Migration

IMPORTANT DISCLAIMER: The material in this section is not, and should not, be regarded as immigration advice. This firm does not provide advice on immigration law, only the conduct of matters which result in criminal prosecutions.

The Migration Act 1958 (Cth) is the principle piece of legislation relevant to migration to Australia. It sets out rules and requirements which should be discussed with a qualified migration lawyer or agent. However, it also sets out offences that can be committed when attempting to obtain visas or citizenship to reside or work in Australia.

This section of our website looks at the issue of criminal offending and prosecutions for offences under the Migration Act 1958 (Cth).

It is extremely important to understand there are two issues with offences alleged under this legislation and as such, two entirely different skill sets are required. For dealing with the migration issues, such as visas and consequences of a conviction, you will need to deal with a migration lawyer or agent. For the criminal prosecution process, you will need to deal with a highly experienced criminal lawyer.

We have been working with immigration lawyers and agents over many years and many matters. John Sutton has spoken at the Law Counsel of Australia (Migration Law Conference 2020) to migration lawyers and agents on the intersection of criminal law and migration law. We have successfully defended and diverted from the criminal justice system, people who may have otherwise lost their rights to remain and reside in Australia.

There are a number of powers available to the government which could lead to the cancellation of visas, not all of them necessarily criminal.

S.118 of the Migration Act sets out a list of powers which the government may exercise to cancel a visa:

  • incorrect information on the application form (s.109); or
  • where a circumstance that existed now does not, or never did, where a condition has not been complied with. The criteria in this section is very broad. Of particular importance to the criminal law aspect, is the power to cancel based on the presence of its holder in Australia is or may be, or would or might be, a risk to:
    • the health, safety or good order of the Australian community or a segment of the Australian community; or
    • the health or safety of an individual or individuals; or
    • It is clearly intended to catch those, even if only alleged, to have committed criminal offences, including domestic violence offences. (s.116 – particularly s.116(e))
  • can occur when a not citizen is outside Australia relying upon the broad grounds in s.116, this can happen without warning (s.128)
  • if a successful challenge is mounted to the Administrative Appeals Tribunal on the basis of a decision under s.109, the Minister may still override that decision and cancel the visa. (s.133A)
  • if a successful challenge is mounted to the Administrative Appeals Tribunal on the basis of a decision under s.116, the Minister may still override that decision and cancel the visa. (s.133C)
  • if the Minister receives a report from the Australian Security Intelligence Organisation (ASIO), that the person is a risk to Australia’s security, that their visa should be cancelled, and they are outside Australia; the Minister must cancel the visa. (s.134B)
  • if a person fails to commence employment under a regional employment visa and there has been no attempt to commence the employment, or if the employment was commenced but terminated within two years of commencement and the minister if not satisfied there is a genuine effort to remain employed. (s.137Q)
  • if a visa is cancelled and others hold visa dependent on the cancelled visa, then the dependent visas may be cancelled. (s.140)
  • [safe haven visa or safe haven enterprise visa] if it comes to the minister’s attention there is an association by the visa holder with people or organisations who is or are associated with criminal activity, or past or present criminal or general behaviour by the visa holder; which means the visa holder is not of good character. Alternatively, if the visa holder were allowed to remain, they may engage in criminal activity, or for a range of other conduct undesirable conduct. (s.500A)
  • if visa holder, or applicant, fails the character test because of criminal activity alleged, and must cancel it if the visa holder or applicant has a substantial criminal record, as defined in the section. (s.501)
  • if a visa holder or applicant convinces a ministerial delegate or AAT to not refuse or cancel a visa, pursuant to s.501, the minister may exercise power to overrule that/those decision(s). (s.501A, 501B, s.501BA)

Note: the above powers may be exercised individually or in combination, no power limits another.

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If you have been charged with a Migration Act offence and you would like assistance to understand your options, J Sutton Associates, have a NSW Law Society recognised Accredited Specialist in criminal law, with decades of experience acting for people charged with a Migration Act offences. Call 02 8080 8055 for personalised advice and service.

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