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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (AGGREGATE SENTENCES) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural
Affairs, the Honourable Andrew Giles MP)
MIGRATION AMENDMENT (AGGREGATE SENTENCES) BILL 2023
GENERAL OUTLINE
The Migration Amendment (Aggregate Sentences) Bill 2023 (the Bill) amends the Migration
Act 1958 (the Migration Act) to establish a consistent approach across the provisions of the
Migration Act, as well as the Migration Regulations 1994 (the Regulations), in relation to
sentencing for offences.
The amendments in the Bill respond to the decision of the Full Court of the Federal Court of
Australia (the Federal Court) in Pearson v Minister for Home Affairs [2022] FCAFC 203
(Pearson). In Pearson, the Federal Court relevantly held that, in effect, an aggregate sentence
(a single sentence for more than one offence) imposing a term of imprisonment does not, in
and of itself, constitute a 'substantial criminal record' within the meaning given by subsection
501(7) of the Migration Act, and particularly paragraph 501(7)(c) -- even in circumstances
where the sentence is to an aggregate maximum term of imprisonment of 4 years and 3
months in respect of 10 offences.
In the Federal Court's judgment in Pearson, the matter turned on the statutory construction of
the wording in section 501 of the Migration Act. The Court concluded that an aggregate
sentence is not a sentence of imprisonment for the purposes of the definition of substantial
criminal record in subsection 501(7) the Act, construing that definition as requiring the
sentence to have been imposed in respect of a single offence. The Court arrived at this
conclusion having considered the purpose of the mandatory cancellation provision in
subsection 501(3A) to be reserved for the most serious offences, noting that an aggregate
sentence might be arrived at after conviction of a series of lesser offences, and taking into
account the definition of 'sentence' as including 'any form of determination of the
punishment of an offence', as well as the specific use of the singular 'an' in the relevant
definitions.
The amendments in the Bill will make clear that the provisions of the Migration Act and
Regulations apply in relation to a single sentence imposed by a court in the same way,
regardless whether the sentence is in respect of a single offence or for two or more offences.
The amendments provide a clear basis for aggregate sentences to be taken into account in a
consistent manner for all relevant purposes under the Migration Act and Regulations.
In the context of the character test in section 501 of the Migration Act, the amendments will
make clear that a person who is sentenced to a term of imprisonment of 12 months or more
does not pass the character test on the basis of having a substantial criminal record within the
meaning given by subsection 501(7) of the Migration Act, whether in relation to a sentence
imposed by a court in respect of a single offence or two or more offences (an aggregate
sentence). That outcome is intended regardless of whether the sentence was for one or more
offences and regardless of the perceived seriousness of any individual offence.
The Bill does not change, limit or expand the circumstances in which aggregate sentences are
considered for all relevant purposes of the Migration Act. This Bill simply confirms the
Government's long-held understanding that aggregate sentences can be taken into account for
all relevant purposes under the Migration Act. In the context of section 501, the effect of the
amendments in the Bill will be to ensure that a person does not pass the character test if they
receive a sentence resulting in a term of imprisonment of, or terms of imprisonment totalling,
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12 months or more for one or more offences (for example, supplying a prohibited drug,
knowingly dealing with the proceeds of crime and knowingly participating in a criminal group)
or one or more serious offences (for example, murder and causing grievous bodily harm). If
the amendments are not made, and the reasoning in Pearson is followed, such offenders would
not have a substantial criminal record as a consequence of an aggregate sentence for the
purposes of the Migration Act.
The Bill also includes provisions to validate past decisions and actions under the Migration Act
and certain other specified laws, where those decisions and actions may have otherwise been
deemed invalid as a consequence of the Federal Court's decision in Pearson. Where this results
in the person no longer holding a visa, and where relevant, the non-citizen has finished serving
their criminal sentence, this would enable the Government to return these non-citizens to
immigration detention in order to progress their removal from the country. This upholds
community safety in relation to persons with a history of serious offending and the principle
that persons seeking to migrate to Australia should uphold Australia's laws.
