Cancellation of visas for those who commit crimes in Australia

Non-citizens: Can I remain in Australia if I have a criminal conviction?

For non-citizens, including permanent residents and special category visa holders (New Zealanders), having a criminal conviction may lead to deportation or involuntary removal from Australia.

A criminal conviction (even if no conviction is recorded) may also affect those on work or travel visas.

What is the “character test”?

Section 501(3A) of the Migration Act 1958 (Cth) states that the Minister must cancel a visa that has been granted to a person if the person does not pass the “character test”.

A person will fail the character test if:

  • the person has a “substantial criminal record” or they have been convicted of a sexually based offence against a child; and
  • the person is currently serving a sentence of imprisonment.

A person has a “substantial criminal record” if, among other things, they have been sentenced to a term of imprisonment of 12 months or more.

A term of imprisonment includes a suspended sentence or release on parole after serving a portion of the sentence.  It does not matter if the period of actual custody is less than 12 months.  What is relevant is whether the whole of the term of imprisonment imposed is 12 months or more. If you are sentenced on multiple offences, to be served concurrently, they will be counted cumulatively. For example, if you received a sentence of 6 months imprisonment on two charges, to be served at the same time, they will be counted as 12 months for the purposes of deportation, even though you will be released from prison after 6 months.

Ultimately, this means that, if you are a non-citizen of Australia, and you are serving a term of imprisonment of 12 months or more, the government must cancel your visa or permanent residence.

If you do not pass the character test, you will be placed in immigration detention until a final decision is made about whether or not you can remain in Australia. This generally occurs immediately upon your release from prison.

Can I appeal my visa cancellation?

A person who has had their visa cancelled due to a criminal conviction may seek a “revocation” under section 501CA (4) of the Migration Act.

The grounds for a successful revocation are quite limited.

The Minister must either be satisfied that the person passes the “character test” or “there is another reason why the original decision should be revoked”. Generally, unless a major error has been made, the decision can only be reviewed for reasons other than the “character test”.

In considering whether to revoke the decision, the Minister must consider:

  • the protection of the Australian community from criminal or other serious conduct;
  • the best interests of minor children in Australia; and
  • the expectations of the Australian community (see Ministerial Direction 65).

If the visa cancellation notice was issued by a delegate of the Minister, you may also appeal the decision to the Federal Administrative Appeals Tribunal. If the notice was issued by the Minister of Immigration personally, your appeal rights are only through the Federal Court of Australia, which can be a lengthy process.

Strict time limits apply

You only have 9 days from receiving your visa cancellation notice to appeal the decision to the Administrative Appeals Tribunal. As such, you should seek advice from an immigration lawyer immediately after your sentence if you believe you may fail the “character test”.

If you or someone you know has received written notification of the government’s intention to cancel your visa, you should seek specialist immigration law advice immediately.

There can be long term consequences of a criminal conviction that apply long after your case has finalized.  These can include immigration, employment, occupational regulation, family law and travel consequences.

We often act for clients who are not citizens or may have other circumstances in which convictions can impact their lives beyond the finalisation of the criminal case. We can provide you with confidential advice about the particular facts of your case, and develop a strategy to minimize the long term impact on your life.

Please note that this advice is for general background information only and is not intended as a legal advice you can rely on. To obtain legal advice you can rely on you must contact a lawyer who on engagement can advise you on the basis of your personal circumstances.

Written by Rebecca Fogerty (Criminal Lawyer) and Aadil Master (Law Clerk).



Domestic violence: Bill Potts says blanket bail refusal not the answer

Changes should be made in the way courts deal with domestic violence offenders with mental health issues, rather than making bail harder to secure, a prominent Queensland lawyer has argued.

The LNP has pledged to introduce laws reversing the onus of proof for bail on domestic violence cases in the first sitting week of Parliament in 2017.


The LNP’s legislation would cover people charged over domestic violence-related incidents, including offences of strangulation, assault, deprivation of liberty and kidnapping.

That means a person charged with a domestic-violence-related offence would automatically be refused bail pending their court case being finalised and the defendant would have to prove why they should be released.


Attorney-General Yvette D’Ath asked her department to examine bail laws in other jurisdictions and Police Minister Mark Ryan on Thursday opened the door to possible ankle bracelet tracking for some offences on bail.

David Bradford, 52, was freed on bail less than three weeks before police believed he murdered his wife Teresa at her Pimpama home, and then killing himself.

Before his release, Mr Bradford had spent 44 days behind bars, accused of choking and assaulting his estranged partner.

Police reportedly objected to bail, pointing to his “fragile mental state” and saying he was an “unreasonable risk of causing self-harm or harm towards others”.

