Criminal defence lawyers strive to achieve justice and fairness for their clients every day. Many clients have additional adverse outcomes likely to occur after a conviction. But, for some clients receiving convictions and sentences, their outcomes are often more than financial or occupational.
For low-level recidivist Australian citizens, it can often unfortunately simply be a matter of another day in court, another conviction and fine, or bond resulting. For visa holders, depending on the nature of the charges, from the point of conviction things can go from bad to significantly worse.
The Migration Act 1958 (Cth.) defines immigration status of everyone in Australia who is not an Australian Citizen as a non-citizen (s 5).
For non-citizens to be able to remain in Australia lawfully, they have to hold a valid visa to be considered Lawful non-citizens (s 13). Non-citizens who do not hold a valid visa are considered unlawful non-citizens (s 14). This is not merely a “label”, as being an unlawful non-citizen means that person has to be detained (s 189) and – as soon as reasonably practicable – be removed from Australia (s 198). Removal is the legislative term for what is usually referred to in the media as “deportation”.
Therefore, always holding a valid visa is a must, to avoid the possibility of detention and removal. This is where criminal law and immigration law come to some very critical crossroads.
The Migration Act has some strict provisions for character requirements (called the character test) which govern who gets to be granted a visa as well as who gets to keep holding a previously granted visa, based on their character. Being of good character is an ongoing requirement for both visa applicants and visa holders and is not extinguished by being granted the visa, even permanent residency visas are not exempt from that requirement.
One common myth that we have seen over time both in media and even by some criminal law practitioners that as long as the person does not get sentenced to 1-year (single sentence or combined sentences) their visa is safe from failing the character test, and therefore their visas would not be cancelled and/or their pending visa applications would not be refused.
Sadly, this is not correct. Although it is correct that getting a single sentence of one year or longer (or combined sentences of 1 year or longer) is cause for failing the character test, it is NOT the sole ground.
The Character Test can be failed in so many ways without even being sentenced or even spending one day in gaol. This is governed by s 501 Migration Act as well as any current directions made by the minister under s499 of the Migration Act. At the time of writing this article, MD 99 is the currently in-effect direction.
How can that affect my situation as a visa holder/applicant charged with an offence?
In some instances of criminal matters, defence lawyers may choose a specific course of action for their client due to the totality of circumstances, such as the severity of the allegations, the nature of the evidence (or lack thereof), the client’s prior record. Unfortunately, some of those courses of action may be suitable for an Australian Citizen that is unaffected by the character test under the Migration Act but may not be suitable for a non-citizen.
Additionally, Australian Citizens’ ability to sponsor non-citizen family members (spouses/partners/children/parents) may be impacted by certain offences.
In such cases, our criminal defence and immigration teams can work together hand-in-hand to find the best course of action on the criminal defence side while considering the potential impacts on the client’s immigration status. We can work on avoiding adverse results; and, if there is a possibility of visa cancellation/refusal due to the potential of failing the character test, we can make sure that we are prepared to handle that before it happens.
The integrated representation saves the client the unnecessary financial and communication overheads of having two separate teams and also provides a streamlined response to any issues from both specialties.
How can we help you?
At Longton Legal, we pride ourselves on being able to provide integrated representation for such matters that require a holistic approach to representation. Our criminal defence and immigration teams both include many experienced lawyers, accredited specialists, and registered migration agents who work closely together on such matters to make sure that the client’s immigration status is not adversely affected by an otherwise-preventable outcome in criminal defence.
Do you have an ongoing criminal matter and are not an Australian Citizen?
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
Registered Migration Agent
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