Importantly, the Bill also includes provisions to ensure that those persons in relation to whom
previous visa decisions are validated upon commencement of the amendments will have the
ability to pursue or continue review and revocation avenues, even if the relevant timeframes
since their original decision have already passed.
The Australian Government is taking urgent action to ensure the continued safety of the
Australian community by amending the Migration Act. The amendments in the Bill make it
clear that the provisions of the Migration Act and Regulations are not intended to distinguish
between a criminal sentence imposed in respect of one offence, or a criminal sentence imposed
in respect of two or more offences.
The amendments in the Bill are necessary to ensure a consistent approach to decisions under
the Migration Act when considering not only different sentencing regimes across jurisdictions
in Australia, but also internationally. The amendments in the Bill reinforce the understanding
that, for a person to be sentenced to imprisonment for 12 months or more, they have engaged
in serious criminal offending.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011 as, to the extent the Bill may limit some human rights, those limitations are reasonable,
necessary and proportionate.
A statement of compatibility with human rights has been prepared in accordance with Part 3 of
the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment A.
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COMMON ABBREVIATIONS AND ACRONYMS
Abbreviation or
Meaning
acronym
Migration Amendment (Aggregate Sentences) Act 2023 (once
Act
enacted)
Bill Migration Amendment (Aggregate Sentences) Bill 2023
Court Full Court of the Federal Court of Australia
Department Department of Home Affairs
Government Australian Government
Migration Act Migration Act 1958
A person who is not an Australian citizen: as defined in section 5
Non-citizen
of the Migration Act.
Pearson Pearson v Minister for Home Affairs [2022] FCAFC 203
Regulations Migration Regulations 1994
Tribunal Administrative Appeals Tribunal (AAT)
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MIGRATION AMENDMENT (AGGREGATE SENTENCES) BILL 2023
NOTES ON INDIVIDUAL CLAUSES
Section 1 Short title
1. This section provides that the short title of the Bill, when enacted, will be the Migration
Amendment (Aggregate Sentences) Act 2023 (the Act).
Section 2 Commencement
2. This section provides for the commencement of the provisions in the Act.
3. Subsection 2(1) provides that each provision of the Act specified in column 1 of the
table under subsection 2(1) commences, or is taken to have commenced, in accordance with
column 2 of the table. Any other statement in column 2 has effect according to its terms.
4. The effect of this provision is that the whole of the Act commences the day after the
Act receives the Royal Assent.
5. A note at the foot of the table under subsection 2(1) explains that the table relates only
to the provisions of the Act as originally enacted. The table will not be amended to deal with
any later amendments of the Act.
6. Subsection 2(2) provides that any information in column 3 of the table is not part of the
Act. Information may be inserted in column 3, or information in it may be edited, in any
published version of the Act.
Section 3 Schedules
7. This section provides that legislation that is specified in a Schedule to the Act will be
amended or repealed as set out in the applicable items in the Schedule concerned. This section
also provides that any other item in a Schedule to the Act has effect according to its terms.
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SCHEDULE 1 - AGGREGATE SENTENCES
Part 1 Amendments
Migration Act 1958
Item 1 After section 5AA
8. This item inserts new section 5AB after current section 5AA in Part 1 of the Migration
Act.
9. New section 5AB, entitled Sentencing for offences, provides that the provisions of the
Migration Act and the Regulations apply no differently in relation to a single sentence imposed
by a court in respect of two or more offences to the way in which those provisions apply in
relation to a sentence imposed by a court in respect of a single offence.
10. An example of the effect of new section 5AB is provided at the foot of the section. The
example clarifies the effect of new section 5AB in relation to current paragraph 501(7)(c) of
the Act, which applies in relation to a person sentenced to a term of imprisonment of 12 months
or more. Because of section 5AB, that paragraph applies in relation to a person sentenced to
such a term, whether the sentence is imposed for a single offence or for two or more offences,
with the effect that the person would have a substantial criminal record.
