Immigrant in a criminal proceeding has the consequences beyond the normal criminal process. Therefore, the criminal defence to immigrants will have to be strategic.

The criminal conducts of immigrants may result in more harsh consequences, such as detention, deportation, visa cancellation, visa refusal, permanently barred from returning to Australia, and barred from sponsoring others.  Such consequences will inevitably destroy families, cost business, end career or education as we have seen in many cases.

Immigrants are very broadly defined in Australia. Anyone who was not born in Australia, including any visa holder, Australian permanent resident, Australian citizen by conferral, the illegal immigrant and asylum seeker, disregard the period you have been in Australia, you are an immigrant!

It is critical that when immigrants facing criminal charges to consider these potential consequences at the earliest stages of their criminal proceedings, especially prior to entering a plea.

The plea, the police brief and any sentencing remarks by a judge will be of great importance that may lead to the visa or citizenship cancellation.

Section 501 of the Migration Act has specified the offenses or conducts that will trigger the immigration consequences of visa or citizenship. Such offenses or conducts can be categorised as the followings:

Substantial criminal records

a person has a ‘substantial criminal record’ if they have been:

• sentenced to death or to 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
• 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.
  

Convicted for immigration detention offence

From 2011, if that person has been convicted of any offence 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, even the offence is not serious enough to warrant a sentence of 12 months’ imprisonment (or any period of imprisonment), it is enough to have immigration consequences.

Association with persons suspected of engaging in criminal conducts

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’.

Past and present criminal or general conduct

having regard to the person’s past and present criminal conduct and/or general conduct, the person is ‘not of good character’.

in determining whether a person’s past or presentgeneral conduct is ‘not of good character’, will include the followings:

• 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
• whether the person has been dishonorably discharged or discharged prematurely from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct, that in Australia would be regarded as serious.

Revoking Australian citizenship can happen in the following circumstances if the citizenship holder has the following criminal conducts:

• 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.

Many non-criminal conducts also have serious consequences for immigrants, please refer to Visa Cancellation under Section 116 of  the Migration Act.

It is essential for immigrants to get comprehensive advice from the experienced lawyer during the criminal proceedings as the outcome may trigger immigration consequences such as loose visa or citizehship which forever affect your family, career or business.

Any criminal offence is a serious matter and it requires knowledgeable, dedicated legal representation to get the best possible result.

If you happen to be the immigrant of Australia, your defence should always have considered your specific immigrant consequence before you enter a plea. This requires a strategical legal plan ahead.

Facing a criminal charge by immigrants means you might have more punishment such as citizenship or visa cancellation. Your defence should consider your specific visa consequences before you enter a plea.