Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Migration Amendment (Character and General Visa Cancellation) Bill 2014

Schedule 1 Character test amendments

   

Migration Act 1958

1  Paragraph 5C(2)(d)

Omit “(whether on one or more occasions), and the total of those terms is 2 years”, substitute “, where the total of those terms is 12 months”.

2  Paragraph 500(1)(a)

After “201”, insert “, other than decisions to which a certificate under section 502 applies”.

3  Paragraph 500(1)(b)

After “501”, insert “(subject to subsection (4A))”.

4  After paragraph 500(1)(b)

Insert:

                   (ba)  decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or

5  Paragraph 500(1)(c)

Omit “to refuse to grant a protection visa, or to cancel”, substitute “, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant”.

6  Subsection 500(1)

Omit “; other than decisions to which a certificate under section 502 applies”.

7  At the end of subsection 500(4A)

Add:

                   ; (c)  a decision of a delegate of the Minister under subsection 501(3A) to cancel a visa.

8  After subsection 501(3)

Insert:

          (3A)  The Minister must cancel a visa that has been granted to a person if:

                     (a)  the Minister is satisfied that the person does not pass the character test because of the operation of:

                              (i)  paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

                             (ii)  paragraph (6)(e) (sexually based offences involving a child); and

                     (b)  the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

          (3B)  Subsection (3A) does not limit subsections (2) and (3).

9  Subsection 501(5)

After “(3)”, insert “or (3A)”.

10  Paragraph 501(6)(b)

Repeal the paragraph, substitute:

                     (b)  the Minister reasonably suspects:

                              (i)  that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

                             (ii)  that the group, organisation or person has been or is involved in criminal conduct; or

                   (ba)  the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:

                              (i)  an offence under one or more of sections 233A to 234A (people smuggling);

                             (ii)  an offence of trafficking in persons;

                            (iii)  the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;

                            whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or

11  Paragraph 501(6)(d)

Omit “significant”.

12  After paragraph 501(6)(d)

Insert:

               ; or (e)  a court in Australia or a foreign country has:

                              (i)  convicted the person of one or more sexually based offences involving a child; or

                             (ii)  found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or

                      (f)  the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

                              (i)  the crime of genocide;

                             (ii)  a crime against humanity;

                            (iii)  a war crime;

                            (iv)  a crime involving torture or slavery;

                             (v)  a crime that is otherwise of serious international concern; or

                     (g)  the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ); or

                     (h)  an Interpol notice in relation 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, is in force.

13  Paragraph 501(7)(d)

Omit “(whether on one or more occasions), where the total of those terms is 2 years”, substitute “, where the total of those terms is 12 months”.

14  At the end of subsection 501(7)

Add:

               ; or (f)  the person has:

                              (i)  been found by a court to not be fit to plead, in relation to an offence; and

                             (ii)  the court has nonetheless found that on the evidence available the person committed the offence; and

                            (iii)  as a result, the person has been detained in a facility or institution.

15  After subsection 501(7)

Insert:

Concurrent sentences

          (7A)  For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.

Example:    A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.

16  Paragraph 501(10)(b)

Repeal the paragraph, substitute:

                     (b)  both:

                              (i)  the person has been pardoned in relation to the conviction concerned; and

                             (ii)  the effect of that pardon is that the person is taken never to have been convicted of the offence.

17  After section 501B

Insert:

501BA   Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

             (1)  This section applies if:

                     (a)  a delegate of the Minister; or

                     (b)  the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision ) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

             (2)  The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

                     (a)  the Minister is satisfied that the person does not pass the character test because of the operation of:

                              (i)  paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

                             (ii)  paragraph 501(6)(e); and

                     (b)  the Minister is satisfied that the cancellation is in the national interest.

             (3)  The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

             (4)  The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

             (5)  A decision under subsection (2) is not reviewable under Part 5 or 7.

Note:          For notification of decisions under subsection (2), see section 501G.

18  After section 501C

Insert:

501CA   Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

             (1)  This section applies if the Minister makes a decision (the original decision ) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

             (2)  For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

                     (a)  would be the reason, or a part of the reason, for making the original decision; and

                     (b)  is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

             (3)  As soon as practicable after making the original decision, the Minister must:

                     (a)  give the person, in the way that the Minister considers appropriate in the circumstances:

                              (i)  a written notice that sets out the original decision; and

                             (ii)  particulars of the relevant information; and

                     (b)  invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

             (4)  The Minister may revoke the original decision if:

                     (a)  the person makes representations in accordance with the invitation; and

                     (b)  the Minister is satisfied:

                              (i)  that the person passes the character test (as defined by section 501); or

                             (ii)  that there is another reason why the original decision should be revoked.

             (5)  If the Minister revokes the original decision, the original decision is taken not to have been made.

             (6)  Any detention of the person that occurred during any part of the period:

                     (a)  beginning when the original decision was made; and

                     (b)  ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

             (7)  A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note:          For notification of decisions under subsection (4) to not revoke, see section 501G.

19  At the end of section 501E

Add:

             (3)  Subsection (1) does not prevent a person, at the application time, from making an application for a visa if, before the application time, the Minister had, acting personally, granted a permanent visa to the person.

             (4)  Subsection (1) does not prevent a person, at the application time, from making an application for a visa if:

                     (a)  before the application time, the person was granted a visa of a kind referred to in subsection (2) or (3); and

                     (b)  the person would, but for the operation of subsection (2) or (3), have been prevented from applying for that visa.

