Key points

• Section 501 of the Migration Act 1958 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 specific cases must—cancel or refuse to grant a visa to the person.
• 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. One of the grounds for determining that a person has a substantial criminal record for the purposes of mandatory visa cancellation is if they have been sentenced to a term of imprisonment of 12 months or more.
• In Pearson v Minister for Home Affairs, the Federal Court of Australia considered whether an aggregate sentence of imprisonment (a single sentence for more than one offence) constituted ‘a term of imprisonment of 12 months or more’.
• The Federal Court found that it did not, and the Government is now seeking to amend the Migration Act to provide that where a provision of the Migration Act or regulations made under that Act refers to a sentence of imprisonment, it does not matter whether this sentence has been imposed with respect to one offence or multiple offences.
• The Bill will also retrospectively validate decisions affected by the Pearson decision, including validating previous mandatory cancellation decisions of a person’s visa.
• The Human Rights Law Centre has previously stated that the inclusion of aggregated sentences for the purposes of mandatory visa cancellation cannot be ‘easily reconciled with the Labor government’s commitment to reducing immigration detention numbers’. Other human rights advocacy groups, such as the Australian Lawyers for Human Rights, have opposed the Bill.

Introductory Info

Date introduced: 7 February 2023
House: Senate
Portfolio: Home Affairs
Commencement: The day after Royal Assent.

Purpose of the Bill

The purpose of the Migration Amendment (Aggregate Sentences) Bill 2023 (the Bill) is to respond to the recent Federal Court decision in Pearson v Minister for Home Affairs, which held that an aggregate sentence (that is, a single sentence for more than one offence) imposing a term of imprisonment cannot be counted when working out if a person has a ‘substantial criminal record’ for the purposes of cancelling a person’s visa under section 501 of the Migration Act 1958.

The Bill will amend the Migration Act to provide that where a provision of the Migration Act or regulations made under the Act refers to a sentence of imprisonment, it does not matter whether this sentence has been imposed with respect to one offence or multiple offences.

Background

Section 501 of the Migration Act[1]

Section 501 of the Migration Act 1958 applies a ‘character test’ to all non-citizens holding or applying for an Australian visa. Under this provision, if the Minister for Home Affairs (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.[2]

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 Australian Security Intelligence Organisation as a direct or indirect risk to security.[3]

The character test, in one form or another, has been in the Migration Act since 1992.[4]

Mandatory cancellation provisions

In 2014, the Migration Amendment (Character and General Visa Cancellation) Act 2014 broadened the grounds on which a person will fail the character test and introduced mandatory cancellation provisions.[5]

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.[6] A person has a substantial criminal record for the purposes of mandatory visa cancellation if the person has been sentenced to death, imprisonment for life, or a term of imprisonment of 12 months or more.[7]

Discretionary cancellation provisions

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 90 sets out binding considerations for decision-makers in exercising this discretion.[8]

It emphasises the principle of protecting the Australian community, and requires decision-makers to give primary consideration to:

• protection of the Australian community from criminal or otherwise serious conduct
• whether the conduct engaged in constituted family violence
• the best interests of minor children in Australia
• expectations of the Australian community.

Ministerial Direction 90 will be replaced by Ministerial Direction 99 on 3 March 2023, which will also require the decision-maker to give primary consideration to the strength, nature and duration of ties to Australia of the person whose visa is being cancelled.[9] This change in policy appears to have been as a result of lobbying from the New Zealand Government, due to the number of New Zealand citizens who have been deported from Australia.[10]

Statistics on section 501 cancellations

The Department of Home Affairs (DoHA) has published statistics on visa cancellation on its website.[11] These statistics show that visa cancellations on character grounds 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.[12] A breakdown of cancellation and refusal decisions during this period shows that the vast majority of cancellations are resulting from these mandatory cancellations provisions, with the highest number of cancellations in the last 12 months resulting from drug offences.

The graph below represents all character (section 501) cancellations and visa refusals over the last 10 financial years.

Source: Department of Home Affairs (DoHA), ‘Key visa cancellation statistics’, DoHA website.

Previous attempts to amend the character test

During the 45th Parliament, the Morrison Government had sought to amend section 501 of the Migration 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’. Bills were introduced in 2018 and 2019 to this effect but were not passed by the Parliament.[13] In choosing to not support the 2019 Bill, the then Shadow Minister for Home Affairs, Senator Keneally, stated that the Opposition had previously highlighted ‘the concern that low level offending would be inadvertently captured by the Bill’ and that the amendments moved by the Government in the Senate to the 2019 Bill did not go far enough to address this issue.

