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).