11. For the purposes of the Migration Act, including in relation to the character test in
section 501 and the meaning of substantial criminal record in subsection 501(7), it is intended
that the objective fact of being sentenced to a term of imprisonment of, or to terms of
imprisonment totalling, 12 months or more is sufficient to amount to a substantial criminal
record, regardless of whether the sentence is for one or more offences, or the relative
seriousness of any individual offence. As such, section 5AB will apply for the purposes of
section 501 (subject to the application provisions in Part 2 of Schedule 1 to this Act) to all
persons who have been sentenced to a term of imprisonment of 12 months or more, regardless
of whether the sentence was for one offence or two or more offences.
12. By way of further non-exhaustive examples, the application of new section 5AB to the
following provisions of the Migration Act will ensure that they operate no differently in relation
to a single sentence imposed by a court in respect of two or more offences to the way in which
those provisions apply in relation to a sentence imposed by a court in respect of a single
offence:
• the definition of behaviour concern non-citizen in subsection 5(1) of the Migration
Act, which covers a non-citizen who has been convicted of a crime and sentenced to
death or to imprisonment, for at least one year;
• the meaning of substantial criminal record given by subsection 5C(2) of the Migration
Act for the purposes of the meaning of character concern under section 5C, ensuring
alignment with the meaning of substantial criminal record in subsection 501(7) for the
purposes of the character test in section 501;
• section 201 of the Migration Act, concerning the deportation of non-citizens in
Australia for less than 10 years who are convicted of crimes, where paragraph 201(c)
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refers to a person being sentenced to death or to imprisonment for life or for a period
of not less than one year for an offence;
• paragraph 501(3A)(b) of the Migration Act, concerning the mandatory cancellation of
a visa that has been granted to a person if, among other things, 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;
• the meaning of substantial criminal record in subsection 501(7), which applies for the
purposes of section 501 where a person has been sentenced--for a single offence or
two or more offences--to death (paragraphs 501(7)(a)); to imprisonment for life
(paragraphs 501(7)(b)); or to two or more terms of imprisonment, where the total of
those terms is 12 months or more (paragraphs 501(7)(d));
• subsection 501(10) of the Migration Act, concerning the effect of pardons or the
quashing of a conviction in relation to the character test in subsection 501(6), making
clear that subsection 501(10) will apply where the sentence was imposed for an offence
or two or more offences.
Part 2 Application of amendments and validation of certain things done
13. The provisions in Part 2 of Schedule 1 to the Act provide for the application of new
section 5AB of the Migration Act as in force on and after commencement of the Act. Part 2
also contains provisions that operate retrospectively to validate certain things done under
specified laws before commencement of the Act, as well as providing for opportunities for a
person to appeal or seek review of a validated decision after commencement of the Act, in
certain circumstances.
Item 2 Definitions
14. This item defines the following terms for the purposes of Part 2 of Schedule 1 to the
Act:
• commencement means the commencement of Part 2 of Schedule 1 to the Act;
• do a thing includes:
− make a decision (however described); and
− exercise a power, perform a function, comply with an obligation or discharge a
duty; and
− do anything else;
• purport to do a thing has a corresponding meaning in relation to do a thing.
Item 3 Application of amendments
15. This item provides that new section 5AB of the Migration Act, as in force on and after
its commencement, applies in relation to the doing of a thing on or after commencement:
• whether the thing is done in relation to something else that comes into existence or is
obtained before, on or after commencement (subject to paragraph 3(c)); and
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• if the thing is done in relation to a particular person--whether the person committed,
or was convicted of or sentenced for, one or more offences before, on or after
commencement; and
• if the doing of the thing depends on the making of an application by or on behalf of a
person--even if the application was made before commencement, provided the
application had not been finally determined as at commencement.
16. By way of non-exhaustive examples, new section 5AB of the Migration Act, as in force
on and after commencement of this Act, will apply:
• when determining whether a non-citizen is of character concern in accordance with
section 5C of the Migration Act--to any conduct of the non-citizen before, on or after
commencement;
• when making a decision under section 501 of the Migration Act to refuse to grant a visa
to a person or to cancel a visa granted to a person--to any conduct of the person before,
on or after commencement.
