Yukio Hayashi 08 Mar 2018
Q: I am an office worker and was dispatched from Japan on a 457 visa last year. Just recently, I hit a man whilst under the influence of alcohol and was charged with actual bodily harm. My friend told me that if I were found to be guilty then my visa may be cancelled, is this true? (25-year-old office worker, male)
A: Recently, the Department of Immigration has been cancelling visas easily in relation to those kinds of cases. Late last year, the Department of Home Affairs was established with the Department of Immigration alongside the Australian Security Intelligence Agency, Federal Police and Federal Prosecutors apart from the Department, making the Australian federal government’s idea of immigration more focused with regards to security. In this column, the term ‘Department of Immigration’ will be used.
Per section 501(2)(a) of the Migration Act (1958), “the Department of Immigration may cancel the visa if the visa holder fails the ‘character test’ as seen in s501(6)”.
The visa holder may fail their character test if they commit a serious crime such as murder or terrorism and additionally under s501(6)(c), “the visa holder may be disqualified if considering the past and current criminal acts and past general actions, he or she is considered to not be of Good Character”. Therefore, whether the individual is of Good Character or not is dependent on the discretion of the Department of Immigration. Let us look at the example below.
A man on a working visa got into a fight with another person and with a knife injured the other person's hand, leaving a 1 cm injury. The individual was charged with Reckless Wounding and was not able to argue that it was out of self-defence. Although Reckless Wounding has a maximum sentence of seven years, the judge stated that there was room for consideration and sentenced him with a $600 fine and a nine -month Good Behaviour Bond which is considered to be a very light sentence. However, for that reason, the individual's visa was revoked for having Bad Character and he was forcibly taken to a Detention Centre.
With regard to this individual, if he are found to be guilty, as described above, the visa will most likely be cancelled. Even if found guilty and the visa is revoked, depending on the Department of Immigration’s decision, it may be appealed at the Administrative Appeals Tribunal. In some cases, the visa cancellation can be nullified.