‘Strengthening the character test’
(Sourced from ABC and Kaldor Centre)
The Federal Government this week sought greater discretionary powers to cancel or refuse immigration visas on character grounds.
The Morrison government first attempted to pass the laws in 2019, but they failed to win the support of Labor or cross-bench Senators. Under the proposed laws, a non-citizen who has been convicted of a ‘designated’ offence punishable by at least two years’ prison — such as violent or sexual assault crimes – could be refused a visa at the government’s discretion, regardless of the sentence they actually serve, Currently, the power to cancel visas is only available in cases where a person was actually sentenced to serve more than 12 months’ prison.
The Bill proposes the introduction of a category of ‘designated offences,’ characterised by particular types of conduct and a maximum sentencing term of at least two years imprisonment. Under the proposed changes, any non-citizen who convicted of a ‘designated offence,’ in Australia or abroad will be deemed to fail the character test, irrespective of the actual sentence imposed. This will not lead to automatic visa cancellation, but will enliven the Minister’s discretionary cancellation powers in ss 501(2) and 501(3).
Sections 501(2), 501(3) and 501(6)(c) in their current form already provide the Minister with the discretion to cancel a non-citizen’s visa where they have been convicted of any of the ‘designated offences’ in the Bill, and where the conviction supports a reasonable suspicion that the person is not of good character. In fact, these provisions extend far further in that they also allow for visa cancellation where a person has not been convicted of any crime, but their general conduct supports a conclusion that they are not of good character. Section 116(e) provides an additional avenue for visa cancellation where a non-citizen poses a risk to the Australian community or individuals within it.
The only circumstance in which a person would be vulnerable to discretionary visa cancellation under the measures proposed in the Bill, but not under the existing law, is where they have been convicted of a ‘designated offence’, but the conduct giving rise to the conviction was so trivial that it could not reasonably support a suspicion that the person is not of good character. This could include, for example a conviction for assault for making a verbal threat to slap a person, or for grasping a person by the sleeve.
Shadow Immigration Minister Kristina Keneally has previously expressed concern that low-level offenders could unintentionally be caught up in the changed laws and be deported unnecessarily.
Kon Karapanagiotidis (ASRC) said, “The ‘Strengthening the character test‘ Bill would have given Home Affairs unprecedented draconian powers to cancel and refuse refugees visas. It would have allowed the Morrison Government to create what is called a ‘designated offence’ which would have led to refugees visas being refused or cancelled, even if it had no custodial sentence, or significant mitigating humanitarian circumstances could be disregarded by decision makers. It would have led to a massive spike in more refugees being detained. It would have separated families, punished women and children, and forced women to stay in abusive relationships out of fear of having their visa cancelled too”.
The Bill was voted down by Labor, The Greens, and three Independent Senators – Stirling Griff, Jacqui Lambie and Rex Patrick.