Written by Andrew Tiedt
May 31, 2016
There has recently been a renewed focus on the Visa status of people who have committed serious criminal offences.
Depending upon the kind of visa that you have, authorities have long had the ability to cancel the visa if you commit serious criminal offences or are subject to serious criminal penalties. This is alongside the general authority to not grant visas to people with significant criminal records.
This has been a fraught issue. Many people live in Australia for long periods of time, often for decades, whilst remaining citizens of other countries. Frequently they will have some sort of permanent residency visa and do not see the need to obtain citizenship of Australia.
When that person then commits a serious criminal offence and perhaps spends some time in jail, the authorities will often give consideration to cancelling their visa notwithstanding that the person may have a spouse or even children who live in Australia.
There is a general right of review of those decisions, but the desire of the person who has committed the offences do not always trump the desire of the authorities to get that person out of Australia.
There has been controversy in New Zealand recently about Australia sending back a number of New Zealand citizens who have committed serious offences. This has, to say the least, alarmed New Zealanders and caused a significant political controversy as authorities have had to deal with the influx of these offenders back to New Zealand.
A recent story in the Daily Telegraph has indicated that more than 1,000 foreign born residents have been returned to the countries in which they hold citizenship over the last 15 months.
This action highlights the importance for non-citizens facing serious criminal charges to obtain both criminal and migration advice in deciding how to deal with matters.
Whilst it might be convenient or prudent to take a certain course when it is considered only from the criminal law point of view, it is essential that an accused person who is a non-citizen receives advice and carefully considers both the criminal and migration consequences that may flow from their decision. In circumstances when friends and family and even the children of the accused have their own lives and commitments to Australia, it may not be feasible for them to follow a person back to the country that the offender is a citizen of.
The political argument of course is that returning these people to those countries makes Australia safer. Whether that is or is not true is of course impossible to prove. But it is difficult to criticise the government for refusing to extend the visas of persons who have committed serious criminal offences.