Introductory Info

Date introduced: 4 July 2019
House: House of Representatives
Portfolio: Immigration, Citizenship, Migrant Services and Multicultural Affairs
Commencement: The day after Royal Assent.

History of the Bill

The Migration Amendment (Strengthening the Character Test) Bill 2018 (2018 Bill) was introduced into the House of Representatives on 25 October 2018. The Bill was not debated, and lapsed at the dissolution of the 45th Parliament on 11 April 2019.[1]

The present Bill was introduced into the House of Representatives on 4 July 2019, and is in identical terms to the 2018 Bill.

A Bills digest was prepared in respect of the 2018 Bill.[2] Much of the material in the present Digest has been sourced from that earlier one.

Purpose of the Bill

The purpose of the Migration Amendment (Strengthening the Character Test) Bill 2019 (the Bill) is to amend the Migration Act 1958 (Cth) (the Act) to specify that a person does not pass the character test—and may have their visa cancelled or visa application refused—if they have been convicted of a ‘designated offence’.

Background

Character test

Section 501 of the Act applies a ‘character test’ to all non-citizens holding or applying for an Australian visa. Under this provision, if the Minister or a delegate is not satisfied that a non-citizen passes the ‘character test’ they may—and in some cases must—cancel or refuse to grant a visa to the person.[3]

Subsection 501(6) specifies the circumstances in which a person does not pass the character test. These currently include where the person:

• has a ‘substantial criminal record’
• has been convicted of an offence committed in, or in connection with, immigration detention
• is reasonably suspected to have been a member of, or had an association with, a group or person involved in criminal conduct
• is reasonably suspected to have been involved in people smuggling, people trafficking, or crimes of serious international concern
• is not of good character, based on their past and present criminal conduct and/or general conduct
• is considered at risk of: engaging in criminal conduct in Australia; harassing, molesting, intimidating or stalking another person; vilifying a segment of or inciting discord in the Australian community; or otherwise representing a danger to the Australian community
• has been convicted of sexually based offences involving a child or
• has been assessed by ASIO as a direct or indirect risk to security.[4]

The character test, in one form or another, has been in the Act since 1992.[5] In 2014, the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) broadened the grounds on which a person will fail the character test and introduced mandatory cancellation provisions.[6]

Cancellation of a person’s visa is mandatory if they are serving a prison sentence and they have a substantial criminal record or have been convicted of sexually based offences involving a child.[7] A person has a substantial criminal record for the purposes of mandatory visa cancellation if they have been sentenced to imprisonment for life or to a term of imprisonment of 12 months or more.[8]

In all other cases, when a person does not pass the character test, the decision whether to cancel or refuse to grant a visa is a matter for the decision maker’s discretion. Ministerial Direction No. 79 sets out binding considerations for decision-makers in exercising this discretion.[9] It emphasises the principle of protecting the Australian community, and requires decision-makers to give primary consideration to:

• the nature and seriousness of the non-citizen’s conduct to date
• the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
• whether the cancellation or refusal is in the best interests of any minor children in Australia affected by the decision
• expectations of the Australian community.

Secondary considerations that must be taken into account, when relevant, include whether international non-refoulement obligations arise; the strength, nature and duration of the person’s ties to Australia; the impact of the cancellation or refusal on Australian business interests and/or on members of the Australian community (such as victims of the non-citizen’s criminal behaviour); and the extent of any impediments the non-citizen may face if removed.[10]

Direction No. 79 commenced on 28 February 2019 and replaced the previous Direction No. 65. While the new Direction is not significantly different to the former one, it now provides that in considering the nature and seriousness of the non-citizen’s criminal offending and other serious conduct, decision-makers must have regard to (amongst other matters) ‘the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’.[11]

Appeals

Where a visa is mandatorily cancelled, the visa holder has 28 days to apply to have the cancellation revoked.[12] If the request for revocation fails, and the decision was not made personally by the Minister, the person may seek merits review in the Administrative Appeals Tribunal (AAT). Similarly, a discretionary visa refusal or cancellation made by a delegate (but not by the Minister) may be reviewable by the AAT.[13]

