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Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016



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BILLS DIGEST NO. 5, 2016-17 8 SEPTEMBER 2016

Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 Elibritt Karlsen Law and Bills Digest Section

This Bills Digest updates an earlier version dated 9 March 2016.

Contents

History of the Bill ................................................................. 2

Purpose of the Bill ............................................................... 2

Background ......................................................................... 2

Amendments made to visa cancellation framework in 2014 ......................................................................................... 2

Previous attempt to introduce amendments .......................... 3

Increase in number of visa cancellations................................. 3

Committee consideration .................................................... 4

Senate Legal and Constitutional Affairs Legislation Committee ............................................................................... 4

Senate Standing Committee for the Scrutiny of Bills .............. 5

Policy position of non-government parties ........................... 6

Position of major interest groups ......................................... 7

Financial implications .......................................................... 7

Statement of Compatibility with Human Rights .................... 7

Parliamentary Joint Committee on Human Rights .................. 7

Key issues and provisions..................................................... 7

Expanding the definition of ‘character concern’ ..................... 7

Visa cancellation of certain persons serving sentence of imprisonment .......................................................................... 8

Date introduced: 1 September 2016

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: Sections 1 to 3 on Royal Assent. Schedule 1 the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

September 2016.

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History of the Bill An earlier version of this Bill (the February 2016 Bill) was introduced into the 44th Parliament on 10 February 2016.1 That version of the Bill had passed the House of Representatives and was before the Senate when Parliament was prorogued on 15 April 2016. The February 2016 Bill lapsed on prorogation of Parliament.

Purpose of the Bill The purpose of the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 (the current Bill) is to amend the Migration Act 1958 (the Act) to principally:

• amend the definition of character concern to be consistent with the character test in subsection 501(6) of the Act (items 1-4)

• allow for the detention of a person whose visa may be cancelled, and require the release of such a person if the officer becomes aware that their visa will not be cancelled (item 7)

• ensure that a person who had their visa cancelled by the Minister personally under section 501BA does not need to be informed of the provisions of sections 195 and 196 (item 8)

• ensure that a person whose visa was cancelled by the Minister personally under section 501BA has any outstanding visa applications refused and any other visas they hold automatically cancelled (item 19)

• ensure that a person whose visa is cancelled by the Minister personally under section 501BA is not entitled to be in Australia or enter Australia after the making of such a decision (item 20)

• ensure clear removal powers for a non-citizen whose visa has been mandatorily cancelled under subsection 501(3A) and who was invited to make representations about the cancellation but either did not do so within the timeframe, or did so and their visa cancellation was not revoked (item 10) and

• ensure confidential information given to the Department in the context of the exercise of a power under section 501CA or 501BA is protected from further disclosure (other than in certain specified circumstances) and may be protected by court order from disclosure to the applicant, their legal representative or any other member of the public (item 21).2

Background Amendments made to visa cancellation framework in 2014 This Bill makes amendments to the substantive amendments made to the Act by the Migration Amendment (Character and General Visa Cancellation) Act 20143 (the Character Act). The substantive changes to the Act arose from a Review into the Character and General Visa Cancellation Framework conducted by the Department of Immigration and Border Protection (Department or DIBP) in 2013. While the report of the review was not made publicly available, in essence, the Department formed the view that the character cancellation provisions in the Act required amendment to provide for better identification and coverage of non-citizens for consideration of visa cancellation to maintain the integrity of the migration programme.4 Accordingly, the Act was amended in 2014 to:

• provide for mandatory cancellation of the visa of a person who was serving a prison sentence, where the Minister is satisfied that the person fails the character test as they have a substantial criminal record or have been found guilty of a sexually based offence involving a child

• broaden the power to refuse or cancel visas by including additional grounds on which a person will not pass the character test

• provide that a person does not pass the character test if there is a ‘risk’ (rather than the previous ‘significant risk’) that they would pose a danger to the Australian community

1. Parliament of Australia, ‘Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 homepage’, Australian Parliament website. 2. Explanatory Memorandum, Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016, p. 1. 3. Migration Amendment (Character and General Visa Cancellation) Act 2014. 4. M Coombs, Migration Amendment (Character and General Visa Cancellation) Bill 2014, Bills digest, 53, 2014-15, Parliamentary Library,

Canberra, 2014, pp. 3-4.

