What is a Criminal Justice Visa?
A Criminal Justice Visa (CJV) is a special class of temporary visa, created to ensure that a person can be brought to or allowed to remain in Australia if the administration of criminal justice in Australia requires their presence. Practically speaking, a CSV enables non-citizens to lawfully enter or stay in Australia when they are required for the purpose of a criminal investigation, or judicial processes such as appearing at a hearing or a trial either as a defendant or a witness, or for imprisonment relating to an offence.
How are CJVs Issued?
The statutory scheme for CJVs is primarily set out in the Migration Act 1958 (Cth). There are two forms of CJVs created by the Act: a ‘Criminal Justice Entry Visa’ and a ‘Criminal Justice Stay Visa’. A Criminal Justice Entry Visa will permit a non-citizen to travel to, and enter and temporarily remain in Australia, and a Criminal Justice Stay Visa will permit a non-citizen who is already in Australia to remain temporarily until the relevant proceedings have been finalised. However, given they are tied to the particular individual’s role in the proceedings (for example, as a witness rather than a defendant), they may only remain in place for the part of the proceedings in which the witness is actually required.
A ‘Criminal Justice Certificate’ in the form of either an ‘entry certificate’ or a ‘stay certificate’ is a prerequisite to the grant of a CJV. These certificates are issued by an appropriate law enforcement or prosecuting authority (such as a State or Territory Police Service, Office of the Director of Public Prosecutions or Office of the Commonwealth Director of Public Prosecutions) to certify that the non-citizen’s presence is required for a criminal justice purpose.
A non-citizen cannot apply for the CJV in the usual way one applies for another form of visa. Once a certificate has been issued by an authority the decision as to whether a CJV will be issued is made by the Minister for the Department of Home Affairs. The Minister must consider a limited list of factors (the safety of individuals and the public, arrangements to ensure the person can be removed from Australia if entering on an entry visa, and any other relevant matters) and must decide, in the Minister’s absolute discretion, that issuing the visa is appropriate.
A decision by the Minister to refuse to issue a CJV is not reviewable before the Administrative Appeals Tribunal, due to the absence of any formal visa application by the individual non-citizen. However, the individual may seek judicial review in a court if they allege a jurisdictional error in how the Minister or their delegate made the decision.
What happens once a CJV has been issued?
Once a CJV has been issued, the non-citizen may then travel to and enter and remain in Australia while it is in effect. Once a CJV is granted, the person is typically allowed to live in the community (rather than custody) for the duration of their required stay. If the non‑citizen is in immigration detention, the CJV entitles the non‑citizen to be released from that detention.
The agency which requested the CJV is responsible for keeping the Department of Home Affairs informed of the progress of the criminal case and must advise when the person’s presence is no longer required (which triggers cancellation of the visa).
A criminal justice visa for a person does not prevent the non‑citizen leaving Australia, however there may be other orders in place which require the person to remain in Australia or otherwise restrict their freedom of movement (e.g. bail conditions).
Costs and Support while on a CJV
It is the responsibility of the agency that sought the visa to address the welfare and costs of bringing the non-citizen to Australia, maintaining them while they are in Australia, and removing them at the conclusion of the proceedings. The Migration Act requires satisfactory arrangements to have been made as a precondition to issuing a certificate.
For example, the Commonwealth Director of Public Prosecutions (CDPP) police is where a witness or defendant on a CJV has no means of support, and they are not in custody, the CDPP will pay “the reasonable costs of supporting a person while they are in Australia [and] the reasonable costs of managing a medical or dental condition.” The CDPP requires a statutory declaration from the CJV holder setting out their assets and financial circumstances and supports, as well as evidence of any relevant medical or dental conditions before these subsistence or medical payments will be made.
Can I work in Australia while on a CJV?
The Migration Act specifies that the holder of an Entry CJV must not do any work in Australia, whether for reward or otherwise. This does not include work for the purposes for which there is a criminal justice certificate or criminal justice stay warrant about the non‑citizen, including, if those purposes are or include the imprisonment of the non‑citizen, work as a prisoner.
However, the holder of a Stay CJV does permit the non-citizen to work while they remain in Australia.
Typical scenarios where a CJV will be issued: Witnesses
The most common use of CJVs is to enable crucial witnesses (including victims) who are non-citizens to participate in Australian criminal proceedings. For example, where a tourist in Australia witnesses a serious crime (or is a victim of a crime) and then leaves the country, or their visa expires (or is expected to expire) before the trial. A CJV (specifically an entry visa) can be issued to bring that witness back to Australia temporarily to give their evidence lawfully. Separate legal processes with different requirements and considerations are available which may enable a witness in this category to give their evidence via audio-visual link from a foreign country (e.g. mutual assistance applications). If a non-citizen is already in Australia on a short-term visa that is about to expire, a stay CJV can ensure they remain lawfully until they provide their evidence.
Typical scenarios where a CJV will be issued: Accused Persons and Defendants
A non-citizen may be accused of a crime in Australia and have no valid visa or their visa expires or is cancelled prior to the conclusion of their matter. Typically, when a person’s visa is cancelled or has expired, they would become an unlawful non-citizen and be subject to immigration detention and removal. However, if that person is facing criminal charges in Australia, the justice system requires their presence (for court appearances, trial, and potentially imprisonment). In these cases, a criminal justice stay visa can be granted to allow the accused to remain in the community (or at least in the country) while their case is pending.
Can you apply for another type of visa while on a CJV?
A holder of a CJV may not apply for any other form of visa, other than a protection visa. If a CJV is cancelled and the non-citizen remains in Australia, they may only apply for a protection visa.