Character decisions made by the Minister are subject only to judicial review by the Federal Court.[14] The Minister also has the power to set aside a decision of the AAT and refuse or cancel a visa in the national interest.[15] The AAT reported that of 166 character-related visa matters finalised by the Tribunal in the 2016–17 financial year, the decision under review was varied or set aside in 29 cases.[16]

Statistics and review

Statistics released by the Department of Home Affairs show that visa cancellations on character grounds have increased by over 1,400 per cent between the 2013–14 and 2016–17 financial years, as a result of the introduction of mandatory cancellations in 2014.[17] A breakdown of cancellation and refusal decisions from the last four years shows that the vast majority of cancellations are resulting from these mandatory cancellations provisions.

Table 1: visa decisions

Source: Department of Home Affairs,Submission to Joint Standing Committee on Migration, Inquiry into review processes associated with visa cancellations made on criminal grounds, [Submission no. 29], 11 May 2018, p. 4.

These figures include cancellations and refusals subsequently overturned by the Department (in relation to a request for revocation of a mandatory cancellation) or by the AAT on review. The Department has reported that in the 2016–17 financial year, approximately 78 per cent of the 1,234 non-citizens whose visas were mandatorily cancelled sought revocation of the decision. Of these, a decision was made to revoke the cancellation in approximately 35 per cent of cases.[18] More than 800 non-citizens had their visas cancelled for serious crimes in 2018.[19]

Committee report on migrant settlement outcomes

In his second reading speech, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, David Coleman described the Bill as strengthening the current legislative framework for character-based visa refusals and cancellations.[20] This echoed his second reading speech for the 2018 Bill, in which he explained:

Currently, a noncitizen would need to be sentenced to a minimum of 12 months in order for mandatory cancellation or refusal of their visa. However, this threshold is not capturing all those found guilty of serious criminality, including those who may not serve any custodial sentence and who may pose a continued risk to the safety of the community. This bill proposes that noncitizens who have been convicted of certain designated crimes be considered for discretionary cancellation or refusal regardless of the custodial sentence imposed.[21]

Minister Coleman cited findings by the Joint Standing Committee on Migration in its 2017 report on migrant settlement outcomes: No One Teaches You to Become an Australian.[22] The Committee looked at the character provisions of the Act in its broader consideration of the social engagement of youth migrants. It noted the ‘majority of submitters to this inquiry largely held the view that the current character and cancellation provisions in the Act were an adequate way of addressing
non-citizens who have been involved in criminal activities’.[23] It also acknowledged that a number of submitters raised concerns about applying the character provisions to minors. However, the Committee also cited ‘community concerns about the escalation of violent crimes’, stating ‘such serious criminal offences committed by visa holders must have appropriate consequences’.[24] It recommended:

• the Act be amended to ‘require’ the mandatory cancellation of visas for offenders aged between 16 and 18 who have been convicted of a serious violent offence and
• mandatory cancellations also apply to anyone over 18 who is convicted of a prescribed serious violent offence.[25]

The Committee cited carjackings, serious assaults, burglary, sexual offences and possession of child pornography as examples of serious offences.

Labor members of the Committee and the Australian Greens issued separate, dissenting reports which departed from the Committee recommendations specifically on the issue of character cancellations. The Greens expressed concern that ‘despite ample evidence’ provided by submitters against the ‘efficacy, morality and legality of cancelling visas to punish criminal behaviour’, the report was broadly supportive of such action and recommended expanding such powers, including against minors.[26]

The dissenting report by Labor members also expressed concern with the report’s focus on youth crime and what it saw as a reliance on anecdotal and unsubstantiated evidence, stating this ‘incorrectly implied that there is a serious crime wave by migrant youth across the nation’.[27] The ALP dissented from both recommendations to amend the character test, describing these as ‘contrary to the evidence provided to the Committee’ which ‘overwhelmingly’ suggested that the current character and cancellation provisions in the Migration Act were an adequate method of addressing non-citizens involved in criminal activities.[28]

