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:
- the Minister reasonably suspects that a person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person and that group, organisation or person has been or is involved in criminal conduct;
- the person has been charged or indicted with one or more of the following, or there is reasonable suspicion that the applicant has been involved in: people smuggling; people trafficking; the crime of genocide; a crime against humanity; a war crime; a crime involving torture or slavery; or a crime that is otherwise of serious international concern;
- a person has had a charge proven for or been found guilty of a sexually based offence involving a child, regardless of conviction;
- the person has been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);
- an Interpol notice in relation to the applicant, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force;
- a person has been found by a court to be unfit to plead, however the offence has otherwise been proven and the person subsequently detained at an institution or facility.
Further amendments strengthen existing limbs of the character test by providing that a person will not pass the character test:
- if, in the event that they were allowed to enter or to remain in Australia, there is a risk (as opposed to a significant risk, which is the current test) that the person would engage in any of the conduct referred to in subparagraphs 501(6)(d)(i) – (v) of the Act;
- where they have been sentenced to two or more terms of imprisonment where the total of those terms, when calculated as consecutive terms, total 12 months or more (rather than 24 months or more, as is currently the case).
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:
- sentenced to imprisonment of 12 months or more;
- sentenced to death;
- sentenced to life imprisonment; or
- have a charge proven for or are found guilty of a sexually based offence involving a child.
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:
- To lower the risk threshold – this ground is now enlivened when someone is or is likely to be a risk to the community, a segment of the community, or to an individual or individuals;
- Cancellation where the Minister is not satisfied as the visa holder’s identity;
- Cancellation where the visa holder provides incorrect information outside of the scope of section 109, and that information led to the granting of a visa or the lifting of a bar;
- An amendment to section 117(2) to allow the new grounds at sections 116(1AA) and 116(1AB) to be used to cancel permanent visa holders where the holder is onshore.
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.