What To Do If I Have A Criminal Charge After My Permanent Visa Grant?
Obtaining a permanent residence visa is a significant achievement, offering stability and opportunities in Australia. However, it is crucial to be aware that, like any other visa, a permanent visa can be subject to cancellation if you are faced with criminal charges and ultimately convicted. At Agape Henry Crux, we understand the complexities surrounding this issue and are here to guide you through the process.
While permanent resident visas are more resilient than temporary visas, but they are not immune to cancellations. The cancellation may occur if you are found guilty of a crime, particularly if it triggers a 'character test' failure under Section 501 of the Migration Act.
Reasons why your permanent visa may be cancelled after criminal convictions
Under Section 501, a person may fail the character test if they have a ‘substantial criminal record’, or are considered to represent a danger to the Australian community, or because the Minister is satisfied the person is not of good character due to their past and present criminal or general conduct.
You have a substantial criminal record for the purposes of the character test in the Migration Act if you have been:
sentenced to death or imprisonment for life
sentenced to a term of imprisonment of 12 months or more
sentenced to two or more terms of imprisonment (even if served concurrently) where the total is 12 months or more
found by a court to not be fit to plead in relation to an offence but found to have committed the offence and detained in a facility or institution
If the Minister is satisfied that the visa holder fails the character test because of their substantial criminal record under section 501, he or she must cancel their visa, even though it is a permanent visa.
It is also important to note that visa cancellation can occur even if you have yet to be convicted by a court. Section 116 of the Migration Act provides the Department to cancel a visa if the visa holder poses a risk to the health, safety, or good order of the Australian community, or to individuals within it. Many of these cancellations have been related to accusations of domestic violence and this can happen at any time as long as you have a pending criminal charges that are awaiting finalisation.
For all visa cancellations, the Department will send you a Notice of Intention to Consider Cancellation (NOICC). The NOICC should outline why your visa should be cancelled and provide you with an opportunity to respond.
What should I do if I am charged with a crime?
It is important to seek immigration advice as early as possible to provide you with the best prospects of success. Whilst it is common for individuals to focus on retaining a criminal lawyer, they also need to bear in mind the potential implications to their visa status. Criminal lawyers may not be focused on your immigration needs and there is a potential for misalignment between what is the best course of action under criminal law vs immigration law.
Suppose you are charged with a crime and facing criminal convictions and/or receive a NOICC from the Department of Home Affairs. In that case, it's crucial to take prompt and strategic actions to protect your permanent residency in Australia:
Speak to an accredited specialist in immigration law and seek their professional opinions.
Respond to the NOICC: Responding to the Department within the specified timeframe is vital. Presenting a comprehensive response is key, addressing aspects such as:
Your ties to Australia, including the duration of your stay and family/social connections.
Potential harm and challenges you may face if returned to your home country.
The impact on you, your family, or your business in Australia if your visa is cancelled.
Adherence to visa rules and the possibility of proving any misinterpretations by the Department of Home Affairs.
Community support and any other relevant information.
How Can Agape Henry Crux Help
If you are facing criminal charges or have already received a NOICC, contact us at Agape Henry Crux, our Accredited Specialist Immigration Lawyer(s) and our team of immigration lawyers and migration agents are specialised in handling highly complex matters. You may schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or email us at info@ahclawyers.com.
We speak fluent English, Mandarin, Cantonese and Malay. If this isn’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.