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What Crimes Will Get You Deported From Australia?
Andrew Byrnes Law Group • Dec 20, 2023
Are you or someone you know from Canberra facing the possibility of deportation due to a crime conviction? Getting deported from Australia can have severe consequences that can impact your life, relationships, and future endeavours. In such critical situations, it is important that you seek legal advice immediately to understand your rights and explore potential avenues for defence.
In this blog, we will guide you through the intricate details of the deportation process. This includes insights into which type of crimes can get you deported from Australia and in what ways can you cancel a deportation order. Continue reading to know more.
What does deportation from Australia mean?
In Australia, deportation refers to the formal removal of a non-citizen by government authorities due to a violation of immigration laws or failure to meet character requirements. It involves the expulsion of a person from Australia, often back to their country of origin or another destination specified by immigration authorities.
Deportation can occur for various reasons, such as visa cancellation, illegal entry, criminal activity, or other violations of immigration regulations. The process is typically carried out through legal and administrative procedures established by the immigration authorities of the respective country.
Can permanent residents in Australia be deported for crimes?
According to Migration Act 1958, a permanent resident may be deported in Australia if they are found to have committed serious criminal offences. Aside from getting deported, a non-citizen, including permanent residents and visa holders that are criminally convicted may also carry a prison sentence of 12 months or more if they fail the character test.
However, deportation is not limited to major crimes alone. Even convictions for relatively minor offences, such as theft or fraud, can lead to deportation if they fail the character test.
The character test basically assesses an individual whether they have a substantial criminal record, including any convictions, charges, or involvement in organised crime. It is a crucial factor in determining whether a person can continue to reside in Australia.
If a visa holder is convicted, it indicates a failure of the character test. It is now the responsibility of the visa holder to prove otherwise. Generally, non-citizens who are deported from Australia after having their visa cancelled based on character grounds will face a permanent ban on re-entry.
What crimes will get you deported from Australia?
In Australia, non-citizens may face deportation for various reasons, including certain criminal convictions. Crimes that can lead to deportation include, but are not limited to:
Crimes With Less Than 10 years of Prison Sentence
Under
Migration Act 1958 Division 9 (201), a person can be issued a deportation order if:
- at any time, a non-citizen has been found guilty of a crime in Australia, either before or after the start of this section.
- at the time the offence occurred, the individual was a non-citizen who:
- had been in Australia as a permanent resident:
- for less than 10 years; or
- for durations that, when combined, are less than 10 years;
- the crime is one for which the individual received a death sentence or a life imprisonment sentence, or a term of no less than one year.
National Security
According to the Migration Act 1958 Division 9 (202), a deportation order can be issued if
- the Minister believes that a non-citizen, whether inside or outside Australia, before or after a certain date, has posed a threat to national security.
- the Minister receives a negative security evaluation (specifically conducted for this purpose) about the non-citizen from the Organisation.
Serious Criminal Offences
Under Migration Act 1958 Division 9 (203), non-citizens who commit such criminal offence are subject for deportation.
- Treason and advocating violence or terrorism (Division 80 and 82, Criminal Code)
- Advocating mutiny (section 83.1) or assisting prisoners of war to escape (section 83.2, Criminal Code)
- Accessory to any offence against a law of the Commonwealth (section 6, Crimes Act 1914)
- Attempting to commit a criminal offence (section 11.1) and conspiracy to commit an offence (section 11.5, Criminal Code)
- An offence against a law of a State or of any internal or external Territory
Visa Cancellation
Temporary visa holders are generally granted permission to stay in Australia for a specific time. However, in the event of visa cancellation or the visa expires before the person even gets a new one, that person becomes an unlawful non-citizen. While not all individuals whose visas are cancelled will necessarily face deportation, they may need to be removed from Australia unless further visa is obtained.
Moreover, a non-citizen may also potentially face deportation for violating the terms of their temporary visa, which include:
- working in a job or engaging with activities that are not authorised by their valid visa
- exceeding the allowed duration of their valid visa
- violating other immigration laws
- failing to meet the conditions of their stay in a country
What happens if a deportation order is issued against me?
