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).



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

Gold Coast Prisoners Treated Like Animals at Southport Watchhouse

IT’S been labelled the Southport “zoo” — where people are kept in “inhumane” conditions with no natural light, beds or privacy for weeks at a time.

The Queensland Law Society and the state’s top civil libertarian have slammed conditions at the Southport Watchhouse which they say has become “a de facto prison” not fit for a dog.

“Everyone in the watch-house is presumed to be innocent awaiting trial and to keep them for 10 days in a place designed to hold people for a few days is one of the greatest scandals across Queensland,” said Queensland Law Society president, Bill Potts. Continue reading Gold Coast Prisoners Treated Like Animals at Southport Watchhouse

Potts Lawyers Awarded as a Leading Criminal Law Firm 2015

Managing director, Rob Franklin is pleased to announce that Potts Lawyers have been recognised by the prestigious Doyle’s Guide as a “first tier” leading criminal law firm in Queensland.

Director Bill Potts has been named as a leading criminal lawyer whilst director Cameron Browne has been named as a recommended criminal lawyer.

It is heartening to see that amongst the total of 26 criminal lawyers listed for Queensland, more than a quarter have spent several years working in our practice. We extend our congratulations to those colleagues: Continue reading Potts Lawyers Awarded as a Leading Criminal Law Firm 2015

Bill Potts Elected President Of Queensland Law Society For 2016

Bill Potts

All the team at Potts Lawyers are very proud of their foundation director Bill Potts, who has been elected by the solicitors of Queensland to represent their interests as President of the Queensland Law Society.

Bill’s term will commence in January 2016 and he’ll be working with lawyers throughout the State.

Bill will be advocating for good law and supporting lawyers to achieve the delivery of quality legal services to Queenslanders.

NEW Australian Metadata Retention Laws

On Tuesday 13 October 2015 new laws came into effect in Australia that require telecommunications service providers (i.e. Telstra, Vodafone, Optus etc.) to retain prescribed telecommunications data.  The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 sets out a statutory obligation for telecommunications service providers to keep this data for a period of two years.

The new law does not give new powers to criminal law-enforcement agencies to access telecommunication data.  It simply obliges telecommunications companies to retain and secure a limited set of records for two years.

Why were these new laws brought in? Continue reading NEW Australian Metadata Retention Laws

Johnny Depp’s Partner Amber Heard Issued Summons For Bringing Dogs Illegally Into Australia

Johnny Depp’s Yorkshire terriers Boo and Pistol were spotted at Happy Dogz groomers on the Gold Coast in May. (Supplied: Happy Dogz)

Johnny Depp’s wife, actress Amber Heard, has been charged over a biosecurity breach after illegally bringing dogs Boo and Pistol into Australia on a private jet and is due in a Queensland court in September.

The Commonwealth Director of Public Prosecutions issued a summons against Heard.

She has been charged with two counts of illegal importation contrary to the quarantine act and one count of producing a false document.

Penalties include fines of up to $100,000 or up to 10 years imprisonment. Continue reading Johnny Depp’s Partner Amber Heard Issued Summons For Bringing Dogs Illegally Into Australia

Gold Coast Commonwealth Games Will Be Every Bit As Challenging As G20: Queensland Police Service

The 2018 Gold Coast Commonwealth Games will be one of the biggest logistical challenges the Queensland Police Service has ever faced, Assistant Commissioner Peter Crawford says.

With less than three years until the Games begin, preparations are already well underway.

In April 2018, more than 6,500 athletes, 25,000 volunteers and tens of thousands of spectators will descend on the tourist strip for the month-long event.

Police will have to secure 18 competitions venues across not only the Gold Coast but Brisbane, Townsville and Cairns. Continue reading Gold Coast Commonwealth Games Will Be Every Bit As Challenging As G20: Queensland Police Service