character cancellations

MANDATORY CHARACTER CANCELLATION HERE TO STAY

If you have been following our blog posts, you will recall that we have previously written about the "mandatory cancellation power" introduced into the Migration Act in December 2014.  Specifically, section 501(3A) states that the Minister must cancel a person's visa if they fail the character test.

The High Court recently heard legal arguments to the effect that the introduction of s 501(3A) was unconstitutional because (among other arguments) it was punitive in nature and purported to confer judicial power on the Minister.  The case was brought by Mr Falzon, who was a 61 year old Maltese citizen who had lived in Australia since the age of 3.  His visa was mandatorily cancelled because he had been convicted of trafficking a large amount of cannabis and received a lengthy term of imprisonment as a result. 

If successful, Mr Falzon's High Court application would mean that hundreds of visas had been unlawfully cancelled over the last three years.  However, on 7 February 2018 the High Court delivered its judgement in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 and unanimously concluded that s 501(3A) was here to stay.

In reaching its decision, the High Court made the following observations:

➤ "the power to remove or deport [non-citizens] from a country is executive in nature and it is non-punitive"

➤ "deportation may be burdensome and severe for a non-citizen [...] but s 501(3A) [...] does not increase the punishment for the crime or crimes of which the non-citizen has been convicted or found guilty"

➤ "a person's nationality is not changed by length of residence or an intention permanently to remain in a country of which he or she is not a national"

➤ "as a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country"

➤ "whilst a [non-citizen] present in this country enjoys the protection of our law, his or her status, rights and immunities under the law differ from those of an Australian citizen in a number of important respects. Relevantly, the most important difference lies in the vulnerability [...] of a [non-citizen] to exclusion or deportation."

If your visa is cancelled under section 501(3A) we suggest that you contact us urgently to discuss.  There is no right of appeal but you can have the decision overturned, if you lodge a revocation application within 28 days.  Putt Legal specialises in "revocation submissions" to the National Character Consideration Centre. 

Refusal or cancellation of Australian visas on character grounds

Anyone who applies for or holds an Australian visa must satisfy the ‘character test’ defined in the Migration Act (typically this is everybody in Australia except those who hold Australian citizenship status).  The immigration department can refuse or cancel any visa on the basis that the person does not pass the ‘character test’.

A person may not pass the character test for a variety of reasons set out in the Act, which include (but are not limited to) –  

  • having a “substantial criminal record”
  • being a member or associated with an organisation suspected of being involved in criminal conduct (for example, being a member of an outlaw motorcycle club)
  • being reasonably suspected of involvement in people smuggling, people trafficking, genocide, war crime, crimes against humanity and other related activities (whether or not a conviction was recorded)
  • displaying past or present criminal or general conduct which suggests they are not of good character
  • being convicted of sexually-based offences involving a child, and
  • there being a risk that the person might engage in criminal conduct.

A person has a “substantial criminal record” if they have been sentenced, among other things, to a term of imprisonment of 12 months or more. This includes being sentenced to two or more terms of imprisonment (even if served concurrently), where the total of those terms is 12 months or more.  This also includes “suspended” terms of imprisonment, so the person does not have to have actually served time in prison.

A person’s visa will be automatically cancelled if they are currently serving a full-time custodial sentence and have ever been sentenced to 12 months or more imprisonment, or have been convicted of a sexually based crime involving a child.

New Zealand citizens who have been in Australia for many years are one of the largest cohorts to be affected by these provisions.

If your visa is subject to mandatory cancellation  on character grounds, you have the opportunity to request ‘revocation’ of the cancellation decision within 28 days. In order words, you can ask for your visa back.  If that request fails, then there are further appeal options, including merits review by the Administrative Appeals Tribunal or judicial review, depending on whether the Department made the adverse decision, or whether the Minister of Immigration did so personally.  However, if you are ultimately unsuccessful in having your visa re-instated, you will be removed from Australia and will never be permitted to return.

