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Australian Permanent Residency Visa Cancellations

Australian Permanent Residency Visa CancellationsMany PR visa holders have assumed – for decades – that they can safely build a family life here, without fear that their visa will be cancelled. They are wrong. A permanent residency visa is not as permanent as everyone has believed for decades. That safety was removed in 2013 when the Migration Act was amended to allow the Immigration Department to cancel anyone’s visa, if they have EVER been sentenced to a 12 month jail (even if they did not have to serve a day inside, and even if the conviction happened decades ago!).

We have been seeing clients who have had their PR visas cancelled, even though they have lived here since the 1960s on PR visas, on the basis that they received a criminal conviction some time in their life – even if that conviction happened decades ago (we have seen several where the offence was in the 1980s and 1990s!). Some of these people have shining community contributions, others have children and grandchildren born here, whilst others are the full time carers for their elderly wives and grandparents.

Deportation is happening with little or not notice, and with little or no ability to seek the help of the Courts and tribunals. Their families are distraught that they will be split up, because of something that happened 20+ years ago.

Are These Permanent Residency Visa Cancellations Constitutional?

Permanent Residency Visa Cancellation For PrisonThe immigration department’s recent activity is raising all sorts of constitutional issues about how Australia treats its residents, how these laws fail to allow consideration to be given to keeping the Australian family together, and how they fail to give consideration to the families that rely upon these people who are being deported. Australia signed and ratified the hague convention which is an international treaty which (amongst other things) enshrines the importance of keeping families together – seemingly no regard is being given to Australia’s international obligations, sort the impact that deportation will have on the families left behind.

There are also issues with what this means for the convictions entered – anyone who receives a sentence should be entitled to some that is the punishment, and once they have been punished, they can build a new life without fear that they will be punished 20 years later by being deported also! Any law that operates in this retrospective way is regrettable as it erodes the certainty of our justice system. Then there is the whole debate about rehabilitation, and allowing someone who has committed a crime, to reform and to be a contributor to the community.

600 Permanent Residency Visa Cancellations in One Year!

Despite all of these issues, some 600 visas have been cancelled over the last year on this basis, with hundreds of Australian families left to work out how they will cope without the deported family member. It does not seem to be letting up either – The Minister for the Department of Immigration and Border Protection, Peter Dutton, appears to be cracking the whip on the power to cancel visas, set out in section 501 of the Migration Act.

A record number of visas have been cancelled over the last few months, and these cancellations have not been since WWII, when they were used against Japanese and German born residents of Australia. 2016 is not a war time, and one really has to question why we are doing this, and why the government has tried to prevent the Courts or tribunals from having any say in the fairness or appropriateness of any cancellation.

New Permanent Residency Legislation

Under the new legislation, the Minister has the right to revoke the visa of non-residents found to have spent 12 months or more in prison whilst being in the country. Time spent in jail is cumulative, which means that even if the visa holder has spent a few short stints in jail for a variety of offences, these prison terms are then added up and if they are over 12 months, there is a strong likelihood their visa will be cancelled.

Whilst a 12 month sentence implies that a serious offence may have been committed, that is not always the case – we have seen 12 month sentences handed down for drink driving offences, and driving whilst suspended. 12 month sentences can be handed down where a Judge feels the threat of going to jail if the person reoffends, will ensure they reform their behaviour. We have seen sentences like this handed down to scare the person into being well behaved, rather than to impose a punishment that matches the crime.

It is likely that the judge would not have Ordered a 12 month sentence had that judge been aware that it would lead to the person being deported two decades later.

New Zealand Permanent Residency Visa Cancellations60% of Deportations From New Zealand

In the last financial year, it was reported that almost 600 people had their visas cancelled due to a variety of reasons, some of which were minor matters such as road rage or driving while on a suspended licence. Of these cancellations, a majority (almost 60%) came from New Zealand citizens.

In the last 12 months since changes to the Migration Act have been legislated, Mr Dutton has been ruthless with his deportation of non-residents who have broken the law.

Man Forced To Leave His Kids and Wife After Living in Australia Since He Was 1

Late last year, we reported on an Australian-raised man (born in Chile), who was deported due to violating the conditions of his residency visa – having completed an 18 month stint in jail for drug possession and theft. The man had lived in Australia since he was one year old and was sent back to his country of birth where he had no knowledge of the language and was unable to financially support himself because he could not integrate and find work. The poor man was forced to leave his partner and two children in Australia, while he was sent to Chile. Under new legislation, the Minister is not required to take into consideration family ties when deciding whether someone should have their visa cancelled or not.

Zero Tolerance Permanent Residency Cancellation Policy

Mr Dutton is adamant about sending out a strong message to migrant workers who come to Australia and violate community standards by engaging in criminal behaviour and serving time in prison. He warns “We will continue to target you by cancelling your visa and will remove you from Australia as soon as possible”.

Mr Dutton states that while Australia is still accepting of foreign visitors in Australia, he makes no apology for his zero-tolerance approach for those who have been involved in criminal activity while staying in the country. In an interview with The Daily Telegraph, Mr Dutton is stated as saying “I do not believe people think for a moment that somebody who is here as a guest in our country, who has murdered somebody or committed a sexual offence, that they should remain in our society”.