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• amend the definition of ‘substantial criminal record’ so that a person sentenced to terms of imprisonment totalling 12 months or more (rather than the previous two years) would not pass the character test

• allow the Minister to set aside decisions by a delegate or a Tribunal and cancel a visa if the Minister thinks it is in the national interest and

• enable the Minister to require heads of state or territory agencies to disclose personal information. 5

These changes came into effect on 11 December 2014.6

Previous attempt to introduce amendments The amendments made by the current Bill are identical to amendments proposed in Schedule 2 of the omnibus Migration and Maritime Powers Amendment Bill (No. 1) 2015 (the 2015 Bill), which passed the House of Representatives on 10 November 2015.7 The 2015 Bill secured passage in the Senate on 23 November 2015 and was returned to the House with amendments.8 Though the amended 2015 Bill was listed on the House of Representatives Notice Paper, the amendments made to the Bill by the Senate in November 2015 were never considered in the House and the introduction of the February 2016 Bill on 10 February 2016 suggested that the 2015 Bill had been abandoned altogether.

For information and analysis on the 2015 Bill (as introduced), please see the Parliamentary Library’s Bills Digest, published on 13 October 2015.9

As discussed on the Parliamentary Library’s Flagpost10 blog, the amendments made to the 2015 Bill by the Australian Greens and the Australian Labor Party (ALP) were wide-ranging and included:

• mandating that the Minister make a determination, as soon as practicable, but in any case within 30 days, that a minor is to reside at a specified place, instead of being detained in ‘immigration detention’

• the creation of an offence for failure to report a ‘reportable assault’ (unlawful sexual contact, sexual harassment, unreasonable use of force, and any other assault) which would apply onshore as well as in Australia’s offshore processing facilities

• the insertion of provisions which provide that journalists must not be refused entry to immigration detention facilities unless there are reasonable grounds for refusal so that transparency and accountability of immigration detention facilities is increased both in Australia and in regional processing countries and

• that a person may disclose or use ‘protected immigration detention facility information’ (information or a document that was obtained in the course of their employment and which relates to a detention facility) if the person reasonably believes that the disclosure or use would be in the public interest, in order to make it absolutely clear that disclosures in the public interest are lawful and protected.11

The Government took the view that these amendments were unnecessary and went beyond the scope of the 2015 Bill.12

Increase in number of visa cancellations Prior to the commencement of the Character Act, the Department was of the view that ‘the proposed amendments are not designed to necessarily result in large increases in the number of people whose visa applications are refused and/or whose visas are cancelled’.13

5. Ibid. p. 3.

6. Migration Amendment (Character and General Visa Cancellation) Act 2014. 7. Parliament of Australia, ‘Migration and Maritime Powers Amendment Bill (No. 1) 2015 homepage’, Australian Parliament website. 8. Parliament of Australia, ‘Migration and Maritime Powers Amendment Bill (No. 1) 2015’, Schedule of the amendments made by the Senate, 23 November 2015.

9. E Karlsen, Migration and Maritime Powers Amendment Bill (No. 1) 2015, Bills digest, 30, 2015-16, Parliamentary Library, Canberra, 2015. 10. E Karlsen, ‘Senate agitates for immigration detention reform’, Flagpost, Parliamentary Library blog, 1 December 2015. 11. Ibid.

12. C Fierravanti-Wells, ‘In committee: Migration and Maritime Powers Amendment Bill (No. 1) 2015’, Senate, Debates, 23 November 2015, p. 8586. 13. Department of Immigration and Border Protection (DIBP), Senate Legal and Constitutional Affairs Legislation Committee, Answers to Questions on Notice, Inquiry into Migration Amendment (Character and General Visa Cancellation) Bill 2014, 10 November 2014, Question 4.

