Criminal law outcomes can have significant impacts on non-citizens.
Through the operation of Australia’s immigration character provisions, a non-citizen who has been convicted of criminal conduct – even if they have served their sentence – may fail the character test. This means they could be sent to an immigration detention centre pending a merits review, or while the immigration department seeks to deport them.
Any criminal conviction potentially raises the possibility of visa refusal or cancellation. And a sentence of 12 months or more might mean automatic removal from Australia due to failure of the character test. A foreign sentence is also taken into account in the character test. This is despite the length of time which has passed, any evidence of reformation of character or rehabilitation.
A person may also fail the character test by having an association with someone, or with a group or organisation, which the government reasonably suspects has been or is involved in criminal conduct. Additionally, the immigration minister may form a view that there is a significant risk of a person engaging in criminal conduct in Australia or becoming involved in activities that threaten harm to the Australian community, and that would also result in the person failing the character test.
Under Australian laws, immigration detention of a non-citizen, even if indefinite, is not punishment. A non-citizen can also be permanently excluded from Australia regardless of the length of time they have lived here or their ties with the Australian community.
A non-citizen who has been charged should seek immigration advice early as their only opportunity to make submissions without being subject to mandatory immigration detention is prior to the department making a decision about their character. They must take responsibility for presenting evidence to dissuade the decision-maker from cancellation or refusal of their visa. The department will take into account what the criminal conduct reveals about the moral qualities of the person, the likelihood of future criminal conduct and compassionate reasons against cancellation.
