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Migration Amendment (Character and General Visa Cancellation) Bill 2014



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ISSN 1328-8091

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BILLS DIGEST NO. 53, 2014-15 25 NOVEMBER 2014

Migration Amendment (Character and General Visa Cancellation) Bill 2014 Moira Coombs Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Background ......................................................................... 3

Review of the Character and General Visa Cancellation Framework............................................................................... 3

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

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

Senate Standing Committee for the Scrutiny of Bills .............. 4

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

Position of major interest groups ......................................... 6

Financial implications .......................................................... 6

Statement of Compatibility with Human Rights .................... 6

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

Schedule 1—Character test amendments ............................. 7

Merits Review of Decisions ................................................. 7

Mandatory Cancellation Power .......................................... 7

Character test ...................................................................... 8

Definition of substantial criminal record .......................... 10

Revocation of a decision under subsection 501(3A) ......... 11

Setting aside non-adverse decisions under section 501CA ................................................................................ 11

Schedule 2—General visa cancellation ............................... 12

New Subdivision FA—additional personal powers for the Minister to cancel visas on section 109 and 166 grounds ..... 14

Date introduced: 24 September 2014

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: Sections 1 to 3 commence on Royal Assent. Schedule 1 items 1 to 25, 28 to 32 and Schedule 2 commence on the day after Royal Assent. Schedule 1 items 26 and 27 commence on the day after Royal Assent, except if items 16 and 17 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 have already commenced, in which case they do not commence at all.

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 ComLaw website.

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Concluding comments ....................................................... 16

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Purpose of the Bill The purpose of the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (the Bill) is to amend the Migration Act 19581 (the Act) in relation to the character test and general visa cancellation provisions to:

Schedule 1—Character test

• provide for mandatory cancellation of the visa of a person who is 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 current ‘significant risk’) that they would pose a danger to the Australian community

• amend the definition of ‘substantial criminal record’ so that a person sentenced to terms of imprisonment totalling 12 months or more (rather than the current two years) will 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.

Schedule 2—General visa cancellation

• expand the grounds on which a visa may be cancelled under the general visa cancellation power

• expand the Minister’s personal powers to cancel a visa on section 109 or 116 grounds

• provide a mechanism to revoke a cancellation in certain circumstances and

• allow the Minister to substitute their own decision for a decision of a Tribunal or a delegate.

Background Review of the Character and General Visa Cancellation Framework The Explanatory Memorandum notes that the Department of Immigration and Border Protection conducted a Review of the Character and General Visa Cancellation Framework in 2013. The report of this Review, which has not been released publicly, formed the basis for the proposed changes in the current Bill. According to the Explanatory Memorandum:

… the Review recommended that a number of amendments be made to the Migration Act to strengthen the integrity of the migration programme, including amendments to better capture particular kinds of criminal activity and non-citizens who engage in migration fraud.

The amendments to the Migration Act that are proposed to be made by the Bill will strengthen the character and general visa cancellation provisions and reform the approach to the cancellation of visas of non-citizens who are in prison. 2

The rationale for making the changes is proposed in the following terms:

The character provisions in Part 9 of the Migration Act have been in place in their current form since 1999, and the general visa cancellation provisions in Subdivision D of Division 3 of Part 2 of the Migration Act have remained largely unchanged since 1994. Since that time, the environment in relation to the entry and stay in Australia of non-citizens has changed dramatically, with higher numbers of temporary visa holders entering Australia for a variety of purposes.

3

1. Migration Act 1958 , accessed 11 November 2014. 2. Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014, p. 1, accessed 24 November 2014. 3. Ibid.

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In the Statement of Compatibility with Human Rights in the Explanatory Memorandum, the Government notes that:

Facilitation of entry needs to be complemented with strong cancellation powers and processes to ensure that the Government’s ability to protect the Australian community and maintain the integrity of the Migration Programme is maintained into the future. 4

According to the Statement of Compatibility, the Review identified a need to revise and update provisions to ‘address the risk to the community posed by non-citizens of possible character concern’. It goes on to state:

The character provisions in the Act have been in place since 1999, while the general visa cancellation provisions under sections 109 and 116 have remained largely unchanged since 1994, which meant that many of the existing provisions were no longer reflective of modern jurisprudence. 5

The Statement of Compatibility provides that the review concluded:

… that while the character and visa cancellation (and refusal) framework was generally sound, it was clear there remained a small number of non-citizens who were not effectively and objectively being captured for consideration. The Review proposed that this situation could be rectified by targeted Act amendments to provide for better identification and coverage of cohorts of non-citizens who had engaged in criminal or fraudulent behaviour, or behaviour of concern, for consideration of visa cancellation or refusal.

6

Committee consideration Senate Legal and Constitutional Affairs Legislation Committee The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 24 November 2014.7

Senate Standing Committee for the Scrutiny of Bills The Scrutiny of Bills Committee drew attention to a number of issues contained in the Bill.

