The Migration Act (1958) consists of Sections on the cancellation of criminal justice visas. These Sections fall under Subdivision E of Division 4 (Criminal justice visas) under Part 2 of the Act. These include:
In this blog, we will explore points in relation to the cancellation of criminal justice visas. But first, let us understand what are criminal justice visas.
Criminal Justice Visas
Section 155 of the Migration Act provides meaning of criminal justice visas. It states that a criminal justice visa:
- may be a visa permitting a non-citizen to travel to and enter, and remain temporarily in Australia – criminal justice entry visa;
- may be a visa permitting a non-citizen to remain temporarily in Australia – criminal justice stay visa
Criminal Justice Certificate
The Commonwealth Director of Public Prosecutions (CDPP) will consider applying for a criminal justice certificate for a witness or person who is facing an offence, and whose presence they need for the criminal justice process. This applies where the person is not an Australian citizen or resident and does not have a valid visa.
The Criminal Justice Certificate can either allow the person to enter (Criminal Justice Entry Certificate) or allow a person to remain (Criminal Justice Stay Certificate) in Australia.
Criminal Justice Stay Warrants
Section 151 of the Act states that if a criminal justice stay warrant about a non-citizen is in force, authorities are not to remove or deport the non-citizen.
Section 162: Cancellation of Criminal Justice Visas
The Section 162 is on the cancellation of criminal justice certificates. Subsection (1) of Section 162 states that if there is no longer a need for the presence in Australia of a non-citizen to whom authorities gave a criminal justice certificate, then:
- in the case that the non-citizen got the certificate under section 145 or 147 – the Minister; or
- in the case that the non-citizen got the certificate under section 146 or 148 – an authorised official;
shall cancel it.
In relation to state, an “authorised official” means a person authorised under Section 144 for the State. This can include:
- The Attorney-General of the state; or
- A person holding office under a law of the State that is like the office of the Director of Public Prosecutions; or
- The highest ranking member of the police force of the State.
Moreover subsection (2) states that before cancelling a certificate given under section 146 or 148, an authorised official is, an adequate time before doing so, to tell the Secretary:
- when it is to be cancelled; and
- the expected whereabouts of the non-citizen when it is cancelled; and
- the arrangements for the non-citizen’s departure from Australia.
Section 163: Stay Warrant to be Cancelled
Subsection (1) states that if
- the presence in Australia of a non-citizen in respect of whom a criminal justice stay warrant has been given is no longer required for the purposes for which it was given; and
- if the warrant is to expire at a certain time – that time has not been reached;
a person entitled to apply for the warrant’s cancellation must apply to the court for the cancellation.
Moreover, subsection (2) states that The applicant for a criminal justice stay warrant in respect of a non-citizen is to tell the Secretary a reasonable time before the warrant expires:
- the time it will expire; and
- the expected whereabouts of the non-citizen at the time of expiry; and
- the arrangements for the non-citizen’s departure from Australia.
Subsection (3) of Section 163 states that an applicant for the cancellation of a criminal justice stay warrant is to tell the Secretary, as soon as practicable:
- the time of cancellation for which application will be made; and
- if the time of cancellation is different from that applied for, the time of cancellation; and
- the expected whereabouts of the non-citizen at the expected time, and if the above point applies, the time of cancellation; and
- the arrangements for the non-citizen’s departure from Australia.
Section 164: Effect of Cancellation Etc on Criminal Justice Visas
Section 164 outlines the effects of cancellation of criminal justice visas. It states that in case of:
- cancellation of a a criminal justice certificate; or
- cancellation or expiration of a criminal justice stay warrant
then this results in cancellation of any criminal justice visa that is in effect because of the certificate or warrant, and the Minister is to make a record of the cancellation.
Seeking Legal Advice from Migration Lawyers Sydney
Australian immigration law is quite complex. There are various matters that fall under immigration law and this can include making visa applications, appealing decisions of the Department of Home Affairs (DHA).
Our migration lawyers at JB Solicitors have a wealth of experience in dealing with different migration law cases. Our team can provide advice for difficult visa applications, and we can assist you with making error-free applications.
For more information on cancellation of criminal justice visas, or any other topic, do not hesitate to reach out to our friendly and experienced team of solicitors today.
Contact us here.
