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Can a criminal conviction affect my visa or permanent residency status?

As criminal lawyers we are regularly asked “Will a conviction affect my visa?” or “Will a criminal conviction affect my permanent residency status?”. A criminal conviction can have a serious effect on a visa. It can also affect permanent residency status in Australia. It can result in the refusal, or cancellation of a visa or residency status on the basis of ‘character grounds.’

The Department for Home Affairs has the power under Section 501 of the Migration Act 1958 to refuse or cancel a person’s visa on the basis that they do not pass the ‘character test.’ This test looks at more than just whether or not a person has a criminal conviction.

The ‘character test’ consists of a number of factors including if a person has:

  • A ‘substantial criminal record;’
  • If the Minister suspects on reasonable grounds that you have or had been a member or associate of a person, group or organisation and they are suspected of being involved in criminal conduct;
  • Past and present criminal or general conduct shows that they are not of good character;
  • You’ve been deemed at risk of:
    • Engaging in criminal conduct;
    • Harassing, molesting, intimidating or stalking another person;
    • Vilifying a segment of the Australian community;
    • Inciting discord in the Australian community or in a part of it;
    • Being a danger to the Australian community or a part of it.
  • If a person has been convicted, found guilty or had a charge proven for, one or more sexually based offences involving a child.

What is a “substantial criminal record?”

For the purposes of the character test a substantial criminal record is:

  • A sentence of death or life imprisonment;
  • A term of imprisonment of 12 months or more;
  • A sentence of two or more terms of imprisonment (even if served concurrently), where the total of those terms is 12 months or more; and
  • If a person has been found by a court to be not fit to plead in relation to an offence but found to have committed the offence and as a result has been detained in a facility or institution.

This means that it many cases a criminal conviction may not affect your visa or residency status. Many common criminal or traffic offences, such as drink driving, are finalised without a term of imprisonment being imposed. A conviction for a matter like this will not generally affect your visa or residency status.

Mandatory exclusion or cancellation

In most cases the decision to refuse or cancel a person’s visa is discretionary and made by the Department for Home Affairs.

In some cases the Department does not any discretion. A person must have their visa refused or cancelled.

These circumstances include if a person:

  • Is currently serving a full-time custodial sentence, and has ever been sentenced to 12 months or more imprisonment (regardless of time actually served)
  • Has been convicted of, had a charge proven for or have been found guilty of a sexually based crime involving a child.

This includes sentences served or imposed in Australia or overseas.

If a visa is cancelled or refused under these circumstances, the Department will issue a notice of intention to cancel a visa.

Criminal convictions and permanent residency

If you have been living in Australia as as a non-citizen permanent resident for 10 years or less, and are sentenced to imprisonment for a period of one year or more, the under Section 201 of the Migration Act you may be deported.

This also incudes non-citizen permanent residents who have lived in Australia for a number of periods which all add up to ten years or less.

Can I appeal the decision to revoke my visa?

The right to appeal to the Administrative Appeals Tribunal (AAT) regarding a decision to refuse or revoke a visa depends on who made the decision. A decision made personally by the Minister for Home Affairs cannot be appealed, however a decision made by their delegate can be appealed.

It is important to remember that an appeal to the AAT must be made within nine days of being notified of the Department’s decision.

What happens if my visa is cancelled or revoked?

If your visa is cancelled the following may occur:

  • You may be forced to leave Australia immediately
  • You will become an “unlawful noncitizen” and may be placed in immigration detention
  • You might be prevented from returning to Australia for a period of time, or indefinitely.

How can avoid issues with my visa or residency status?

If you have already received a notice of intention to cancel or revoke your visa, it is important to seek legal advice from a migration agent or immigration lawyer as soon as possible. Because a conviction can affect your visa or migration status it is important to contact an expert criminal lawyer if you have been charged. There may be defences to your case that you are not aware of. You may also be able to persuade the court to proceed without recording a conviction against you.

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