Proposed subsection 501(3A), at item 8 of Schedule 1 sets out circumstances in which the cancellation of a visa is mandatory. (These circumstances are that the person is serving a full-time sentence of imprisonment and 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.) As a result of proposed paragraph 500(4A)(c), inserted by item 7, decisions to cancel a visa under proposed subsection 501(3A) are not merits reviewable by the Administrative Appeals Tribunal (AAT), the Migration Review Tribunal (MRT) or the Refugee Review Tribunal (RRT). The Committee leaves the question to the Senate as a whole as to whether sufficient justification is provided by the Explanatory Memorandum for excluding a fair hearing prior to making a cancellation decision.8

Section 501 of the Act provides that the Minister may refuse to issue a visa, or may cancel a visa, if he or she is not satisfied that the applicant or visa-holder satisfies the ‘character test’. The elements of the character test for the purposes of section 501 are set out in subsection 501(6). Current paragraph 501(6)(b) provides that a person does not pass the character test if they have or have had an association with an individual or group who the Minister ‘reasonably suspects has been or is involved in criminal conduct’. Item 10 of Schedule 1 repeals this provision and substitutes new paragraphs 501(6)(b) and (ba). Proposed paragraph 501(6)(b) will have the effect of lowering the threshold of evidence required to establish a relevant association.

Current paragraph 501(6)(d) provides that a person does not pass the character test if there is a ‘significant risk’ that, if the person was allowed to remain in Australia, they would engage in criminal conduct or otherwise represent a danger to the community, or part of the community. Item 11 of Schedule 1 amends paragraph 501(6)(d) to change the threshold from ‘significant risk’ to ‘risk’.

4. Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014, Statement of Compatibility with Human Rights, Attachment A, p. 1, accessed 13 November 2014. 5. Ibid., p. 1.

6. Ibid.

7. Details of the inquiry can be found on the website of the Senate Legal and Constitutional Affairs Legislation Committee. 8. Senate Scrutiny of Bills Committee, Alert Digest No. 14 of 2014, 29 October 2014, p. 9, accessed 20 November 2014.

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The Committee has sought further explanation from the Minister as to the appropriateness of both of these amendments.9

Proposed paragraph 501(6)(g), inserted by item 12, provides that a person does not pass the character test if they have been assessed by the Australian Security Intelligence Organisation (ASIO) to be a risk to security. The Committee has sought the Attorney-General’s advice on whether the ASIO assessments will be reviewable by the AAT and, if so, what implications this will have on the validity and implementation of decisions based on those assessments.10

Item 17 of Schedule 1 inserts proposed section 501BA, which allows the Minister to set aside certain decisions of a delegate or the AAT to revoke a cancellation of a visa and provides that the rules of natural justice do not apply to the Minister’s decision in these circumstances. Such Ministerial decisions are not subject to merits review. (The provision is explained in more detail below at the ‘Key issues and provisions’ section of this Digest.) The Committee noted that the non-availability of merits review makes the exclusion of natural justice more concerning, as there are no procedural checks on the Minister’s exercise of power, which ‘depends on his or her view about the vague criterion of what is in the national interest’.11 The Committee has sought a more detailed explanation from the Minister, as to the appropriateness of the exclusion of all aspects of natural justice.12 The Explanatory Memorandum indicates that merits review is excluded based on the ‘recognition of the fact that the government is ultimately responsible for ensuring that decisions reflect community standards and expectations’.13 The Committee notes its concern:

… that this argument underestimates the role merit review tribunals can play in reflecting community standards and expectations. As part of their obligation to make the correct and preferable decision merit review tribunals typically apply government policy. 14

Item 25 of Schedule 1 inserts proposed section 501L, which requires a state or territory agency head to disclose personal information considered relevant to assessing whether a person passes the character test, to the Minister. The Committee has sought information from the Minister about whether the Privacy Commissioner has been consulted in developing the amendment and whether consideration has been given to the appropriateness of providing for additional accountability arrangements in recognition of the highly sensitive nature of the information which may be disclosed and the fact that a great deal of information may be relevant to a person’s character in the ordinary sense.15

The Committee has also sought further information from the Minister on the appropriateness of:

• limiting the availability of merits review of some personal decisions made by the Minister (items 26 and 27 of Schedule 1 and 18 to 21 of Schedule 2) and

• ‘the abrogation of the fundamental principles of natural justice, including the rule against bias’ (item 12 of Schedule 2).16

The response of the Minister to the questions of the Scrutiny of Bills Committee can be found in the Committee’s report of 19 November 2014.17 The Committee felt that some aspects of the Minister’s response did not adequately address the questions posed by the Committee, and has sought further explanation of these issues from the Minister and, in relation to proposed paragraph 501(6)(g) of the Act at item 12 of Schedule 1, reiterates its request for advice from the Attorney-General.18

10. Ibid., p. 12. 11. Ibid., p. 14. 12. Ibid.

13. Explanatory Memorandum, op. cit., p. 15. 14. Ibid., p. 14. 15. Ibid., pp.15—16. 16. Senate Scrutiny of Bills Committee, Alert Digest No. 14 of 2014, op. cit., p. 17. 17. Senate Standing Committee for the Scrutiny of Bills, Fifteenth report of 2014, 19 November 2014, p. 891, accessed 24 November 2014. 18. Ibid., pp. 893-907.

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Policy position of non-government parties/independents The Australian Labor Party supported the Bill during its passage through the House of Representatives.19 At the time of writing this Bills Digest, the views of the minor parties and independents were not publicly known.

