character test

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 –

 

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Source: Department of Immigration and Border Protection