Will I be deported if I’m charged with a criminal offence? Criminal convictions and non-citizens

And what happens if you are convicted of a crime in Australia as a non-citizen?

There are strict rules surrounding non-citizens and their criminal conduct. We discuss criminal offending, deportation, removal and the case of Falzon v Minister for Immigration and Border Protection [2018] HCA 2 .

DEPORTED OR REMOVED?

Deportation means that the Immigration Minister must first issue an order under the Migration Act 1958 (Cth) (“The Act”) to authorise a forcible deportation of a non-citizen. If a person is convicted of a certain offence or receives identified sentences, the Minister is able to order their deportation.

However, a person can be Removed from an immigration detention without a Ministerial Order if certain conditions are met. We will discuss the Character Test which regulates whether visas are cancelled, allowing non-citizens to be Removed.

MINISTERIAL ORDER FOR DEPORTATION

Deportation is available to the Minister if persons have been residing as a New Zealand national or a permanent resident for less than ten years under section 200 of the Act.

The Act allows for a Ministerial Order for Deportation if the following sentences are handed down:

• Death
• Life imprisonment
• Imprisonment for 1 year or more

Section 203 of the Act allows for the Deportation of a person if they are convicted of particular offences, including:

1. Assisting prisoners of war to escape
2. Advocating munity
3. Treason
4. Sabotaging public infrastructure
5. Acting as an accessory after the fact to any of the above offences

NOT DEPORTED, BUT I’M BEING REMOVED?

There are several reasons for a person to be Removed from Australia, however we will concentrate on visa cancellation following failure of the Character Test.

Section 501 of the Act allows a person’s visa to be cancelled if they fail the ‘Character Test’. Persons can fail the test if they fall into the following categories:

1. Offences committed while within or escaping from immigration detention
2. Being part of a group involved in criminal conduct
3. Involved in trafficking of persons or ‘people smuggling’
4. Involved in genocide, crimes against humanity, war crimes, torture or slavery
5. Involved in crimes of serious intentional concern
6. Risk of harassing, molesting, intimidating, or stalking to a person in Australia
7. Convicted of a sexually based offence involving a child
8. Has a substantial criminal record or poses a risk to engage in criminal conduct

WHAT IS A SUBSTANTIAL CRIMINAL RECORD?

There are multiple ways a person can incur a ‘substantial criminal record’ according to the Act, these include sentences of:

1. Death
2. Life imprisonment
3. Imprisonment for 12 months or more
4. Two or more terms of imprisonment where the total is 12 months or more

If you are able to escape conviction by way of being unfit to plead or you are detained in a mental health facility, you will be deemed to have a substantial criminal record.

WHAT ABOUT CONCURRENT SENTENCES, REHAB AND PARDONS?

Interestingly, if you receive two periods of concurrent imprisonment, the Act requires the total of those periods to be counted. For example, if you receive two terms of imprisonment for 3 months, then the total time to be counted is 6 months.

Any time spent in a residential rehabilitation program is counted as time towards imprisonment for the purposes of the Character Test.

However, The Minister is unable to consider a conviction or sentence if it is later quashed or nullified.

IS THE MINISTER PUNISHING A PERSON FURTHER BY REMOVING THEM FROM AUSTRALIA?

The High Court has recently considered this question in the case of Falzon v Minister for Immigration and Border Protection [2018] HCA 2.

(Side Point: This case surrounds the idea of the Separation of Powers (SOP). The SOP is a legal doctrine that divides the Legislative, Executive and Judicial arms of Government into clearly defined roles and was developed to prevent absolutism and corruption. The doctrine of SOP is not a perfect science; however, it provides a flexible structure for democracy to operate).

Back to the case, Falzon was convicted and sentenced to 11 years imprisonment for trafficking a large commercial quantity of cannabis. He was found to have failed the Character Test and a decision was made to cancel his visa. As a result, Falzon was taken into detention at the conclusion of the time he served in jail.

Falzon brought a suit against the Minister and argued that he was being further punished for his crimes, and that the Minister was acting as a judicial official (e.g., a Judge). He alleged that the Minister as a member of the Executive Government was acting as a Judge, and this contravenes the doctrine of the SOP.

The High Court held that the power to remove non-citizens after failing the Character Test was not punishment but merely a function to allow regulation of the class of persons to be excluded from the community. This meant that the Minister was not acting as a Judge and Falzon’s Removal was legal. Falzon was ordered to pay legal costs to the Minister.

You can read the judgement here: link.

At Morrisons we are specialist criminal and traffic lawyers based in Wollongong and the Southern Highlands. If you require advice or representation, you can book an appointment with one of our expert criminal lawyers.