Position of major interest groups The ANU Migration Law Program has drawn attention to a number of issues in its submission to the Senate Legal and Constitutional Affairs Committee in its inquiry into the Bill. The issues highlighted are:

• the ‘dramatic’ expansion of the Minister’s powers under the Bill

• significant lowering of the threshold on what constitutes a failure to pass the character test

• watering down of the principles and protections of natural justice

• the changes have the potential to disrupt the lives of hundreds of long-term residents and impact indirectly on Australian citizens and that the Explanatory Memorandum does not adequately justify such major changes being made

• the detrimental impact of the amendments on the principles of natural justice in administrative decision making and on the integrity of the principles underpinning the criminal justice system is too high a price to pay

• refusal of a visa is not the same as cancellation in terms of the impact on the visa holder, especially a long term resident and the potential impacts on Australian citizens. Justification for the need to refuse more visas should not be used to increase the number of people who do not pass the character test for cancellation purposes.20

The Refugee Council of Australia raises concerns about the amendment to paragraph 501(6)(d) made by item 11 of Schedule 1 (discussed above at ‘Senate Standing Committee for the Scrutiny of Bills’):

… there is potential for the expanded powers to be inappropriately applied to individuals who do not pose a genuine or significant risk to the community. Indeed, the amendments to [paragraph] 501(6)(d) of the Act specifically remove the requirement that the risk to community safety must be “significant” in order for the person’s visa to be cancelled. While the Explanatory Memorandum states that “the intention is that the level of risk required is more than a minimal or trivial likelihood of risk”, the legislation itself imposes no such requirements.

21

Financial implications The Explanatory Memorandum notes that the financial impact of the Bill is low and costs will be met from within existing resources of the Department of Immigration and Border Protection.22

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 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.23

The Parliamentary Joint Committee on Human Rights has deferred its consideration of the Bill.24

19. M Rowland, ‘Second reading speech: Migration Amendment (Character and General Visa Cancellation) Bill 2014’, House of Representatives, Debates, 22 October 2014, p. 86. 20. ANU College of Law: Migration Law Program, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Amendment (Character and General Visa Cancellation) Bill 2014, pp. 2-3, accessed 17 November 2014. 21. Refugee Council of Australia, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Amendment

(Character and General Visa Cancellation) Bill 2014, accessed 3 November 2014. 22. Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014, p. 4. 23. The Statement of Compatibility with Human Rights can be found at Attachment A of the Explanatory Memorandum to the Bill. 24. Parliamentary Joint Committee on Human Rights, Fifteenth report of the 44th Parliament, 14 November 2014, p. 44, accessed 24 November

2014.

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Key issues and provisions Schedule 1—Character test amendments The term character concern is defined in section 5C of the Migration Act. One basis on which a person can be of character concern is if they have a ‘substantial criminal record’, which is defined at subsection 5C(2). Currently a person has a substantial criminal record if they have been:

(i) sentenced to death, life imprisonment, or at least 12 months imprisonment (paragraphs 5C(2)(a)- (c))

(ii) sentenced to two or more terms of imprisonment that total at least two years’ imprisonment (paragraph 5C(2)(d)) or

(iii) have been detained in a facility after being acquitted due to unsoundness of mind or insanity (paragraph 5C(2)(e)).

Item 1 would amend paragraph 5C(2)(d) to change the second of these grounds, by providing that a person has a substantial criminal record if they have been sentenced to two or more terms of imprisonment that total at least 12 months (rather than the current two years). This will align the definition of ‘substantial criminal record’ in section 5C with the definition at subsection 501(7), as amended by item 13 (see below).

Merits Review of Decisions Section 500 concerns the review of decisions. Subsection 500(4A) lists decisions that are not subject to review by AAT, MRT or RRT. Item 7 amends subsection 500(4A) to include an additional decision type that is not merits reviewable. As a result of new paragraph 500(4A)(c), a decision made by the delegate of the Minister to cancel a visa under proposed subsection 501(3A) (to be inserted by item 8, see below) will be exempt from review by the AAT, MRT or RRT.

Mandatory Cancellation Power Section 501 of the Act sets out when the Minister may refuse or cancel a visa on character grounds. Item 8 will insert proposed subsection 501(3A), which will set out a mandatory ground for visa cancellation. New subsection 501(3A) will provide that the Minister must cancel the visa of a person if that person is serving a full-time sentence of imprisonment for an offence against Australian law and the Minister is satisfied that the person does not pass the character test as they have a substantial criminal record due to having received a sentence of at least 12 months imprisonment (or a sentence of death or life imprisonment) , or have been found guilty of a sexually based offence involving a child. This provision applies to a person found guilty of a child sexual offence by an Australian or a foreign court, even if the person was discharged without conviction (proposed paragraph 501(6)(e), at item 12).

Comment:

The ANU Migration Law Program submission questions the necessity of having a mandatory cancellation power. In the context of subsection 501(3A), the submission states that ‘in the great majority of cases’ the person will be serving a 12 month or more sentence, which should provide adequate time to cancel a visa using existing powers in sections 501(2) or (3).25 The submission contends that the legislation relating to cancellation should reflect the need to protect the Australian community, but should also allow for a proper consideration and balancing of the other primary considerations such as those set out in Direction No. 55.26 The submission further notes:

The acknowledged automatic effect of visa cancellation without notice and without discretion is that the non-citizen will be subject to immigration detention as soon as their period of criminal incarceration is complete. This is undesirable for a number of reasons. The extension of a non-citizen’s incarceration for an administrative purpose (to allow time for the revocation and review process following mandatory cancellation) is incompatible with the

25. ANU College of Law: Migration Law Program, Submission to the Senate Legal and Constitutional Affairs Committee, op. cit., p.6. 26. Direction No. 55, made under section 499 of the Migration Act, ‘provides a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a person’s visa under section 501’.

