The criminal offences that will trigger visa or citizenship cancellation are defined under Section 501 of the Migration Act.
Such criminal offences or bad behaviours can be categorised into five types:
1. Substantial criminal records
A person will be classified to have a “substantial criminal record” if the person has been:
- sentenced to death or imprisonment for life,
- sentenced to imprisonment for 12 months or more,
- sentenced to two or more terms of imprisonment where the total of these terms is two years or more, or
- acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result, they have been detained in a facility or institution.
2. Convicted for immigration detention offence
Since 2011, if a person has been convicted of any crime which was committed while the person was in immigration detention, or during or after an escape from immigration detention, before being re-detained.
Also, an escape from immigration detention is itself an offence, and even if the crime is not severe enough to warrant a sentence of 12 months’ imprisonment (or any period of imprisonment), it is enough to have immigration consequences.
3. Association with persons suspected of engaging in criminal conducts
If the person “has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct”.
4. Past and present criminal or general conduct
Regarding the person’s past and present criminal conduct and/or general conduct, the Minister of Immigration will consider whether the person is “not of good character”:
- whether the person has been involved in activities which show contempt or disregard for the law or human rights (such as war crimes, crimes against humanity, terrorist activities, drug trafficking, ‘political extremism’, extortion, fraud, or ‘a history of serious breaches of immigration law’),
- whether the person has been removed or deported from Australia or another country, and the circumstances that led to the removal or deportation, or
- whether the person has been dishonourably discharged or discharged prematurely from the armed forces of another country as the result of disciplinary action in the circumstances, or because of conduct, that in Australia would be regarded as serious.
5. Criminal conduct to revoke Australian citizenship
In the following circumstances, a person’s Australian citizenship can be revoked if the person is a dual citizen:
- provided misleading information as part of their citizenship application. This even if the citizenship has already been granted. these circumstances may include occurrences where the person has acquired Australian citizenship and has been convicted of making false claims in their application, or failed to disclose a serious criminal conviction.
- acted contrary to their allegiance to Australia, by engaging in terrorism-related conduct, or if they fight for, or are in the service of, a declared terrorist organisation overseas.
- behaved unacceptably in Australia, such as repeated traffic offences, domestic violence convictions and fraud charges.
- been convicted of an offence against either an Australian or foreign law and have either been sentenced to death, or a term of imprisonment for 12 months or more
- has been convicted of a serious criminal offence and has been sentenced to at least 12 months imprisonment at any time prior to becoming a citizen
In some circumstances, a dual national can lose his/her Australian citizenship automatically without being a warning.
Non-criminal conducts also affect your visa/citizenship?
Many non-criminal conducts also have serious consequences for immigrants.
A visa cancellation under Section 116 of the Migration Act is dealing with non-criminal conducts of Australian immigrants when The Minister of Immigration thinks your presence might be a risk to the health, safety or good order of the community.
Here are some examples of non-criminal conducts:
- you have been infected with a certain infectious disease or
certain assessments about you have been made by the Foreign Minister, ASIO, Interpol or under particular sanctions legislation,
- You are suspected of committing a migration-related offence,
- You hold a temporary visa and have been convicted of an offence (a non-criminal offence),
- Certain Australian agencies are investigating you, or
- You hold a bridging ‘E’ visa and have charges pending against you.
If you find it difficult to understand the law and defend yourself in a criminal proceeding, or you worry that your visa might be affected by your conducts, The e-Guide for Criminal Defence to Immigrant will provide you with the essential guidance.