• where a person's visa has been cancelled under subsection 501(3A) of the Act and that
person has applied for a revocation of the cancellation decision (the original decision)
in accordance with section 501CA of the Act--when the Minister or a delegate uses
any relevant information (other than non-disclosable information) to assist them to
work out whether the original decision should be revoked or not;
• with the effect that it will not be unlawful to obtain, disclose (where allowed) or access
identifying information (such as is permitted under Part 4A of the Act) in the exercise
of certain powers, duties or obligations;
• to an application for revocation, an application for merits review or an application for
judicial review made prior to commencement (provided the application had not been
finally determined as at commencement).
Item 4 Validation of things done before commencement
17. Subitem 4(1) provides that item 4 applies if a thing done, or purportedly done, before
commencement under a law, or provision of a law, covered by subitem 4(2) would, apart from
item 4, be wholly or partly invalid only because a sentence, taken into account in doing, or
purporting to do, the thing, was imposed in respect of two or more offences.
18. For the purposes of subitem 4(1), the following laws and provisions are specified in
subitem 4(2):
• the Migration Act;
• any legislative instrument made under the Act (which would include the Regulations);
• clauses 51 and 53 of Schedule 1 to the Environment Protection and Biodiversity
Conservation Act 1999;
• clauses 51 and 53 of Schedule 1A to the Fisheries Management Act 1991;
8
• clauses 51 and 53 of Schedule 2 to the Torres Strait Fisheries Act 1984.
19. The note at the foot of subitem 4(2) also provides examples of things referred to in
subitem 4(1):
• deciding under section 501, 501A, 501B or 501BA of the Migration Act to refuse to
grant a visa to a person or to cancel a visa granted to a person;
• accessing information under Division 2 of Part 4A of the Migration Act, or disclosing
information under Division 3 of that Part;
• giving a notice under subsection 501L(1) of the Migration Act;
• divulging or communicating information as mentioned in subparagraph 503A(1)(a)(ii)
or (b)(ii) of the Migration Act.
20. Subitem 4(3) provides that the thing done, or purportedly done, is taken for all purposes
to be valid and to have always been valid, subject to subitem 4(5).
21. Subitem 4(4) provides that subject to subitem 4(5) and to avoid doubt, anything done
or purported to have been done by a person that would have been invalid except for
subitem 4(3) is taken for all purposes to be valid and to have always been valid, despite any
effect that may have on the accrued rights of any person.
22. Subitem 4(5) provides that item 4 applies in relation to:
• civil and criminal proceedings instituted on or after commencement of this Act;
• civil and criminal proceedings instituted before commencement of this Act, even if the
proceedings were concluded before commencement.
23. The combined effect of item 4 includes, for example, the retrospective validation of
previous mandatory cancellation decisions made under subsection 501(3A) of the Migration
Act, which were made on the basis of an aggregate sentence prior to the decision in Pearson.
24. By way of elaboration of the preceding example:
(a) A person came to Australia and was granted a visa. While lawfully in Australia on
that visa, the person committed a number of offences against Australian law. The
person was charged and ultimately convicted for those offences. None of the
offences were sexually based offences involving a child and none were a serious
Australian offence for the purposes of the Migration Act (as defined in subsection
5(1)). The person received an aggregate sentence of imprisonment of 18 months.
The indicative sentence recorded for each of the offences was for a term of
imprisonment of less than 12 months. The person commenced serving their
sentence as a full-time detainee in a custodial institution.
(b) A delegate of the Minister was satisfied that the person did not pass the character
test because the person had received an aggregate sentence for a term of
imprisonment of 12 months or more and therefore had a substantial criminal
record as defined in paragraph 501(3A)(c) of the Act. The delegate decided to
9
cancel the person's visa on this basis alone. The person received a valid notice of
visa cancellation and an invitation to make representations. A delegate
subsequently decided to refuse to revoke the mandatory cancellation of the
person's visa and the person applied to the Tribunal for review of that decision.
(c) The Tribunal affirmed the delegate's decision to refuse to revoke the mandatory
cancellation of the person's visa. The person then sought judicial review of the
Tribunal's decision. A single judge of the Federal Court dismissed the application
on the basis that the delegate had correctly applied paragraph 501(3A)(c) of the
Act. Sometime following the judgment, the Court handed down its judgment in
Pearson.