During the 46th Parliament, the Morrison Government introduced the Migration Amendment (Strengthening the Character Test) Bill 2021 (the 2021 Bill) which was similar to the previous Bills but with a number of changes. While the 2021 Bill sought to narrow the definition of a ‘designated offence’, it did not seek to address the key concern previously raised by stakeholders—that the sentencing threshold for a ‘designated offence’ is based on the maximum penalty available for an offence rather than the actual sentence imposed.[14] The Bill passed the House of Representatives with the support of the Opposition but was not debated in the Senate prior to it lapsing in July 2022.  

Decision of the Federal Court in Pearson v Minister for Home Affairs

On 17 July 2019, Ms Pearson, a New Zealand citizen, was notified by a delegate of the Minister that her class TY subclass 444 Special Category (Temporary) visa had been cancelled under section 501(3A) of the Migration Act because she had been sentenced to a term of imprisonment of 12 months or more.[15]

Ms Pearson sought review of the decision by the Administrative Appeals Tribunal, which upheld the decision to cancel her visa on 15 September 2020.[16] On 22 July 2021, a judge of the Federal Court dismissed an application for judicial review of the Tribunal’s decision,[17] which was upheld by the Full Court of the Federal Court on 1 March 2022.[18]

Subsequent proceedings were commenced on 10 October 2022, following Ms Pearson being served with a notice of intended removal from Australia. In the case that considered this application, Pearson v Minister for Home Affairs (Pearson), the Full Bench of the Federal Court considered two issues:

• The first was whether the notice given to Ms Pearson of the cancellation of her visa was invalid because it failed to comply with the requirements of paragraph 501CA(3)(b) of the Migration Act and regulation 2.52(2)(b) of the Migration Regulations 1994.
• The second was whether for the purposes of section 501 of the Migration Act, an aggregate sentence of imprisonment, under a provision such as section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), is a single sentence to a term of imprisonment (paragraph 501(7)(c) of the Migration Act) or a sentence to ‘2 or more’ terms of imprisonment (paragraph 501(7)(d) of the Migration Act), or is neither (this was a new ground which Ms Pearson had not previously raised in her applications for review of the decision).[19]

An ‘aggregate sentence of imprisonment’ is where the court has taken into account multiple offences, whether the same, similar or different, and imposed one sentence/term of imprisonment (instead of imposing separate individual sentences for each offence).[20] The common law does not permit aggregate sentences however Commonwealth or state/territory laws may allow the court to impose an aggregate penalty in certain circumstances.[21]

While the Migration Act currently provides clarity on how concurrent sentences (where a person has been given separate sentences for different offences but is serving the sentences at the same time) are to be addressed, it is silent as to aggregate sentences.[22]

In considering whether paragraphs 501(7)(c) or (d) of the Migration Act included an aggregate sentence, the Federal Court considered the Parliament’s intention regarding the drafting of section 501:

A close examination of the provisions relating to the character test reveals that Parliament has made a conscious choice about the use of the singular or the plural throughout ss 501(6) and (7) that manifests a contrary intention to that expressed in s 23(b) [of the Acts Interpretation Act 1901, which provides that words in the singular include the plural and words in the plural include the singular]. For example, s 501(6)(aa) speaks in terms of “an offence” committed while in immigration detention, during an escape from immigration detention, and after escape as being sufficient to fail the character test. Where multiple offences are relevant to be considered, Parliament has used the phrase “one or more”; s 501(6)(ba), (e), (f). In the context of s 501(7), it is apparent that Parliament has made a distinct choice about the nature of the sentence for an offence that was to be used as an objective proxy for a “substantial criminal record” that will lead to mandatory cancellation – that being an offence punishable by death, life imprisonment, or a term of 12 months.[23] [emphasis added]

The Federal Court concluded that:

Similarly, the unqualified expression can be contrasted with that in s 501(7)(d) – “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” – and with the explanation in respect of concurrent sentences in s 501(7A). Had Parliament intended that an aggregate sentence of 12 months or more should be subject to mandatory cancellation of a person’s visa, it would have been a straightforward matter to say so. That it did not do so is consistent with the apparent purpose of s 501(3A), namely that only the most serious offending subjects a person to mandatory cancellation of a visa. Self-evidently, an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.[24] [emphasis added]

Therefore, as Ms Pearson was not sentenced with respect to a specific offence to a term of imprisonment of 12 months or more, her visa was not amendable to mandatory cancellation under subsection 501(3A) of the Migration Act.[25] However, as noted by the Federal Court, nothing would have prevented the Minister or his delegate from exercising his discretion to cancel her visa pursuant to sections 501(2) and (3) of the Migration Act if he was satisfied of the matters in those subsections (namely that she did not pass the character test).[26]

Impact of the decision in Pearson

As a result of the decision of the Federal Court in Pearson, it was reported by The Guardian on 29 December 2002 that up to 100 people had been released from immigration detention.[27]

A spokesperson for DoHA reportedly told The Guardian it was:

“actively considering the implications” of the ruling, including identifying “other visa cancellation decisions affected by the judgment, prioritising individuals in immigration detention”.

