test

Section 501 mandates the Immigration Minister must cancel a visa if the visa holder does not pass the character test. Section 501(6) has the full list of reasons a person might not pass the character test. Examples include where the person:

• has a “substantial criminal record”;
• represents a danger to the Australian community;
• has a conviction for sexual offending involving a child;
• is subject to a negative security assessment by the Australian Security Intelligence Organisation (ASIO);
• has an Interpol notice;
• has committed an offence while in immigration detention;
• is or was a member of a criminal group of organisation;
• is suspected of being involved in people trafficking or people smuggling;
• is suspected of having committed genocide, a crime against humanity, a war crime, a crime involving or slavery, or a crime that is otherwise of serious international concern;

Also, the minister can decide the person fails the character test based on:

• their past and present criminal and general conduct; or
• the risk they would:
  • commit crimes;
  • harass, molest, intimidate or stalk another person;
  • vilify a segment of the community;
  • ignite discord in the community;
  • represent a danger to the community, whether by violent or disruptive activities or otherwise.

What is a substantial criminal record?

A person does not pass the test if they have a substantial criminal record, which means they have been:

• sentenced to death, life in prison, or imprisonment for 12 months or more; or
• convicted, in Australia or abroad, of a sex offence involving a child; or
• acquitted of an offence on the grounds of unsoundness of mind or insanity, and detained in a mental institution as a result; or
• found by a court to be not fit to plead to an offence where the evidence supports a verdict of guilt, and they have been detained in a mental institution.

The visa must also be cancelled if the person is serving a full-time sentence in prison.

Applications

When a person applies for a visa, they must declare any and all criminal history. The Department of Immigration can ask an applicant to provide details, such as via a police certificate from every country lived in, or a character statutory declaration.

The department considers a variety of factors in deciding whether an applicant passes the character test, such as the protection of the community, the best interests of any children in Australia, the impact of any visa refusal or cancellation on a family in Australia, and Australia’s international legal responsibilities.

What happens when a visa is cancelled?

Once a person’s visa is cancelled, they become an unlawful non-citizen. The person is also forbidden from applying for any further visa to enter Australia.

The person can, however, apply to the department to revoke the cancellation. They must apply within 28 days of the date of the cancellation letter. If this application is unsuccessful, the person may be eligible to apply to the Administrative Appeals Tribunal (AAT) for review of the department’s decision. If the person is in Australia, they are given up to 9 days to appeal after notification.

Appeals

The AAT can review a decision to cancel a visa on character grounds, unless the decision was made by the minister personally. The visa-holder can seek a “merits review” by lodging an application with the AAT by the date specified in the visa cancellation notice. If the visa holder is in Australia, they have 9 days, from the date of the decision, to lodge an appeal. The AAT cannot extend this time. The AAT will review all aspects of the decision and decide whether the decision was appropriate in the circumstances.

For advice or representation in any legal matter, please contact Armstrong Legal.