(d) Once this Act (including Part 2 of Schedule 1 to this Act) commences, to the extent
that each decision, and each other thing done, or purportedly done, in this example,
would be wholly or partly invalid only because the person's sentence was imposed
in respect of 2 or more offences, will be taken for all purposes to be valid and to
have always been valid. Accordingly, the person's visa was validly cancelled and
the person will be liable for removal from Australia once released from custody.
Item 5 Effect of validation on review and appeal rights
25. Item 5 deals with the effect of validation under item 4 on review and appeal rights:
• subitem 5(1) concerns the taking action after 'commencement' where no action was
taken before commencement of this Act;
• subitems 5(2) and (3) concern the opportunity to take fresh action after commencement
where action of the same kind was discontinued etc. before commencement of this Act;
• subitem 5(4) defines the term validated decision for the purpose of item 5 to mean a
decision (however described) that would have been invalid except for item 4. By way
of example, a validated decision is one that is validated under subitem 4(3) (such as
where the decision took into account an aggregate sentence) or subitem 4(4) (such as a
decision subsequent to something validated under subitem 4(3)).
Taking action after commencement where no action taken before commencement
26. Subitem 5(1) provides that, if:
• one or more provisions of the Act or the Regulations have the effect that a person is
able to take any of the following actions in relation to a 'validated decision' only during
a particular period (the original period): making representations about the revocation
of the decision; applying for the revocation or review of the decision; bringing an appeal
against the decision; applying to a court for a remedy in relation to the decision; taking
any other action for the purpose of having the decision varied, revoked, quashed or set
aside; and
• the original period started before commencement and did not end before 22 December
2022; and
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• the person did not take the action before commencement;
then the person may take the action on or after commencement as if the period for taking the
action:
• started on commencement; and
• were the same length as the original period.
27. Subitem 5(1) includes a note that 22 December 2022 is the day the Court gave judgment
in Pearson v Minister for Home Affairs [2022] FCAFC 203.
Opportunity to take fresh action after commencement where action of the same kind
discontinued etc. before commencement
28. Subitem 5(2) provides that, if:
• before commencement, a person took any of the following kinds of action (the
pre-commencement action) in relation to a validated decision: making representations
about the revocation of the decision; applying for the revocation or review of the
decision; bringing an appeal against the decision; applying to a court for a remedy in
relation to the decision; taking any other action for the purpose of having the decision
varied, revoked, quashed or set aside; and
• any of the following events occurred during the period starting on 22 December 2022
and ending at 'commencement':
− the representations were, or the application, appeal or other action was,
withdrawn or otherwise discontinued by the person;
− the representations were, or the application, appeal or other action was, not
considered, dismissed or refused for the reason (or for reasons that include) that
the 'validated decision' was invalid;
then the following paragraphs have effect:
• paragraph 5(2)(c): the person may, on or after commencement of this Act, take fresh
action of the same kind in relation to the validated decision, despite the taking of the
pre-commencement action and the event mentioned in paragraph 5(2)(b);
• paragraph 5(2)(d): if one or more provisions of the Migration Act or the
Regulations have the effect that the person is able to take action of that kind in relation
to the validated decision only during a particular period (the original period) starting
before commencement--the person may take the fresh action on or after
'commencement' as if the period for taking the fresh action:
− started at commencement; and
− were the same length as the original period.
29. Subitem 5(2) includes a note that 22 December 2022 is the day the Court gave judgment
in Pearson v Minister for Home Affairs [2022] FCAFC 203.
11
30. Paragraph 5(2)(c) will allow fresh action of the same kind to be taken. The intention is,
for example, that if the person applied to the Tribunal for review of a decision before
commencement of this Act and the application was dismissed because there was no valid
decision, then the person should be able to make a fresh application to the Tribunal for review
of the decision.
Extensions to be disregarded
31. Subitem 5(3) provides that, for the purposes of subitem 5(1) or (2), the fact that it may
have been possible to extend the original period mentioned in that subitem should be
disregarded.
