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.