Committee report on review processes

In March 2018, Minister for Home Affairs, Peter Dutton, requested the Joint Standing Committee on Migration conduct an inquiry into the review processes associated with visa cancellations made on criminal grounds. The terms of reference stated the Committee should have particular regard to the following issues:

• The efficiency of existing review processes as they relate to decisions made under section 501 of the Migration Act.
• Present levels of duplication associated with the merits review process.
• The scope of the Administrative Appeals Tribunal's jurisdiction to review ministerial decisions.[29] 

The Committee issued its report in February 2019.[30] The majority report found that, overall, the existing character provisions of the Migration Act ‘operate well and are achieving the aim of protecting the Australian community’.[31] It also acknowledged that merits review by the AAT ‘works to reduce the incidence of judicial review, which is more costly and time-consuming’.[32] At the same time, the Committee stated that ‘the AAT has made some decisions that do not align with the community’s expectations that serious violent criminals will be deported from Australia’.[33] It recommended amendments to some aspects of the existing framework and practice, including changes to the relevant Ministerial Directions to:

• include a specific provision allowing the ‘historical special immigration status of New Zealand citizens, and its impact on take up of citizenship in Australia’, to be a secondary consideration for decision-makers reviewing character cancellations and
• create a distinction between serious violent offending and other types of offending, with serious violent crimes more likely to result in visa cancellation or refusal.[34]

The Committee also recommended the Department of Home Affairs conduct a review into the resourcing and processes applied to delegate decision-making on the revocation of mandatory cancellations, with a view to reduce the time taken to make decisions.[35] Additionally, it referred to the 2018 Bill, which at the time was before the Parliament, and stated:

The Committee believes this legislation would address a number of community concerns around non-citizens who commit acts of violence in Australia. As such, the Committee urges the Australian government to pass and enact this legislation without delay.[36]

Labor Members of the Committee issued a dissenting report which, while expressing support for the character provisions in the Migration Act and for some of the Committee’s recommendations for reform, also raised concern with three of the recommendations.[37] In particular, they expressed concern with the proposal to create a ‘two-tiered’ approach to decision-making based on the nature of the crime committed. Noting that the Committee’s proposed definition of violent crimes was drawn from the 2018 Bill, Labor Members reiterated their opposition to that Bill and further questioned:

...the appropriateness of dictating to decision-makers that the category of crimes committed should trump other factors that weigh into the decision.[38]

The dissenting report claimed that the ‘overwhelming majority of evidence’ brought forward in the inquiry suggested that ‘the current approach to visa cancellations may have some significant flaws’, citing evidence of non-citizens being detained for ‘unnecessarily long periods of time’, and of deportation occurring for relatively minor or historical offences.[39] It recommended an independent review into the impacts of the existing Ministerial Directions on the exercise of discretion in visa cancellations, particularly in relation to New Zealand citizens and other heavily-represented nationalities; the number of persons detained in immigration detention and the length of time in detention; Australia’s non-refoulement obligations; and the cancellation and deportation of ‘absorbed persons’.[40]

Committee consideration

Legal and Constitutional Affairs Committee

The Bill has been referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 13 September 2019. Details are available at the inquiry homepage.