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However, the Parliamentary Joint Committee on Human Rights considers that the changes in Schedule 2 of the 2015 Bill (which are reproduced in the current Bill) widen the circumstances in which a person may be subject to immigration detention, ‘as the reduction in procedural safeguards may result in more individuals being caught by the broadened cancellation powers. This position was accepted in the statement of compatibility’.14 The Senate Standing Committee for the Scrutiny of Bills is similarly of the view that the amendments ‘operate in ways which increase the impact or reach that the existing regime for detention under the Migration Act will have’.15 Thus it is relevant to examine the available statistics to determine whether there has already been a significant increase in the number of visa cancellations since the changes were made to the Act in December 2014.

In response to a question taken on notice at Senate Estimates in October 2015, the Department advised that ‘the number of people in detention as a result of mandatory cancellation is higher than anticipated’:

For the period 11 December 2014 to 19 October 2015, there have been 634 non-citizens detained following the cancellation of their visas under the character provisions at section 501 of the Act. The number of people in detention as a result of mandatory cancellation is higher than anticipated and reflects the large number of people who were mandatorily cancelled because they were already serving a prison sentence when the new legislation was introduced, and have chosen to seek revocation of that decision.

16 [Emphasis added].

The most recent statistics made publicly available by the Department indicate that as at 31 July 2016, there were 503 non-citizens in immigration detention (or about 32 per cent of the total onshore detention population) following the cancellation of their visa under section 501 of the Act.17 With respect to New Zealand nationals, who have been particularly impacted by the amendments, since the commencement of the Character Act on 11 December 2014 to February 2016, some 561 New Zealand nationals have had their visas cancelled, the vast majority under the mandatory cancellation provision:

Since 11 December 2014, 561 New Zealand nationals have had their visas cancelled, most of those—533—under mandatory cancellation provisions. Sixty-nine per cent, or 367, have requested revocation of the cancellation decision. Seventy-three have had their revocation requests finalised and 36 have had their visas reinstated. 18

Committee consideration Senate Legal and Constitutional Affairs Legislation Committee On 25 February 2016, the February 2016 Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 16 March 2016.19 Details of the inquiry are at the inquiry webpage.20 Eight submissions were made publicly available. These largely reiterate the concerns expressed with respect to the 2015 Bill (discussed below).

The Senate Legal and Constitutional Affairs Legislation Committee’s report into the 2015 Bill recommended that it be passed (subject to the Explanatory Memorandum being amended to provide greater clarity).21 The Committee received six submissions from various non-governmental agencies.

The Committee report noted that ‘in general, submitters argued that the proposed provisions would exacerbate the unfairness and adverse impacts created by the Character Act, as well as being procedurally unfair’.22 The Committee confined its brief examination of issues in Schedule 2 (containing identical amendments to those

14. Parliamentary Joint Committee on Human Rights, Thirty-fourth report of the 44th Parliament, 23 February 2016, p. 44. 15. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 2, 2016, The Senate, 24 February 2016, p. 65. 16. Senate Legal and Constitutional Affairs Legislation Committee, Answers to Questions on Notice, Immigration and Border Protection Portfolio, Supplementary Budget Estimates 2014-15, 19 October 2015, Question SE15/020.

17. DIBP, ‘Immigration detention and community statistics summary’, DIBP website, 31 July 2016. 18. Australian Border Force, Senate Legal and Constitutional Affairs Legislation Committee, Official committee Hansard, 8 February 2016, p. 65. 19. Senate Standing Committee for Selection of Bills, Report, 2, 2016, The Senate, Canberra, 25 February 2016, p. 3. 20. Senate Legal and Constitutional Affairs Legislation Committee, ‘Inquiry into Migration Amendment (Character Cancellation Consequential

Provisions) Bill 2016’, Australian Parliament website. 21. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration and Maritime Powers Amendment Bill (No.1) 2015 [Provisions], The Senate, Canberra, 10 November 2015, p. vii. 22. Ibid., pp. 6-7.

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being proposed in the current Bill) to the expanded definition of ‘character concern’, consequences of detention, and the 2015 Bill’s retrospective application.

With respect to Schedule 2 more broadly, the Committee expressed the view:

The committee agrees that the amendments proposed in Schedule 2 to the Bill will assist the government to ‘proactively and robustly address character and integrity concerns’. However, the rule of law should not be set aside without clear and compelling justification: prior to the Bill’s passage, the department should provide sufficient justification for the retrospective application of certain items in Schedule 2 and Part 1 of Schedule 3.

