If you are not an Australian citizen and reside in Australia without a valid visa, you are classified as an ‘unlawful non-citizen’. The Australian Government Department of Home Affairs has the power to detain you in immigration detention and remove you from its borders. Non-citizens become unlawful and subject to removal or deportation for visa cancellation for failing the ‘character test’ or if they are convicted of serious criminal offences.
Those who are convicted and sentenced to imprisonment for at least 12 months or are convicted of certain prescribed crimes (such as sexual offences involving children) face mandatory visa cancellation. Conviction for other crimes does not mandate visa cancellation but renders it a possibility.
Deportation or removal from Australia can severely impact your life and relationships. If you are facing criminal charges and you hold an Australian visa, whether temporary or permanent, seek legal advice from an experienced specialist in criminal law to ensure your rights are protected.
Unlawful non-citizens should seek advice from an Immigration Lawyer before making any decisions regarding their immigration status or leaving Australia voluntarily. Depending on the circumstances, it may be possible for an unlawful non-citizen to ‘regularise’ their immigration status with an onshore visa application, such as by obtaining a bridging visa.
Read on for more information about visa cancellation in relation to criminal conduct and appealing a visa cancellation decision.
Mechanisms for deportation and removal
A person can be forcibly removed from Australia by one of two mechanisms, by deportation or removal. Deportation requires a specific order to be made under section 200 of the Migration Act 1958 and can only be used on permanent residents who commit serious criminal offences within the first 10 years of their entry to Australia (s201).
In contrast, the mechanism for removal is an automatic process that applies to unlawful non-citizens who have had their visas cancelled under section 501 of the Migration Act for failing the character test, which results from the commission of criminal offences in certain circumstances. While deportation requires a specific order to be made under the Migration Act, removal takes place automatically.
While permanent residents can be subject to a deportation order for committing certain criminal offences under section 200, they will typically be subject to the removal process and have their visas cancelled under section 501 of the Migration Act for failing the character test.
When is a person an unlawful non-citizen?
Any person in Australia who is not an Australian citizen and who holds a visa that is in effect is considered a ‘lawful non-citizen’ (see s13). Section 14 provides that any non-citizen in Australia who does not meet the definition of being a lawful non-citizen is an ‘unlawful non-citizen‘.
An unlawful non-citizen therefore includes a person who:
- enters Australia by deception, misrepresentation or without a visa;
- breaches the conditions of their visa, such as by overstaying on a temporary visa or working without the appropriate visa type; or
- has their visa cancelled on ‘character’ grounds, such as due to engaging in criminal conduct.
Whatever the grounds for a person’s visa cancellation, if they are in Australia and no longer hold a visa that is in effect, they immediately become an ‘unlawful non-citizen’.
When is a person deported for committing a crime?
A non-citizen who is a permanent resident in Australian for less than 10 years may be deported if they are convicted in Australia of any offence for which they are sentenced to imprisonment for one year or longer (s 201 Migration Act).
Such a non-citizen is similarly liable to deportation if they are sentenced to two or more terms of imprisonment in which the total of the terms is 12 months or more. Under section 201, a person cannot be deported after being lawfully resident in Australia for more than 10 years, except in very exceptional circumstances.
However, this section is rarely used due to the broad and more draconian powers available to the Minister and Department of Home Affairs under s501 of the Migration Act. Under this section, a non-citizen’s visa can be cancelled no matter how long they have lived in Australia, making the person an unlawful non-citizen who is then subject to removal.
Other grounds for deportation of non-citizens under the Migration Act, which are rarely used, include:
- Conduct in Australia or elsewhere that constitutes a threat to the security of the Commonwealth (s 202); and
- Conviction of treason, treachery, sedition or other crimes against the state as set out in certain sections of the Crimes Act 1914 (Cth) (s 203).
Even conduct that does not amount to criminal conduct can result in visa cancellation under section 501 for failing the character test where the decision Minister of their delegate believes it is in the public interests to do so.
When a visa will definitely be cancelled
Under section 501(3A) of the Migration Act 1958, the Minister must cancel an offender’s visa if:
- the offender has been sentenced to a term of imprisonment of 12 months or more; or
- the offender is guilty of “sexually based offences involving a child”; AND
- the offender is serving a sentence of imprisonment.
Importantly, under point three, an offender will not have their visa automatically cancelled, for example, if they have served a large amount of pre-sentence detention, receive a term of imprisonment of 12 months or more and get released straight away.
What is classified as 12 months imprisonment or more?
“Imprisonment” under the Migration Act 1958 is defined as “any form of punitive detention in a facility or institution”. This broad definition, therefore, includes youth detention and custodial supervision orders.
As the Migration Act ignores whether sentences are served concurrently or cumulatively under section 501(7A), instead of the total effective sentence (which is the actual time in prison), the whole of each term is totalled for the purpose of calculating whether an offender has been sentenced to imprisonment for 12 months or more.
For example, suppose a person is sentenced to 2 terms of 3 months imprisonment for 2 offences to be served concurrently (a 3-month total effective sentence) for the purposes of the Migration Act. In that case, the total of those terms is 6 months.
A non-citizen facing charges for multiple low-level offences that add up to 12 months of imprisonment could face automatic visa cancellation. It is, therefore, very important that a lawyer considers the total term of imprisonment if a non-citizen is charged with multiple low-level offences. When pleading guilty to multiple offences in the Magistrates’ Court, an experienced lawyer can make submissions to avoid automatic visa cancellation.