“Individuals in immigration detention where visa cancellation decisions are identified as having been invalidly made will be released from immigration detention as soon as possible.

“However, this is an involved process which could take some days to complete.”

Committee consideration

At the time of writing, the Bill has not been referred to any Committees.

Senate Standing Committee for the Scrutiny of Bills

The Committee has not reported on the Bill at the time of writing.

Policy position of non-government parties

The Guardian has reported that the Opposition will support the Bill, though it has moved amendments ‘to strengthen the character test by providing additional grounds to consider visa cancellation’. These amendments were defeated in the Senate on 8 February 2023.

It was also reported that the Australian Greens would not support the Bill and amendments were moved by Senator Nick McKim. The Jacqui Lambie Network also moved amendments to the Bill in the Senate.

Position of major interest groups

Following the decision of the Federal Court in Pearson, the Human Rights Law Centre published commentary on the decision and noted that:

A legislative ‘fix’ to the lacuna identified by the Full Court might also be possible – for instance, by clarifying how aggregate sentences are to be treated, in the same manner as concurrent sentences are dealt with at s 501(7A) – a move in this direction could not be easily reconciled with the Labor government’s commitment to reducing immigration detention numbers.[28]

Caitlin Caldwell, of Australian Lawyers for Human Rights, strongly opposed the Bill, stating:

In short, this Bill is a redundant and heinous attempt by the Labor Government to expand its already significant visa cancellation powers. The Bill, if passed, will have the immediate, devastating effect of subjecting many recently-released individuals to re-detention, many of whom have been recognised as refugees in Australia and who have already endured protracted immigration detention.

Financial implications

The Explanatory Memorandum states that the Bill will have a low financial impact.[29]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, 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, as to the extent that it may limit some human rights, those limitations are reasonable, necessary and proportionate.[30]

Parliamentary Joint Committee on Human Rights

The Committee has not reported on the Bill at the time of writing.

Key issues and provisions

Item 1 of the Bill will insert proposed section 5AB which provides that where a provision of the Migration Act or regulations made under the Act refers to a sentence of imprisonment, it does not matter whether this sentence has been imposed with respect to one offence or multiple offences.

As an example, proposed section 5AB specifically states that paragraph 501(7)(c) (which refers to a term of imprisonment of 12 months or more for the purpose of determining a substantial criminal record with respect to the character test) applies to a person sentenced to a term of imprisonment of 12 months or more, regardless of whether the sentence has been imposed for one offence or multiple offences.

While the focus of these amendments is responding to the Pearson decision which concerned section 501 of the Migration Act, the Explanatory Memorandum lists a number of non-exhaustive examples of other provisions in the Migration Act which will be impacted by the amendments.[31]

The Government has stated that the Bill:

… does not change, limit or expand the circumstances in which aggregate sentences are considered for all relevant purposes of the Migration Act. This Bill simply confirms the Government’s long-held understanding that aggregate sentences can be taken into account for all relevant purposes under the Migration Act.[32]

Retrospective application

Part 2 of Schedule 1 of the Bill sets out how proposed section 5AB will operate.

Item 3 of the Bill essentially provides that proposed section 5AB will apply with respect to the making of any decision or the exercise of any power except where an application has been finally determined (where a person has exhausted their appeal rights) when the Act commences.

However, Item 4 provides that anything done prior to commencement that would otherwise have been invalid under the relevant legislation (see subitem 4(2)) but for the application of proposed section 5AB will now be valid. This means the proposed changes will apply retrospectively to persons who had their visa cancelled under section 501 but were released from immigration detention following the Pearson decision.

The Senate Standing Committee for the Scrutiny of Bills is generally concerned with Bills which apply retrospectively, as a basic value of the rule of law is that, in general, laws should only operate prospectively, not retrospectively.[33] Where a Bill commences or applies retrospectively, the Committee expects the Explanatory Memorandum to address the following matters:

• why it is appropriate to retrospectively commence or apply the legislation; and
• whether any persons are likely to be detrimentally affected by the retrospective commencement or application of the legislation and, if so, to what extent their interests are likely to be affected.

Item 5 addresses the impact of the Bill on a person’s review and appeal rights. As noted in the Explanatory Memorandum, post 22 December 2022 there may have been examples of where a tribunal/court had set aside a decision to cancel a person’s visa on the basis of the reasoning in Pearson which will now be invalidated as a result of Item 4 of the Bill.[34] Item 5 provides that in this scenario the person will be able to apply again to the tribunal/court for a review/appeal of their decision, within the same timeframe as would normally apply under the Migration Act for such a review/appeal.