We have found on a number of occasions there have been incidences where international students or persons on Visas within Australia have unfortunately committed an offence which may see their Visa being cancelled and ultimately deported from Australia.
Certain offences now carry with it automatic cancellation of your Visa under the Migration Act. These newly established statutory provisions occurred as on December 2014.
Mandatory cancellation comes under section 501 of the Migration Act 1958. The provision inserted in that amendment in December 2014 states that a mandatory cancellation will occur if a person is convicted of a certain offence and the person is served a sentence of imprisonment on a full time basis in a custodial institution. A conviction and/or good behaviour bond will not activate this provision.
However, there is a discretionary power for cancellation under section 501. A person will have a substantial criminal record and be exposed to discretionary Visa cancellation under section 501(2) of the Act, if they are convicted of one or more sexually based offences involving a child, regardless of whether a person is discharged even without a conviction (section 501(6)(e) of the Act).
Unfortunately still to this day there has not been a definitive judgment as to the meaning of sexually based offences involving a child, nor is it defined in the Act.
Instead the meaning of the phrase is left to policy and guidelines within the general direction document 65, as referred to by the Department of Immigration and Border Protection.
There is little by way of appeal and review process as it will depend solely on who makes the decision. If the decision was made by a department delegate then a full merits review would be available to the Administrative Appeals Tribunal. However, the defendant would be subject to a mandatory detention throughout that appeal and could only be released if and/or when that appeal was successful.
Merits review would not be available if the decision was made for the Minister for Immigration personally. Instead, a defendant would only have judicial view to the Federal Court of Australia under the Migration Act, but again for the same reason mandatory detention would occur throughout that appeal process.
If the Department of Immigration and Border Protection disregard section 501, they may simply cancel a Visa under general powers under Section 116 of the Migration Act. These include breaches of Visa conditions which include not becoming involved in activities disruptive to or violence threatening harm to the Australian community or group within the Australian community.
As can be seen above, there will be circumstances where defendants who have unblemished records but find themselves in situations which may result in the powers above being implemented. This includes but is not limited to offences involving young couples engaged in sexual relationships, which would be captured by the criminal law.
The decision maker in these instances considers that applicants character, antecedents, age or physical or mental condition and any other extenuating circumstances such as the circumstances of the offending. This in effect is a decision as to character and, as noted above, is a subjective test made by the relevant minister or delegate.
When considering criminal cases where a defendant may be a Visa holder, it is important that the above issues are outlined as they are matters pertinent to sentencing.