The long arm of the law in migration law is getting longer and stronger
The long arm of the law in migration law is getting longer and stronger
By Lorenzo Boccabella Barrister-at-law, specialist in migration law (20 April 2021)
Now more than ever, illegal behaviour by visa holders and visa applicants will impact on the security of a person’s stay in Australia.
Criminal offences which years ago would be the basis for a warning, are now the basis for visa cancellation and refusal. Illegality within visa processes are being caught with more sophisticated investigation and thoroughness.
The take home message for all migration advisers is to warn clients to be on their best behaviour in Australia and that they are at risk of visa cancellation or refusal for bad behaviour. Citizenship gives a modicum of protection, (provided crimes committed before citizenship grant are not picked up after grant). It is possible to fight these adverse decisions, often successfully but there is an inevitable risk to such legal action.
Here are some examples:
Young person on a working holiday visa has minor drug offences, no jail time and for one offence no penalty recorded. In Australia, the criminal courts still operate within the bounds of common sense and the punishment fitting the crime (not so in other countries of course). The result in visa terms however is sometimes lethal. Here it was discretionary visa cancellation under Reg 2.43(1)(oa) which reads:
(oa) in the case of the holder of a temporary visa other than [other than 444 & BVE] - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
The decision breaches the concept of proportionality, but it will take a court to make that assessment.
Another young person got a skilled visa by getting a friend to sit the IELTS test, years later with facial recognition software, the fact that the photograph on the IELTS certificate did not match the visa holder’s passport was picked up. In that case the applicant should have lied low and not sought to make other applications like an RRV or citizenship.
A young man is caught up in a series of driving offences, a middle man in a certain ethnic community arranges for overseas students to take the rap. This is found out by state police who call the students to verify their involvement in the driving, who of course either cannot be found or are proven never to have committed the driving offences. The young man now faces fraud charges. If convicted and receives any sort of jail sentence, (including a suspended sentence or is granted immediate parole) he could have his current visa (a student visa) cancelled. He is a secondary applicant in a subclass 188 Business Innovation and Investment (Provisional) visa and may have to withdraw as an applicant because of this criterion found in the common time of decision criteria for the primary visa applicant:
188.214
(2) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies special return criteria 5001….
What this means is that the primary visa applicant’s application will fail if the secondary visa applicant is convicted of an offence which leads to visa cancellation on character grounds.
Further the secondary visa applicant also directly faces the 5001 hurdle, with the secondary visa criterion stating:
188.313
The applicant satisfies special return criteria 5001…..
Clause 5001, as relevant states:
The applicant is not:
(c) a person whose visa has been cancelled under section 501, 501A or 501B of the Act, if:
(i) the cancellation has not been revoked under subsection 501C(4) or 501CA(4) of the Act;
If the young man’s student visa is cancelled it would be done under s501.
Another young man with a very bad driving history gets tipped into mandatory visa cancellation over a head sentence of 12 months but is granted parole after 3 months, visa cancellation revoked by the AAT but the Ministerial personally re-imposes the cancellation.
All of the above are examples of many other types of cases where illegality infects either visa status or visa processes. These case can be fought in the tribunals and the courts but the risks are abvious.
The take home message is to warn clients of the risks of illegal conduct in Australia. It is not a moral crusade, but would be practical advice, ie not to stray from the straight and narrow if one wants to secure a permanent place in Australia