Understanding Immigration Law Issues for Criminal Lawyers

IMMIGRATION LAW ISSUES FOR CRIMINAL LAWYERS MICHELLE YU | BARRISTER FREDERICK JORDAN CHAMBERS MARCH 2021 Liability limited by a scheme approved under Professional Standards Legislation

AGENDA Scope onshore migrants When and what kind of immigration law issues can arise? Relevant legislation - Migration Act 1958 (Cth) - Australian Citizenship Act 2007 (Cth) Available legal avenues Cases to remember Practical tips on dealing with immigration law issues that arise over the course of criminal law proceedings

WHO MAY BE AFFECTED? Unlawful non-citizens in Australia: Migration Act 1958 (Cth) s.14 Visa holders or lawful non-citizens : Migration Act 1958 (Cth) s.13 Visa holders who wish to apply for and be granted Australian Citizenship Dual nationals/citizens where one of the nationalities held is Australian

WHEN DO THESE ISSUES ARISE? Event Event Visa refusal Visa refusal Persons affected Persons affected Non-citizens seeking to obtain an Australian visa. Timing Timing After visa application has been lodged. Consequences Consequences ?ay be required to depart Australia voluntarily or be detained in immigration detention and removed. Legislation Legislation Migration Act 1958 common refusal powers: ss.65, 501(1), 501(3), 501A(2)(a), 501A(3)(a) Detention and removal powers: ss.189, 196, 198, 199, 200

WHEN DO THESE ISSUES ARISE? Event Event Visa Visa cancellation cancellation Persons affected Persons affected Non-citizens who hold an Australian visa (whether permanent or temporary). Timing Timing Anytime after a visa has been granted, provided that it is still in effect. Consequences Consequences May be required to depart Australia voluntarily or be detained in immigration detention and removed. Legislation Legislation Migration Act 1958 common visa cancellation powers: ss.109, 116, 501(2), 501(3A), 501A(2)(b), 501A(3)(b) Detention and removal powers: ss.189, 196, 198, 199, 200

WHEN DO THESE ISSUES ARISE? Event Event Persons Persons affected affected Permanent visa holders or Eligible New Zealand Citizens who are seeking to become Australian Citizens Timing Timing Consequences Consequences Legislation Legislation Citizenship Citizenship refusal refusal After an application for Australian Citizenship by conferral has been lodged. After an application for Australian citizenship has been approved, but before the Pledge of Commitment is made. Unable to become an Australian citizen, ineligible for Australian passport, may have any Australian visa cancelled if one of the cancellation powers under the Migration Act are engaged. Australian Citizenship Act 2007: s.24 Cancellation Cancellation of of citizenship citizenship approval approval Australian Citizenship Act 2007: s.25

WHEN DO THESE ISSUES ARISE? Event Event Citizenship Citizenship revocation revocation or or cessation cessation Persons affected Persons affected Dual nationals of Australia and at least one other country Timing Timing Any time after the commission of a relevant type of conduct, offence, or fraud. Consequences Consequences Loss of Australian Citizenship and subsequent grant of an Ex-Citizen visa (which may be cancelled if a relevant legal provision is engaged). Legislation Legislation Australian Citizenship Act 2007: s.34 and Subdivision C

The Character test Migration Act 1958 (Cth) s.501(6)-(7) Forms the basis of the exercise of the powers to cancel or refuse a visa under s.501 or s.501A. Everyone is taken to pass the character test unless certain conditions apply. Most common way that non-citizens fail the character test is by having a substantial criminal record as defined in s.501(7). - Both the character test and the concept of substantial criminal record are very broadly defined: link to s.501 here.

RELEVANT LEGISLATION Migration Act 1958 (Cth) most commonly used refusal provisions s.65 s.65: if a valid visa application is made, the Minister must make a decision to grant or refuse the visa (applies whether or not there has been criminal conduct). s.501(1) s.501(1): Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test (natural justice applies) s.501(3)(a) s.501(3)(a): Minister may refuse to grant a visa to a person if they reasonably suspect that the person does not pass the character test and is satisfied that it is in the national interest to do so (natural justice does not apply). s.501A(2)(a) s.501A(2)(a): Minister may overturn a positive decision of the AAT and refuse to grant a visa to a person if the Minister reasonably suspects that the person does not pass the character test and is satisfied that it is in the national interest to do so.

RELEVANT LEGISLATION Migration Act 1958 (Cth) most commonly used cancellation provisions s.109 s.109: Minister may cancel a visa if incorrect answers, information or bogus documents are given in relation to a visa application. s.116(1)(b) s.116(1)(b): Minister may cancel a visa if satisfied that the visa holder has not complied with a condition of their visa (e.g. Condition 8564 must not engage in criminal conduct). s.116(1)(e) s.116(1)(e): Minister may cancel a visa if the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. i.e. charges alone may be enough charges alone may be enough. s.501(2) and (3)(b) .501(2) and (3)(b): Minister may refuse to grant a visa to a person if they reasonably suspect that the person does not pass the character test and is satisfied that it is in the national interest to do so (natural justice does not apply to s.501(3)(b)). s.501A(2)(b) s.501A(2)(b): Minister may overturn a positive decision of the AAT and cancel a visa to a person if the Minister reasonably suspects that the person does not pass the character test and is satisfied that it is in the national interest to do so.

