Criminal justice visas
If you witnessed or were accused of a crime while in Australia on a temporary visa and your presence here is needed for the justice process, a special visa is available so you can lawfully return or remain.
It is called a criminal justice visa (CJV) and is also granted on a temporary basis.
For NSW criminal matters, either NSW Police or the ODPP has to certify that you are required in Australia before a CJV can be approved.
They will do this when your original visa has expired, by issuing:
- an entry certificate, if you have already left Australia or
- a stay certificate, which prevents your removal or deportation, if you are still in the country.
These certificates do not make your presence in Australia lawful – that is why a CJV is required.
The Department of Home Affairs (DHA) grants CJVs, on request from an appropriate agency. NSW Police / the ODPP will request a criminal justice entry visa if you have left Australia and have an entry certificate, or a criminal justice stay visa, if you are still here and have a stay certificate.
The agency that issued your certificate is responsible for keeping you informed about the progress / status of your visa.
It is also responsible for the cost of bringing you to, keeping you in, and removing you from, Australia (see ‘What support / work rights are available during the process?’ below).
Contacts for witnesses
If you are on a CJV as a witness, that agency will also answer questions you may have about the legal process, how long you could be here, and your entitlements while here.
If your certificate was issued by NSW Police, the police officer in charge of the matter will provide you with a contact there.
If it was issued by the ODPP, the solicitor conducting the matter is your contact person.
Contacts for accused persons
If you are an accused person on a CJV, you should speak first to your lawyer if you have questions about your visa. If you don’t have a lawyer, ask the police officer in charge for the best person to contact at the agency that issued the certificate.
Police or ODPP?
Whether it is NSW Police or the ODPP that will have issued your certificate depends on a number of factors, including the point in the prosecution at which your temporary visa expired and how serious the matter is.
Generally, as the ODPP takes over the prosecution of serious crimes from police, we are likely to issue certificates when serious matters have passed the investigation stage. NSW Police are more likely to do so during the investigation stage, and will do so for crimes that they will prosecute (which are summary, or less serious, offences).
Whether you are a witness or the accused, if you are living in the community during the criminal justice process, you are entitled to work if you are on a criminal justice stay visa, but not if you are on a criminal justice entry visa.
If you are not working and have no means of support, NSW Police / the ODPP will arrange for what are called ‘subsistence payments’ so you can meet your living expenses. These payments are usually made weekly or fortnightly, at the rate of the unemployment benefit paid by Centrelink.
CJV holders are not eligible for Medicare benefits under Australia’s national healthcare scheme but NSW Police / the ODPP will pay the reasonable costs of managing a medical or dental condition.
Support payments are not available if you are in custody or immigration detention.
To be granted any financial assistance while on a CJV, you will have to provide a statutory declaration that you have no means of support, and which sets out your current financial and domestic circumstances. You will also have to give an undertaking that you will notify NSW Police / the ODPP immediately if your circumstances change, including if you begin paid work.
Medical / dental refunds
If you require medical treatment from a general practitioner (GP) while on a CJV, you can claim a refund if you have the receipt. Receipts and a copy of the prescription are required to claim the cost of medication.
If you require:
- specialist medical treatment
- hospitalisation, for other than an emergency
- dental treatment, for other than an emergency
you will need prior approval from NSW Police / the ODPP to be able to claim any of your costs. You will also be asked for evidence that the treatment is necessary to manage a medical / dental condition.
The DHA does not approve all CJV requests. Visas can be refused, for example, if there are concerns about threats to public safety, or about an individual not leaving the country at the end of the process.
If the DHA refuses you an entry visa, it means you will not be able to return to Australia for the justice process. If you are a witness and this occurs, the police or ODPP will talk to you about whether you can give your evidence remotely.
If you are refused a stay visa, it means your presence in Australia becomes unlawful. The stay certificate will prevent you being removed or deported but you will be taken into immigration detention. (If you are the accused person and are already in prison, you will remain there.)
When you are no longer required for the justice process, the agency that issued your entry or stay certificate must cancel it. This has the effect of immediately also cancelling your visa, making your presence in Australia unlawful.
If you are a witness, the police or ODPP will book your return travel for you and cancel your certificate after your departure.
If you are the accused, your certificate will be cancelled if you are acquitted, or released on parole, or when the non-parole period of your sentence expires.