Non-citizens and arrest 

Getting arrested and charged can have more serious consequences for people who are not Australian citizens. In general, the risk will be greater if you are on a short-term visa than if you are a permanent resident. 

You should seek immigration advice from a lawyer before participating in arrestable actions to understand the requirements of your particular visa. 

Australian visa-holders: 

If you’re on a visa, you can be “removed” from Australia because you no longer meet the “character test” or because you have breached a condition of your visa. Each person might have different conditions attaching to their visa so they should be aware of them and how they might be affected by participation.

Breaching a condition: It is important to check the conditions of your visa before determining whether you attend an action because it may include a “you must not engage in criminal conduct” clause. You can check your visa conditions here.

Anyone on a bridging visa is very vulnerable and even a charge could be significant and result in cancellation of the visa. Student visas are temporary visas so are also vulnerable to cancellation as well, but this is less likely for minor charges.

Character test:

In order to continue holding your Australian visa you need to uphold the requirements of the “character test.” Some relevant requirements you should consider before taking part in an action may include that: 

  1. You do not have a “substantial criminal record”. However, this criteria is unlikely to be met by general engagement with non-violent direct activism. For example, in 2015, Immigration Minister, Peter Dutton, removed approximately 600 people who had been convicted of violent crimes and drug trafficking.

  2. You are not or have not been a member of a group or organisation, or had or have an association with a person, group or organisation that the Minister reasonably suspects of being involved in criminal conduct. 

If you are removed from Australia after your visa has been cancelled on character grounds, you will be permanently ruled out from being given another visa to enter Australia. 

Also note that under the Bail Act, the police must consider imposing, as a condition of bail, that you surrender your current passport and also prohibit you from applying for a passport until you have been sentenced. This is to ensure you will appear in court. The same does not apply for Australian citizens or permanent residents. 

Permanent residents: 

If you’re a permanent resident of less than 10 years, you can be “deported” if you have been convicted of serious crimes and received a prison sentence of 12 months, or you are considered to be a threat to the security of Australia. 

“Serious crimes” are more likely to include violent crimes and drug trafficking than they are crimes related to civil disobedience. “Security” of Australia is defined in the Australian Security Intelligence Organisation Act 1979 to include protection from espionage, sabotage and politically motivated violence.

The 12 month mandatory cancellation is cumulative so, if you received a 6 month term of imprisonment and subsequently received another 6 months, this would trigger the cancellation.

Note that the more draconian “character test” power does give the Minister the power to cancel permanent visas under the Migration Act and this has been used increasingly by Ministers where they believe the “public interest” is being served. 

BE AWARE:

  • If you do receive a letter from the department with an intention to cancel your visa, you can appeal this but you should check the dates carefully because appeal limitations at the Administrative Appeals Tribunal have a quick turn-around. 

  • Any charges may affect future applications for visas as well.