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The Morrison Government is, for the third time, trying to pass new laws in relation to visa cancellations of people who live in Australia.

Currently, the Department of Home Affairs (DOHA) has the power to cancel a visa if the visa holder does not pass what’s known as ‘the character test’ under section 501 of the Migration Act 1958 (Act). The Minister for Immigration Citizenship and Multicultural Affairs (the Minister) or one of his delegates, can make this decision. A person whose visa has been cancelled pursuant to section 501 by a delegate, can apply to the Administrative Appeals Tribunal (AAT) to have that decision changed.  The AAT cannot review decisions made by the Minister personally.

Section 501 of the Actlists reasons why someone may fail the character test, examples of which include:

  • the person has a substantial criminal record;
  • the person may represent a danger to the Australian community;
  • the Minister is satisfied the person is not of good character due to their past and present criminal or general conduct.

Section 501(3A) states that a visa must be cancelled if the visa holder has been sentenced to 12 months or more imprisonment, or has been found guilty of a sexually based crime involving a child. The visa holder must also be serving a full-time custodial sentence. This is a mandatory cancellation (i.e. there is no discretion imbued on the Minister of their delegate). A mandatory cancellation may be revoked by a delegate of the Minister or the AAT if they are satisfied the person does in fact pass the character test or where there is another reason to revoke the decision to cancel the visa. If a mandatory cancellation is revoked by a delegate or the AAT, the person whose visa was cancelled will get their visa back. The Minister then has the power to overturn this decision to give the visa back. 

The scope of the current migration framework already attracts significant criticism in relation to its broad scope (see our previous article, What’s the Crack with Novak Djokovic), but the Migration Amendment (Strengthening the Character Test) Bill 2021 (the Bill) that is currently being debated, is set to broaden the grounds for mandatory cancellation even further, “…to such an extent that a child could be subject to indefinite detention or deportation for sharing an intimate image of their girlfriend or boyfriend, or for shoplifting.”  (Submission into the Migration Amendment (Strengthening the Character Test) Bill 2018 – Refugee Council of Australia, 2018). Indeed, whilst the Explanatory Memorandum to the Bill states that it is intended to target those individuals who commit very serious offences, for example, organised crime, murder, sexually assault and burglary, those offences are already captured in the existing character test.

The following are probably the most concerning changes proposed.

Possible Sentences

The Bill is drafted in such a way that people will automatically fail the character test because of a possible court sentence, rather than what they actually receive. Not only does this remove context and the actual seriousness of the relevant offence, both of which are taken into consideration by a court in sentencing, but many offences that carry potential sentences of two years or more are not serious at all, including shoplifting, teenagers sharing intimate images with their partner and verbal threats. Those who have committed these offences would fail the character test proposed under the Bill, even if a judge decided not to impose a prison sentence at all.

Remember, this Bill increases the scope for mandatory cancellation; visas will be cancelled ‘automatically’, there is no decision making involved. Scarily, this generic approach will necessarily result in a lack of distinction between very serious offenders, like, (for example) a recidivous rapist and trivial offences like a teenager who shoplifts a Mars Bar.

Vulnerable People

As alluded to above, the Bill does not prescribe or offer any guidance in relation to any higher threshold or special treatment of children. Despite this, the Explanatory Memorandum actually demonstrates that consideration has been given to the fact that children will be subject to indefinite detention or removal from Australia as a direct result. The Bill is therefore in direct contravention of Australia’s international obligations in relation to the treatment of children, which obligations do not permit the immigration detention of children at all. 

For refugees, who are already at a disproportionate risk of poverty and are so forced into situations where they commit crimes of necessity (like shoplifting for food) the risk of indefinite detention is amplified; as they cannot be forced to return to another country without Australia being in breach of their international legal obligations in relation to refoulement. Thus, this Bill may result in an increase in the cancellation of visas held by people who cannot be returned to their home country causing them to be detained indefinitely. 

Family/Friends/Associates of Visa Holders

This Bill also extends to include the family (e.g. spouses), friends and associates of visa holders, if they too hold a visa. It does this by including anyone who ‘aids and abets’, induces or is “in any way (directly or indirectly) knowingly concerned in, or a party to” (emphasis added) any of the offences subject to visa cancellation. The breadth of this is quite unusual and arguably unjust.

Summary

Whilst the Bill, if made law, will make it easier for DOHA to cancel visas, it won’t necessary made it easier to remove those who have their visa cancelled.

However, because more crimes and more people will be subject to mandatory visa cancellation if the current iteration of the Bill is made law, the Bill will cause more people to be in immigration detention, both indefinitely (because they cannot be returned to their home country and/or cannot appeal because the Minister made the decision personally) and fighting for revocation of the decision. The cost of keeping people in indefinite immigration detention, for years, is extraordinarily high already, and set to be even higher if this Bill is made law. 

This will make an already broken system even more broken and set Australia back even further in relation to its international obligations. All for a Bill that’s disproportionate and unnecessary.

Article by

Katie Wren

Senior Lawyer

kw@msmlegal.com.au

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Disclaimer: The contents of this article are for reference purposes only. The contents do not constitute legal advice and should not be relied upon as such. Specific legal advice about your personal circumstances should always be sought separately before taking any action based on this publication or otherwise.

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