RELEVANT LEGISLATION Australian Citizenship Act 2007 (Cth) Requirement to be of good character : s.21(2)(h). s.21(2)(h). - good character is not otherwise defined in the Australian Citizenship Act. Departmental policy provides some assistance but policy is not law. s. s.24(6): 24(6): citizenship application may be refused in the following circumstances: where there are any pending criminal matters; within 2 years of having had a 12 month custodial sentence imposed; within 10 years of having had more than one 12 month custodial sentence; within a parole period; and/or where a good behaviour bond or other security has been imposed and not yet discharged.

RELEVANT LEGISLATION Australian Citizenship Act 2007 (Cth) s.25(2)(b)(iii) s.25(2)(b)(iii): Minister may cancel approval of citizenship application if satisfied that the person is not of good character. s.34(2) s.34(2): Minister may revoke a person s Australian citizenship if it was obtained by conferral, if the Minister is satisfied that it would be against the public interest for them to remain a citizen, and any of the following apply: - the person has been convicted of an offence against section 50 of this Act, or section 137.1 or 137.2 of the Criminal Code, in relation to the person s application to become an Australian citizen; - the person has, at any time after making the application to become an Australian citizen, been convicted of a serious offence: see s.34(5); - the person obtained the Minister s approval to become an Australian citizen as a result of migration-related fraud; - the person obtained the Minister s approval to become an Australian citizen as a result of third-party fraud. Subdivision C Subdivision C: deals with cessation of Australian citizenship for persons who engage in foreign and domestic terrorist activities.

AVAILABLE LEGAL AVENUES Seek revocation of visa cancellation or positive exercise of discretion revocation of visa cancellation or positive exercise of discretion through Department of Home Affairs - Cancellations under ss.109 and 116 will be preceded by a Notice of Intention to Consider Cancellation (NOICC - Cancellations under s.501(3A) will be followed by an invitation to make representations under s.501CA(4) of the Act. Invitation must comply with s.501CA(3). - Decision to cancel may be revoked if the person makes representations in accordance with the invitation issued under s.501CA(3); and Minister is satisfied that the person passes the character test; or is satisfied that there is another reason why the cancellation should be revoked: s.501CA(4). - NOICC and s.501CA(3) invitation letter will contain details on how to make representations. Need to address relevant Ministerial Direction (currently No.79, but Direction No.90 will be in effect from 16 April 2021). NOICC).

AVAILABLE LEGAL AVENUES S Seek merits review eek merits review through the Administrative Appeals Tribunal (AAT Tribunal Tribunal) - www.aat.gov.au - Need to have a decision that is reviewable by the Tribunal under Part 5, Part 7 or s.500 of the Migration Act 1958, or s.52 of the Australian Citizenship Act 2007. o General Division (GD GD) citizenship matters and s.501 matters (where the s.501 decision has been made by a delegate of the Minister.) o Migration and Refugee Division (MRD s.109 and s.116. AAT or MRD) visa cancellations under

AVAILABLE LEGAL AVENUES Seek judicial review Seek judicial review - Scope of review is limited to errors of law. - May be the only option if there are no merits review rights. - Federal Circuit Court: jurisdiction under s.477 of the Migration Act 1958 (Cth). - Federal Court: jurisdiction under s.477A of the Migration Act 1958 (Cth); possibly also s.39B of the Judiciary Act 1903 (Cth) if applicable. - High Court: original jurisdiction under s.75 of the Constitution. Not recommended unless you really have to do it. - Statutory time limit for commencing JR proceedings for decisions under the Migration Act: 35 days from the date of the decision. 35 days from the date of the decision.

CASES MIBP v EFX17 [2021] HCA 9 Stewart v Minister for Immigration [2020] FCAFC 196 Minister for Home Affairs v Omar [2019] FCAFC 188 Hong v MIBP [2019] FCAFC 55 MIBP v Makasa [2021] HCA 1

CASES Love v Commonwealth [2020] HCA 3 Webster v Minister for Immigration [2020] FCA 702 Makarov v Minister for Home Affairs (No 3) [2020] FCA 1655

PRACTICAL TIPS Ensure that clear instructions clear instructions are obtained about your client s current immigration status and immigration history. Be aware Be aware of the consequences of different types of penalties that may be imposed at sentencing and consider referring your client off for independent immigration advice early in the criminal proceedings. Act quickly Act quickly prescribed timeframes for seeking revocations of visa cancellation decisions and merits review are strict. No jurisdiction = no review No jurisdiction = no review. Ensure that the correct Court or Division of the AAT is engaged for the matter if required. Consider seeking expedition expedition of any criminal law appeal proceedings, particularly if the client is at the merits review stage of a s.501 matter: see Migration Act 1958, s.500(6L).

WARNING WARNING Just because you can, doesn t mean you should! Just because you can, doesn t mean you should! - Migration Amendment (Regulation of Migration Agents) Act 2020 (Cth) commences 22 March 2021. - Professional ethical obligations relating to competence and skill in delivering legal services still apply see e.g. ASCR r.4; BR r.17(a)