What Can Happen to Your Visa if You Commit a Serious Crime in Australia?
Many visa holders in Australia believe that criminal penalties end once a court sentence is completed. However, for non-citizens, a serious criminal conviction can also have significant migration consequences.
Under Australian migration law, committing a serious crime can lead to visa cancellation, immigration detention, and removal from Australia. In some cases, this can happen even if the person has lived in Australia for many years or holds permanent residency.
This article explains what the law says and what can happen if a visa holder commits a serious offence in Australia.
The Character Test Under the Migration Act
The main legal provision governing visa cancellation for criminal conduct is section 501 of the Migration Act 1958 (Cth).
Under this section, the Minister for Home Affairs has the power to refuse or cancel a visa if a person does not pass the “character test.”
A person may fail the character test if they have a substantial criminal record, are involved in criminal conduct, or pose a risk to the Australian community.
One of the most common ways a person fails the character test is through a substantial criminal record.
What Is a “Substantial Criminal Record”?
A person is considered to have a substantial criminal record if they have been sentenced to:
- 12 months or more imprisonment, or
- multiple sentences that add up to 12 months or more.
This threshold is important because once a sentence reaches 12 months, migration consequences are very likely to arise.
Importantly, the rule applies regardless of:
- how long the person has lived in Australia
- whether they hold permanent residency
- whether they have a job, partner, or family in Australia.
Mandatory Visa Cancellation
In certain situations, visa cancellation is automatic.
Under section 501(3A) of the Migration Act, a visa must be cancelled if:
- the person does not pass the character test because of a substantial criminal record, and
- the person is serving a full-time prison sentence at the time.
This is known as mandatory visa cancellation.
In these situations:
- there is no hearing before cancellation,
- the person is not asked for submissions first, and
- the visa is cancelled by operation of law.
The person is usually notified of the cancellation while they are still in prison.
What Happens After the Prison Sentence?
When the criminal sentence ends, many people expect to be released.
However, if their visa has been cancelled, they will normally be taken into immigration detention.
Under the Migration Act, a person without a valid visa must be detained until they are either:
- granted another visa, or
- removed from Australia.
Some people remain in immigration detention for months while their immigration matters are resolved.
Can a Person Challenge the Cancellation?
A person whose visa has been cancelled under section 501(3A) may apply for revocation of the cancellation.
The key legal question is:
Is there another reason why the visa cancellation should be revoked?
Decision-makers must consider several factors, including:
- the protection of the Australian community
- the nature and seriousness of the offence
- the risk of reoffending
- any history of family violence
- the person’s ties to Australia
- the best interests of minor children
- hardship if the person is removed from Australia.
These factors are guided by Ministerial Direction No. 110, which sets out how decision-makers must weigh the relevant considerations.
Protection of the Australian Community
One of the most important principles under the Direction is that the protection of the Australian community is the highest priority.
This means that if the offence is particularly serious—such as violent crime, sexual offences, or offences causing death or serious injury—the decision-maker may place very significant weight on community protection.
Even where a person has family in Australia or has lived in Australia for a long time, those factors may not outweigh the seriousness of the offence.
What If Revocation Is Refused?
If the cancellation is not revoked, the person will remain in immigration detention until they are removed from Australia.
Removal can lead to further consequences, including:
- long-term exclusion from returning to Australia
- restrictions on applying for future visas
- separation from family members living in Australia.
In many cases, the migration consequences of a serious offence can have long-lasting effects on a person’s life and future opportunities.
Key Takeaway
For visa holders in Australia, committing a serious criminal offence can have consequences far beyond the criminal justice system.
A prison sentence of 12 months or more can trigger:
- automatic visa cancellation
- immigration detention after prison
- removal from Australia.
For this reason, visa holders should understand that criminal conduct may affect not only their liberty, but also their ability to remain in Australia.