The Committee also inquired into the 2018 Bill, issuing its report on 17 December 2018. The majority recommended the Bill be passed, with Labor Senators and the Australian Greens issuing dissenting reports.[41] The Committee acknowledged concerns raised by submitters about the Bill, including in relation to the use of the maximum rather than actual sentence as the threshold for failing the character test, the retrospective application, and whether it was necessary in light of existing visa refusal and cancellation powers. However, the Committee said it was satisfied the Bill ‘strikes the appropriate balance between the protection of the Australian community and the rights of non-citizens who have committed criminal acts’.[42]

In their dissenting report, Labor Senators on the Committee recommended the Bill not be passed in its current form, and that amendments be considered once the Joint Standing Committee on Migration’s final report into visa cancellation review processes had been handed down.[43] The dissenting report stated ‘there is no stakeholder support for the bill in its current form’, and expressed particular concern about the negative impact the legislation would have on Australia’s ‘critical relationship with New Zealand’, recommending further consultation and communication with the New Zealand Government. Labor Senators also recommended the Senate Committee commence a further inquiry to consider how the Bill could be amended to address the ‘serious and significant concerns of relevant stakeholders’, and how the Migration Act could be amended to ‘appropriately complement existing visa cancellation powers’.[44]

The Australian Greens also issued a dissenting report and recommended that the Bill not be passed, questioning the need for the legislation and arguing that it ‘will lower an already low bar for refusing or cancelling the visas of non-citizens’.[45]

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee has not reported on the Bill at the time of writing. However, the Committee reported on the 2018 Bill on 14 November 2018.[46] The Committee stated that the Bill further expands an already broad discretion of the Minister to refuse or cancel a visa without procedural fairness obligations and where merits review is largely unavailable. It noted that this was likely to result in ‘more people being held in immigration detention, removed from Australia and potentially separated from their family’, and raised concerns as to whether the measures in the Bill unduly trespass on rights and liberties.[47]

Policy position of non-government parties/independents

As indicated in their respective dissenting reports to the Senate inquiry into the 2018 Bill, the ALP and the Greens did not support that Bill. Labor’s Shadow Minister for Home Affairs, Kristina Keneally, has reportedly stated that the party will wait for the report of the Senate inquiry into the current Bill before determining its position.[48]

To date, no other non-government party or independent appears to have commented on the Bill.

Position of major interest groups

The majority of submitters to the Senate Committee inquiry into the 2018 Bill opposed the proposed measures. Key concerns raised in submissions include:

• the necessity of the proposed measures in light of the breadth of the existing character provisions under the Act
• the rationale for, and consequences of, basing the threshold for a ‘designated offence’ on the maximum sentence available for an offence rather than the actual sentence imposed
• the impact of the measures on vulnerable persons and long-term residents and
• the retrospective operation of the Bill.

These issues are discussed in more detail under the ‘Key issues and provisions’ heading.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[49]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[50]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights has not commented on the Bill at the time of writing. However, the Committee raised a number of human rights concerns in respect of the 2018 Bill.[51] In particular, it considered:

• the proposed expansion of the Minister’s power to cancel or refuse a visa is likely to be incompatible with Australia’s non-refoulement obligations and the right to an effective remedy, with the Committee questioning the sufficiency of existing safeguards against refoulement and limitations on the availability of merits review
• the expanded bases on which a person’s visa may be cancelled, the consequence of which would be that the person is subject to immigration detention, is likely to be incompatible with the right to liberty
• there is a risk that the Bill’s measures may be incompatible with the prohibition on expulsion without due process for those persons who have their visa cancelled without natural justice under subsection 501(3) of the Migration Act
• the Bill’s measures are likely to be incompatible with the right to protection of the family and the obligation to consider the best interests of the child as a primary consideration, particularly in relation to the cancellation of a child’s visa and
• there is a risk the measures may be incompatible with the right to freedom of movement in circumstances where the Minister is not required to take into account the right to enter and remain in one’s ‘own country’ when exercising the power to refuse or cancel a visa, noting that a person’s ‘own country’ is not restricted to countries with which the person has formal citizenship status, but includes countries with which a person has ‘very strong ties’.[52]

Key issues and provisions

Designated offence

Item 5 inserts proposed paragraph 501(6)(aaa) into the Act. This provides that a person does not pass the character test if they have been convicted of a designated offence. Consequently, the Minister or delegate may refuse to grant the person a visa, or may cancel their existing visa. Refusal or cancellation of a visa on the grounds of a designated offence conviction will be discretionary, rather than the mandatory cancellation proposed by the Joint Standing Committee on Migration.

