Will I be Deported if I am Convicted of a Crime?

Will I be deported if I commit a crime in Australia?

If you are a non-citizen in Australia on a visa and you are convicted of a crime, there is a risk you will be deported. Not all crimes carry the risk of deportation.

The test is found in section 201 of the Migration Act 1958 (Cth) (“the Act”) which allows the Minister to deport a non-citizen who has been convicted of a crime if when the offence was committed the person:

  • Had been a permanent resident for less than 10 years (or periods added together that total less than 10); or
  • Was a New Zealand citizen in Australia as an exempt non-citizen or a special category visa holder for less than 10 years (or for periods totaling less than 10);

And:

  • The offence is an offence for which the person was sentenced to death, or to imprisonment for life, or for a period of not less than one year.

Where the person meets the above criteria, the Minister can deport them under the authority given by section 200 of the Act.

The “Character Test”

A non-citizen can also be deported by the Minister where they don’t meet the “character test”. Section 501(6) of the Act provides a long definition of the different ways someone can fail the character test.

One of those ways is if you have a substantial criminal record, which is defined as:

·       the person has been sentenced to death; or

·       the person has been sentenced to imprisonment for life; or

·       the person has been sentenced to a term of imprisonment of 12 months or more; or

·       the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

·       the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

·       the person has:

o   been found by a court to not be fit to plead, in relation to an offence; and

o   the court has nonetheless found that on the evidence available the person committed the offence; and

o   as a result, the person has been detained in a facility or institution.

In summary, if you are non-citizen or permanent resident who has not resided in Australia for 10 years or more, then the Minister can deport you if you are convicted of a crime and sentenced to prison for 12 months or more, or if you fail the broad “Character Test”.

 

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