23

On 1 September 2016 the Senate Selection of Bills Committee deferred consideration of the current Bill to its next meeting.24

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills examined the February 2016 Bill and noted that, while it makes technical and consequential amendments as claimed, in the Committee’s view the amendments ‘also operate in ways which increase the impact or reach that the existing regime for detention under the Migration Act will have’.25 As the Committee was of the view that the Bill may have the effect of extending the reach of the Character Act, the Committee sought the ‘Minister’s advice in relation to the issues raised about the Character Act in its Fifteenth Report of 2014 and for further advice as to the justification of the current provisions’.26

The Committee also expressed concern with respect to the ‘retrospective commencement’ of various provisions in the February 2016 Bill (subitems 22(2), 22(6) and 22(7)). The Committee noted the Department’s claim that ‘[t]hese amendments do not reach back and change what the law was before commencement and so are not retrospective in that sense’ but noted that this justification requires clarification. The Committee also sought the Minister’s further explanation; including addressing the fairness of attaching legal consequences to an administrative decision (including liability to removal) after that decision has already been made.27

The Minister subsequently provided the following response to the Committee’s concerns:

The amendments in this Bill are consequential to the substantive amendments made by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Character Act). They do not expand visa cancellation powers or the grounds upon which a person may have their visa cancelled. They also do not alter the detention framework already established in the Migration Act 1958 (the Migration Act). Nor does the Bill introduce any additional Ministerial powers to set aside decisions by the Administrative Appeals Tribunal (AAT) or propose any changes to the mandatory cancellation and revocation powers.

The measures proposed in the Bill will amend the legal framework in the Migration Act to ensure that it will be interpreted consistently with the original policy intention, and operates effectively as intended. These changes are necessary to ensure that the character cancellation provisions throughout the Migration Act operate consistently. 28

The Minister also provided the Committee with a lengthy response with respect to the retrospective application of subitems 22(2), 22(6), and 22(7). However, the Committee remained unconvinced, concluding that ‘the desire to make the legal position clear does not appear to be a satisfactory answer to the question of why it is fair to enliven authority to remove a person with retrospective effect’.29 With respect to the application of item 20, the Committee was similarly not convinced that the justification to ‘remove an existing anomaly’ outweighed the implications for undermining the rule of law.30 It noted:

23. Ibid., p. 21. 24. Senate Standing Committee for the Selection of Bills, Report, 5, 2016, The Senate, Canberra, 1 September 2016, p. 4, as amended by: D Bushby, ‘Selection of Bills Committee Report’, Senate, Debates, (proof), 1 September 2016, p. 25. 25. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 2, 2016, op. cit., p. 65. 26. Ibid., p. 67. See also: Senate Standing Committee for the Scrutiny of Bills, Report, 2, 2014, The Senate, Canberra, 19 November 2014, pp. 891-

907.

27. Ibid., p. 68. 28. Senate Standing Committee for the Scrutiny of Bills, Report, 4, 2016, The Senate, Canberra, 17 March 2016, pp. 308-309. 29. Ibid., p. 313. 30. Ibid.

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Given that the Minister ‘is yet to exercise his power under section 501BA to cancel a visa’ the necessity of applying the amendments with retrospective effect is not clear to the committee. 31

It is worth noting that the Committee expressed similar concerns regarding the retrospective application of Schedule 2 to the 2015 Bill (containing identical provisions to those contained in the current Bill).32 While the Minister responded to the Committee’s comments in a letter dated 30 October 2015, the Committee noted that the additional information provided by the Minister ‘do[es] not clearly address the question of whether the approach may create unfairness for affected persons (for example, by defeating a reasonable expectation based on the current provisions)’.33 The Committee remained concerned about the retrospective application of the amendments but left the question of whether the proposed approach is appropriate to the Senate as a whole.34

Policy position of non-government parties While the ALP supported passage of the Character Act it also supported significant amendments to the 2015 Bill (containing (amongst others) identical amendments to the current Bill), moved by the Australian Greens. Former Opposition immigration spokesperson, Richard Marles noted that the ALP tentatively supported the February 2016 Bill, reserving its final position until the Senate Legal and Constitutional Affairs Committee report into the February 2016 Bill was tabled:

Labor will be supporting this Bill. We do so in the House, but I do note that the Senate is currently undertaking an inquiry into the Bill and, so, obviously, our final position, in terms of how we handle this legislation in the Senate, is dependent upon the outcome of that inquiry. But until that outcome has occurred Labor stands supporting this Bill in the House.

