Impact of Criminal Conduct on your Visa
On 8th of March 2021, the Hon Mr Alex Hawke, issued Direction No. 90 (The Direction) under section 499 of the Migration Act 1958 (Cth). In the direction, he highlighted that the Australian community has a low tolerance for any criminal conduct and an expectation that the government cancels the visa of any individuals who have engaged in conduct that would raise serious character concerns.
Pursuant to section 501(2) of the Migration Act 1958 (Cth): the Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Under the provision of the Migration Act, a person fails the character test if:
The person has a substantial criminal record (i.e., the person was sentenced to an imprisonment of more than 12 months).
The person has been convicted of an offense while they were in immigration detention
The Minister reasonably suspects that the person has been involved with an organisation that is involved in criminal conduct or involved in trafficking people.
The minister can also decide that a person fails this test based on:
their past and present criminal and general conduct; or
the risk that the person may commit crimes, molest another person or vilify a community.
What if I have been sentenced to an imprisonment of less than 12 months
As the act gives wide discretion to the minister, you could fail the character test even if you have been sentenced to an imprisonment of less than 12 months or not been given a custodial sentence at all.
For instance, in the abovementioned direction given, the Minister emphasized that the government has very serious concern over acts of family violence perpetrated by non-citizens, regardless of whether there is a conviction recorded, or a sentence imposed. Other acts that invoke greater scrutiny by the government include the following:
Forced Marriage
Crimes against vulnerable groups of people such as the elderly, the children, or people with disabilities
Any criminal offense against a government official
Worker exploitation
In the year 2021, out of 785 visas cancelled on character grounds, 197 visas were cancelled for drug offences, followed by 108 visas being cancelled for committing assault and 102 visas being cancelled for crimes related to child sex offences.
Options if a visa is cancelled
If the minister cancels your visa on character grounds, you can make an application to revoke the cancellation. If such an application is unsuccessful as well, you can seek a ‘merits review’ from the Administrative Appeals Tribunal (AAT), which is the authority that reviews migration decisions and has the power to affirm, vary or set aside a decision. The AAT will review if the Minister’s decision in light of all the circumstances of your case and decide if the decision was appropriate.
We have extensive experience in making applications to the AAT. Our lawyers will not only advice you about the chances of a successful outcome but also prepare strong evidence for your case and represent you at the hearing.
