The Federal Government’s proposed changes to the Migration Act 1958 (Cth) are no doubt popular with the segment of the Australian public who are keen to see foreign citizens who have been convicted of criminal offences have their visas revoked.
However, there is a hidden truth behind these changes which it is important for the public at large and particularly people facing deportation to understand.
The proposed new laws set out a number of new offences that will automatically lead to their visa being cancelled by the Department of Immigration when a person is convicted of them.
The offences, that are proposed to be added to the list include violent crimes like murder, manslaughter, kidnapping, assault, aggravated burglary and the threat of violence.
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Further non-consensual sexual offences such as sexual assault, the sharing of an intimate image and the commission of an act of indecency, would also result in mandatory visa cancellation.
Additionally, a person who breaches a court issued protection order – such as an Apprehended Violence Order, or a Domestic Violence Order – would see their visa cancelled after conviction.
Finally, the proposed laws take aim at members of gangs such as outlaw motorcycle gangs and other criminal groups and state if people are involved in the commission of an offence their visa will be revoked.
This shifts the legal position from where it is now in two ways.
Firstly, under the current legislation a person has to have served more than 12 months in jail for their visa to be automatically cancelled.
And secondly the only offences that are currently specifically identified in the legislation are: genocide, war crimes, crimes involving torture or slavery, crimes against humanity, or, crimes of international concern.
However, while the Morrison Government is eager to present itself as being tough on crime, its announcements around these issues fail to address the key fact that having your visa cancelled does not necessarily mean you will be deported.
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Registered Migration Agent and Immigration Lawyer at Strategic Lawyers, Steve Hodgson explained that while the Department of Immigration may cancel a person’s visa that decision is still very much open to appeal.
“Whatever your political beliefs on deporting foreign citizens who have committed crimes are, it is worth knowing that when the government cancels a person’s visa you can fight this,” Mr Hodgson said.
“Anyone whose visa has been cancelled is able to retain lawyers to appeal that decision, in the first instance to the Department of Immigration and if unsuccessful there, to the Administrative Appeals Tribunal.”
“On appeal a number of factors are weighed when considering whether a person should be deported, including the likelihood they will re-offend, the extent to which they contribute to Australian society, their family connections to Australia and the extent to which deporting them to their country of origin will expose them to a risk of harm.”
“While someone convicted of murder would have a tough time having a revocation order overturned, a person convicted of a low-level assault, or, sharing an intimate image without consent would likely be able to present a better case to the Department of Immigration.”
“Regardless of whether these laws are passed these matters are highly time-sensitive and as such, I would urge anyone who has been given notice that their visa will be revoked on character grounds to get in touch with lawyers as soon as possible.”
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