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principles of the criminal justice system, where a sentence is supposed to reflect the seriousness of the offence and likely breaches Article 12 of the International Covenant on Civil and Political Rights (ICCPR). 27

The ANU Migration Law Program further comments that it is disproportionate for a 12 month sentence to be regarded as a substantial criminal record, which effectively means permanent banishment from Australia, and that this amounts to a secondary punishment of the offender.28

The Law Institute of Victoria (LIV) also considers:

… the mandatory cancellation provisions are … unnecessary to achieve the stated policy intention. They do not allow a decision maker to take into account any matters, other than the visa holder’s imprisonment. Further, it is not really possible to predict how this new power might be exercised as it can vary depending on the Minister delegating such power.

29

Character test Subsection 501(6) of the Act sets out the elements of the character test for the purposes of section 501. Current paragraph 501(6)(b) provides that a person does not pass the character test if they have or have had an association with an individual or group who the Minister ‘reasonably suspects has been or is involved in criminal conduct’. Item 10 of the Bill repeals existing paragraph 501(6)(b) and replaces it with proposed paragraphs 501(6)(b) and (ba). Proposed paragraph 501(6)(b) provides that if the Minister reasonably suspects that a visa applicant or holder has been or is a member of a group or organisation, or has an association with a group, organisation or person, that the Minister reasonably suspects has been involved in criminal conduct, then the visa applicant or holder will not pass the character test. The Explanatory Memorandum notes:

The intention of this amendment is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. 30

Comment:

The ANU Migration Law Program submission suggests that if the changes in the current Bill had been in place in July 2007 when Dr Mohamed Haneef was detained and his visa cancelled on character grounds, it is possible he would not have been able to fight and overturn the decision to cancel his visa. The submission notes:

The reasons that the Courts gave in overturning the character based cancellation of Dr Haneef’s visa—namely that innocent association is not enough to fail the character test—are still as valid as ever and should not be overturned by the amendments to section 501(6)(b). 31

The LIV considers proposed paragraph 501(6)(b) is ‘unnecessarily broad and would provide the Minister with discretion to cancel the visa of a non-citizen in a range of possible scenarios that does not pose a risk to the Australian community’.32 The LIV further notes:

The proposed provision provides the Minister with a power which has significant consequences (the cancellation of a visa), of broad application, with a very low threshold of satisfaction (reasonable suspicion). It puts non-citizens in an impossible position when engaging with their community: failure to perform full background checks on the people and organisations they are associating with could put them at risk of visa cancellation. This threat would be significantly disruptive to the cohesiveness of our community and poses a greater threat than that which section 501 seeks to remedy.

33

27. Ibid., pp. 8—9. 28. Ibid., p. 10. 29. Law Institute of Victoria, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Amendment (Character and General Visa Cancellation) Bill 2014, p. 5, accessed 17 November 2014.

30. Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014, p. 9. 31. ANU College of Law: Migration Law Program, op. cit. p. 5. Dr Haneef’s case was considered by the 2008 Clarke Inquiry, conducted by MJ Clarke QC, accessed 24 November 2014. 32. Law Institute of Victoria, op. cit., p. 3. 33. Ibid., p. 4.

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Proposed paragraph 501(6)(ba) broadens subsection 501(6) by providing that a person does not pass the character test if the Minister reasonably suspects that person of being involved in conduct that would constitute a people smuggling offence set out in sections 233A to 234A of the Act; a trafficking in persons offence; or a crime of genocide, a crime against humanity, a war crime, torture, slavery or any other crime of serious international concern. This provision covers any involvement by the person concerned and it does not matter whether or not the person has been convicted of an offence in relation to that conduct. The person will not pass the character test.

Currently under paragraph 501(6)(d) a person does not pass the character test, if there is a significant risk that, if allowed to enter or remain in Australia, the person would:

(i) engage in criminal conduct in Australia; or

(ii) harass, molest, intimidate or stalk another person in Australia; or

(iii) vilify a segment of the Australian community; or

(iv) incite discord in the Australian community or in a segment of that community; or

(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. 34

Item 11 would amend paragraph 501(6)(d) to change the threshold from ‘significant risk’ to ‘risk’.

Comment:

The LIV considers that ‘the ‘risk’ threshold is too broad and unspecific and suggests that the amendment needs to quantify or characterise the nature of the risk required to engage the section’.35

Item 12 amends subsection 501(6) by significantly broadening the range of circumstances in which a person will not pass the character test. Proposed paragraph 501(6)(e) provides that if a person has been convicted of one or more sexually based offences involving a child by an Australian or a foreign court, the person will not pass the character test. If a person has been found guilty of an offence or a charge has been proved but the person is discharged without conviction, the person will still not pass the character test. The Explanatory Memorandum notes that the term sexually based offences involving a child will include but is not limited to the following offences:

• child sexual abuse

• indecent dealings with a child

• possession or distribution of child pornography

• internet grooming

• other non-contact carriage services offences.36

Comment:

The ANU Migration Law Program submission considers there is a serious and unintended consequence that children may be caught by the provision. The submission states:

Clearly the provision is aimed at protecting the community from child sex offenders yet given the terms of the paragraph, sexually active minors may also have their visas cancelled. For example, a 16 year old boy who has sex with his 14 year old girlfriend could easily fall foul of this provision, as could teenagers engaging in the relatively common practice of sending, receiving and sharing naked photos of themselves and other teenagers they know.

37

34. Paragraph 501(6)(d) of the Migration Act 1958. 35. Law Institute of Victoria, op. cit. p. 4. 36. Explanatory Memorandum, op. cit. p. 10. 37. ANU College of Law: Migration Law Program, op. cit. p. 11.