Additionally the Department frequently issues Notices of Intended Cancellation or Refusal of visa applications to visa applicants or visa holders in the community when they become aware of pending criminal charges or past significant criminal convictions. Such persons are asked to comment on their convictions or pending criminal charges, and give reasons why the visa application should not be refused, or the visa cancelled. It is very important to get prompt legal advice in relation to such Notices. If your visa is cancelled or refused on character grounds, any bridging visas will also be cancelled, and you may be immediately arrested without notice and taken into immigration detention as you no longer hold a visa.

There has been a significant increase in the rate of character cancellations and refusals by the Immigration Department in recent years, as you can see from the following graph –

 

chart1.jpg
Source: Department of Immigration and Border Protection

Citizenship application & past criminal convictions

Are you applying for Australian Citizenship?

Do you have a criminal conviction(s) in Australia or overseas?

Part of the eligibility criteria for Australian citizenship is the Minister of Immigration being satisfied that the applicant is of good character: s21(2) of the Australian Citizenship Act 2007 (the Act).

The expression ‘good character’ is not defined in the Act. However, the case law suggests that if there is a criminal conviction the decision maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant, and the decision will turn his attention to whether or not the applicant has shown that he has reformed: Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] FCA 663 per Davies J at 425. In some cases even where a conviction is not recorded it may have an adverse effect on a citizenship application (see Jiang case below).

Given its broad and difficult to define nature, the Minister has set out guidelines for Departmental staff to assist in applying the good character requirement. These are located in Chapter 10 of the Australian Citizenship Instructions. While these instructions do not form part of the law on this subject, by following the guidelines, all applicants receive equal treatment by departmental officers. The overview to Chapter 10 provides a useful summary:

‘Good character refers to the enduring moral qualities of a person, and is an indication of whether an applicant is likely to uphold and obey the laws of Australia and the other commitments made through the pledge should they be approved for citizenship…’

For serious criminal convictions a significant amount of time may have to have passed before the decision maker is satisfied that the applicant is of good character. Again, neither the department nor the Administrative Appeal Tribunal (AAT) have established what a significant amount of time is and thus each case must be determined on a case by case basis.

There are however some cases that have shed some light on whether or not a suitable amount of time has passed since the offence to allow for a person’s character to change and for citizenship to be granted.

Sharma and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 608 (19 August 2015):

The applicant appealed the DIPB’S decision to refuse citizenship to the AAT.

In June 2012 the applicant was convicted of the offences of assault occasioning actual bodily harm and destroying or damaging property, that were domestic violence related. The applicant pleaded guilty and was sentenced to a good behaviour bond for 12 months. The Tribunal regarded the offences as serious.

The applicant was advised by police to undergo counselling with his family to resolve the source of the domestic violence, but the applicant refused to do so.  At the tribunal, the applicant alleged that he received help from the local community health team. The applicant did not present any evidence to show that he had done any rehabilitation.

The applicant’s good behaviour bond expired in June 2013, thus creating a two year gap between his release from the good behaviour bond and the AAT’s decision. The Tribunal member cited that without evidence of rehabilitation, the period since the applicant’s release from the bond is not long enough to be satisfied that the applicant has reformed. In conjunction to this the applicant did not display remorse but rather attempted to justify his actions.

Jiang and Minister for Immigration and Border Protection (Citizenship) [2015] AATA 597 (14 August 2015):

The applicant first arrived in Australia in February 2006. The applicant had a friend that, over several years, would engage in identity theft for the purposes of obtaining multiple credit cards. The applicant was aware of this and had at times aided and facilitated this.

Eventually in May 2014 the applicant pleaded guilty to the following offences: knowingly deal with proceeds of crime; possessing identification information with an intention to commit or facilitate an offence; and dishonestly undertaking or assisting in the retention of stolen goods.

The applicant was fined $4000 with no conviction recorded. From the date of conviction to the date of the Tribunal decision in August 2015, 15 months had passed. The tribunal member had deemed the 15 months as insufficient time to demonstrate a reformed character, describing it as only a short period of time. Furthermore, the tribunal member was not satisfied with the statements given in support of the applicant as they had only a “general understanding” of the applicant’s criminal history. As a result the AAT affirmed the Department’s decision to refuse his application for conferral of Australian citizenship.

You may care to contact us to discuss your particular circumstances before submitting an application