Non-citizens charged with an offence need a criminal lawyer working with their migration lawyer
The cancellation of visas on character grounds has become a busy area within the Department of Immigration, with over 1000 cancellations this year alone, and a volume of cases coming before the Federal courts involving such cancellations!
The Migration Place has helped reverse cancellations through Federal Court applications and by lodging persuasive submissions with the Department of Immigration. We also provide expert evidence in Court to help criminal lawyers to argue that the sentence ought take into account the risk to the visa status.
That said, this process is difficult and anyone subject to these laws needs to be extremely careful, and you need to engage a migration lawyer experienced in the Federal Court and experienced in these 501 character matters as soon as you can. The earlier we get involved, the more we can do.
The Migration Place has run constitutional matters attacking State legislation in the High Court, and we have already formed the view these 501 matters are unconstitutional, and deserve to be attacked and declared invalid.
In a case that was decided last Friday, 12 August 2016 (Parker v Minister for Immigration and Border Protection (2016) FCA 938), the Courts have indicated that once the wheels have been set in motion to cancel a visa on character grounds, it is extremely difficult to stop the process, even where the visa holder is a longstanding resident of Australia, and has a family in Australia that will be dismantled if the visa is cancelled.
Concerningly it also empowers the Minister to be judge jury and executioner as the minister has the discretion to decide whether there is a risk of repeat offending, whether the person is of good character and whether they ought be deported – all without the visa holder having the opportunity to present their case before a Court where procedural fairness and the rules of natural justice can be invoked.
The visa holder in this case (Mr Tammie Parker) was a New Zealand citizen who had lived in Australia since early childhood and he was in his mid-30’s when the matter was before the Federal Court.
The criminal convictions that caused Mr Parker to fail the character test were recorded in September 2010, in the Local Court of New South Wales. The offences of which Mr Parker was convicted included:
- demanding property with menaces with intent to steal;
- being armed with intent to commit an indictable offence; and
- threatening a person with intent to influence a witness.
Mr Parker was sentenced to imprisonment for 13 months for each of these charges, with the sentences to be served concurrently.
Obviously Mr Parker’s difficulties were compounded by the fact that he had multiple offences, which were well in excess of the 12 month rule under the new 5401 requirements, and they were committed recently. The significance of this two fold:
- the offences are significant which minimises the ability to argue the visa holder is of good character.
- The offences were committed within the last few years, which minimises the ability to argue the visa holder is a different man now, and his character has improved so the government ought not be concerned of any repeat offending in the future.
There was another major issue – the visa holder committed and was sentenced for, another offence AFTER the 501 amendments were passed, and crucially AFTER he had been warned his visa may be cancelled if he offended again. This undermined all ability to argue he was unlikely to repeat offend, although this aspect was not the driving reason behind the unsuccessful Federal Court application.
A major blow to his application was the fact that he was sent letters by the DIBP warning him that his visa was liable to be cancelled under the new 501 amendments…a warning which was followed up by another letter which advised him that his visa would not be cancelled – an advise which also stated that if he committed further offences, cancellation of his visa would be considered again.
Unfortunately for Mr Parker, he was subsequently charged with another offence (possessing a prohibited weapon without a permit – namely, a can of “pepper spray”), he did not show up for Court, and he was convicted of this offence and Ordered to pay a $700 fine in his absence. This is unfortunate for two reasons:
- the obvious one, namely he had offended after being warned his visa was liable to be cancelled.
- if he had appeared in Court, he could have:
- made the Court aware his visa status was at risk (which is a factor that would have been taken into account to reduce the sentence).
- Made the Court aware the spray was in fact his wife’s, which she had for self-defence reasons, and that he had not told the police that the pepper spray was actually his wife’s because he “didn’t want her to get into trouble”.
- By doing the above, he could have sought that no conviction be Ordered, and ensured all helpful mitigating comments made by the prosecution and/or judge were recorded so he could include same to help oppose the cancellation of his visa.
It was this conviction that prompted the Minister to re-consider his visa status, and the second time around, to decide to cancel Mr Parker’s visa due to the original offences of which he had been convicted in September 2010.
The ironic element of this case is that after Mr Parker’s visa was cancelled and he was taken into immigration detention, he successfully applied to the Local Court to have his conviction for possessing the pepper spray to be annulled, and a new trial set. At the time when Mr Parker’s challenge to the Minister’s cancellation decision was heard in the Federal Court, the case was awaiting trial in the NSW Local Court.
It was put to the Court that in taking into account the conviction involving possession of the pepper spray, the Minister had had regard to an irrelevant consideration. It was also put that the cancellation decision was so unreasonable that no reasonable decision maker would have made it – in other words, that the cancellation was “infected by” Wednesbury unreasonableness.
The Federal Court found three main problems with these submissions:
- the conviction had not been annulled at the time that the minister decided to cancel Mr Parker’s visa. So the Minister was therefore not prevented by section 501(10) from taking that conviction into account.
- the record made concerning the Minister’s decision established that the Minister had not had regard to the pepper spray conviction when determining whether Mr Parker failed to satisfy the character test. The Minister had regard to this conviction only when considering whether to exercise the discretion to cancel the visa. The Court found, relying on the authority of a previous case (Ngaronoa v Minister) that under the legislative scheme, it is open to the Minister to consider an annulled conviction when determining whether to exercise discretion to cancel a visa (even if that same annulled conviction can’t be considered for the purposes of determining that the visa holder fails to satisfy the character test!).
- there was nothing unreasonable in the Minister’s having regard to the pepper spray conviction when deciding whether to cancel the visa, because at the time that the Minister made his decision, that conviction had not yet been annulled. In the Court’s view, it was not unreasonable for the Minister to “make a decision on the evidence before him”.
Overall, this case demonstrates the new laws are tough, and difficult to fight, so every aspect needed to be handled properly. It seems to the Writer that he took he pepper spray matter far too lightly and that he should have engaged an experienced migration lawyer, and an experience criminal lawyer ASAP, to ensure the co-operated and helped both matters. The Migration Place is a division of Irish Bentley Lawyers, and we are experienced in both areas of law (crime and migration) which means we can tactically plan out the best way to help someone whose visa is at risk.
Obviously all of these recent 501 matters highlight the need to apply for citizenship as soon as you are eligible, especially if you have any criminal record. The fact is that “permanent residency” visas are no longer “permanent”, and visas will continue to be cancelled until someone seeks help from the High Court.
If you are effected, or are concerned a historical conviction may come back to haunt your visa status, then please contact one of our experienced migration lawyers at The Migration Place.