35

He also noted that ministerial discretion is being used to cancel visas on character grounds to a greater extent than was the case under the former Labor government:

… it is becoming clear that the government is utilising ministerial discretion to cancel visas on character grounds to a greater extent than was the case under the former Labor government. The cancellation of a person's visa on character grounds is, clearly, a sensitive issue. It has to be done on a case-by-case basis, because we are talking about a different story in respect of each individual. So, I think that, all that can be said from the point of view of Labor in respect of the use of ministerial discretion in this regard, is that we will maintain a close regard, in terms of how the minister is using his discretionary powers but, that, if, in fact, what we are seeing is a toughening up of the system in relation to this, that it is very important for that to be explained to the Australian people by the government.

36

The Australian Greens did not support passage of the Character Act on the basis that it ‘hands unprecedented power to the minister of the day to cancel and refuse a person's visa, denies procedural fairness, risks breaching fundamental human rights and will result in people being subjected to indefinite detention’.37 Nor was the party supportive of the amendments made to character cancellation by the 2015 Bill.38 They are thus highly unlikely to be supportive of the measures contained in the current Bill.

31. Ibid.

32. Senate Standing Committee for the Scrutiny of Bills, Report, 12, 2015, The Senate, Canberra, 11 November 2015, pp. 720-722. 33. Ibid., p. 722. 34. Ibid.

35. R Marles, ‘Second reading speech: Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016’, House of Representatives, Debates, 3 March 2016, p. 3037. 36. Ibid.

37. S Hanson-Young, ‘Second reading speech: Migration Amendment (Character and General Visa Cancellation) Bill 2014’, Senate, Debates, 26 November 2014, p. 9435. 38. Australian Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Migration and Maritime Powers Amendment Bill (No.1) 2015, The Senate, Canberra, 2015, pp. 23-24.

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Position of major interest groups As mentioned above, the Senate Legal and Constitutional Affairs Legislation Committee’s report into the 2015 Bill noted that ‘in general, submitters argued that the proposed provisions would exacerbate the unfairness and adverse impacts created by the Character Act, as well as being procedurally unfair’.39

Financial implications The Explanatory Memorandum notes that the amendments will have a low financial impact.40

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the current Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.41

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considered the February 2016 Bill in its 35th report of the 44th Parliament wherein it referred to its earlier comments on Schedule 2 to the 2015 Bill. 42 It noted that Schedule 2 of the 2015 Bill makes a number of amendments to the new cancellation powers introduced by the Character Act which reduce procedural safeguards, including amendments:

• do not require a person in detention to be informed that they have only two working days to apply for a visa after they have had their visa cancelled by the minister personally under section 501BA

• require a refugee to be held indefinitely even if there is no prospect they can ever be removed, or if the visa decision is unlawful

• extends a ban on most further visa applications in cases where the minister has personally cancelled a visa

• automatically cancel or refuse any other visas in cases where the minister has personally set aside a decision by the Administrative Appeals Tribunal or a departmental officer and

• exclude a person for a prescribed time from entering Australia who has a visa refused or cancelled personally by the minister under sections 501B, or 501BA.43

The Committee was also of the view that changes in Schedule 2 widen the circumstances in which a person may be subject to immigration detention, visa cancellation and potential refoulement.44 The Committee also assessed the compatibility of the measures with the following rights and obligations: non-refoulement obligations; the right to liberty; the right to freedom of movement; the obligation to consider the best interests of the child; and the right to equality and non-discrimination.45

Key issues and provisions Expanding the definition of ‘character concern’ The term ‘character concern’ is defined in section 5C of the Act. The definition is currently only relevant for the purposes of section 336E of the Act which relates to the disclosure of identifying information. More explicitly, it is only used in subparagraph 336E(2)(a)(iii) which provides that a permitted disclosure of identifying information is a disclosure that is for the purpose of data-matching in order to identify non-citizens who have a criminal history or who are of character concern; and paragraph 336E(2)(ec) which provides that a permitted disclosure of identifying information is a disclosure that is for the purpose of identifying non-citizens who have a criminal history or who are of character concern.

39. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration and Maritime Powers Amendment Bill (No.1) 2015 [Provisions], op. cit., pp. 6-7. 40. Explanatory Memorandum, Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016, op. cit., p. 2. 41. The Statement of Compatibility with Human Rights can be found at page 15 of the Explanatory Memorandum to the Bill. 42. Parliamentary Joint Committee on Human Rights, Thirty-fifth report of the 44th Parliament, 25 February 2016, p. 2. 43. Parliamentary Joint Committee on Human Rights, Thirty-fourth report of the 44th Parliament, op. cit., p. 40. 44. Ibid.

45. Ibid., pp. 41-65.

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Items 1-4 will expand the definition of ‘character concern’ so that it is consistent with the new wording of the ‘character test’ in section 501 of the Act. Aligning the definitions will ensure ‘that the definition of ‘character concern’ is broad enough to identify those persons who may not pass the character test’.46 The broader definition of ‘character concern’ will capture:

… non-citizens who have been convicted of, charged with, or indicted for, people smuggling, human trafficking, the crime of genocide (among other crimes of serious international concern) child sex offences, non-citizens subject to an Interpol notice or adverse security assessment, and non-citizens who have been found not fit to plead in relation to an offence but have been found to have committed the offence, and have been detained in a facility or institution. It also includes non-citizens who are reasonably suspected of association with criminal groups or persons involved in criminal conduct. The definition also includes a non-citizen convicted of an offence that was committed in immigration detention, during an escape from immigration detention or was convicted of the offence of escaping from immigration detention.

47

While the Explanatory Memorandum acknowledges that this amendment has the ‘potential to increase the overall number of non-citizens who meet the definition of character concern and who may therefore have a personal identifier disclosed’, it further explains that ‘it does not alter the existing safeguards which govern the collection, use and disclosure of identifying information’.48

Visa cancellation of certain persons serving sentence of imprisonment The Character Act inserted subsection 501(3A) into the Act. Broadly speaking, this provision provides that the Minister must cancel a visa that has been granted to a person if satisfied that the person (serving a sentence of imprisonment) does not pass the character test because of their substantial criminal record (sentenced to a term of imprisonment of 12 months or more) or because (at a minimum) a court has found a charge against the person proved for a sexually based offence involving a child (even if discharged without a conviction). This mandatory cancellation power need not be exercised by the Minister personally.

The Character Act simultaneously inserted section 501CA into the Act which enables the Minister (or a delegate or the Administrative Appeals Tribunal on review) to revoke a cancellation decision made under subsection 501(3A). However, the Character Act also inserted section 501BA into the Act, which enables the Minister to personally override a decision to revoke the cancellation under section 501CA, and cancel the visa on character grounds if satisfied it is in the national interest to do so.49

References to these two existing provisions, sections 501CA (revocation of cancellation) and 501BA (Minister’s personal power to override revocation on national interest grounds) are being inserted into other existing provisions in the Act. The most significant insertions are briefly discussed below.

In this context it is worth noting that merits review of the Minister’s power under section 501BA is not available and while judicial review is available to consider the lawfulness of the decision, such a review cannot reconsider the facts to determine whether it was the preferable decision.50

Item 7 inserts references to section 501BA into subsections 192(1) and (4) of the Act. Subsection 192(1) provides that an officer may detain a non-citizen if the officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under section 501 and 501A (among other provisions). The effect of this amendment is to extend the operation of this provision to persons who may have their visas cancelled by the Minister personally under section 501BA (subject to subsection 192(2)).

