Criminal justice visas
If you are in Australia on a temporary visa, such as a holiday, study or work visa, and you are suspected of having committed a criminal offence, or you have actually been charged with a criminal offence, prosecuting agencies can seek to prevent you from leaving the country until the investigation against you is complete, or until any charges have been dealt with by the criminal justice system.
The Australian Migration Act 1958 (the Act) provides for a Criminal Justice Certificate and a Criminal Justice visa for that purpose.
A Criminal Justice Certificate is a precursor to a Criminal Justice visa. It is a short-term measure that will immediately stay your involuntary removal from the country. A Criminal Justice Certificate must be in place before any application for a Criminal Justice visa.
A Criminal Justice visa allows you, as a non-citizen, to enter or remain temporarily in Australia for matters in relation to the administration of criminal justice, such as:
- If you are under investigation by the police;
- There are current charges against you; or
- You are currently being punished for committing an offence.
Criminal Justice Certificate
A Criminal Justice Certificate temporarily prohibits you from leaving the country. A Certificate must first be in force before an application can be made for a Criminal Justice visa.
For Commonwealth offences, a Criminal Justice Certificate can be issued by the Attorney General or their delegate. For a prosecution by Victoria Police, a Criminal Justice Certificate can be issued by the Victorian Attorney-General, the Director of Public Prosecution, or the highest-ranking member of the police force.
Section 150 of the Act provides that if you are a non-citizen and a Criminal Justice Certificate is in force, you are not to be removed or deported from the country.
However, a Criminal Justice Certificate does not make you lawful.
If your visa has expired and you have become unlawful, you will be detained in immigration detention. If you have been detained in those circumstances, and you make a written request your removal from the country, the Department of Home Affairs is obliged to commence your removal as soon as possible, even if a Criminal Justice Certificate is in place.
Criminal Justice Visa
If a Criminal Justice Certificate is in force, application can be made for a Criminal Justice visa.
There are two types of Criminal Justice visas for the purpose of the administration of justice:
- A Criminal Justice (Entry) Visa permits a non-citizen to enter and remain temporarily in Australia; and
- A Criminal Justice (Stay) Visa requires a non-citizen who is already in Australia to stay in the country.
In order for a Criminal Justice visa to be granted, a Criminal Justice Certificate and other relevant documents must be forwarded to the Department of Home Affairs. A delegate of the Department will consider the application and whether you meet the criteria for the grant of a Criminal Justice visa.
The criteria to be satisfied for the granting of a visa are set out in the Act as follows:
- There must be a valid Criminal Justice Certificate in place;
- Consideration must be given to the safety of individuals and people generally;
- Arrangements must be in place to ensure that if the noncitizen has entered Australia, the noncitizen can be removed; and
- Any other matters considered relevant.
In accordance with section 147(c) of the Act, the authority that requested the issue of a Criminal Justice Certificate is responsible for all aspects of maintaining your presence in the country while the associated certificate is in force.
This means that the agency who requires you come to or remain in the country must provide an undertaking to bear all of the costs associated with bringing and/or keeping you here, and the costs in relation to your ultimate removal from the country.
As with any type of visa, if you are subject to a Criminal Justice visa, you have certain entitlements and restrictions.
A Criminal Justice visa holder can:
- Be subject to police custody and imprisonment
- Be granted bail and reside in the community
- Be transferred from custody in an immigration detention facility to criminal custody
- Can be held in criminal custody
- A Criminal Justice Stay visa holder is permitted to work in Australia
A Criminal Justice visa holder cannot:
- Be held in immigration detention
- Be bailed to immigration detention
- Is not eligible for Medicare or the Pharmaceutical Benefits Scheme
- A Criminal Justice Entry visa does not allow work
When the administration of justice is complete, that is, the investigation against you is finalised and there are no outstanding matters, or you have served your sentence, the Criminal Justice Certificate must be cancelled.
Once the Certificate is cancelled, any associated Criminal Justice visa is also immediately cancelled. You will then be subject to compliance action, which usually means immediate removal from the country.
If you want to discuss the possibility of a Criminal Justice visa for an accused then please contact Doogue + George on (03) 9670 5111.