Queensland Law Society immediate past president and criminal lawyer Bill Potts said mental illness, alcohol or drugs were often involved in domestic violence cases.

Mr Potts said the society needed to deal with the causes, such as mental health, alcohol or drugs, rather than locking people up and throwing away the key.

“Rather than simply deny bail to the 99 per cent of people who do not breach bail in these circumstances and who are more than prepared to obey the orders which are made by the court, we should in fact ensure that the courts have the proper and appropriate means to monitor the fluctuating states of the mental condition of people who appear before them,” he said.

“People can appear to be quite sane when they’re applying for bail but their condition may change if they utilise drugs or alcohol or if their depression comes back.”

Mr Potts said courts should be notified of a defendant’s deteriorating mental health situation by hospitals, police, neighbours or “anybody who is in the position to see the person is hanging on by a thread or losing their sense of reality”.

“Courts are able to order mental health assessments … If there’s any change in that, the person books themselves back in hospital, the spouse notices that they’re deteriorating, that sort of thing ought to be told to the court, so up to date information is available to the courts.

“Rather than laws which on their face may be populist, what we in fact need is better resources for a court system that is stretched to breaking point.

“People act in these things, sometimes out of an explosion of rage or anger, but more often out of despair and where that’s tied up with a recognised mental illness.”

Also on Thursday, Mr Ryan said he would speak to the Premier and Attorney-General about Ms Bradford’s family’s comments suggesting ankle bracelets could be used to track accused DV offenders.

“I’ve got an open mind on that and I’m happy to talk with the Premier and the Attorney-General about that very thing,” he said.

“As I mentioned before, just a couple of moments ago, the Queensland Police Service is a world-leading police service in terms of being an early adopter of technology, so where there is technology to assist us in keeping Queenslanders safe, I’ve got a really open mind.”

Mr Potts said about 23,000 applications for domestic violence orders were made each year, which involved up to 46,000 couples.

“We simply cannot and ought not to have a rule that prevents people from getting bail because we simply do not have enough jails and secondly there is simply no need for such a course of action,” he said.

When questioned on whether his proposed law reform could lead to prison overcrowding, Opposition Leader Tim Nicholls said he believed the issue could be managed.

Mr Potts said people’s hearts must go out to the family and friends of Ms Bradford and people quite properly questioned what went wrong and whether lessons could be learnt.

“But I’m concerned that sometimes in the desire to do good and to prevent harm that we in fact can cause injustice,” he said.

Mr Potts said there had also been “unfounded and quite hysterical abuse” directed at Magistrate Colin Strofield, who allowed Mr Bradford to be released on bail.

“It’s all very well for people to be wise with 20/20 hindsight,” he said.

“We should be trying to ensure that our hardworking magistrates at the coal face of justice are given support and resources.”

Queensland Council for Civil Liberties vice president Terry O’Gorman said reversing the onus of proof for bail would result in defendants spending many months on remand before their cases were heard, when some would be found not guilty.

“[It will] cause innocent domestic violence accused to spend many long months in jail only to be acquitted or have the case later dropped,” he said.

Mr O’Gorman said the Teresa Bradford tragedy should not be ignored but it did not demonstrate a systemic problem with the domestic violence bail system.

But he said the council supported a proposal to make police tell domestic violence complainants when the alleged perpetrator was released on bail.

Women’s Legal Service coordinator Angela Lynch said the WLS supported calls to reverse the bail laws where risk assessments identified red flags for victims’ safety.

She said the WLS also supported urgent consultation with stakeholders and experts.

“We’re heartened that bail laws are on the agenda for both sides of the aisle,” Ms Lynch said.

“I’m interested to see specifics on the private member’s bill to be introduced to Parliament by the opposition.

“This is complex. We need DV experts to be consulted. We owe it to Teresa and the women of Queensland living with violence to get this right.”

During January, the WLS received a 41 per cent spike in calls to its statewide domestic violence helpline.

QLS President Message

Our profession has much of which to be proud as I come to end of my year as your 2016 president.

I said at the beginning of the year that I am a proud to be a Queensland solicitor and after a year in the role as the QLS’s most privileged elected position it has given me a great amount of respect and pride in the more than 13,000 solicitors across the state.

I have long believed that advocacy for good law and educating the public as to what we do as lawyers is integral to enhancing and fortifying the reputation of Queensland solicitors. Advocacy is key to this process and I am honoured the profession has provided me the opportunity to make a difference.

Our profession continues to face unprecedented challenges. Economic and global competitive risks, technological change, regulatory compliance, higher rates of mental distress and graduate oversupply, are forces with which all Queensland solicitors contend.