Proposed subsection 501(7AA) defines designated offence as an offence against a law in force in Australia or a foreign country, which:

• involves one or more of a list of specified ‘physical elements’ and
• is punishable by a maximum or fixed term of imprisonment of not less than two years.

Each of these elements is discussed below.

What conduct is captured?

Proposed paragraph 501(7AA)(a) specifies the types of conduct which may constitute a designated offence. This includes conduct relating to the following types of offences:

• violence against a person, including but not limited to murder, manslaughter, kidnapping, assault, aggravated burglary and the threat of violence
• non-consensual conduct of a sexual nature, including but not limited to sexual assault and the non-consensual sharing of an intimate image
• breaching a court or tribunal order for the personal protection of another person and
• using or possessing a weapon—this is defined under proposed subsection 501(7AB) as including a thing ‘made or adapted for use for inflicting bodily injury’, and a thing which a person intends or threatens to use to inflict bodily injury.

The definition of designated offence also captures conduct in connection with the commission of one of the above offences, including:

• aiding, abetting, counselling or procuring the commission of such an offence
• inducing the commission of the offence, including through threats or promises
• being ‘knowingly concerned’ in, or a party to, the commission of the offence (whether directly or indirectly) and
• conspiring with others to commit the offence.

Sentencing threshold

To meet the definition of designated offence, an offence against Australian law must be punishable by imprisonment for life or for a fixed or maximum term of two years or more.[53] An offence against a law in force in a foreign country must be such that, if it were committed in the Australian Capital Territory, it would:

• constitute an offence against ACT law and
• be punishable under ACT law by imprisonment for life or for a fixed or maximum term of two years or more.[54]

Available versus actual sentence

The nature of the proposed threshold has been the subject of substantial criticism from stakeholders, as it looks to the maximum available penalty attached to the offence rather than the actual sentence imposed on a person. This means that where a relevant offence has a maximum penalty of at least two years imprisonment, any person convicted of the offence will fail the character test, regardless of the actual sentence they receive. This will be the case even where no sentence or a suspended sentence is imposed.

The Explanatory Memorandum notes, but does not provide a clear explanation for, this shift away from a sentence-based approach.[55] A possible rationale may be found in the Joint Standing Committee on Migration’s report on migrant settlement outcomes, which quoted a submission from the Police Federation of Australia (PFA) stating it had received ‘anecdotal information’:

... some judges and magistrates have acknowledged the mandatory cancellation provisions of the Migration Act, before imposing sentences of less than 12 months, reportedly to ensure that the non-citizen before the court does not become exposed to the mandatory cancellation provisions ...[56]

However, the Committee also referred to a guide on deportation and sentencing produced by the National Judicial College of Australia (NJCA), which states:

In determining an appropriate sentence, a judge must not reduce an otherwise appropriate sentence merely to avoid the risk of deportation. However, there is conflicting authority as to whether an offender’s liability to be deported is a relevant factor in sentencing federal offenders.[57] [Emphasis added]

Whether the likely deportation of a person can be a mitigating factor appears to vary across jurisdictions. The NJCA reports that courts sentencing federal offenders have found that deportation is an irrelevant sentencing factor because it falls outside the control of the courts. However, it also noted that in relation to state offences, the Victorian Supreme Court of Appeal has suggested that the prospect of deportation may be relevant where it makes the imprisonment more burdensome on the offender than it otherwise would have been, or amounts to an additional ‘punishing consequence’ of the offending, such as where the offender loses the opportunity of settling in Australia.[58]

