Do you have an Immigration Visa and Criminal Charges against you?
- Do you have a Visa and are facing a court date and criminal charges?
- Do you know what happens if you have a Visa and get a criminal record?
- Will you be deported?
- Will you need to declare your criminal record every time?
Australia’s laws are quite tricky to understand but here are a few points.
*Please note this also applies to New Zealand residents living in Australia.
Here is the answer:
Any criminal sanction can create a visa problem but those which meet the definition in s.501 of the Migration Act may result in cancellation of any visa
So what does section 501 say?
In general, any conviction resulting in a sentence of less than 12 months imprisonment is normally okay.
There were significant amendments in December last year which has lead to many people, including many New Zealanders, suddenly being subject to deportation when their crimes were determined as constituting a “substantial criminal record”.
In particular it is important to note that the head sentence is the key, not the period of actual imprisonment.
Please seek legal advice as to your head sentence as this is a concept in sentencing that can be misunderstood and complex.
Much depends on the “Character Test” in the law.
Broadly it is defined as:
 (6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))
Much depends on the definition of substantial criminal record.
Broadly it is defined as:
 (7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
NOTE: Each case differs and we urge you seek legal advice from a lawyer and/or a registered migration agent
Steven is 35 years old and has been charged with punching a person on a street while he was drunk.
Police gave Steven Bail but he is required to go to Kogarah local court. Steven attends Kogarah local court and enters a plea of guilty.
Steven was born in New Zealand and moved to Australia as a child. He has never obtained an Australian passport.
Steven must consider if he will receive a head sentence of 12 months or more of imprisonment.
Steven may be in danger of being sent back to New Zealand.
Will Kogarah local court give Steven a sentence of 12 months or more?
Steven must consider appealing a sentence if he does get 12 months or more of a term of imprisonment, as it may give him a “substantial criminal record”.