Web blogs - likely changes to character provisions

If you are an Australian permanent resident, and there is any possibility that you could get into trouble, you should consider getting Australian citizenship given impending changes to the character provisions in the Migration Act.

The Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) was introduced by the Minister for Immigration, Scott Morrison, into the House of Representatives in late September 2014.  The Bill is one of two major pieces of  migration amendment legislation that was introduced to Parliament last week, the other being the  Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. 

Purpose of the Bill

In his second reading speech, Scott Morrison told the House of Representatives:

“The purpose of this bill is to strengthen the character and general visa cancellation provisions in the Migration Act to ensure that non-citizens who commit crimes in Australia, pose a risk to the Australian community or represent an integrity concern are appropriately considered for visa refusal or cancellation. The bill also introduces a mandatory cancellation power for non-citizens who objectively do not pass the character test and are in prison.”

He stressed his belief that “[e]ntry and stay in Australia by noncitizens is a privilege, not a right”, saying that “the Australian government has a low tolerance for criminal, noncompliant or fraudulent behaviour by noncitizens”.

Character Test Amendments

The Bill amends section 501 of the Migration Act 1958 (Cth) to broaden the existing grounds for the Minister to refuse or cancel a visa on character grounds.  The additional grounds will include:

·         The Minister “reasonably suspects” that the person has been a member of a group or association that has been or is involved in criminal conduct;

·         The Minister “reasonably suspects” involvement in people smuggling, trafficking in persons, genocide and other crimes against humanity;

·         Conviction by an Australian or foreign court for a sexual offence against a child – visa cancellation is mandatory for this ground;

·         Being charged by an Australian or foreign court with a crime of “serious international concern”, e.g. genocide, war crimes or torture;

·         ASIO has assessed the person to be “directly or indirectly a risk to security”; and

·         An current Interpol notice has been issued in relation to the person “from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community”.

Another  new mandatory ground for the cancellation of a visa without noticed that applies where a person is “serving a full-time sentence of imprisonment for an offence against the law of the Commonwealth, a State or a Territory”.  This decision would not be reviewable by the Administrative Appeals Tribunal, but the Minister may revoke the cancellation.  Decisions not to revoke the cancellation would be reviewable by the AAT,  however, the Minister may act personally to set aside that decision “in the national interest”.  Rules of natural justice are specifically excluded from applying to this decision.

Changes to existing provisions of the character test include:

·         Lowering “significant risk” to “risk” for section 501(6)(d), which refers to the degree of risk that the person would engage in criminal conduct, harass or stalk others, vilify the community, “incite discord” or “represent a danger”; and

·         Changing the definition of “substantial criminal record” so that a person only needs to have received terms of imprisonment amounting to more than 12 months (down from two years).

General Amendments

The Bill also introduces provisions allowing the Minister to cancel a visa where “the decision to grant the visa was based, wholly or partly, on a particular fact or circumstances that did not exist” or one where “the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists.”

The Minister will also be able to cancel a visa if:

·         he or she is not satisfied as to the visa holder’s identity; and

·         incorrect information was given during the process, and this was taken into account or in connection with a grant decision.