由于犯罪记录要被取消签证怎么办?

如果你在澳洲上了法庭败诉了,那么你的签证可能受到影响,就算是像交通违章这样的小事情,也可能被法庭定罪conviction. 而且交通违章如果上法庭的话,一般只有定罪(conviction) 和无罪两个选择,没有guilty without conviction 这个选择。 一旦你被定罪了。澳洲移民局就会收到法院的alert ,很可能给你发NOICC. 一般是根据s116(1)(g) 来取消你的签证。

116 Power to cancel
(1)
Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)
the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

(aa)
the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

(b)
its holder has not complied with a condition of the visa; or

(c)
another person required to comply with a condition of the visa has not complied with that condition; or

(d)
if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

(e)
the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i)
the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii)
the health or safety of an individual or individuals; or

(f)
the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

(fa)
in the case of a student visa:

(i)
its holder is not, or is likely not to be, a genuine student; or

(ii)
its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

(g)
a prescribed ground for cancelling a visa applies to the holder.

MIGRATION REGULATIONS 1994 – REG 2.43

Grounds for cancellation of visa (Act, s 116)

(oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)–that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));

但是如果你没有被定罪,拿到的是guilty without conviction 这个判决,或者原来法院的定罪被上诉推翻了,那么这个s116(1)(g) 取消你签证的法律条款就不再适用了。

移民局仍然可以以s116(1)(e)来给你发NOICC

(e)
the presence of its holder in Australia is or may be, or would or might be, a risk to:

但是这种情况就可以argue 申请人对澳洲没有造成风险,或者将来不会有风险。 这种NOICC 就比前一种根据s116(1)(g)发出的NOICC容易解决。

如果很不幸收到了根据s116(1)(g)发出的NOICC,并且你也被法院定罪,且不准备上诉。 那么可以参考 Jabarjeet Singh (Migration) [2022] AATA 3653 (6 September 2022), 这个客户也是交通违章, 一个是不配合警察测酒精,被罚款$650, 一个是酒后驾驶,被罚款$1500, 最后保住了他的485签证。

 

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