The majority of submissions to the Senate Committee inquiry into the 2018 Bill raised concerns about the reliance on maximum rather than actual sentences, arguing that maximum sentences are not an appropriate basis to determine the seriousness of particular conduct. The Law Council of Australia, for example, argued that the focus on maximum sentences fails to appreciate the role of criminal sentencing, which recognises that different circumstances give rise to different standards of culpability.[59] The same point was made by the Visa Cancellations Working Group, which noted that maximum sentences provide for aggravating circumstance in the course of offending, but that ‘in the vast majority of cases limited or no such circumstance exists’.[60] Accordingly, a number of submitters noted that courts rarely impose the maximum penalty.[61]

The High Court of Australia has cautioned against treating the maximum penalty as determinative of the appropriate sanction to apply in a particular matter:

The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence. It represents the legislature’s assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. Commonly the maximum penalty invites comparison between the case with which the court is dealing and cases falling within the category of the “worst case”...

As this court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted.[62]

In determining the appropriate sentence to impose, a court is generally guided by both the common law and sentencing legislation, and is required to balance a range of considerations, including possible aggravating and mitigating factors. The Visa Cancellations Working Group expressed concern that by defining designated offence by reference to the applicable maximum sentence, the Bill ‘shifts the consideration of the seriousness of an offence from the sentencing Court to the Department—from the judiciary to the administrative’.[63] Legal Aid NSW argued that using a maximum penalty as a trigger for visa cancellation or refusal is ‘a potentially inaccurate, unfair and arbitrary indicator’ of the degree of risk that the non-citizen poses to the community.[64]

The New Zealand Government expressed its concern about the deportation of offenders who do not have a cumulative criminal record of 12 months in sentences, arguing that a criminal record threshold:

... enjoys community support because the community rightly expects that judges will make a fair decision about the seriousness of a person’s offending based on the facts presented in Court.[65]

Accessory offences

In submissions on the 2018 Bill, a number of stakeholders raised concerns about the inclusion of accessorial offences in the definition of designated offence. Legal Aid NSW noted that such offences generally involve a much lesser degree of criminality than the principal offence.[66]

Refugee Legal similarly suggested that it is inappropriate to extend the character test to offences of being an accessory ‘to a raft of undefined offences’ due to the uncertainty and inconsistency of how accessory provisions operate. It also questioned the utility of including such offences, noting that the existing character cancellation framework already captures membership of, or an association with, an organisation involved in criminal activities.[67]

The Law Council of Australia and Visa Cancellations Working Group both argued that this detrimentally affects vulnerable individuals, such as women involved in a relationship with the offender, and could de-incentivise individuals from cooperating with authorities due to the potential cancellation of their visa.[68]

The Law Council also opposed proposed subparagraph 501(7AA)(a)(vii) which captures persons who are in any way, directly or indirectly, ‘knowingly concerned’ in the commission of a designated offence. It argued that the phrase ‘knowingly concerned’ raises ‘a series of open questions about the scope of activity captured and a notable absence of criminal law jurisprudence to rely on when interpreting the threshold’, and referred to previous proposals to introduce the concept into the Criminal Code Act 1995 (Cth) which were ultimately not implemented.[69]

Impact of the changes

Expansion of existing powers?

A common theme in submissions to the Senate Committee inquiry into the 2018 Bill was that the proposed measures in the Bill were unnecessary, in light of the existing cancellation and refusal powers under section 501.[70] The Australian Human Rights Commission (AHRC) questioned the rationale behind the Bill, noting:

... while it is correct for the Minister to say that the threshold for mandatory refusal or cancellation does not capture ‘all those found guilty of serious criminality’, this overlooks that the existing discretionary provisions are capable of doing so and that what is proposed in the Bill is an alternative discretionary ground.[71]

A number of the existing grounds for failing the character test appear to capture conduct falling within the definition of designated offence. These include:

• having a ‘substantial criminal record’, defined to include being sentenced to a term of imprisonment of 12 months or more (paragraph 501(6)(a))
• being reasonably suspected to be a member of a group or organisation involved in criminal conduct (paragraph 501(6)(b))
• not being of good character due to their past and present criminal and/or general conduct (paragraph 501(6)(c)) or
• being considered at risk, if allowed to enter or remain in Australia, of engaging in criminal conduct; harassing, molesting, intimidating or stalking another person; vilifying a segment of the Australian community; inciting discord; or representing a danger to the community or a segment of the community (paragraph 501(6)(d)).

