What are migration offences by non-citizens?
Australia is a country that prides itself on its multiculturalism, welcoming people from all over the world to call it home. However, when non-citizens commit offences relating to migration, the country’s stance on crime and punishment becomes a complex issue.
The Australian government has a low tolerance for criminal, non-compliant, or fraudulent behavior. This article will tackle sections 234 until 236 of the Migration Act 1958 covering the kinds of punishable acts, its punitive effects, and the penalties for each offence.
Migration Offences by Non-citizens: False Documents and Statements
Section 234 imposes a period of imprisonment for 10 years or 1,000 penalty units, or both if a person commits offence of providing false or misleading documents, in connection with –
- the entry, proposed entry or immigration clearance of a non-citizen into Australia, or
- an application for a visa or a further visa permitting a non-citizen to remain in Australia.
The prohibited acts are the following:
- When such person presents to an officer or an authorised person a forged or false document;
- When such person makes a statement to the officer or an authorised person that, to his or her knowledge, is false or misleading in a material particular;
- When such person delivers or furnishes to an officer or an authorised person a document containing false or misleading statement or information. Moreover, such document is for official purposes of the Commonwealth.
Furthermore, a person is not allowed to give away or part with possession of a document with the intention that it be used to help someone:
- to enter Australia, stay there, or get their immigration clearance, or
- if they have reason to believe that it might be used in that way.
Migration Offences by Non-citizens: Aggravated Offence Under Section 234
The prohibited acts under section 234 can be aggravated by certain acts under section 234A. When a person who commits the offences under the previous section, in connection with following acts, causes the offences to be aggravated:
- the entry or proposed entry into Australia, or the immigration clearance, of a a group of 5 or more non-citizens; or
- an application for a visa or a further visa permitting a group of 5 or more non-citizens to remain in Australia.
The penalty for an aggravated offence of false documents and false or misleading information relating to non-citizens is an imprisonment for 20 years or 2,000 penalty units, or both.
Also, if a person gives away or parts with possession of a document with the intention that it be used to help a group of 5 or more non-citizens, an aggravation of the offence results. The same penalty is imposed for this act.
Migration Offences by Non-citizens: Offences in Relation to Work
Section 235 enumerates the offences that a non-citizen may commit in relation to work:
- If a non-citizen holds a temporary visa contravenes its prescribed condition restricting the work that he or she may do in Australia,
- An unlawful non-citizen who performs work in Australia whether for reward or otherwise, and
- If there is a criminal justice certificate or criminal justice stay warrant about a non-citizen and such person does any work in Australia, whether for reward or otherwise. However, this section is not applicable if the non-citizen holds a criminal justice stay visa.
Furthermore, this section imposes on the part of the defendant to bear the evidential burden in relation to that matter.
Take note that these offences are offences of strict liability. But what is strict liability? Strict liability offences are crimes for which it is not necessary to establish the offender’s negligence, knowledge, or purpose of committing an offence. The defining feature of a strict liability offence is the absence of any requirement of intention. In other words, the accused need not have intended to commit the crime.
Migration Offences by Non-citizens: Offences Relating to Visas
Listed under this section 236 are the migration offences by non-citizens relating to visas. A person commits an offence if:
- The person uses a visa with the intention of travelling to or remaining in Australia or identifying himself or herself when the visa used is a visa that was granted to another person.
- The person has a visa in his or her possession or under his or her control and the visa used is a visa not granted to such person.
What if a person is convicted with these offences? The offender is liable to imprisonment for 10 years or 1,000 penalty units, or both. Moreover, the defendant here bears the evidential burden to disprove the commission of such offence.
Most Common Migration Offences By Non-citizens
- Breaching visa conditions. Non-citizens can commit migration offences by breaching the visa conditions stipulated in their visa grant letter.
- Overstaying visa. Non-citizens can commit migration offences by overstaying their temporary visa.
- Entering Australia without a valid visa. Anyone who enters Australia without a valid visa is an unlawful non-citizen and is subject to face mandatory arrest and eventual removal unless they receive a valid visa.
- Visa fraud. Non-citizens can commit migration offences by providing false or misleading information in their visa application.
- People smuggling and trafficking. Non-citizens can commit migration offences by engaging in people smuggling or trafficking in persons.
However, in contemporary settings, section 501, which allows the Minister to cancel the permanent visa despite the length of their residency in Australia, is more commonly used.
How Can Migration Lawyers Assist You?
Migration lawyers can assist non-citizens who have committed migration offences in Australia in the following ways:
- Legal representation to non-citizens who are facing migration offences, such as visa fraud or overstaying their visa.
- Migration lawyers can provide advice to non-citizens on their rights and obligations under Australian migration law.
- Giving assistance to non-citizens in applying for visas, including work, partner, and protection visas, even if they have committed migration offences in the past.
- Appealing decisions made by the Department of Home Affairs, such as visa refusals or cancellations due to migration offences.
- Seeking administrative review of decisions made by the Department of Home Affairs related to migration offences.
- Mitigating the impact of migration offences on their immigration status in Australia.
Our immigration lawyers at JB Solicitors can provide valuable assistance to non-citizens who have committed migration offences. We can help them navigate the complex Australian migration system and ensuring the protection of their rights.
Contact us today.