The insertion of a reference to section 501BA into subsection 192(4) of the Act means that where a non-citizen is detained under subsection 192(1), they must be released from questioning detention if the officer becomes

46. Explanatory Memorandum, Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016, op. cit., p. 4. 47. Ibid.

48. Ibid., p. 5. 49. Item 12 amends paragraphs 476(2)(c) and 476A(1)(c) to provide that decisions made by the Minister personally under sections 501BA and 501CA are reviewable by the Federal Court rather than the Federal Circuit Court, which is consistent with other character decisions made personally by the Minister.

50. See the recent case of Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (15 February 2016) wherein the full bench of the Federal Court of Australia found that the Minister’s personal decision to cancel the visa of a long-term resident was not unreasonable and was within the scope of the power conferred by the Act despite there being a low risk of reoffending.

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aware that their visa is not one that may be cancelled under section 501BA, 501 and 501A among other provisions.

Item 8 inserts a reference to section 501BA into subparagraph 193(1)(a)(iv) of the Act. The effect of this amendment is that a person who has had their visa cancelled by the Minister personally under section 501BA need not be informed that they may only apply for a visa within two working days after section 194 of the Migration Act was complied with in relation to his or her detention.51 Further, the person does not need to be made aware of section 196.52 The Explanatory Memorandum notes that a person who has had their visa cancelled by a delegate under subsection 501(3A) will already have been detained under section 189 and informed of the existence of sections 195 and 196 at that point.53

Various submitters to the Senate Legal and Constitutional Affairs Legislation Committee inquiry into the 2015 Bill expressed concern with respect to this amendment. They rejected this rationale, stating that it did not appear to be a ‘sufficient justification for denying a person in this situation a fundamental aspect of their right to procedural fairness’.54 In addition, they noted that ‘some detainees might not remember, or have difficulty in understanding, their legal rights and options. Examples of how this might occur include language barriers and restricted access to legal representatives’.55

The Parliamentary Joint Committee on Human Rights also noted it is unclear how this amendment is necessary or reasonable:

The committee notes that no specific explanation is provided for why the Bill includes amendments that a non-citizen who has had a visa cancelled by the minister personally under section 501BA does not need to be informed that they may only apply for a visa within 2 working days. Moreover, given the time critical nature of a person's response to cancellation, no justification is provided as to how it is sufficient that such information will have been provided previously in a different context, particularly given the very serious consequences for the individual concerned and given their pre-existing vulnerability as a person in detention. It is unclear how this amendment is necessary or reasonable.

56

Item 10 inserts a reference to section 501CA into paragraph 198(2A)(c) of the Act which means an officer must remove (from Australia) as soon as reasonably practicable a person who has had their visa cancelled under subsection 501(3A) and who has been invited under section 501CA to make representations about revocation of the original decision and who has not made representations in accordance with the invitation or has made representations but the Minister has decided not to revoke the original decision.

Item 11 inserts subsection 198(2B) into the Act which similarly means an officer must remove (from Australia) as soon as reasonably practicable a person who has had their visa cancelled by a delegate of the Minister under subsection 501(3A) (as opposed to the Minister personally) if they have not lodged a valid application for a substantive visa and if they have been invited under section 501CA to make representations about revocation of the original decision and have either not made such representations in accordance with the invitation or have made representations but the Minister has decided not to revoke the delegate’s decision.57

Item 18 inserts a reference to section 501BA into paragraph 501E(1)(a) of the Act which means a person whose visa has been cancelled personally by the Minister under section 501BA is prevented from making a further visa application while they are in the migration zone. Subsection 501E(2) provides that a person is not prevented

51. Section 194 of the Act provides that as soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of sections 195 and 196 (amongst others) of the Act. Section 195 prescribes the time in which a detainee may apply for a visa and the type of visa that can be applied for.

52. Section 196 of the Act specifies the duration of detention. 53. Explanatory Memorandum, Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016, op. cit., p. 6. 54. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration and Maritime Powers Amendment Bill (No.1) 2015 [Provisions], op. cit., p. 9.