32. By way of example:
(a) Assume the facts set out subparagraphs 24(a) and (b) of this Explanatory
Memorandum are the same.
(b) Prior to the Tribunal deciding the application for review, the Court handed down
its judgment in Pearson. The Tribunal subsequently set aside the delegate's
decision to refuse to revoke the mandatory cancellation of the person's visa, or
otherwise dismissed the application for want of jurisdiction, on the basis of the
reasoning in Pearson.
(c) Once this Act (including Part 2 of Schedule 1 to this Act) commences, to the extent
that each decision, and each other thing done, or purportedly done, in this example,
would be wholly or partly invalid only because the person's sentence was imposed
in respect of 2 or more offences, will be taken for all purposes to be valid and to
have always been valid. Accordingly, the person's visa was validly cancelled and
the person will be liable for detention as an unlawful non-citizen and removal from
Australia once released from custody.
(d) However, because the person applied to the Tribunal for review of the validated
decision, and the application was dismissed or refused for the reason (or for reasons
that include) that the validated decision was invalid, the person may make a fresh
application to the Tribunal for review in relation to the validated decision. The
timeframe specified in the Act for making a fresh application to the Tribunal would
apply from the commencement of this Act and would be the same duration as the
original period.
33. Subitem (5) provides that, for the purposes of item 5, the expression validated decision
means a decision, however described, that would have been invalid except for item 4.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Aggregate Sentences) Bill 2023
The Migration Amendment (Aggregate Sentences) Bill 2023 is compatible with the human
rights and freedoms recognised or declared in the international instruments listed in section 3
of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Migration Amendment (Aggregate Sentences) Bill 2023 (the Bill) amends the Migration
Act 1958 (the Migration Act) in response to the decision of the Full Court of the Federal Court
of Australia in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson).
The purpose of the Bill is to amend the Act to provide a clear basis for aggregate sentences
(that is, one sentence imposed in respect of more than one offence) to be taken into account
for all relevant purposes under the Migration Act. This is of particular relevance for the
application of the character test in section 501 of the Act.
Character test
Under the Migration Act, a non-citizen may have their visa refused or cancelled if they fail
the character test in section 501 of the Act. One of the bases on which a non-citizen can fail
the character test is because they have a 'substantial criminal record' as defined in s 501(7) of
the Act. A 'substantial criminal record' includes where the person has been sentenced to a
term of imprisonment of 12 months or more (s 501(7)(c)) or has been sentenced to 2 or more
terms of imprisonment, where the total of those terms is 12 months or more (s 501(7)(d)).
Where a non-citizen is sentenced to a term of imprisonment for 12 months or more
(s 501(7)(c)) and is currently serving a term of imprisonment, their visa is subject to
mandatory cancellation under s 501(3A) of the Act. Where a visa has been mandatorily
cancelled under s 501(3A) of the Act, the Act provides for a discretionary power under
s 501CA to revoke the cancellation.
The Pearson matter involved a mandatory visa cancellation decision where the decision-
maker found that the visa holder had a 'substantial criminal record' on the basis of s 501(7)(c)
of the Act: that the person has been sentenced to a term of imprisonment of 12 months or
more. In its judgment, the Court relevantly held that an aggregate sentence (that is, a single
sentence for more than one offence) imposing a term of imprisonment cannot be counted when
working out if a person has a 'substantial criminal record'.
This creates a perverse situation whereby a person automatically fails the character test if, for
example, they receive a sentence of 5 years for a single serious offence, but if they are
sentenced to a period longer than 5 years for that offence and another offence, eg. through an
aggregate sentence, they would not automatically fail the character test.
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The Bill will address the effect of the Pearson decision by ensuring that sentences for more
than one offence are able to be used in working out whether a person has a substantial criminal
record for the purpose of the character test in section 501 of the Act. This will enable the
Government to be able to continue to manage the community protection risk posed by non-
citizens who have received such sentences.