Legal Aid NSW stated:

There appears to be nothing in the current legislative scheme that would prevent the Minister or their delegate from issuing a notice of intention to consider cancellation (NOICC) or a notice of intention to consider refusal of a visa (NOICR) for any of the offences which are described as designated offences in the Bill.[72]

The AHRC commented, in relation to paragraph 501(6)(c), ‘it is difficult to conceive of circumstances where this provision would not be relevant and applicable to a person convicted of a designated offence’.[73]

However, the Department argued that the changes will provide a ‘clear, objective’ ground on which to consider a visa refusal or cancellation, separate from existing ‘subjective’ grounds.[74] Currently, in making an assessment whether a person fails the character test due to their past and present criminal and general conduct, the decision-maker must look to ‘all the relevant circumstances of the particular case ... to obtain a complete picture of the person’s character’.[75] This means that the decision-maker must consider any offences the person has committed, the nature and severity of the offences and any repeat offending, but also issues including:

• any circumstances surrounding the criminal conduct which may explain the conduct, which may be evident from ‘authoritative documents’ such as judge’s comments or parole reports and
• the person’s conduct since their most recent offence, including any pattern of similar conduct or any conduct which may indicate character reform.[76]

In other words, to decide that a person fails the character test on these grounds, the decision-maker must consider all relevant issues connected with a person’s offending. The Bill removes the need for this sort of broader assessment in relation to designated offences, as the fact of the conviction will automatically cause a person to fail the character test, and require the decision-maker to consider whether to exercise their discretion to refuse or cancel the visa.

The Visa Cancellations Working Group argued that while ‘automatically’ failing the character test will not inevitably lead to cancellation or refusal:

[t]he removal of a step of assessment is likely to impact a decision-maker significantly. If, for that decision-maker, the person necessarily fails the character test, a decision to cancel is significantly more likely to follow. A determination which is permitted, or ‘endorsed’, even where that permission is not directive, has a psychological and practical effect on those who are responsible for application of the law ...[77]

Long-term residents

Submissions to the Senate Inquiry into the 2018 Bill also raised concerns about the impact of the proposed changes on long-term permanent residents in Australia, and questioned the ethical basis for deporting such persons. The New Zealand Government stated that the 2014 changes to introduce mandatory cancellations have been corrosive to the New Zealand–Australia relationship, due to the ‘disproportionate effect of Australia’s policy on New Zealand and the lack of reciprocity of treatment’.[78] It noted that the principle underpinning New Zealand’s deportation policy is:

New Zealand accepts some responsibility for the behaviour of people who have lived in New Zealand on residence class visas for long periods of time—they’ve made New Zealand their home and New Zealand has benefitted from their contribution.

It argued that similarly, Australia has responsibility for people who are products of Australia, such as those who came to the country as children:

By cancelling their visas, Australia is not taking responsibility for these people’s failure to succeed in Australian society, despite them, in many cases, being a product of Australian society.[79]

This point was also made by Oz Kiwi, an advocacy group for New Zealanders living in Australia, which stated that ‘a person who has lived in Australia for 30 years having come to Australia as a young child is a product of Australia, irrespective their country of origin’.[80] It recommended that non-citizens who have lived in Australia for more than ten years, or who arrived in Australia before the age of ten, be exempt from the cancellation provisions.[81]

The AHRC pointed to New Zealand’s ‘sliding scale’ approach to deportations, which imposes a higher bar for deporting a person the longer they have lived in New Zealand, and suggested that this approach be considered in Australia.[82]

Vulnerable persons

A further issue raised regarding the 2018 Bill relates to the effect of the Bill on vulnerable individuals, including refugees and children.