55. Ibid.

56. Parliamentary Joint Committee on Human Rights, Thirty-fourth report of the 44th Parliament, op. cit., p. 42. 57. The note to proposed subsection 198(2B) clarifies that the only visa the non-citizen could apply for is for a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2). Regulation 2.12AA of the Migration Regulations 1994 provides that for paragraph 501E(2)(b) of the Act, a Bridging R (Class WR) visa is specified. Item 1307 of Schedule 1 to the Migration Regulations 1994 provides in turn that

the only visa subclass of this visa class is subclass 070 (Bridging (Removal Pending)).

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from making an application for a protection visa (unless barred from doing so under section 48A) or a visa specified in the regulations for this purpose—currently, the subclass 070 (Bridging (Removal Pending)) visa.58

Item 19 inserts a reference to section 501BA into subsection 501F(1) of the Act. The effect of this amendment is that if a person’s visa has been cancelled personally by the Minister under section 501BA of the Act, any application that they have made for a visa (other than for a protection visa or a visa specified in the regulations for the purposes of subsection 501F(2)) is taken to have been refused.59 Further, any other visa that the person holds is taken to be cancelled, provided it is neither a protection visa nor a visa specified in the regulations for the purposes of subsection 501F(3).60

Item 20 inserts a reference to section 501BA into paragraph 503(1)(b) of the Act. The effect of this amendment is that a person whose visa has been cancelled by the Minister personally under section 501BA is not entitled to enter Australia or be in Australia at any time during the period determined under the regulations. Subsection 503(4) provides that this section does not apply to a holder of a criminal justice visa or to a holder of a permanent visa that was granted by the Minister acting personally.

Item 21 inserts references to sections 501BA and 501CA into subsections 503A(1) and (2) and 503B(1). This amendment essentially provides that confidential information given to the Department in the context of the exercise of a power under section 501CA or 501BA is protected from further disclosure (other than in certain specified circumstances) and may be protected by court order from disclosure to the applicant, their legal representative or any other member of the public. The Explanatory Memorandum relevantly notes:

This amendment gives effect to the policy intention that confidential information communicated to an authorised migration officer by a gazetted agency that is relevant to the exercise of a power under section 501CA or 501BA receives the same level of protection as the confidential information that is relevant to the exercise of a power under section 501, 501A, 501B or 501C.

61

Item 22 is an application provision. It provides that the amendments made by items 10, 11, 20 and 21 have retrospective application. While the Explanatory Memorandum acknowledges that these items have retrospective application it notes with respect to all of these items (except item 21) that ‘these amendments do not reach back and change what the law was before commencement and so are not retrospective in that sense’.62 As discussed previously, the Senate Standing Committee for the Scrutiny of Bills was of the view that additional information previously provided by the Minister regarding the retrospective application of the 2015 Bill did ‘not clearly address the question of whether the approach may create unfairness for affected persons (for example, by defeating a reasonable expectation based on the current provisions)’.63 Newly amended subitem (4), which relates to item 12, has gone from retrospective to prospective application under the current Bill. This means that decisions made personally by the Minister to cancel a visa under sections 501CA or 501BA after commencement will be reviewable by the Federal Court instead of the Federal Circuit Court, consistent with other similar cancellation decisions under the Act.64

58. Regulation 2.12AA of Migration Regulations 1994 provides that for paragraph 501E(2)(b) of the Act, a Bridging R (Class WR) visa is specified. Item 1307 of Schedule 1 to the Migration Regulations 1994 provides in turn that the only visa subclass of this visa class is subclass 070 (Bridging (Removal Pending)).

59. No visas are currently specified in the Migration Regulations 1994 for the purposes of subsection 501F(2). 60. No visas are currently specified in the Migration Regulations 1994 for the purposes of subsection 501F(3). 61. Explanatory Memorandum, Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016, op. cit., p. 11. In broad terms, this means that confidential information provided to the Department by a law enforcement or intelligence agency which is relied upon to

cancel a visa under sections 501BA or 501CA, will not be disclosed even to the non-citizen whose visa has been cancelled. The Minister has the discretion to disclose such information to a court or tribunal in specified circumstances. 62. Ibid., pp. 12-14. 63. Senate Standing Committee for the Scrutiny of Bills, Report, 12, 2015, op. cit., p. 722. 64. Explanatory Memorandum, Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016, op. cit., pp. 12-13.

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