Government Tightens Character Rules
Changes to the Character test
The amendments to the Migration Act 1958 s501 insert additional grounds on which a person will not pass the character test. These include where:
Further amendments strengthen existing limbs of the character test by providing that a person will not pass the character test:
Mandatory Cancellation
Additionally, the legislative reforms include an amendment to allow for mandatory visa cancellation without notice for people who are serving a full-time sentence of imprisonment for an offence against the law of the Commonwealth, a State or a Territory, and who objectively fail the character test on of the following grounds:
Some non-citizens who are currently in prison and have already been sent a Notice of Intent to Consider Cancellation (NOICC) under section 501(2) of the Act are captured by the new mandatory cancellation provision in section 501(3A) and will have their visa cancelled without notice.
Changes to the general visa cancellation provisions
The amendments to the general visa cancellation provisions amend several existing grounds as well as inserting new ones to provide the department with a better range of response mechanisms to incidents of fraud and criminality, and better manage risks to the community or individuals. These include:
Other amendments include the insertion of subdivision FA and several new personal Ministerial cancellation powers. These allow the Minister to cancel without notice, or set aside a non-adverse decision, on grounds at sections 109 or 116 of the Act, where it is in the public interest to do so. Additionally, sections 338(3) and 411 have been amended to provide that any decision made personally by the Minister will not be merits reviewable. Cumulatively, these changes provide the Minister with the means to take greater responsibility for cancellation decisions in order to secure outcomes consistent with the public interest.
Previously, a non-citizen would be given a Notice of Intention to Cancel their visa, giving them an opportunity to cement prior to any cancellations. These amendments turn this on its head, allowing automatic cancellation which will stand until it has been successfully challenged at Court or Tribunal of competent jurisdiction.
Consequently, it is very important to make judges aware of these provisions when considering sentences for non-citizens who are convicted in Australia.
If your visa has been cancelled under these provisions there are strict time limits on lodging appeals.
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