Jane Anderson - Specialist Criminal Lawyer Adelaide

Visa Cancellation for Criminal Offending

For permanent residents of Australia, the consequences of committing a criminal offence can be far more serious than many imagine.

Pursuant to section 501 (3A) of the Migration Act 1958, a permanent resident of Australia who is not an Australian citizen, who is sentenced to a term of imprisonment of 12 months or more or who is convicted of a child-related sex offence will automatically have their visa cancelled and can be removed from the country.

This provision applies regardless of how long the person has lived in Australia, and has captured many who arrived as young children, were raised in Australia, and who may have little or no memory of their country of birth.

In recent years there has been a dramatic increase in the numbers of permanent residents being removed from Australia following convictions for criminal offending. In 2018 alone, 888 people had their visas cancelled on character grounds. Around 100 of those had their visas cancelled following a conviction for child-related sex offences, with more than 500 people having visas cancelled for offences of violence. For further statistics visit the Department for Home Affairs website.

Permanent residents who have had their visas cancelled on character grounds can apply to the minister for a revocation of the cancellation, and the restoration of their permanent residence. The minister must take into account a variety of factors including:

  • the nature of the offence;
  • the circumstances of the commission of the offence;
  • the view of the offence expressed by the court before which the offender appeared;
  • the nature of the penalty;
  • the extent of rehabilitation of the offender;
  • the prospects of recidivism (repeated criminal offences);
  • the necessity to prevent or inhibit the commission of like offences by other persons;
  • the previous criminal history of the offender;
  • the public interest;
  • the circumstances of the family or of other persons having a relationship with the offender; and/or
  • the obligations of the Commonwealth under the United Nations Convention relating to the Status of Refugees(1951).

 

If the visa cancellation is not overturned, then the person will be removed from Australia. Where a permanent resident is serving a term of imprisonment the question of cancellation and removal is usually considered shortly before release. If cancellation and removal is not arranged to coincide with the date of release, a person, on being released, must be held in immigration detention if cancellation has occurred and there is no right of release (s 501F Migration Act 1958).

If you are facing criminal charges and you are not an Australian citizen, it is extremely important that you obtain expert legal advice on your matters as soon as possible. A conviction for a criminal offence may have far-reaching consequences for you and your family.

Jane Anderson

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