Non-citizens in Australia, including permanent residents, risk deportation if they commit offences that result in a term of imprisonment. Under the Migration Act, the Minister for Immigration or their delegate is empowered to deport non-citizens with a criminal record and who have served a term of imprisonment. This article will assess the current law and how it applies in Victoria.

Migration Act Providions for Non-Citizens

The Migration Act 1958 (the Act) establishes that any non-citizen who has committed a serious offence may be subject to deportation. The Act defines a ‘non-citizen’ as being any person who is not an Australian citizen (which includes a permanent resident). Pursuant to section 203 of the Act, any person who is a non-citizen, who has been convicted in Australia of an offence (meaning an offence against a law of a State or territory) may be deported. The term ‘serious offence’ is defined in the Act as meaning an offence against a law in force in Australia, where the offence involves:

  • Violence against a person; or
  • Serious drug offences; or
  • Serious damage to property; or
  • Is an offence against immigration detention. 

Furthermore, an offence is categorised as being ‘serious’ if the offence is punishable by:

  • Imprisonment for life; or
  • Imprisonment for a fixed term of not less than 3 years; or
  • Imprisonment for a maximum term of not less than 3 years.

Character Tests for Non-Citizens

Additionally, offenders who are not Australian citizens can be deported if they fail the ‘character test’. There are various factors/circumstances which can result in a person failing the character test, most pertinently, whether they have been sentenced to a term of imprisonment. This is the case because of the Ministerial discretion within section 501(2) of the Act that empowers the Minister to cancel a non-citizen’s visa if the person does not satisfy the ‘character test’. This is an important consideration in criminal proceedings if you are not an Australian citizen, as even relatively minor criminal offences may result in failing the ‘character test’. This is reflected by section 501(6) of the Act, which details that a person will not pass the character test if that person has a ‘substantial criminal record’. Substantial criminal record is defined in section 501(7) of the Act, as including any sentence of imprisonment that is 12 months or more in length. 

Importantly, this subsection notes that the 12 months may be accumulative. This means, for example, that if a person was sentenced for 3 months, but then subsequently sentenced for 9 months for a separate offence, that they may nonetheless have their visa cancelled and be deported (despite neither sentence being of 12 months or longer). Accordingly, even when a non-citizen is charged with a relatively minor offence that results in a minor sentence, this may impact upon their future visa status, and they face the risk of being deported. The actual decision about whether the offender will be removed from Australia is made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs of Australia, or their delegate. 

Is the Risk of Deportation Considered in Sentencing for Non-Citizens?

Offenders who are deported at the expiration of their sentence may experience a greater hardship than offenders who resume life back in the Australian community when they are released from prison. This has resulted in some Australian jurisdictions, including Victoria, to have held that deportation can be a mitigating sentencing factor. However, the decision regarding whether an offender will be deported is made after the sentencing hearing. This means that Judges are required to speculate on future outcomes, which makes their sentencing process and decision making complicated. 

What is the Position on Sentencing Non-Citizens in Victoria?

The Victorian Court of Appeal has held that an offender’s prospect of deportation is a relevant consideration in sentencing. This was articulated in the case of Guden v The Queen [2010] VSCA 196, where the Court of Appeal analysed the implications of deportation on the sentencing synthesis. At [25] of their judgment, the Court held that “the prospect of deportation is a factor which may bear on the impact which a sentence of imprisonment will have on the offender, both during the currency of the incarceration and upon his/her release”. Further in their judgment, at [27], they opined that “the fact that an offender will serve his/her term of imprisonment in expectation of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk”.

This essentially means that the Victorian Courts recognise the associated implications that a term of imprisonment may have on a non-citizen offender, which is a mitigatory factor they must consider when deciding on an appropriate sentence. In many cases, this may result in a slightly reduced sentence. This position has been reaffirmed in several recent cases, such DPP (Cth) v Ooi [2019] VCC 156,  DPP v Duong [2020] VCC 1379 and DPP v Rohi [2020] VCC 713.

How Galbally Parker Lawyers can Help Non-Citizens who have Been Charged

Given the extensive implications that imprisonment can have on the visa status of a non-citizen, it is imperative that they seek expert legal advice in relation to their case. The team at Galbally Parker Lawyers specialise in contesting criminal charges and in preparing pleas. We have experience across a wide range of practice areas, including sexual offences, murder, manslaughter, theft and intervention orders. Contact us today if you are a non-citizen facing criminal charges.