Character test and discretionary visa cancellation
Under section 501, the Minister has discretion to cancel a visa if the Minister “reasonably suspects” that a person fails the “character test”. This can be based on a person’s past or present criminal conduct or even past or present “general conduct”. This gives the Minister very broad discretion to cancel a visa.
Therefore, even if a person has been acquitted for a criminal offence or has not been found guilty or anything, a non citizen could have their visa cancelled. This could occur for example, if the Minister reasonably suspects a person has an association with a group or person involved in criminal conduct, even if a person has not been found guilty of anything.
Under section 116(1), the Minister also has discretionary power to cancel a visa where “the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community”.
Appealing a visa cancellation decision
A person who has a visa cancelled under section 501 may be able to apply to the Administrative Appeals Tribunal (AAT) for merits review of the decision, or they may only be able to challenge the legality of the decision by judicial review in court.
However if the Minister ‘personally’ makes a cancellation decision under section 501, as opposed to a delegate, there is no right of review before the AAT (s500(1)(b)).
There are time limits applying to applications for review of a decision and when seeking judicial review. If your visa has been cancelled, it is important to engage an experienced migration lawyer as soon as possible.
Administrative appeals tribunal
A non-citizen person facing deportation under sections 201 or 501 of the Migration Act 1958 may be able to apply to the Administrative Appeals Tribunal (AAT) for review of the merits of the decision to cancel their visa under section 500 of the Act. However, if the Minister personally (as opposed to a delegate) decides to cancel a person’s visa, this decision is not subject to merits review (see s500(1)(b)).
During a merits review, the AAT reviews the original decision to determine if it is the correct or preferable decision, which can be affirmed, varied or set aside (Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)).
However, if the AAT sets aside the decision and decides not to exercise the power to cancel a person’s visa, in certain circumstances, the Minister may set the AAT’s decision aside and cancel the visa if it is in the national interest under section 501A.
Judicial review
All visa decisions under section 501, whether made by a delegate or the Minister personally, may be subject to judicial review by the Federal Court or the High Court of Australia. Under judicial review, courts review the lawfulness of an administrative decision rather than whether the decision was correct.
If a court finds that a visa decision was affected by jurisdictional error, the court can set aside the original decision and return the matter to the decision maker for reconsideration. This situation might arise, for example, if the decision maker failed to take into account primary or other relevant considerations that it was bound to take into account (s501(5) and s501A(4)).
Outcomes of contested decisions
While a decision to revoke a visa and deport a non-citizen can be contested, successful appeals of visa cancellation decisions on character grounds are very difficult. In the 5-year period to 30 June 2023, only 29% of visa cancellation decisions on character grounds were successfully revoked (see visa character cancellation statistics).
Why appealing a visa cancellation on character grounds is so hard
The immigration policy, ‘Ministerial Direction No. 99’, outlines the current key principles that must be considered when making visa decisions under the Migration Act 1958. Direction 99 instructs decision makers about how decisions to refuse or cancel a visa (under section 501) or revoke a decision to cancel a visa (under section 501CA) must be made (see s499(2)).
Direction No. 99 emphasises that non-citizens who engage in criminal activity should expect to face visa cancellation and deportation, and makes it clear that it is very difficult to have a visa cancellation decision reversed. See the following passages for example:
“Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia…”
“In some circumstances, the nature of the non citizen’s conduct… may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa…In particular, the inherent nature of certain conduct such as family violence … is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk to of causing harm to the Australian community”.
Under Direction No. 99, in making a decision under section 501(1), 501(2) or 501CA(4), a decision maker must take into account the following primary considerations:
- protection of the Australian community from criminal or other serious conduct;
- whether the conduct engaged in constituted family violence;
- the strength, nature and duration of ties to Australia;
- the best interests of minor children in Australia;
- expectations of the Australian community (see Direction 99).
Secondary considerations include international nonrefoulement obligations (i.e. not sending refugees or asylum seekers to countries where they are at risk of persecution) and the extent of impediments to the offender if they are removed from Australia (i.e. substantial language barriers).
It is important to note the relatively new emphasis on family violence as a circumstance taken into account, such that even relatively low-level family violence can trigger deportation from Australia.
The third primary consideration is also a new consideration that may assist New Zealand citizens who move to Australia and live here for many years as permanent residents but face deportation after committing offences.
While circumstances faced by a person who came to Australia as a refugee who may face extreme danger in another country if deported are relevant considerations, these considerations are secondary to the protection of the Australian community and the other primary considerations.
Deportation and Sentencing
In Victoria, the prospect of deportation for an offender who had a valid visa, even if convicted of a Commonwealth offence, is a relevant consideration during sentencing and can be a mitigating factor in certain circumstances (Guden v The Queen [2010] VSCA 196). This is contrary to the position in NSW, WA and the NT in which deportation is considered irrelevant to sentencing.
As stated in the case of Allouche v the Queen [2018] VSCA 244 at [40], “a court should only reduce a sentence based upon the prospect of deportation where there is sufficient evidence of both the risk, and the impact of that risk, under s 501(3A) of the Migration Act 1958 (Cth)”.
However, the prospect of deportation will not be mitigated in some cases, such as if the offender was unlawfully in Australia or if there is no risk of hardship to the offender in being deported.
