Why you need a migration lawyer when charged or convicted of a criminal offense while holding an Australian visa

Cases of New Zealand citizens being deported are increasing.  In the last few years, there has been 1000 deportees who were either charged here in Australia for offenses they committed while others have been due to past criminal convictions.[1] Without an expert migration lawyer acting on your behalf, a criminal matter can easily catch you to visa cancellation and deportation.

A recent decision in the Queensland Court of Appeal in R v Dixon is another example of how a criminal offense can trigger the Minister’s compulsory power to cancel a visa under s 501 of the Migration Act.  Without proper reference to the relevant factors that may mitigate the sentence, the Court will find it improper to impose a lesser sentence in order to circumvent the operation of s 501 (3A) of the Migration Act.

Background

Straight after the trial of his son, the appellant faced the court for violation of s 119B of the Criminal Code for retaliating to the witness who provided testimonies against his son.  Based on the evidence presented, the appellant went to the witness ‘residence twice with threats that if the witness would not be quiet, his son would implicate him with drug manufacturing.  The Crown also adduced the telephone conversation between the appellant and his son while the latter was in ARUNTA corrections discussing how to intimidate the witness.  The court found the appellant guilty and was sentenced to 12 months imprisonment suspended after two months for an operational period of 12 months.  

The Appeal

The appellant, who represented himself,  challenged the decision saying that

  1. he was falsely accused as the witness himself had criminal convictions;
  2. his legal representative was incompetent as he was not allowed to testify for himself; and
  3. that the sentence was unreasonable and excessive as his visa would be cancelled and he would be deported. 

The appellant presented two new affidavits from his personal carer and son but failed to support his claims against his lawyer and has not provided references of prior sentencing decisions for comparable offending that the court might have considered.

The Refusal of the Appeal    

The appeal court was not persuaded.  It refused all the grounds of appeal for reasons that it did not find any reasonable excuse for the threatening conduct made by the appellant. Furthermore, the Court held that the offense committed was serious that harmed not only the complainant but the public as well as he effectively obstructed the administration of justice.

In its judgment, the court said that while new evidence is permitted, the test for admission of new evidence is to show that the accused is innocent or that the new evidence raise a reasonable doubt as to his guilt. It is not enough for the witnesses to claim their presence in the event, but affidavits must have references to dates, events and circumstances that will rule out the threat allegations on the accused.  

The judgment held that, in the absence of complaints against lawyer during the trial,  appeal cannot be based on perceived criticisms but must be on the question of whether the legal representative, by not following the client’s instruction, are incompetent to not have done so; and whether his prospects of acquittal were harmed as a result. In this case, the court did not believe that the sentence would have been different had the lawyer put the appellant on stand.  The main evidence relied unto by the jury was the Arunta telephone conversation that made the jury concluded to his offense.  

Section 501 (3A) of the Migration Act

Although the appeal was refused, it is worthy to note the curiosity of the court as to why the factors that could perhaps mitigate the sentence were not addressed in the trial considering that the appellant was a New Zealand citizen who was subject to the visa conditions including the requirements of good character. Without any suggestion of affecting the sentence, the court acknowledged the grievance of the appellant against the legal representative because the sentence of 12 months triggered the operation of s501 (3A) which gives mandatory power to the Minister to cancel the visa. The sentence required the appellant to serve two months in prison which without that requirement, the appellant would remain liable to cancellation on discretionary basis under s 501 (2) or s 501(3).  

As matter of direction, the court mentioned the relevant factors the legal representative / or appellant should have addressed. The factors are set out in case of R v Norris ; Ex parte Attorney – General which His Honour summarised as follow:

Deportation may be a relevant matter in mitigation of a sentence when it makes the period of incarceration more onerous and also where, upon release, the fact of imprisonment would deprive the offender of the opportunity of permanently residing in Australia, so long as the prospect of deportation or its impacts are not merely speculative.

Criminal offenses attract different sentences.  Without a doubt, the sentence to the appellant is harsh compared to the 4 years suspended sentence given to a NZ citizen who was convicted of drug trafficking, production and possession of drugs and possession of drug manufacturing equipment.[2]  Judgments like this will add to the existing criticism against Australian government especially from those who have lived most of their lives here but needed to leave due to character issues.

However, the message of this case is clear – the law may be harsh for criminal offenders, but it certainly looks at the mitigating factors once presented properly in Court especially when the affected person is impacted by his visa conditions.  Fighting a legal battle like this without a legal representative who is versed with both the Criminal and Migration Law is a recipe for a disaster.

Although New Zealand citizens are disproportionately affected by the visa cancellations under s 501, the laws equally apply to all non- citizens in Australia.  To avoid visa cancellation and deportation – legal and migration help must be sought.


[1] Eleanor Ainge Roy, “’I was petrified’: The New Zealanders deported from Australia despite decades working there.” The Guardian [online], 08 Sept 2019.

[2] R v Norris; Ex parte Attorney-General (Qld) [2018] QCA 27 [57].

Photo courtesy of Brett Phibbs.