Visa holders

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Migration law in Australia is dense and complex. The Migration Act is so large that it has been split into two volumes.

The impacts of a criminal record can be serious for people visiting or living in Australia on a visa, or for people who have become a citizen after moving to Australia.

You may want to think about – or talk to a lawyer about – the impacts that a criminal record could have on your rights, or the rights of others in your activist group, to stay in Australia.

The 'character test'

A person can have their visa refused or cancelled if they do not pass the ‘character test’ (section 501 Migration Act 1958 (Cth)).

Under the Migration Act a person does not pass the ‘character test’ if:

  • they have been convicted of a criminal offence while in immigration detention or while they had escaped from immigration detention; or
  • They have been convicted of escaping from immigration detention; or
  • they are or have been a member of a group that has been involved in criminal conduct; or
  • their past and current criminal conduct means that are not of ‘good character’; or
  • there is a risk they would engage in criminal conduct in Australia; or;
  • they have a substantial criminal record. A ‘substantial criminal record’ includes being sentenced to a term of imprisonment of 12 months or more, or two or more terms of imprisonment that total 12 months or more.

What if I have been in Australia for many years?

Under the Migration Act 1958 (Cth) a non-citizen – including people who hold a permanent-residency visa and New Zealand citizens – can be deported if they have been in Australia for less than 10 years (or for periods which add up to less than 10 years) and have committed an offence where they were sentenced to imprisonment for a period of 12 months or more. (section 201).

What if I have become a citizen?

Under the Australian Citizenship Act 2007 (Cth) if a person is a citizen – other than by birth or descent – and they hold citizenship with another country the Minister can cancel that person’s Australian citizenship.

The Minister can cancel a person’s citizenship if:

  • they committed a serious offence before becoming an Australian citizen and
  • after applying to become a citizen, are convicted of that offence and
  • the Minister is satisfied it is contrary to public interest for them to remain a citizen (section 34(2)(b)(ii)).

A ‘serous prison sentence’ means an imprisonment for a period of 12 months or more (s34(5)).

The Minster can also cancel a person’s citizenship if they are convicted of certain terrorism or treason offences (s35A).  This applies to people who have been Australian citizens from birth, provided they are also citizens of another nation.

However, the Minister cannot cancel a person’s citizenship under this section if it would make that person stateless – that is, they would not be a national or citizen of any country. (section 34(3))

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