However, over the past year your QLS has taken enormous strides to ensure the profession is stronger as we head into 2017.

During 2016, your Society’s policy committees made 105 advocacy submissions, attended 14 Parliamentary hearings and had 85 successes from advocacy work.

Among those highlights were:

  • 17-year-olds being moved out of adult prisons
  • Limitation periods being removed for child sex abuse cases
  • A class actions regime introduced into Queensland
  • Catastrophically injured people retained their common law rights in the NIIS
  • Our Federal Call to Parties was approved and released with an ALP commitment to more CLC funding and more family law judges in Brisbane
  • Law firm prescribed accounts were abolished from 1 January this year, which is of course a red tape reduction for members
  • Government is considering the position of administration of funds for orphans following the Maggs v RACQ decision
  • The reversal of the onus of proof proposed in Vegetation Management Bill was defeated
  • VLAD laws were replaced the by the Serious and Organised Crime Bill.

Leading on from our advocacy work, QLS maintained a highly visible presence in the media and was an active member in thought leadership in the profession with more than 4000 media mentions across all platforms such as newspapers, television, radio, online and via social media.

QLS also had a very busy year assisting our profession.

Our QLS Ethics Centre presented 50 Bespoke Ethics Sessions, opened 3569 ethical and practice support guidance matters and attended 31 Practice Support Consultancy Service visits.

We released Guidance Statement No.6 – Form of Delivery for Client Documents.

We were also pleased to launch our Domestic and Family Violence Best Practice Guidelines for members as a result of the Not Now, Not Ever report.

This past year has placed great challenges in our way, but as a membership-driven Society we have made a great contribution to the legal profession.

It has been an honour and a privilege to serve as your president throughout 2016. I look forward to continuing to serve the Society throughout 2017 as your immediate past president.

I also look forward to assisting the incoming president Christine Smyth and supporting her in continuing her vision for the continued good work of good lawyers in Queensland.


Bill Potts

President, Queensland Law Society

Potts calls for abolition of laws allowing 17-year-olds to be sentenced as adults

Queensland Law Society has called on the state government to implement swift legislation reform to ensure 17-year-olds are no longer considered adults in the eyes of the law.

Society president Bill Potts said it was simply appalling Queensland remained the only state or territory in Australia that treats 17-year-olds as adult offenders and subjects them to terms locked up in adult prisons with hardened and seriously violent criminals.

Mr Potts said Tuesday’s (Aug 30) revelation about the harsh summary punishment inflicted on a teenage offender by guards in an adult wing of Brisbane’s Arthur Gorrie Correctional Centre lent credence to the Society’s long-held view that children should never be held in adult prisons.

“QLS has a long-standing policy against treating children as adults in the prison system,’’ he said.

“The Society has regularly called for an end to this archaic and, quite frankly, barbaric practice.

“What we have seen of late is beyond the pale for adults, let alone children.”

Mr Potts said that it was telling that a person of 17 could not legally buy a drink or even vote in this state, but could be punished as an adult for any offence.

“The Society has a policy committing to evidence-based policy, and you won’t find a single scrap of evidence to show that there is any benefit to the community or to the offenders in putting 17-year-olds in adult prisons,” he said.

“Exposure to the harsh reality of adult prisons reduces the chances of rehabilitating young offenders markedly, and if we care about salvaging these young lives we need to keep them out of the adult system.”

Mr Potts said it was time the Labor Palaszczuk Government got serious about this issue and act to make legislative changes to ensure no more children ended up locked in adult Queensland prison cells.

He said it was not uncommon for Queensland judges and magistrates to comment on a frequent basis how Queensland was the only state or territory in Australia to treat 17-year-olds as adult offenders and how out-dated and appalling the laws were when passing sentence against them.

“On the first of September next year we will celebrate – or, more appropriately, mourn – 25 years of treating children as adults in our prison system; how many more pictures of children in bondage do we need to see before the government acts?”

Appointment of Queenslander as nation’s first female High Court Chief Justice a worthy and inspired choice

Queensland Law Society has praised the Federal Government for its appointment of esteemed jurist Susan Kiefel as the nation’s first female High Court Chief Justice.

President Bill Potts said the appointment was a just and warranted recognition for the tireless leadership and contribution Justice Kiefel had made to the judiciary since her appointment to Queensland’s Supreme Court in 1993.

“Justice Kiefel’s appointment is most welcome and the decision to appoint her is probably the easiest one Prime Minister Turnbull will have to make during his tenure; Her Honour is clearly the best person for the job,” Mr Potts said.

“She is not only a Queenslander by birth but also by deed. She has already had a long and successful career at the Queensland Bar, being the first woman to be appointed Queen’s Counsel in Queensland.