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Proposed paragraph 501(6)(f) provides that a person who has been charged or indicted, in Australia or a foreign country, with one or more of the following crimes does not pass the character test:

• crime of genocide

• a crime against humanity

• a war crime

• a crime involving torture or slavery

• a crime that is otherwise of serious international concern.

Importantly, a person will not need to have been convicted of such a crime in order to fail the character test—a charge or indictment will be sufficient.

Under proposed paragraph 501(6)(g) a person will not pass the character test if they have been assessed by ASIO as being a risk to security, either directly or indirectly. If there is an Interpol notice in force relating 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, the person will not pass the character test—proposed paragraph 501(6)(h).

Comment:

The LIV notes in its submission to the Committee that proposed paragraph 501(6)(g) is ‘a significant cause for concern’ because it ‘defers the Minister’s assessment regarding the risk posed by a non-citizen entirely to an external body, ASIO, without the Minister or non-citizen being permitted to effectively examine the basis for any negative assessment’.38 Concerns are also raised by the LIV in relation to proposed paragraph 501(6)(h), as the LIV considers that Interpol notices may contain false and politically motivated information and that no independent review or appeal mechanism exists to challenge such notices.39

Definition of substantial criminal record As explored above, subsection 501(6) sets out the elements of the character test for the purposes of section 501. Paragraph 501(6)(a) provides that a person does not pass the character test in section 501 if they have a ‘substantial criminal record’, which is defined at subsection 501(7). Currently a person has a substantial criminal record if they have been:

(i) sentenced to death, life imprisonment, or at least 12 months imprisonment (paragraphs 501(7)(a)- (c))

(ii) sentenced to two or more terms of imprisonment that total at least two years’ imprisonment (paragraph 501(7)(d)) or

(iii) have been detained in a facility after being acquitted due to unsoundness of mind or insanity (paragraph 501(7)(e)).

Item 13 would amend paragraph 501(7)(d) to change the second of these grounds, by providing that a person has a substantial criminal record if they have been sentenced to two or more terms of imprisonment that total at least 12 months (rather than the current two years).

It is important to note that the Explanatory Memorandum states

… when the character test was introduced, it was clear that the intention was that concurrent sentences would be included in calculating aggregate sentences. The Explanatory Memorandum for the 1998 Bill states that sentences should be “totalled” irrespective of the time and place at which each sentence was imposed. The proposed amendment in this Bill puts that construction beyond doubt [emphasis added].

40

This is also relevant to item 1, discussed above.

Comment:

38. Law Institute of Victoria, Submission to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 6. 39. Ibid., p. 7. 40. Explanatory Memorandum, op. cit., p. 12.

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The Refugee Council of Australia noted that ‘these amendments could see individuals who have been convicted of minor, non-violent crimes and who do not pose any significant risk to community safety facing indefinite immigration detention’.41 The Government’s view is that ‘a series of sentences such as these raise significant concerns as to the person’s character, including that there may be a history and high risk of recidivism and a clear disregard for the law’.42

Revocation of a decision under subsection 501(3A) As set out above (in relation to item 8) proposed subsection 501(3A) will provide that the Minister must cancel the visa of a person if that person is serving a full-time sentence of imprisonment for an offence against Australian law and the Minister is satisfied that the person does not pass the character test as they have a substantial criminal record due to having received a sentence of at least 12 months imprisonment (or a sentence of death or life imprisonment), or have been found guilty of a sexually based offence involving a child.

Item 18 inserts proposed section 501CA into the Act. This section applies if the Minister makes a decision under subsection 501(3A) to cancel a person’s visa. Under proposed subsection 501CA(3), the Minister must inform the person by written notice of the original decision as soon as practicable after it is made. The notice must set include particulars of relevant information (defined at proposed subsection 501CA(2)) relied on in making the decision. The person must be invited to make representations to the Minister about the revocation of the decision to cancel their visa.

The Minister may revoke the decision to cancel a person’s visa under subsection 501(3A) in response to the person’s representations if the Minister is satisfied that the person passes the character test or that another reason exists why the decision to cancel the visa should be revoked—proposed subsection 501CA(4). If the Minister chooses not to exercise the power under subsection 501CA(4), the decision is not reviewable under Parts 5 or 7 of the Act—proposed subsection 501CA(7). However, the decision would be reviewable by the AAT under proposed paragraph 500(1)(ba), inserted by item 4 of Schedule 1.

If the Minister revokes the decision, it will be taken not to have been made—proposed subsection 501CA(5). However, if the person was kept in detention during the period from when the person’s visa was cancelled until the decision to cancel was revoked, the detention is considered to be lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person—proposed subsection 501CA(6).

Setting aside non-adverse decisions under section 501CA As set out above, under proposed section 501CA, the Minister or Minister’s delegate, or the AAT on review, can revoke a mandatory decision under proposed subsection 501(3A) to cancel a visa. Item 17 inserts proposed section 501BA which allows the Minister to set aside a revocation decision made by a delegate or the AAT under proposed section 501CA if the Minister is satisfied that the prerequisites for mandatory visa cancellation under proposed subsection 501(3A) are met and that such cancellation is in the national interest (proposed subsection 501BA(2)). The rules of natural justice do not apply to the Minister’s decision to set aside a decision under section 501CA—proposed subsection 501BA(3), however the Explanatory Memorandum notes that ‘natural justice will have already been provided to the non-citizen through the revocation process available under section 501CA’.43 The power under subsection 501BA(2) can only be exercised by the Minister personally—proposed subsection 501BA(4).