20  Subsection 501G(1)

After “501B”, insert “, 501BA, 501CA”.

21  After paragraph 501G(1)(b)

Insert:

               or (ba)  not revoke a decision to cancel a visa that has been granted to a person;

22  Paragraphs 501G(1)(f) and (2)(a)

After “(2)”, insert “or section 501CA”.

23  Subsection 501H(1)

Omit “or 501B”, insert “, 501B or 501BA”.

24  Subsection 501H(2)

After “501B,”, insert “501BA, ”.

25  After section 501K

Insert:

501L   Disclosure of information to the Minister

             (1)  The Minister may, by written notice, require the head of an agency of a State or Territory to disclose to the Minister personal information that:

                     (a)  is of a kind specified in the notice; and

                     (b)  relates to a person, or to a person included in a class of persons, specified in the notice.

             (2)  The Minister must not give a notice under subsection (1) to the head of an agency of a State or Territory unless the Minister reasonably believes:

                     (a)  that the head of the agency has, or can reasonably acquire, the information; and

                     (b)  the information is relevant for the purposes of considering whether:

                              (i)  a person satisfies the Minister that the person passes the character test (as defined in section 501); or

                             (ii)  the Minister reasonably suspects, or is satisfied, that a person does not pass the character test.

             (3)  The head of an agency of a State or Territory who is given a notice under subsection (1) must, as soon as practicable after the notice is given, comply with the notice to the extent that he or she has, or can reasonably acquire, the information specified in the notice.

             (4)  Despite subsection (3), the registrar (however described) of a court of a State or Territory is not required to comply with a notice under subsection (1) to the extent that the information specified in the notice, in relation to a person specified in the notice, is information that relates to proceedings that have not been finally determined by the court.

             (5)  The head of an agency of a State or Territory is not excused from complying with a notice under subsection (1) on the ground that disclosing the information specified in the notice would contravene a law of the Commonwealth, a State or a Territory that:

                     (a)  primarily relates to the protection of the privacy of individuals; and

                     (b)  prohibits or regulates the use or disclosure of personal information.

Immunity from suit

             (6)  A person is not liable to:

                     (a)  any proceedings for contravening a provision of a law referred to in subsection (5); or

                     (b)  civil proceedings for loss, damage or injury of any kind suffered by another person;

merely because the person gives information to the Minister for the purposes of ensuring that the head of an agency of a State or Territory complies with a notice under subsection (1).

             (7)  In this section:

agency of a State or Territory includes the following:

                     (a)  the Crown in right of a State or Territory;

                     (b)  a Minister of a State or Territory;

                     (c)  a State or Territory government department;

                     (d)  an instrumentality of a State or Territory, including a body corporate established for a public purpose by or under a law of a State or Territory;

                     (e)  a company in which a controlling interest is held by any one of the following persons, or by 2 or more of the following persons together:

                              (i)  the Crown in right of a State or Territory;

                             (ii)  a person or body covered by paragraph (b) or (d);

                      (f)  a State or Territory court;

                     (g)  a State or Territory tribunal;

                     (h)  a State or Territory parole board.

head of an agency means:

                     (a)  if the agency is a State or Territory court—the registrar (however described) of the court; or

                     (b)  otherwise—the principal officer (however described) of the agency.

26  Subparagraph 502(1)(a)(iii)

Omit “to refuse to grant a protection visa, or to cancel”, substitute “to refuse under section 65 to grant”.

27  Paragraph 503(1)(c)

Omit “to refuse to grant a protection visa, or to cancel”, substitute “to refuse under section 65 to grant”.

28  Subsection 503(4)

After “visa”, insert “or to a holder of a permanent visa that was granted by the Minister acting personally”.

29  Application of amendments made by items 1 and 10 to 16

The amendments made by items 1 and 10 to 16 of this Schedule apply to:

                     (a)  a decision to grant or refuse to grant a visa, if:

                              (i)  the application for the visa was made before the commencement of this item and had not been finally determined as at that commencement; or

                             (ii)  the application for the visa is made on or after the commencement of this item; and

                     (b)  a decision made on or after the commencement of this item to cancel a visa.

30  Application of amendments made by items 2, 5, 6, 19, 26 and 27

The amendments made by items 2, 5, 6, 19, 26 and 27 of this Schedule apply to a decision to refuse to grant a visa or to cancel a visa, or an application for a visa, (as the case requires) made on or after the commencement of this item.

31  Application of amendment made by item 28

The amendment made by item 28 of this Schedule applies to a visa granted personally by the Minister whether before, on or after the commencement of this item.

32  Application of amendments made by items 3, 4, 7, 8, 9, 17, 18 and 20 to 24

(1)       The amendments made by items 3, 4, 7, 8, 9, 17, 18 and 20 to 24 of this Schedule apply to a decision made on or after the commencement of this item to cancel a visa under subsection 501(3A) of the Migration Act 1958, whether the sentence of imprisonment on the basis of which the visa is cancelled was imposed before, on or after the commencement of this item.

(2)       Despite subitem (1), the Minister must not, under subsection 501(3A) of the Migration Act 1958, cancel the visa of a person who is serving a sentence of imprisonment, if:

                     (a)  before the commencement of this item, but during that imprisonment, the Minister considered cancelling the person’s visa under subsection 501(2) of the Migration Act 1958 and decided not to cancel the visa; and

                     (b)  since that decision, no further sentence of imprisonment has been imposed on the person.