The problem of course is that it is not just murderers and sex offenders that have been targeted – it is ANYONE with a 12 month sentence, irrespective of whether they have been in jail. It is happening to people who only have a traffic matter to be embarrassed about , or a minor drug possession whilst in their youth. It is happening to people who have reformed and have been given Awards for their contributions to the community…..but the real problem is these people often have Australian families – spouses, children and grandchildren – all of whom are being punished as well.

18 Comments

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  • Tee jay

    Am I actually able to get any type of work visa if I’ve been denied access to Brisbane for being sentenced for 2 years in New Zealand for a crime 13 years ago

    • The Migration Place

      Hi Tee Jay, Thank you for your query. We have had success in obtaining work visas for people who have had criminal history issues and would be able to assist with proving you are of good character now. One of our migration lawyers who has experience with these matters will get in contact with you shortly.

  • sahet

    a man committed an criminal offence in india and now he is wanted by indian police and he is living in Australia on permanent residence visa can hez visa get cancel

  • Edward Albert Cairns

    Having left Australia in 2008 on compassionate grounds to look after Old parents in the UK they have since died..We were permanent residence living and working in Australia for 18years..My question how can we find out whether it simply expired in 2010 or was cancelled. We are seeking to return now to live permannetly as all our 3 girls and their familys are there..The sites online do not seem to deal with this particular issue.please advise.Cheers Edward Cairns .

    • The Migration Place

      Hi Edward,

      Each and every Resident Return visa case is different.
      We recommend that you contact our office for detailed advice regarding your specific situation. Please contact our office at mail@themigrationplace.com so that we may provide you with detailed advice.

  • Andrew Anthony

    I have had to withdraw sponsorship of my Partners Visa, although she has received PR Status. I found out that she has actually been in an affair for 2 years, well before PR was granted an left me about 6 months ago. Not only that, but they have both conspired in leaving me bankrupt. She has also indulged in prostitution and fraudulently filed for Centrelink which I have had to report. I am also in the process of having criminal charges laid against her for assault on me.
    Do I need to advice Border & Immigration of the assault charges or wait till the police actually charge her?? As we have children can I request they stay here, as neither wants to return to Thailand to live???

    • The Migration Place

      Hi Andrew,

      We recommend that you contact our office for detailed advice regarding your specific situation. Please contact our office at mail@themigrationplace.com so that we may provide you with detailed advice.

  • Amsl

    Hi, my brother in low has a permenant visa it’s sapous visa took it from his wife and he want to divorce her and marry another woman, he is now overseas
    Can she cancel his permanent residence?

    • The Migration Place

      Hi Amal,

      Each and every visa case is different.
      We recommend that you contact our office for detailed advice regarding your specific situation. Please contact our office at mail@themigrationplace.com so that we may provide you with detailed advice.

  • Oriwa Farr

    Hi,

    My partner is in jail atm, he has about 3 months left of his sentance, he has spoken to immigration, he has really been told alot except that he may be moved to villawood, hes been told to get character referances from anyone that can help him, but what i need to know is the process he needs to do try and stay in the country.
    He moved here when he was 3 and we have 3 children together, all his family are here including his dad, his mother is buried here too. He has permenant residency and also entitled to centrelink, If he was to be deported theres not alot of family that can really care for him, plus with his background hes more then likely to end up in trouble without the support of myself and his family.
    I just need all the help i can get and all the information i can to help keep him in the country, if theres anything you can do to help me please email me back.

    Yours sincerely
    Oriwa Farr

    • The Migration Place

      Hi Oriwa,

      Indeed, all kind of visas including permanent visas can be cancelled by the Department of Immigration and Border Protection under certain circumstances.

      We have experience dealing with these types of cases, and recommend that you contact our office for detailed advice regarding your specific situation at mail@themigrationplace.com

  • John

    I have my wife under my sponsorship, we may separate soon, her conduct is very disrespectful, I want to divorce her, she is likely to travel overseas, can I cancel her permanent residence once she leaves the country? I think she declared fake degree in residence application that I found out later but it was too late. she is not understanding, I have provided her with every possible comfort I could afford actually but disrespectful behaviour is very hurting, I don’t want her near me or my children anymore. what are my options?

    • The Migration Place

      Hi John,

      We recommend that you contact our office for detailed advice regarding your specific situation. Please contact our office at mail@themigrationplace.com so that we may provide you with detailed advice.

  • XOXO.XO

    I’ve got protection visa 866 or pR
    How can I cancell it ? Before I leave here

    • The Migration Place

      Hi,

      Each and every case is different.

      We recommend that you contact our office for detailed advice regarding your specific situation. Please contact our office at mail@themigrationplace.com so that we may provide you with detailed advice.

  • Daniel

    hi there, im trying to find out how to cancel my PR and return to europe but Immigration website and offices are not helpful

    any advice??

    • The Migration Place

      Hi Daniel,

      Each and every case is different.

      We recommend that you contact our office for detailed advice regarding your specific situation. Please contact our office at mail@themigrationplace.com so that we may provide you with detailed advice.

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