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VIC Can I Be Deported for Pending Criminal Charges?

Discussion in 'Immigration Law Forum' started by Missii, 24 November 2014.

  1. Missii

    Missii Well-Known Member

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    I just wanted to know if a person was facing criminal law charges and they were facing the possibility of being charged can they still get deported with pending charges?
     
  2. Victoria S

    Victoria S Well-Known Member

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    Hi @Missii
    An Australian permanent resident or visa holder can be deported under the Migration Act if they're convicted of a criminal offence.
    So at this point, you've said that the criminal charges are pending, but if the person is convicted of the criminal offence/s, then they may face deportation.
     
  3. Tim W

    Tim W Lawyer

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    1. Offences by non-citizens generally

      As a general thing, if a person has been charged with an offence,
      then they will usually not be deported until that charge is dealt with.

      Indeed, they can be required to surrender their passport to prevent them from leaving,
      or (depending on the offence) may even have bail refused, in order to actively keep them here.

      Further, if there is a penalty imposed at trial, then the convicted person is likely to be required to remain in Australia until the penalty is served.

      For example, a person may not be allowed to leave until a fine is paid, but then be required to leave Australia immediately.

      As another example, if a person is imprisoned, then they can be required to serve the term,
      and may then face deportation more or less immediately upon release.
      They may even go straight from gaol to Immigration Detention.

    2. Cancellation of a Visa upon conviction

      Non-citizens who are convicted of offences can have their visa cancelled
      on "character grounds".

      That is, their visa can be cancelled because they no longer meet the
      requirement to be of good character, which is a condition of having a visa
      in the first place.

    3. Deportation as a Penalty

      It is important to note that visas are cancelled by the Department of Immigration and Border Protection, not by the courts.
      It is also important to note that deportation itself is not a penalty available to most courts.

    4. Lastly

      Leaving (or trying to leave) Australia before the charge is dealt with
      can be a separate offence.

      A person who conceals, or helps conceal a charged person (whether within Australia or not)
      can also commit an offence themselves.
     
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  4. Mark7

    Mark7 Member

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    If the charges are big enough they will give you a Criminal Justice Stay visa to ensure you remain in the country.
     
  5. Mitchell Kelly

    Mitchell Kelly Well-Known Member

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    An extract from the Procedures Advice Manual:
    16.16 Unresolved criminal matters and charges or convictions in absentia

    In the case where a non-citizen has an unresolved criminal matter that has not been finalised before the relevant court, they would not generally be considered under s501 until the charges are finally determined. However, where the person already has convictions or other criminality that would lead them to fail the character test, it is not necessary to wait for the outcome of any ongoing criminal matters before making a sections501decision on the case.

    It is a similar case where a person is in Australia and they are facing charges in another country (for example charges in absentia). In this case it may not be practical for the non-citizen to return to that country to have the charges resolved. In this circumstance it may be more practical for the conduct that is subject to those charges to be considered in the context of s501(6)(c)(i)and/or(ii)having regard to the non-citizen’s past and present criminal and or general conduct.

    Character National Office Help Desk (character.national.office@immi.gov.au) should be contacted in the first instance when requiring further policy advice where there is are questions relating unresolved criminal matters and charges or convictions in absentia.
     

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