Photo SCM Jeans
In a recent decision of the Administrative Appeals Tribunal, PHGY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1301 (28 May 2024) (austlii.edu.au), the relationship between past criminal law proceedings and a current visa cancellation came into focus.
Non-citizens clients who are found guilty of criminal offenses can fail the character test and become liable to have their visa cancelled, or their visa application refused. The criteria for failing the character test are multifaceted and extend beyond merely receiving a prison sentence of 12 months or more. Factors such as affiliations with outlaw motorcycle groups, as well as past and present behaviours and criminal involvements, are taken into account. 'General conduct' could encompass a range of activities from multiple traffic offences to engaging in unauthorized employment, or even lodging an unmeritorious visa application. It is a very broad power and can be exercised by a delegate of the Minister or the Minister personally.
Where your client facing criminal charges is not a citizen, you need to consider not only the immediate legal implications but also the long-term effects on the client’s visa status, particularly if the client has already engaged in a police interview. In the case of PHGY, the client’s decision to participate in an overnight police interview without legal representation led to the making of incriminating statements that adversely impacted his subsequent appeal at the AAT. The police did it through the small hours of the morning because they knew if he went to get legal advice, he would never come back.
If they did the crime, and blind Freddy can see they did it, clients should plead guilty at an early stage. Do not treat your client as a cash cow to be milked by dragging out an unmeritorious case that will go down in flames. Pleading guilty has advantages in the criminal justice system through discounts on sentencing.
There are also benefits to the visa cancellation process. An early plea of guilty is evidence of remorse. It avoids putting a victim through a stressful trial. This is given weight in the factor of whether a person is an ongoing threat to the community. Further, there are few court documents with transcripts and evidence, since these will be subpoenaed by the Minister’s solicitors and used in the visa cancellation proceedings. In PHGY, there were hundreds of pages in the court files and all had to be checked. Some of the documents related to psychiatric assessments of the victim, which would not have been there if the client pleaded guilty.
In an instance where I handled a case involving a drunk driver who caused a fatality, the client admitted guilt immediately, resulting in minimal court documentation aside from the sentencing judge's comments, which helped in appealing the visa cancellation.
In the case of PHGY, there was no early guilty plea, the case went to trial, the victim was forced to give evidence, and a guilty plea was only entered at the conclusion of the two-week trial when a conviction seemed inevitable, and even then, not for all charges. One charge was contested until the end and was decisively lost, which resulted in a reduced sentencing discount.
The conduct of the criminal case presented significant hurdles in the visa cancellation process because in fighting a hopeless case, it was strong evidence of a lack of remorse and insight into the offending. This was only overcome in the AAT by some unique factors in the client’s favour, but the timing of the decision was when the then Minister stated in Parliament that all the cancelled visas should remain cancelled. Had the client entered an early guilty plea in the criminal proceedings and received a larger sentencing discount, his case might not have coincided with the Minister being under public pressure to personally cancel visas.
Author: Simon Jeans
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