‘So Your Client is Being Deported?’ (ADLA Seminar) – Presented by Tom Foran, Immigration Lawyer

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Brittany LlewellynThe article ‘So Your Client is Being Deported?’ (ADLA Seminar) – Presented by Tom Foran, Immigration Lawyer is written by Brittany Llewellyn, Associate, Doogue + George Defence Lawyers.

Brittany holds a Juris Doctor and Bachelor of Arts with Honours from the University of Melbourne. She is notably experienced in criminal cases related to sexual crimes, drug courts, and therapeutic jurisprudence.

Before becoming a part of Doogue + George, Brittany served as a Judge's Associate to his Honour Judge Higham and worked exclusively in the County Court's criminal division. She has also worked as a Research Assistant, volunteered extensively for various legal centres, and completed internships domestically and abroad.

Visa CancellationEach year, lawyers from across Australia come together for the Australian Defence Lawyers Alliance (ADLA) conference to share resources and knowledge specific to the practice of criminal law. The final speaker of this year’s conference was Tom Foran from our hosts Potts Lawyers in Queensland. As well as being a leading Australian immigration lawyer and award-winning teacher, Tom is a highly engaging and charismatic speaker.

As Tom explained, when someone is convicted of a criminal offence, it may be the case that their visa is subject to cancellation. If this happens, they will be given the opportunity to re-apply for a visa. If unsuccessful, they will be removed from Australia. This makes issues around visa cancellation very important for many of our clients at Doogue + George.

We have extracted some of the key points regarding mandatory visa cancellation below. If you are charged with a criminal offence while on a visa, you should speak to a lawyer immediately to obtain advice about your case. Even if mandatory cancellation does not apply, there are broader circumstances in which your visa may be cancelled pursuant to ‘discretionary’ cancellation provisions.

Mandatory visa cancellation

The Migration Act provides that the Minister must cancel the visa of a person who:

  1. has either a substantial criminal record or has been convicted of sexual offences against a child; and
  2. is serving a full-time term of imprisonment in a custodial institution.

A person has a “substantial criminal record” if, among other things, they have been sentenced to a term of imprisonment of 12 months or more. This includes any term of imprisonment, even if suspended. If you are sentenced to multiple terms on different offences to be served concurrently, they will be counted cumulatively for the purposes of this test. This means that two shorter terms of imprisonment that you were ordered to serve (including that you were allowed to serve at the same time as each other) can amount to 12 months for the purposes of this test if when added together they equal 12 months.

If you are on a suspended sentence, it is important to remember that mandatory cancellation could be triggered if you are ordered to serve imprisonment pursuant to that sentence.

What happens if my visa is cancelled under the mandatory disqualification provisions?

If your visa is cancelled under the mandatory disqualification provisions, you will be given a notice of mandatory visa cancellation while you are in custody. The notice will explain why your visa is cancelled and give you instructions on how to apply for “revocation” of the decision, which you must do within 28 days. This deadline cannot be extended, but you can make a “barebones” request and provide further details to support your application later. If you do not seek revocation within the 28 days, you will eventually be removed from Australia.

Will I be removed from Australia?

If your visa has been cancelled because of the above reasons, you must apply for revocation in order to stay in Australia. If you apply for revocation, you can still be deported if unsuccessful, however you can first appeal the decision at the Administrative Appeals Tribunal (AAT). Tom Foran estimated that around 35% of people get their visa back, however the rest are removed from Australia. If you are removed from Australia, you will also be banned from returning.

Visa cancellation can happen to anyone holding a variety of visas, unfortunately including permanent residents of Australia who have sometimes lived in Australia for their entire lives. If you think this could apply to you, it is very important to speak to a lawyer right away.
Date Published: 13 April 2022

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