The effect of this amendment would be that:
• where a non-citizen has a 'substantial criminal record', including because they have
been sentenced an aggregate term of imprisonment of 12 months or more, they may
have their visa refused or cancelled under section 501 of the Act; and
• furthermore, where a non-citizen has a 'substantial criminal record', including because
they have been sentenced to an aggregate term of imprisonment of 12 months or more,
and they are currently serving a term of imprisonment, they will be liable for
mandatory cancellation of their visa under section 501(3A) of the Act.
The Bill will uphold the protection of the Australian community by ensuring such a person,
as an unlawful non-citizen in Australia because their visa has been refused or cancelled, would
also be liable for continued immigration detention pending their removal from Australia.
Character concern
Another effect of the amendments made by the Bill is on the application of the term 'character
concern', which is provided by s 5C of the Act and sets out the circumstances in which a non-
citizen will be of character concern. The term 'character concern' is used in relation to the
meaning of 'personal identifier' in s 5A of the Act, which is also relevant to the purposes for
which personal identifiers can be collected under s 257A, and in relation to permitted
disclosures of identifying information, including personal identifiers, in s 336E. Together
these provisions allow for the collection and disclosure of certain types of information,
including for the purpose of identifying non-citizens who have a criminal history or who are
of character concern, and for the purposes of certain provisions of other Commonwealth
legislation dealing with fisheries offences.
Subsection 5C(2) mirrors subsection 501(7) of the Act, which establishes the meaning of
'substantial criminal record' for the purposes of the character text in s 501. The effect of new
s 5AB in relation to current s 5C is to ensure that where s 5C includes reference, for example,
to a non-citizen having been sentenced to a term of imprisonment of 12 months or more (s
5C(2)(c)), that paragraph applies in relation to a non-citizen sentenced to such a term, whether
the sentence is imposed for a single offence or for 2 or more offences, in the same manner as
s 501(7)(c).
Validation of past decisions and actions and preservation of related review mechanisms
The Bill will also validate (make lawful) past decisions and actions where they may have been
deemed invalid as a consequence of the Pearson decision. Where this results in the person no
longer holding a visa, and where relevant, the non-citizen has finished serving their criminal
sentence, this will allow the Government to return these non-citizens to immigration detention
in order to progress their removal from the country.
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The Bill ensures that those persons whose previous visa decisions are validated by the Bill
retain the ability to pursue or continue review and revocation avenues even if the relevant
timeframes since their original decision have already passed.
Human rights implications
This Bill may engage the following rights:
• Right to liberty - Article 9 of the International Covenant on Civil and Political
Rights (ICCPR).
• Non-refoulement obligations - Article 3(1) of the Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and Articles
6 and 7 of the ICCPR.
• The right not to be arbitrarily deprived of the right to enter one's own country -
Article 12(4) of the ICCPR.
• Expulsion of aliens - Article 13 of the ICCPR.
• Rights relating to families and children - Articles 17(1) and 23(1) of the ICCPR and
Article 3 of the Convention on the Rights of the Child (CRC).
• Right to privacy - Article 17(1) of the ICCPR.
• Rights relating to the criminal process and penalties - Article 14(7) and 15(1) of the
ICCPR.
Where the visa of a non-citizen in Australia is cancelled or refused under the character
provisions in s 501 of the Act, under the existing framework in the Act, as unlawful non-
citizens they will be liable for detention under section 189 of the Act and removal from
Australia unless they are granted another visa. This Statement of Compatibility with Human
Rights addresses the potential human rights implications that may result from these practical
effects along with other possible implications that may arise from this Bill.
Right to liberty
Article 9(1) of the ICCPR states:
Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law.
Article 9 of the ICCPR is a prohibition on arbitrary detention. The concept of arbitrariness
goes beyond mere lawfulness and requires that the detention of the non-citizen is
reasonable, necessary and proportionate to achieve a legitimate aim.
The Bill aligns with community expectations that non-citizens who have been found not to
pass the character test on the basis of having a substantial criminal record - having been
sentenced to a term of imprisonment of 12 months or more, whether for a single offence or
two or more offences - should not be allowed to travel to or remain in Australia.