“Her Honour has also given freely of her time to speak at Queensland Law Society seminars, something for which the Society is extremely grateful-and which indicates Her Honour’s willingness to give back to the profession.”

Justice Kiefel will replace retiring Chief Justice Robert French and her appointment ends an almost 115-year stranglehold on a position that has been exclusively held by male members of the legal profession.

The appointment was announced by Australian Prime Minister Malcolm Turnbull on Tuesday (Nov 29) ahead of Justice French’s imminent retirement.

Mr Turnbull, in making the announcement, said: “Susan Kiefel’s story is one that is an inspiration.”

He said Justice Kiefel left school at the age of 15 and began her working life as a legal secretary before studying law part-time through the barrister’s admission board.

“She has been one of Australia’s most outstanding judicial officers and her appointment crowns a great career with even greater judicial service yet to come in this most important role,” Mr Turnbull said.

Mr Potts said the newly appointed Chief Justice’s legal career was almost second to none in the legal profession.

He said her list of legal achievements included: her admission as a barrister of the Supreme Court of Queensland in 1975, becoming Queensland’s first female appointment as Queen’s Counsel in 1987, appointment to the Federal Court of Australia in 1994 and then to the High Court of Australia in 2007.

“Simply put, Justice Kiefel has had a stellar career and that experience makes her the perfect choice as Australia’s most senior jurist,” Mr Potts said.

Potts says new anti-bikie laws are a step forward – but not without problems

Queensland Law Society has applauded the Palaszczuk Labor Government for dispatching the LNP’s flawed and unworkable VLAD anti-bikie laws to the dustbin of history.

However, Society president Bill Potts said the new Serious and Organised Crime Legislation Amendment Bill had its own inherent shortcomings and problems – but was a marked step forward from the previous legislation.

“QLS is delighted the government has repealed the Newman LNP Government’s controversial Vicious Lawless Association Disestablishment Association Act – which was the subject of considerable criticism among the legal profession,” he said.

“The Society has always strongly advocated for evidence-based legislation and policy.

“We have always sought to consult with the government and the opposition so that the legislation can be properly developed.

“We were thrilled to be allowed to take part in the consultation process, however, not all of our recommendations were adopted.”

Mr Potts said the Society would watch with interest whether the new laws make the difference expected to keep the streets and communities of Queensland safe for everyone.

“The Society also hopes the laws will be the subject of constant review – preferably every 12 months – and tweaked where necessary to ensure they are as effective as required,” he said.

“We need laws that deter people from crime but where the balance lies is something the public will be debating.

“What is necessary is better resourcing for police rather than more law and not enough order.

“Under this new legislation the law is clearer and more likely to garner prosecutions. The proof will be in the pudding and the police now have a legislative tool to successfully prosecute.”

Mr Potts said positive aspects of the laws included empowering crime fighters to crackdown hard on child exploitation, boiler-room fraudsters and outlaw criminal motorcycle gangs and will introduce new offences and increased penalties.

Putting Human Rights on the Table

Story by : Stefanie Garber  31 May 2016  Lawyers Weekly

The proposal to introduce a human rights act in Queensland has thrown a spotlight on the importance of human rights protections, write Bill Potts and Rebecca Fogerty.

In December 2013, Sally Kuether, a library assistant and mother of three, was arrested and charged with offences under the newly-enacted Vicious Lawless Association Disestablishment (VLAD) Act 2013.

Her alleged crime: meeting over a beer at the local pub with her boyfriend and a friend of his while wearing a leather jacket emblazoned ‘Property of Crow’ (a reference to her boyfriend and his membership of the outlawed Life and Death Motorcycle Club). Continue reading Putting Human Rights on the Table

Inflammatory Social Media Posts Could Influence Jurors

Bill Potts said the use of social media to express opinions on cases currently before the courts had to be carefully considered to ensure that justice was not impeded.

“I understand that the public uses social media as a safety valve during highly emotional circumstances,” he said.

“However, there is real danger that words spoken out of anger may influence potential jurors.” Continue reading Inflammatory Social Media Posts Could Influence Jurors

Prevention Rather Than Punishment Over Coward Punch Attacks

All Queensland politicians should search their conscience about the effectiveness of Queensland’s nightclub lockout laws in the wake of the Cole Miller death on Monday, Queensland Law Society president Bill Potts believes.

“I would like all parliamentarians to look to their consciences and to grasp that particular nettle,” Mr Potts said.

“It is often said that bad cases make for bad laws; here is a situation where a bad case may make for good law Continue reading Prevention Rather Than Punishment Over Coward Punch Attacks