A person’s status in Australia is the paramount starting point for issues relating to people who have migrated to Australia that find themselves facing allegations of criminal offending, particularly arising from Family Violence matters.
But first, we must establish the type of visa a person is holding. It may be substantive, being either a permanent or temporary visa, or in other cases, a bridging visa.
Where a person is neither a citizen or a visa holder, they are at risk of being detained in immigration detention or removed from Australia as they are ‘unlawful’.
The Minister has the power under section 116(1)(e) of the Migration Act to cancel a visa where satisfied that the visa holder in Australia, poses a risk to the health and safety of other people. Where a Family Violence Intervention Order (FVIO) application has been made listing the non-citizen as a respondent, this individual is at risk of visa cancellation.
It is crucial to engage a lawyer if you are a non-citizen subject to a final FVIO. A lawyer may find reasonable prospects to contest the application being made against you.
With that being said, it is unlikely, however not impossible that, cancellation of a non-citizen’s visa will occur following a final FVIO. Nonetheless, contravention of FVIO will significantly increase the risk of visa cancellation as breaches are considered criminal charges. The weight of criminal charges subsequent to a final FVIO will be heavily regarded by the Minister.
A visa applicant will have an obligation to declare that they have previously been a respondent in a FVIO on any future visa applications.
Procedural fairness is afforded, in that, the Department of Home Affairs will issue a Notice of Intention to Consider Cancellation, which in turn allows a visa holder to respond to the possible cancellation. Time is most definitely of the essence and it is vital that a visa holder responds promptly within five business days or otherwise, seeks an extension of a further five business days to respond. In these circumstances, it is highly advisable that a visa holder seeks migration advice or obtains private legal representation.
The character test pursuant to Section 501 of the Migration Act gives the Minister, or a delegate, both discretionary or mandatory powers to cancel a person’s visa, or refuse an application on the basis of character. This usually includes people that have a substantial criminal record, with very serious offences or in the context of family violence, where if the person is allowed to remain in Australia, there is a risk hat they will harass, molest, intimidate or stalk another person in Australia.
In 2021, 40 visas were cancelled pursuant to the character test set out in section 501 with domestic violence being the primary offence.
Mandatory visa cancellation arises when a person is sentenced to imprisonment for life, sentenced to a term of imprisonment of 12 months or more, OR sexual-based offences involving a child. There is a strict 28-day timeframe to put in a revocation request for a mandatory visa cancellation. Once the 28-day period has lapsed, there is no longer an opportunity to seek revocation.