The existing character test provisions apply to all visa applicants and visa holders—there is no lower age limit. This means that a child may have their visa cancelled on character grounds. In practice, the Explanatory Memorandum to the present Bill states that the refusal or cancellation of a child’s visa on character grounds ‘would only occur in exceptional circumstances’.[83] Nonetheless, a number of submissions to the Senate Committee inquiry raised concerns about the potential impact of the Bill on juvenile offenders. Legal Aid NSW noted that while crime is committed disproportionately by people aged between 15 and 19, most young people grow out of offending, and that this is recognised in the sentencing of young people, with greater emphasis on rehabilitation rather than deterrence and retribution.[84] It recommended that should the Bill progress, it be amended to exclude children and offences committed as a juvenile, or to include statutory recognition of the best interests of a child.[85]

The Asylum Seeker Resource Centre argued that the measures have profoundly serious consequences for refugees, noting that section 197C of the Migration Act expressly stipulates that Australia’s non-refoulement obligations are irrelevant to the duty to remove an unlawful
non-citizen from Australia as soon as reasonably practicable, and that the Ministerial Direction states that while non-refoulement obligations should be taken into account, they do not preclude cancellation or refusal of a visa.[86] Similar points were made by the Parliamentary Joint Committee on Human Rights, which noted there is no statutory protection available to ensure that an unlawful non-citizen to whom Australia owes protection obligations will not be removed from Australia.[87] The Refugee Council also raised concern that refugees whose protection visas are cancelled will face indefinite detention.[88]

‘Character concern’ and information sharing

Existing section 5C of the Migration Act specifies the circumstances in which a non-citizen is of character concern. These mirror the grounds in which a person does not pass the character test under subsection 501(6).

Item 2 amends the definition of character concern to specify that a non-citizen is of character concern if they have been convicted of a designated offence.[89] Item 4 inserts a definition of designated offence in proposed subsection 5C(3), which is identical to the definition inserted into the character test provisions.

The term character concern is relevant to the collection and disclosure of certain information about non-citizens. The Migration Act permits the collection of personal identifiers (which can include fingerprints or handprints, height and weight measurements, and audio and visual recordings of a person) for a range of specified purposes, including to ‘enhance the Department’s ability to identify non-citizens who have a criminal history or who are of character concern’.[90] The Act also provides for ‘permitted disclosures’ of identifying information about a person, which include a disclosure made for the purpose of identifying non-citizens who have a criminal history or who are of character concern.[91]

The amendments ensure the definition of character concern remains consistent with the character test, as amended by the Bill.

Retrospective application

Item 7 is an application provision. The amendments to the character test will apply to all visa applications which have not been finalised at the time of the Bill’s commencement, and to all decisions made on or after commencement to cancel a visa.[92]

Sub-item 7(3) provides that the amendments will apply in relation to a person regardless of whether they committed or were convicted of the relevant designated offence before, on or after the Bill’s commencement. This means the proposed changes will apply retrospectively to non-citizens who committed or were convicted of a designated offence prior to the Bill’s commencement. The Department has stated this is consistent with previous amendments to the character test.[93]

The Law Council has raised concern with the retrospective application, arguing that insufficient justification has been given for this, particularly in light of the ‘considerable impact on the lives of those that may be affected by the reforms’.[94]

Concluding comments

Rather than expanding the types of conduct captured by the character provisions of the Migration Act, the Bill changes the way that certain conduct is treated by decision-makers. Under the Bill’s proposed measures, a person convicted of a ‘designated offence’ will automatically fail the character test, and may have their visa cancelled or visa application refused. This is a departure from the existing scheme, in which the decision-maker must consider the circumstances connected with the person’s offending to assess whether they fail the character test.

A key point of concern raised by interest groups has been that the threshold for a ‘designated offence’ is based on the maximum penalty available for an offence rather than the actual sentence imposed. It has been argued that this fails to appreciate the role of maximum sentences—and complex considerations which underpin sentencing—in the criminal justice system, and may lead to disproportionate responses to relatively minor offences.