A criminal justice visa allows a person who is not an Australian citizen or a valid visa holder and is accused of a crime or otherwise required for the criminal justice process to remain or arrive in the country while the proceedings are taking place, without fear of being detained or deported.
Here is an outline of the rules when it comes to criminal justice visas in Australia.
Who can be issued with a criminal justice visa?
A criminal justice visa grants permission on temporary basis to those involved in criminal proceedings who are not otherwise legally permitted in Australia to stay or return pending the finalisation of criminal cases.
These special purpose visas will normally be issued for:
- Defendants in criminal cases, and
- Witnesses who are required to attend court to testify in a defended hearing or jury trial.
How is a criminal justice visa obtained?
For criminal cases within New South Wales, either the New South Wales Police Force of the Office of the Director of Public Prosecutions (NSW) will need to certify that the person is required in Australia.
This certification comes in one of two forms:
- An entry certificate – which is for persons who are outside the country, or
- A stay certificate – which is for those who are within Australia.
Such a certificate will normally only be issued after the expiry of a valid visa.
A person is not permitted to apply for a criminal justice visa on their own accord.
The Department of Home Affairs will then decide whether or not to issue a criminal justice visa.
There are two types of criminal justice visas that can be issued by the Department of Home of Affairs:
- A criminal justice entry visa – where a person has left the country, and
- A criminal justice stay visa, where a person is already here.
A person who is in prison custody without a valid visa and successfully applies for bail will need a criminal justice visa to prevent being taken into immigration detention.
Can a criminal justice visa be rejected?
The Department of Home Affairs has the final say as to whether a criminal justice visa will be issued.
The most common reason for refusal is concern for public safety, although the department has discretion in that regard.
Can I work whilst on a criminal justice visa?
Those who are issued with a criminal justice stay visa are permitted to work, while those with a criminal justice return visa are not.
If a person is unable to work, NSW Police and/or the ODPP will arrange for 'subsistence payments' so that a person can meet living expenses.
This is paid out by Centrelink on a fortnightly basis.
To apply for these payments, the criminal justice visa holder will need to provide the CDPP with a statutory declaration setting out:
- that they are without means of support,
- their financial and domestic circumstances – including whether they have any dependents
- all sources of income,
- all assets (whether in Australia or overseas),
- any additional means of financial support, including by a partner or family member,
- where claims for medical or dental expenses are made, the medical or dental condition involved and why these treatments were reasonably necessary for managing the condition, and;
- any other relevant information.
Certain refunds are also available for any medical expenses incurred whilst on a criminal justice visa.
When does a criminal justice visa expire?
A criminal justice certificate and visa will be cancelled when the holder is no longer required to be in Australia for the criminal justice process.
This is a decision made by either the New South Wales Police Force or the Office of the Director of Public Prosecutions.
The relevant body will also normally book the return travel from Australia for witnesses who are no longer required in the country.
Those on stay visas who are subsequently acquitted, have served their prison time or released on parole will have their visas cancelled.
Going to court for a criminal offence?
If you are facing court over a criminal offence and currently on a criminal justice visa, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first consultation with a specialist criminal defence lawyer who is vastly experienced in representing clients in criminal matters and has a proven track record of producing exceptional outcomes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.