Proposed subsection 501BA(5) provides that a decision made under subsection 501BA(2) where the Minister sets aside a decision of the delegate or the AAT is not reviewable under Parts 5 and 7 of the Act. This means that decisions to cancel a visa under the subsection 501BA(2) cannot be reviewed by the MRT, RRT or AAT.

Requirement to disclose information to the Minister

Item 25 inserts proposed section 501L which is concerned with the disclosure of information by state and territory agencies to the Minister. Proposed subsection 501L(1) provides that the Minister may, by written notice, require the head of a state or territory agency to disclose personal information that is specified in the notice and that relates to a particular person or a person included in a class of persons. The Minister must not

41. Refugee Council of Australia, op. cit., paragraph 3.6. 42. Explanatory Memorandum, op. cit., p. 12. 43. Explanatory Memorandum, op. cit., p. 15.

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issue the notice unless the Minister reasonably believes that the agency head has the information or can reasonably acquire it and that the information is relevant for determining whether the person satisfies the character test—proposed subsection 501L(2). Once the head of an agency receives such a notice, he or she must comply as soon as practicable to the extent that they have the information or can reasonably acquire it— proposed subsection 501L(3).

Under proposed subsection 501L(4), the Registrar of a court of a state or territory is not required to comply with a written notice issued under subsection 501L(1) in relation to a particular person, to the extent that the information required in the notice relates to court proceedings that have not been finally determined. Proposed subsection 501L(5) provides that a state or territory agency cannot be excused from complying with the written notice on the basis that it would contravene a law of the Commonwealth, state or territory, that primarily relates to privacy and prohibits or regulates the disclosure of personal information. State and territory agencies have immunity from suit for providing such information to the Minister. Proposed 501L(6) provides that a state or territory agency is not liable to any proceedings for contravention of a provision of a privacy law or a law relating to the disclosure of personal information, or civil proceedings for loss, damage or injury merely because the agency has complied with a notice under subsection 501L(1).

Proposed subsection 501L(7) defines what is meant by an agency, and the head of an agency, of a state or territory.

Schedule 2—General visa cancellation The amendments to the general visa cancellation powers are primarily made to provisions falling within Part 2 of the Act, which is concerned with the arrival of persons into Australia, their presence in Australia and the departure of persons from the country.

Section 116 deals with the general power to cancel visas. Paragraph 116(1)(a) currently provides that the Minister may cancel a visa if satisfied that any circumstances which permitted the grant of the visa no longer exist. Item 3 of Schedule 2 would repeal paragraph 116(1)(a) and replace it with proposed paragraphs 116(1)(a) and (aa), which would provide that the Minister may cancel a visa if satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance that either:

• is no longer the case or no longer exists or

• did not exist.

As set out in the Explanatory Memorandum, these paragraphs are designed to ‘put beyond doubt’ that a visa may be cancelled:

… where the decision to grant the visa was based on a fact or circumstance which did not exist at that time or may never have existed, as well as when the fact or circumstance ceases to exist at a later point in time. 44

Current paragraph 116(1)(e) provides that the Minister may cancel a visa if satisfied that the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community. Item 4 repeals paragraph 116(1)(e) and substitutes proposed paragraph 116(1)(e) to allow the Minister to cancel a visa if satisfied that the person’s presence in Australia may be, or would or might be, a risk to the health, safety or good order of the Australian community, or the health or safety of an individual or individuals.

Comment:

The ANU Migration Law Program submission supports the extension of this provision to the health and safety of an individual or individuals but does not support the lowering of the threshold from actual risk to the mere possibility of a risk.45

The LIV notes that these changes:

… allow a visa to be cancelled based on speculation or hypothetical situations which may never eventuate. It is unclear what remedies, if any, would be available to someone whose visa was cancelled on the basis of a false speculation or situation that never eventuated…

44. Explanatory Memorandum, op. cit., p. 23. 45. ANU College of Law: Migration Law Program, op. cit. p. 11.

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The combination of lower thresholds, broader powers and more limited review introduced by this section significantly increases the risk of decisions made under this section being affected by jurisdictional error, including decisions made for an improper purpose. 46

Item 5 inserts proposed subsections 116(1AA) and (1AB). Proposed subsection 116(1AA) provides that if the Minister is not satisfied as to the identity of a person, the Minister may cancel their visa, subject to subsections 116(2) and (3). (Subsection 116(2) provides that the Minister is not to cancel a visa if certain prescribed circumstances exist in which a visa is not to be cancelled. Subsection 116(3) provides that if circumstances exist in which the Minister may cancel a visa, he or she must do so in certain prescribed circumstances.47) Proposed subsection 116(1AB) provides that the Minister may cancel a visa if satisfied that incorrect information was given by, or on behalf of, a person who holds a current visa to any of the following:

• an officer

• an authorised system

• the Minister

• any other person or tribunal performing a function or purpose under the Act or

• any other person or body performing a function or purpose in an administrative process in relation to the Act

and that information was taken into account in a decision allowing a person to make a valid application for a visa, or in a decision to grant a visa to the person.

Proposed subsection 116(1AB) would allow the cancellation of a current visa in these circumstances, whether the incorrect information was given in relation to that visa or a previous visa held by the person.

The Explanatory Memorandum notes that the purpose of proposed subsection 116 (1AB) is to provide ‘that incorrect information must not be given to the Department at any time, not just where the information is provided as part of a person’s visa application as required in Subdivision C of Division 3 of Part 2 of the Migration Act’.48 Subdivision C ‘places a range of obligations on non-citizens to provide full and accurate information to the Department’ (including in visa applications and passenger cards) and ‘provides a discretionary power to cancel the visa of a non-citizen who has not complied with [those] obligations’.49 Accordingly, there is no need for proposed subsection 116(1AB) to deal with situations that are covered by Subdivision C, and these are excluded by proposed paragraph 116(1AB)(c).

