Changes to Migration Laws mean that Hundreds of People will be Deported in 2016 – Who is at Risk?
In the first six months after they were introduced in December 2014 changes to migration laws have led to the deportation of over 500 non-citizens from Australia because of their criminal convictions. This looks likely to continue throughout 2016 (this article is current as of November 2015).
Essentially, the laws mean that in certain situations the Immigration Minister must cancel a person’s visa and deport them from Australia.
Who is at risk of being deported?
The introduction of section 501 into the Migration Act means that the Immigration Minister must cancel a person’s visa if they do not pass the ‘character test’. The laws mean that if the two conditions below apply to a person then they are at serious risk of having their visa cancelled and being deported.
- Not an Australian citizen.
People on any type of visa, including a working, student, spousal or carer visa, are not Australian citizens. Additionally, ‘permanent residents’, even those from New Zealand, are not considered to be Australian citizens. Simply put, if a person has never attained citizenship status then the laws will apply to them.
We have a client who arrived in Australia as a refugee in the 1980’s and since this time has never left Australia, has gotten married and has fathered six children but never applied for citizenship. Following his 18 month term of imprisonment, he was immediately detained in immigration detention and now must fight to avoid being deported to Vietnam. If he is deported he must leave his entire family and everything he has known for the past 30 years behind.
- Convicted of an offence and sentenced to a term of imprisonment of 12 months or more, including wholly suspended sentences, regardless of when the term of imprisonment was imposed.
That means that even if a person was sentenced to more than 12 months imprisonment 10 years ago but has been out of trouble since this time, they are still at risk of failing the ‘character test’ and being deported. We’ve not heard of this happening yet as the only people I have heard of having their visas cancelled are those who were recently sentenced to and currently serving a term of imprisonment. However, the way that the law is written means that people who were sentenced to a term of imprisonment a long time ago might still be at risk.
What is the process?
If a person’s visa is cancelled due to their failure to satisfy the ‘character test’, they will become an ‘unlawful non-citizen,’ and will be immediately placed in immigration detention until they are deported or removed from Australia.
They will be informed of the reasons for the decision and, if they are detained in an onshore detention centre, they will receive two copies of all relevant documents and will also be prohibited from applying for most types of visas while in Australia.
The first time that this person will be advised of a potential deportation will be when they receive a ‘Notice of Visa Cancellation’ to which they will be given 28 days to respond so quite obviously the person needs to act very quickly.
What sorts of factors are taken into account?
The Department of Immigration and Border Protection will consider a range of factors when deciding whether to cancel a person’s visa:
These include:
- The nature of the offence;
- 2. The circumstances of the offence;
- 3. The magistrate or judge’s view of the offence;
- The type and length of the penalty imposed;
- Any evidence, or lack thereof, of rehabilitation;
- Prospects of re-offending;
- General deterrence;
- Criminal history;
- Public interest consideration;
- Family circumstances; and
- Australia’s international law obligations relating to refugees.
If the Department is considering deportation, an Immigration Officer will normally interview the person and ask for a range of information.
Can I appeal?
The answer will largely depend on how the decision was made.
If a delegate of the Immigration Minister (that is, not the Immigration Minister personally but somebody in his department acting on his behalf) then the person will be able to seek a review from the ‘Administrative Appeals Tribunal (AAT). The AAT is an independent administrative review body which will consider all relevant facts and circumstances of a person’s case before deciding whether the decision was valid.
If an appeal is lodged to the AAT then the person can ask for a ‘stay’ (suspension) of the deportation order until the review has been completed.
If, however, the Immigration Minister personally decided to cancel a person’s visa under section 501 then they can not appeal to the AAT. However, the person can seek a review from the Federal Court.
Is deportation permanent?
Once a person is deported from Australia it is extremely difficult for them to ever be allowed to return to Australia. Even if they apply to be able to return to Australia such applications aren’t normally considered within the five year period after they are deported.
Should I engage a criminal lawyer or an immigration lawyer?
Traditionally, anything to do with migration laws is best left to an immigration lawyer. However, our experience has shown that in many circumstances it would be better to engage the same criminal lawyers who represented the person in the criminal proceedings. This is for two reasons.
Firstly, the change to the law is so new that a lot of immigration lawyers aren’t familiar with it, meaning that a criminal lawyer who has studied this new law will likely be more knowledgeable. Secondly, the criminal lawyer who represented the person in the criminal proceedings will have all of the documents and information to prepare an application to resist deportation much quicker than an immigration lawyer as an immigration lawyer would have to learn the material, study the case and interview the client from the very beginning.
Do you require criminal lawyers in Brisbane for an immigration matter? Contact us at Cridland & Hua for professional guidance today.
