Changes to Character Provisions in Australian Visas
December 10, 2014
The Migration Amendment (Character and General Visa Cancellation) Bill 2014 has been passed by both Houses of Parliament and will come into effect when Royal Assent has been given by the Governor General.
Schedule 1 of the Bill amends the character test provisions and Schedule 2 amends the general visa cancellation powers of the Migration Act 1958. The purpose of the amendments are designed to 'strengthen the powers to refuse to grant, or to cancel, a visa on character grounds by inserting additional grounds on which a person will not pass the character test'.
The Act will strengthen the powers to refuse to grant or cancel a visa on character grounds by:
providing that in the event that a person were allowed to enter or to remain in Australia, there is a risk (as opposed to a significant risk) that the person would engage in any of the conduct referred to in subparagraphs 501(6)(d)(i) - (v) of the Migration Act;
providing that a person has a substantial criminal record (and so does not pass the character test) if the person has been sentenced to 2 or more terms of imprisonment where the total of those terms is 12 months (rather than 2 years or more, as is currently the case);
providing that a person has a substantial criminal record (and so does not pass the character test) if a court has found the person unfit to plead in relation to an offence but the court has found that the person committed the offence, and as a result the person has been detained in facility or institution;
clarifying that if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms;
clarifying that for the purposes of the character test, a sentence or a conviction imposed on a person is only to be disregarded if both the person has been pardoned in relation to the conviction concerned, and the effect of that pardon is that the person is taken never to have been convicted of the offence;
inserting a new mandatory ground for the cancellation without notice of a visa under section 501 of the Migration Act that will apply where:
o the person is serving a full-time sentence of imprisonment for an offence against the law of the Commonwealth, a State or a Territory; and
o the Minister is satisfied that the person has a substantial criminal record (and so does not pass the character test) because they have been sentenced to death, sentenced to imprisonment for life, or sentenced to a term of imprisonment of 12 months or more.
clarifying that a decision to cancel a visa under this new mandatory ground for cancellation is not a decision that is reviewable by the Administrative Appeals Tribunal;
providing that where this new power to cancel a visa is exercised, the Minister, acting personally, or a delegate of the Minister may revoke the cancellation if satisfied that the person passes the character test or there is another reason why the cancellation should be revoked;
providing that decisions of a delegate of the Minister not to revoke the cancellation of a visa of a non-citizen who is in prison is a decision that is reviewable by the Administrative Appeals Tribunal;
providing that where the cancellation of the visa of a person in prison has been revoked by a delegate of the Minister or the Administrative Appeals Tribunal, the Minister may, acting personally, set aside that revocation decision and cancel the visa if satisfied that the person does not pass the character test and the cancellation of the visa is in the national interest;
clarifying that a decision under section 65 of the Migration Act to refuse to grant a protection visa is a decision that is reviewable by the Administrative Appeals Tribunal, other than a decision to which a certificate under section 502 applies;
inserting a new power for the Minister to require the head of an agency of a State or Territory to disclose to the Minister personal information about a person whose visa may be cancelled under section 501 of the Migration Act, subject to certain specified exceptions;
clarifying that a person who holds a permanent visa that was granted by the Minister acting personally is not excluded from entering Australia or being in Australia under section 503 of the Migration Act;
clarifying that the prohibition in section 501E of the Migration Act on making an application for a visa (which applies to a person in respect of whom a decision was made under section 501, 501A or 501B) does not apply to a person who was granted a permanent visa by the Minister acting personally.
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