Abstract: For non-citizens in Australia, any criminal charge can trigger a 'double jeopardy': in addition to facing the criminal justice system, they risk severe immigration consequences including visa cancellation and transfer to immigration detention. This article delves into the 'Crimmigration' phenomenon, analysing how a criminal conviction (especially a sentence of 12 months or more) leads to mandatory visa cancellation under Section 501 of the Migration Act, and explores the legal pathways available after being transferred directly from prison to immigration detention.
In Australia, for any non-citizen (including temporary visa holders and permanent residents who have not become citizens), any contact with the criminal law can have catastrophic immigration consequences. This intersection of criminal and immigration law is known as 'Crimmigration'.
This means that the end of a criminal case is often just the beginning of another immigration challenge. Many people mistakenly believe that completing a prison sentence means "regaining freedom." However, for non-citizens, the reality is often not the gate to the community, but the barred windows of an immigration detention centre.
The primary legal tool that directly links criminal custody with immigration detention is Section 501 of the Migration Act 1958, also known as the "Character Test." When a visa holder fails the character test due to criminal conduct, their visa may be cancelled.
The most severe and common scenario is Mandatory Visa Cancellation:
Under Section 501(3A) of the Act, if a visa holder is sentenced to a total term of imprisonment of 12 months or more for one or more offences, whether in or outside Australia, the Minister must cancel their visa.
The word "must" here signifies that there is no discretion. Once the criteria are met, the visa cancellation is automatic. The individual is typically notified of the cancellation while serving their sentence in prison.
The process is harsh for the individual and their family:
This occurs because, once a visa is cancelled, the individual becomes an "unlawful non-citizen" in the eyes of the law. Australian law mandates that all unlawful non-citizens must be detained until they are either granted a new visa or are removed from Australia.
Even when facing the grim reality of mandatory visa cancellation and being held in immigration detention, the law still provides some crucial avenues for appeal. However, it is vital to understand that these pathways have extremely strict time limits.
After receiving the notice of mandatory cancellation, the individual has an opportunity to make a "revocation request" to the Minister, asking for the original cancellation decision to be overturned.
This request is your one and only chance to argue your case. You must provide compelling evidence and legal submissions explaining why the cancellation should be revoked. The arguments must be structured around the factors in the relevant Ministerial Direction (like Direction 99), such as:
If there was a legal error in the Minister's decision-making process on the revocation request (for example, the law was not applied correctly), it may be possible to seek a judicial review in the Federal Court. This is not a re-hearing of the case itself, but a review of the legality of the decision process.
The transition from criminal custody to immigration detention is one of the harshest aspects of Australia's 'Crimmigration' system. It not only prolongs the period of lost freedom but can also lead to the permanent separation of a family.
In this process, time is your greatest enemy. Missing the strict deadline for submitting a revocation request is almost equivalent to forfeiting your last chance to remain in Australia. Therefore, if you or a family member is facing criminal charges, it is absolutely essential to seek immediate advice from a lawyer who is an expert in both criminal and immigration law.
The Immigix team understands the complexity and urgency of this dual challenge. If you are in this predicament, contact us without delay, and let us fight for every possible opportunity for you.