Criminal convictions from a person’s deep past always lurk as a danger
By Lorenzo Boccabella, Barrister-at-law and specialist in migration law (12 Nov 2023)
Any one who had a conviction in their lifetime, well into the past, where the head sentence was more than one year imprisonment and the person spent some time in prison, runs the risk of that conviction being revived as a consideration if they apply for any other visa or citizenship.
Even citizenship itself could be at risk if the events leading up to the conviction occurred before citizenship grant.
Any criminal convictions or shady immigration practice sits like a time bomb or buried land mine every time someone moves forward immigration wise.
The result is that such persons need to carefully decide if putting their head up for Immigration consideration is worth the risk.
One example is the recent decision of the High Court which saw the Australian citizenship revoked, for a person who had been a citizen for over 30 years!!
The issue arose over historical child sex offences. The facts constituting the offences occurred before the person was granted citizenship, the convictions themselves occurred well after Australian citizenship by naturalisation was granted.
This brought s34(2)(b)(ii) of the Australian Citizenship Act 2007, into play, which reads:
Citizenship by conferral
(2) The Minister may, by writing, revoke a person’s Australian citizenship if:
(a) the person is an Australian citizen under Subdivision B of Division 2 (including because of the operation of section 32); and
(b) any of the following apply:
(ii) the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence within the meaning of subsection (5); [and}
(c) the Minister is satisfied that it would be contrary to the public interest for the person to remain an Australian citizen.
Serious offence
(5) For the purposes of this section, a person has been convicted of a serious offence if:
(a) the person has been convicted of an offence against an Australian law or a foreign law, for which the person has been sentenced to death or to a serious prison sentence; and
(b) the person committed the offence at any time before the person became an Australian citizen.
See s3 of the Citizenship Act:
“serious prison sentence means a sentence of imprisonment for a period of at least 12 months.”
In Jones v Commonwealth [2023] HCA 34, the High Court upheld the constitutionality of s34(2)(b)(ii) which meant that the decision to revoke the citizenship, as afar as the constitution was concerned, was valid.
Here are the facts (from the reasons of the plurality Kiefel CJ, Gageler, Gleeson & Jagot JJ:
5.The plaintiff, Mr Jones, was born in 1950 in the UK… a citizen of the UK at birth… He remains a British citizen.
6.Mr Jones migrated to Australia with his parents in 1966. In 1988, he.. was granted a certificate of Australian citizenship under s 13(1) of the 1948 Act….
7.In 2003, Mr Jones was convicted in the District Court of Qld of 5 counts of indecent dealing and indecent assault committed at various times between 1980 and 2001. Two of those five counts related to conduct that occurred entirely before he became an Australian citizen in 1988. For each of those five counts, he was sentenced to a term of imprisonment of two and a half years to be served concurrently with each other term.
8.In 2018, the then Minister for Home Affairs, Immigration and Border Protection revoked Mr Jones' Australian citizenship under s 34(2) of the Citizenship Act. By that time, Mr Jones had been an Australian citizen for 29 years and had lived in Australia continuously for 52 years. Since arriving in 1966, he had left Australia only twice, for a combined total of around 27 days. On both occasions, he had travelled on vacation on an Australian passport.
Upon his citizenship cancellation, under s35 of the Migration Act he was granted an ‘ex-citizen’ visa by law. But then the Minister cancelled that visa under s501! He went into detention, where he remains.
The case demonstrates that, the mere fact that a person has remained in Australia for a long time, dos not mean that a person’s criminal offence past may come to haunt them.
Certainly if a person had criminal convictions, no matter how long ago, which fall within the definition of ‘serious prison sentence’, then the person should seriously consider not applying for citizenship. Historical offences where the facts occurred before citizenship was granted (but conviction occurred after citizenship grant) sit there as a time bomb under s34. An application for citizenship will trigger a s501 visa cancellation investigation if the person has historical criminal convictions which included a ‘serious prison sentence’.
Further any serious misconduct of any immigration kind will trigger investigation if a person does anything like applying for a resident return visa or citizenship.
One example is where a person used a false document to gain a permanent resident visa but which was not picked up during the visa grant process. Upon an application for a resident return visa or citizenship, the whole original visa file was revisited and this time the false document was picked up. The result was a visa cancellation under s109 of the Migration Act, even though the original permanent resident visa was granted long ago.
The take home message is that past criminal convictions or false documents contained in a visa application could trigger visa cancellation. Therefore even for a subclass 155 visa, the client needs to position him or herself to meet the grounds set out in Reg 2.41 or 2.43, well before the subclass 155 visa is applied for. In my visa cancellation masterclass I deal with those grounds.
Returning to Jones, the pivotal reasoning by the plurality was:
54.The requirement of s 34(2)(c) [of the Citizenship Act] that the Minister be satisfied that it would be contrary to the public interest for the person whose citizenship is revoked to remain an Australian citizen furthers the purpose of protecting the integrity of the naturalisation process for which ss 13(1) and 15(1) of the 1948 Act provided by facilitating reconsideration of the critical question whether the person was of good character at the time of grant without constraining the capacity of the Minister to have regard to subsequent rehabilitation and integration into the Australian community. Were the Minister to purport to invoke the power of revocation of the Australian citizenship of someone convicted of a serious crime for the purposes of retribution, denunciation or deterrence under the guise of being satisfied that it would be contrary to the public interest for that person to remain an Australian citizen, the purported exercise of power would be unauthorised on the basis that the power would have been exercised for an extraneous and improper purpose.
55. Once it is understood that s 34(2) would not authorise the Minister to revoke the Australian citizenship of someone convicted of a serious crime for a purpose of retribution, denunciation or deterrence, the absence of a time limit within which the Minister is required to exercise the power after the date of conviction cannot detract from the non-punitive character of s 34(2)(b)(ii) established by the combination of features to which reference has been made.
In Jones, the facts making up the offences occurred before citizenship grant in 1988, the criminal convictions occurred in 2003 and citizenship cancellation occurred in 2018! The cancellation of the ex-citizen visa occurred in 2021, Immigration detention commenced in January 2022 where he remains.
The full text of Jones is found at:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2023/34.html#fnB41