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Deportation and sentencing: an emerging area of jurisprudence

Procedural justice Criminal law Sentencing Visas Deportation Victoria

In 2014, the federal government amended the Migration Act 1958 (Cth) so that anyone sentenced to 12 months’ imprisonment or more must have their visa cancelled. As a result, the number of visas across Australia that are cancelled each year under these ‘character test’ provisions has increased from about 100 to 1,000.

Australian courts are increasingly grappling with whether an offender’s future deportation should affect the sentence imposed, and if so, to what extent.

The report finds that, in Victoria, an offender’s potential deportation could be taken into account in sentencing in four ways:

  1. it could be considered an extra-curial form of punishment
  2. the prospect of deportation may cause anxiety, making the offender’s time in prison more burdensome
  3. it may result in reduced prospects of parole eligibility (though legislation in Victoria prohibits sentencing courts from taking this into account)
  4. the reduced prospects of parole eligibility may cause anxiety, making the offender’s time in prison more burdensome.

The report also identifies three key issues that may benefit from further judicial guidance:

  1. the test that sentencing courts should apply in determining the likelihood of an offender’s deportation if the sentence will trigger mandatory visa cancellation
  2. the steps in the visa review process that can permissibly constitute ‘fresh evidence’ on which to base a sentence appeal
  3. whether an offender’s anxiety about reduced prospects of parole is a permissible consideration.
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