Immigrants might be punished twice
Will Australian immigrants face more severe consequences then non-immigrants if they misbehaved?
Absolutely! It boils down to the fact that the conduct of Australian immigrants is subjected to extra supervision.
In addition to the judicial punishment imposed for misbehaviour by The Court, Australian immigrants might face a second layer of punishment when the Minister of Immigration (Currently named as Minister of Department of Home Affairs) imposes a penalty where it fits his or her statutory duties.
The Minister of Immigration can initiate a cancellation or refusal of a visa or citizenship against an immigrant with a criminal offence, or wrongdoing that is not criminal but also not in line with Australian values, sub-rules, and by-laws.
Generally, after an immigrant had been convicted, the Minister of Immigration begins to take action. In some cases, the Minister of Immigration can take concurrent action while the criminal case is on trial.
Consequences of criminal conducts to Australian immigrants
The consequences of a criminal conviction or conducts could be very devastating to immigrant, which including the following:
- Visa cancellation or refusal,
- Citizenship cancellation or refusal,
- Barred from returning to Australia,
- Barred from sponsoring others for Australian visas, or
Those consequences lead to destroying families, costing business, ending one’s career, being forced to return the country you dislike or interrupting one’s education.
Are you Australian immigrants?
Australian immigrants are very broadly defined—anyone who was not born in Australia is immigrant. Such people include a temporary visa holder, a permanent resident, an Australian citizen by conferral, the illegal immigrants and asylum seekers.
When it comes to the definition of an immigrant, disregard the period you have been in Australia, as long as you were not born in Australia, you are an immigrant!
Immigrants need to handle criminal charges differently
Criminal Defence to Immigrants with Visa/ Citizenship Issues
Criminal charges for an immigrant initiate an arrest warrant or detention. Before starting the criminal trial, you are under the supervision of the Minister of Immigration at the same time.
The judges in Court often lack the power to consider whether the person should remain in Australia in light of equitable factors such as severe hardship to Australian citizen family members, length of time living in Australia, or rehabilitation facility. Most of the justifiable factors are left to the Minister of Immigration to consider.
Let’s not forget the critical role of the Minister of Immigration, who is not in a judicial office. The Minister of Immigration does not have to consider the just factors like a judge would typically do. Therefore, the Minister can impose a more harsh punishment like what happened to Dr Haneef on 2nd July 2007.
An immigrant must consider those unwanted consequences at the earliest stages of their criminal proceedings, especially before entering a plea.
Bear in mind the criminal charges—including the police brief, your plea, your defence, and any sentencing remarks by a judge, will be of great importance when the Minister of Immigration considers the immigrant’s consequences. These penalties include such undesirable outcomes as visa or citizenship cancellation.
Case Study: Criminal charge led to deportation
In August 2008, Maria Sanchez, a long-time lawful permanent resident, was convicted of growing a marijuana plant in her back yard. Born in Vietnam, Maria had lived in Australia for over three decades, raising her children and grandchildren here. Maria suffered from arthritis and turned to the same remedy her mother and grandmother had used: she grew a single marijuana plant, soaked it in rubbing alcohol, and rubbed the alcohol tincture on her painful joints. This arrest was Maria’s first and only one.
Her public defender got a good deal from a criminal perspective: four months of house arrest. However, that guilty plea was the functional equivalent of signing her own deportation order.
The conviction—considered an aggravated felony under immigration law— subjected Maria to mandatory deportation and mandatory imprisonment, with no opportunity for discretionary relief. She suddenly faced the real likelihood of being separated from her family forever.
Strategies when defending yourself
Any criminal offence is a serious matter and it requires knowledgeable, dedicated legal representation to give you the best possible defence. Your defence should have considered the specific consequence if you are an immigrant, even before you enter a plea in criminal proceedings.
If you are facing a visa cancellation because of your criminal charge, you need to maintain that the grounds for cancellation does not exist, or there is a reason why your visa should not be cancelled.
Often there is more than one opportunity for you to argue your case, for example, to argue before Minister, AAT, FCC, FCA, or HCA. However, choose the right forum will make a significant impact on your case. It requires great skill and experience to navigate Australian Immigration law for the most favourable outcome.
If you find it difficult to properly defend yourself in a criminal charge or visa/citizenship cancellations, The e-Guide for Criminal Defence to Immigrant will provide you with the essential guidance.