Comment:

The LIV considers that proposed subsection 116(1AA) ‘contains a very low level test and applies where there is any doubt as to the person’s identity, whether or not this is important to the application or presents any specific concern as to the person and their background… These amendments greatly expand the current provisions’.50

Likewise, the LIV considers that proposed subsection 116(1AB) is ‘extremely broad in its application, and provides that any visa holder who has provided any form of incorrect information in the course of a visa application … could face cancellation of their current visa’.51 The LIV is also concerned that this provision applies retrospectively.

Subsection 117 provides that a person’s visa may be cancelled under section 116:

• before the person enters Australia

• when the person is in immigration clearance

46. Law Institute of Victoria, Submission to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 9. 47. The relevant circumstances for subsection 116(3) are prescribed at subregulation 2.43(2) of the Migration Regulations 1994, accessed 24 November 2014. Subsections 116(2) and (3) will be amended by items 6 and 7 of Schedule 2, but the amendments will not make any substantive changes to these provisions.

48. Explanatory Memorandum, op. cit., p. 25. 49. Migration Series Instruction (MSI) 68, Visa Cancellation under Subdivision C - Visas based on incorrect information may be cancelled, Legendcom database, accessed 24 November 2014. 50. Law Institute of Victoria, op. cit., pp. 9-10. 51. Ibid., p. 10.

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• when the person leaves Australia or

• while the person is in the migration zone.

However, subsection 117(2) provides that a permanent visa cannot be cancelled under section 116 if the visa holder is in the migration zone and was immigration cleared on last entering Australia.

Item 9 amends subsection 117(2) so that it specifies that a permanent visa cannot be cancelled under subsection 116(1) if the visa holder is in the migration zone and was immigration cleared on last entering Australia. However, a permanent visa can be cancelled in these circumstances if the cancellation is made under proposed subsections 116(1AA) or (1AB).

Comment:

The LIV notes in its submission to the Parliamentary Committee:

The Bill amends subsection 117(1) to provide that a permanent residence visa can be cancelled by the Minister using their personal power under sections 116(1AA) or (1AB). This is a major legislative change, and provides an extremely far reaching power to the Minister to cancel a permanent residence visa held by an applicant where incorrect information has been provided or where the identity of the person is not satisfactory.

52

New Subdivision FA—additional personal powers for the Minister to cancel visas on section 109 and 166 grounds Item 12 inserts proposed Subdivision FA (proposed sections 133A to 133F) into Division 3 of Part 2 of the Act. The new Subdivision provides the Minister with additional personal powers to cancel visas on sections 109 or 116 grounds.

Section 109 provides that the Minister may cancel a visa if he or she has:

• decided that visa holder has not complied with certain information provision requirements53

• considered any explanation provided by the visa holder and

• had regard to any prescribed circumstances.54

Proposed subsection 133A(1) provides that if a visa holder is given notice of a ground for cancelling a visa under section 109, and the AAT, MRT, RRT or a delegate of the Minister has decided that the ground did not exist, or (despite the existence of the ground) decided not to cancel the visa, the Minister may set aside the decision of the Tribunal or delegate if the Minister considers that the notified ground does exist, the visa holder does not satisfy the Minister to the contrary, and the Minister is satisfied that it would be in the public interest to cancel the visa.

Proposed subsection 133A(2) provides that the procedure set out in Subdivision C of Division 3 of Part 2 of the Act does not apply to a decision under subsection 133A(1). Subdivision C sets out ‘an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’ (section 97A). (As set out above, the matters dealt with in Subdivision C are the cancellation of visas based on incorrect information.) The Explanatory Memorandum notes:

This puts beyond doubt that common law natural justice applies in relation to a decision made personally by the Minister under subsection 133A(1)…

Ultimately, the community holds the Minister responsible for decisions within his portfolio, even where those decisions have resulted from merits review. Therefore, it is appropriate that the Minister have the power to be final decision-maker in the public interest. 55

52. Law Institute of Victoria, op. cit., p. 11. 53. The relevant information provision requirements are set out at section 101 (visa applications); 102 (passenger cards); 103 (bogus documents); 104 (changes in circumstances) and 105 (particulars of incorrect answers). 54. The prescribed circumstances are set out at regulation 2.41 of the Migration Regulations 1994, accessed 24 November 2014, 55. Explanatory Memorandum, ibid., p. 27.

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The Minister may cancel a visa of a person who has been immigration cleared if the Minister is satisfied that a ground exists under section 109 and that it is in the public interest to do so—proposed subsection 133A(3). The rules of natural justice will not apply to a decision under subsection 133A(3), nor will the procedure set out in Subdivision C—proposed subsection 133A(4).

Under proposed subsection 133A(5) a visa can be cancelled under subsection 133A(3) whether or not:

(a) the visa holder was given notice under section 107

(b) the visa holder responded to the notice or

(c) a Tribunal or delegate of the Minister decided that the notified ground did not exist, or decided not to exercise the power in section 109 despite the existence of the ground.

If a decision has been made under (c) by a Tribunal or delegate, the power to cancel a visa under subsection 133A(3) is a power to set aside that decision and cancel the visa—proposed subsection 133A(6).