If a deportation order is issued against you, it means that the government has determined that you must leave the country. However, the Department for Home Affairs or a delegate should consider factors first before coming up with a decision. These include the gravity of the offence, substantial criminal record, public interest considerations, family circumstances, and the risk that they may pose to the Australian community.
Without a doubt, deporting non-citizens, whether a permanent resident or visa holder, carry notable repercussions. Not only can they be separated from family and friends but they can also suffer unemployment, and a possible extended ban from returning to Australia.
How does the deportation process work?
The police will arrest and detain you if they believe or have a reasonable suspicion that you are an unlawful non-citizen. During this process, you will remain in immigration detention until you are removed from Australia or you have obtained a visa. The Migration Regulations 1994 specify limitations on the types of visas unlawful non-citizens can apply for.
Significantly, individuals who have been issued with a deportation order can typically be arrested without a warrant. However, if you are not the individual specified in the deportation order, you must declare this within 48 hours. Subsequently, you will be brought before a court to decide on your case and address the discrepancy.
Meanwhile, if you're serving a term of imprisonment, your deportation arrangements will be settled before your release. Typically, you'll be directly transferred from prison to the airport and must depart promptly. If not, you'll be kept in immigration detention until it's suitable to transport you to the airport. Until then, you will have to pay the costs of your deportation
Can a deportation order be cancelled?
Cancellation of a deportation order can occur through various legal processes, and the possibilities may vary depending on the jurisdiction and individual circumstances. Here are some ways deportation orders may be canceled or challenged:
Administrative Appeals Tribunal
The Migration & Refugee Division of the Administrative Appeals Tribunal (AAT) has the authority to review and potentially cancel a deportation order if it determines that the decision made by the Department for Home Affairs or their delegate was unjust or improperly conducted.
The Administrative Appeals Tribunal assesses the case independently, considering factors such as the legality and fairness of the deportation order. If it finds flaws in the decision-making process, procedural errors, or undue severity, the AAT may overturn or modify the deportation order, allowing those facing deportation to request a fair and unbiased assessment of their situation.
Hence, the tribunal has the power to:
- overturn a decision
- replace it with another decision
- send the case back to the Department of Home Affairs for reconsideration, or
- uphold the initial decision
Judicial Review
This involves taking the case to a court and asking a judge to examine whether the deportation decision was lawful or fair. During this process, those facing deportation can file an application in the Federal Circuit Court or Federal Court, challenging the decision on grounds such as procedural fairness, legal errors, or unreasonableness.
The court assesses whether the deportation order was made in accordance with the law, if proper procedures were followed, and whether the decision is reasonable. If the court finds legal errors, unfairness, or unreasonableness, it may set aside or modify the deportation order, directing the Minister for Home Affairs to reconsider the case.
Compliance with Conditions
If you consistently demonstrate compliance with conditions set by immigration authorities, whether through regular reporting, attending hearings, or fulfilling other requirements, it may significantly contribute to the potential cancellation of a deportation order.
By doing this, you are showing how committed you are to meeting legal obligations and cooperating with the immigration process. This not only strengthens your case during legal reviews but it also demonstrates your value as a responsible and law-abiding member of the community.
Takeaway
Deportation from Australia is a grave concern, especially when faced with criminal charges that could lead to such severe consequences. As discussed in this blog, the impact of deportation extends beyond the person's relationships but also future opportunities. If you are a non-citizen from Canberra and find yourself at risk of deportation due to committing crimes discussed in this article, seeking immediate legal assistance is crucial.
At Andrew Byrnes Law Group, we are first-rate criminal lawyers who can help address the criminal aspects of your case. We understand that criminal conviction can potentially result to deportation. With our expertise in criminal defence, we can help reduce your criminal charges so you can minimise its impact on your immigration standing. Book a meeting with one of our lawyers right away to get the quality legal advice you need for your case.
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