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The Intersection Between Criminal Law and Migration Law in Australia: A Brave New World

As a law firm practicing in a number of unique areas of law, our solicitors are accustomed to navigating our clients not just through their immediate legal issue but also providing relevant advice and assistance in other areas of law.

For example, a criminal law client may seek advice on making a discrimination complaint or an application for parole. Similarly, a migration law client who has been in a car accident may need advice from one of our personal injury lawyers.

However, it is the intersection between criminal and migration law that is becoming the most prevalent crossover in our practice - while also causing significant stress and confusion for our clients.

Over the last 12 months, we have seen record numbers of non-citizens facing deportation and exclusion from Australia subsequent to being charged with a criminal offence. Yes, you read that correctly, a non-citizen can face deportation and exclusion from Australia on the basis of a criminal charge alone!
And no one is immune from this trend, with vulnerable cohorts such as children and refugees also facing risks of deportation and exclusion from Australia following a criminal charge.

Therefore anyone residing in Australia who is not an Australian citizen and who is facing a criminal charge should be concerned about the risk of deportation and exclusion from Australia. Equally, any lawyer representing non-citizen clients in criminal and/or migration law matters needs to be cognizant of the fact that their
client’s visa status and therefore their ability to remain in Australia can change suddenly, often while criminal proceedings are on foot.

Earlier this year Fisher Dore Lawyers presented at the Queensland Law Society’s Criminal Law Conference on the increasing trend of visa cancellations pursuant to ss116(1)(e) and 501 of the Migration Act 1958 (Cth). It was apparent from discussions during the Criminal Law Conference that significant uncertainty
remains amongst legal practitioners as to the intersection between criminal and migration law and how best to approach a “crimmigration” matter. There is also limited publicly available information on the issue, to separate the facts from the myths.

For these reasons, over the coming months, Fisher Dore Lawyers will publish a blog series that explores the myriad of issues that arise when criminal and migration law overlap. Because of our firm’s relevant expertise in these areas of law we are uniquely placed to shed light on the key issues.

The blog series will consider a criminal law matter from start to finish and how migration law, specifically the operation of ss116(1)(e) and 501 of the Migration Act (Cth) 1958, can impact how a non-citizen client interacts with the criminal justice system. The blog series will also consider the specific issues faced by non-citizen children and non-citizen
refugees when criminal and migration law intersects.

In particular, we will be publishing posts on the following topics:

· Visa cancellation processes under ss 116(1)(e) and 501 of the Migration Act 1958 (Cth) and recent trends with respect to cancellations

· Ascertaining clients’ visa and citizenship status

· Preparing non-citizen clients for a bail hearing, sentence, and criminal trial

· Representing non-citizen children and refugee non-citizens in criminal proceedings

· Visa cancellations and the impact on parole

· Criminal convictions and the impact on clients’ ability to acquire and retain Australian citizenship

· Frequently asked questions and conclusions

Watch this space for further blogs on this ever evolving topic.

Article by Davina Wadley, Head of Human Rights, and Caitlin White, Migration and Parole Solicitor.


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