The Minister is not under any duty to consider whether to exercise the powers under subsections 133A(1) or (3) whether or not he or she is requested to do so, or in any other circumstances—proposed subsection 133A(8). As the Explanatory Memorandum sets out:

These provisions make clear that the powers in subsection 133A(1) and 133A(3) of the Migration Act are non-delegable and non-compellable. 56

Under proposed subsection 133A(9), the Minister is not prevented by section 138(4) from setting aside a decision of a Tribunal or a delegate of the Minister and cancelling a visa under section 133A. Subsection 138(4) of the Act provides that the Minister has no power to vary or revoke a decision after the day and time the record of the decision is made.57

Comment:

The ANU Migration Law Program submission notes that there are a number of instances in the Bill where a non-citizen’s visa can be cancelled without any recourse to merits review. There are also provisions where the Minister is empowered to overturn decisions of a merits review tribunal. The ANU notes that these provisions:

… create further inroads into the essential first tier review of administrative decision-making. Elimination of merits review, and the neutering of the decisions of merits review tribunals, is antithetical to transparency and independent scrutiny in administrative decision-making. This becomes of more importance since cases where the Minister personally involves himself/herself will tend to be politically loaded…

Furthermore, there is no direct accountability for personal decisions made by the Minister. A further consequence of eliminating merits review is that it will increase the caseload on the courts, and diminish real opportunities for access to justice, as access to the judicial system has higher barriers than access to merits review and consequently many residents affected will have no real recourse to independent review of the decision.

58

As mentioned above, section 116 concerns the power to cancel visas generally. The Minister may cancel a visa under section 116 if satisfied that:

• the decision to grant the visa was based wholly or partly on a fact or circumstance that no longer exists or never existed (proposed paragraphs 116(1)(a) and (aa)-see discussion of item 3 of Schedule 2, above)

• the visa holder has not complied with a condition of a visa

• another person required to comply with a condition of a visa has not complied

• the visa is liable to be cancelled because incorrect information has been given

• the presence of the visa holder in Australia would or might be a risk to the Australian community or to individuals

56. Ibid., p. 28. 57. Subsection 138(4), Migration Act 1958. 58. ANU College of Law: Migration Law Program, op. cit. p. 13.

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• the application for, or the visa’s grant, was in contravention of the Act or other Commonwealth law

• the holder of a student visa is not a genuine student or is engaging in conduct not contemplated by the visa or

• a prescribed ground applies to the visa holder.59

Proposed section 133C deals with the personal powers of the Minister to cancel visas on section 116 grounds and largely mirrors proposed section 133A, including by providing that if a visa holder is given notice of a ground for cancelling a visa under section 116, and the AAT, MRT, RRT or a delegate of the Minister has decided that the ground did not exist, or (despite the existence of the ground) decided not to cancel the visa, the Minister may set aside the decision of the Tribunal or delegate if the Minister considers that the notified ground does exist, the visa holder does not satisfy the Minister to the contrary, and the Minister is satisfied that it would be in the public interest to cancel the visa.

Under proposed section 133E, the Minister must give the former visa holder written notice if a decision is made to cancel a visa under subsections 133A(1) or 133C(1). The notice is to set out the decision and the reasons for the decision, other than information that is non-disclosable (as defined at section 5). A failure to comply with this section does not affect the validity of the decision.

Proposed section 133F provides that the Minister may revoke a decision subsection 133A(3) or 133C(3) to cancel a visa. Proposed subsection 133F(3) provides that the Minister, as soon as practicable after making the original decision, must give written notice to the person. The notice must include particulars of relevant information (defined at proposed subsection 133F(2)) relied on in making the decision. The person must also be invited to make representations to the Minister about the revocation of the decision to cancel their visa.

The Minister may revoke the decision to cancel a person’s visa under subsection 133A(3) or 133C(3) in response to the person’s representations if the person satisfies the Minister that the ground for cancelling the visa does not exist—proposed subsection 133F(4). This power may only be exercised by the Minister personally, not by a delegate.

If the Minister revokes the decision, it will be taken not to have been made—proposed subsection 133F(6). However, if the person was kept in detention during the period from when the person’s visa was cancelled until the decision to cancel was revoked, the detention is considered to be lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person—proposed subsection 133F(7).

Comment:

The ANU Migration Law Program submission notes that under the new personal powers of the Minister there is no requirement for the Minister to consider any relevant matters that go to whether or not cancellation is appropriate in all the circumstances. The submission considers:

This omission is likely to lead to harsh consequences and unfairness as the power is designed to be exercised swiftly and at times will be taken without the possibility of having access to the fullest facts. Despite being a decision made in haste, the consequences cannot be reversed even in the light of compelling evidence. 60

Concluding comments The current Bill raises a number of concerns which various major interest groups have addressed in their submissions to the Senate Legal and Constitutional Affairs Committee. The Senate Scrutiny of Bills Committee has drawn attention to a number of issues that are summarised in this Digest. The Committee was not entirely satisfied with the Minister’s response and has sought further information. The issues raised by the Bill require discussion and teasing out in order to ensure that the rights of non-citizens are not unnecessarily diminished. The ANU Migration Law Program submission referred to the decision in Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs,61 where Justices Moore and Gyles:

59. The prescribed circumstances are set out at subregulation 2.43(1) of the Migration Regulations 1994, 60. ANU College of Law: Migration Law Program, op. cit. p. 12. 61. Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121, accessed 24 November 2014.

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…observed that Nystrom’s conduct was ‘no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. Apart from the dire punishment of the individual involved, it presumes that Australia can export its problems elsewhere. 62

62. Ibid., p. 16.

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