Proposed changes to Australia’s Immigration Policy mean that if you find yourself on the wrong side of the law you could be deported, no matter what your circumstances.
One of the most commonly asked questions posed by anyone on a travel or work visa who’s found guilty of committing a crime in Australia is: will a criminal conviction affect my visa? Or more specifically, will a criminal record get me deported?
Section 201 of the Migration Act 1958 states that a person who has been convicted of a criminal offence in Australia, and who was a non-citizen at the time that they committed the offence, can most definitely be deported in certain situations. And this applies to both permanent residents and temporary visa holders.
A key component within the Migration Act, and an avenue for deporting non-citizens is contained in section 501 of the Migration Act, which gives the Immigration Minister the power to cancel a person’s visa if they do not pass the ‘character test.’
In December 2014, the Australian government made amendments to the Migration Act, which lowered the threshold of these “character grounds” of the legislation.
Under the Migration Amendment (Character and General Visa Cancellation) Bill 2014, it’s now mandatory for the Australian Government to send people back to their countries of birth, after they have been sentenced to terms that total 12 months or more.
In 2018, more than 800 people who were convicted of serious offences were stripped of their Australian visas. Their permission to stay in Australia was revoked under these laws and the majority – about 500 people – had been sentenced for violent crimes.
More than 4,000 offenders in total have been stripped of Australian visas since 2014, when mandatory cancellation provisions were added to the Migration Act.
Strengthening the laws
But in the eyes of the federal government, the current laws are not strong enough.
Recently, the Migration Amendment (Strengthening the Character Test) Bill was introduced into parliament with a view to strengthening the character test even further, by permitting the cancellation of visas where a person is convicted of an offence punishable by at least two years in prison – regardless of whether they were imprisoned for less time, or imprisoned at all.
The Government also wants to enact these laws retrospectively, which would mean that people who have lived in Australia for decades, who committed past crimes but have with no recent criminal history, could have their visa cancelled.
The proposed new legislation would apply to any person – including children.
While many would argue it is in the community’s interest to rid Australia of violent criminals, it’s important to note that many criminal offences – from drug possession, to common assault, to possessing a knife in a public place carry a maximum penalty of two years or more in prison.
Therefore, new laws could see long-term residents deported for such relatively-minor offences. If for example, a person was found guilty of drug possession, but was given a sentence such as an Intensive Correction Order or Home Detention as an alternative to time in prison, they could also have their Visa cancelled.
The New South Wales Council for Civil Liberties (NSWCCL) says it is supportive of deportation for those who have committed serious offences, but doesn’t support the current policy of automatic deportations for less serious offences, and believes that rather than blanket rules be applied to all cases, individual circumstances need to be assessed by the Immigration Minister.
Avenue of Appeal
Anyone who is facing the prospect of having their Visa cancelled can appeal to the Administrative Appeal Tribunal (AAT), which provides independent reviews of a wide range of administrative decisions made by the Australian Government.
The AAT generally considers a broad range of factors when deciding whether a cancellation is just, including personal and family matters.
Parliament is currently debating the proposed legislation.
Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers® content team.
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