Following the reasoning in Pearson, a person's aggregate sentence would not count towards
working out if they have a substantial criminal record. Their visa may be refused or
cancelled relying on other limbs of the character test in appropriate circumstances -
however the objective test of 'substantial criminal record' would not apply. The
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amendments in this Bill have the effect that a non-citizen who is subject to an aggregate
sentence of 12 months or more will automatically fail the character test in the Act on the
basis of having a substantial criminal record, whether the sentence is imposed for one
offence or two or more offences. This provides a clear, objective basis to consider the visa
refusal or cancellation powers under section 501 of the Act.
If the visa of a non-citizen in Australia is cancelled or refused because they do not pass the
character test under section 501 of the Act, and they are then an unlawful non-citizen (if not
granted another visa), the person is liable as an unlawful non-citizen for immigration
detention under section 189 of the Act.
The Bill also ensures that visa refusal or cancellation decisions, including mandatory visa
cancellations, which may have been deemed invalid by the Pearson decision will be
validated, with the result in some cases that the persons whose visas were the subject of
those decisions will once again be subject to immigration detention. The Government
considers that those non-citizens who have been released from immigration detention as a
result of the Pearson decision present a considerable risk to the community, and it is
appropriate for them to be able to be returned to immigration detention in order to progress
their removal from Australia.
Immigration detention in these circumstances represents a reasonable response to achieving
a legitimate purpose under the ICCPR - the safety of the Australian community and the
integrity of the migration program. Decision-makers exercising their discretion to refuse or
cancel a visa on character grounds, or to revoke a mandatory visa cancellation, are guided
by comprehensive policy guidelines and Ministerial Directions, and take into account the
individual's circumstances and relevant international obligations. This means the visa
decision, and any consequent detention, is a proportionate response to the individual
circumstances of each case.
In addition, the Government has processes in place to mitigate any risk of a person's
detention becoming indefinite or arbitrary through: internal administrative review
processes; Commonwealth Ombudsman processes including reporting and Parliamentary
tabling; and, ultimately the use of the Minister's personal intervention powers to grant a
visa or residence determination where it is considered in the public interest.
Whether the person is placed in an immigration detention facility ('held detention'), or is
subject to other arrangements, is determined using a risk-based approach. Detention Review
Committees are held regularly to review all individuals held in immigration detention to
ensure the ongoing lawfulness and reasonableness of the person's detention, by taking into
account all the circumstances of the case. This regular review takes into account any changes
in the person's circumstances that may impact on immigration pathways including returns
and removal, to ensure the continued lawfulness of detention and to ensure alternative
placement options have been duly considered. Amendments to the Migration Regulations
1994 made in 2021 also enhance the options available to the Minister in considering whether
to grant a Bridging visa in such circumstances, by providing a larger suite of Bridging visa
conditions relating to the safety and security of the Australian community, that the Minister
may consider imposing in order to grant a visa while also mitigating risks to the Australian
community.
The Minister's powers to consider whether to grant a visa to permit an unlawful non-
citizen's release from immigration detention, or to permit a community placement under a
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residence determination, until they are able to be removed from Australia, means that the
person's individual circumstances, and the risk they may pose to the Australian community
can be taken into account. This enables the least restrictive option to be implemented for the
person having regard to their circumstances. Again, these mechanisms, including in the
situation where the person has been placed into immigration detention following the
validation of their previous visa refusal or cancellation decision, help to ensure that any
detention consequent to a visa refusal or cancellation is not arbitrary and constitutes a
proportionate response to the individual circumstances of each case.
Non-refoulement obligations
Article 3(1) of the CAT states:
'No State Party shall expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.'
Articles 6 and 7 of the ICCPR also impose on Australia an implied non-refoulement
obligation. Article 6 of the ICCPR states:
Every human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.
Article 7 of the ICCPR states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to medical
or scientific experimentation.
Australia remains committed to its international obligations concerning non-refoulement. If
the person who fails the character test makes a claim to engage Australia's non-refoulement
obligations or it appears that they may do so, these obligations can be considered as part of
the decision whether to refuse or cancel a visa on character grounds or to revoke a
mandatory visa cancellation, and/or through the protection visa process.
Where the visa which is refused or cancelled under section 501 is not a protection visa, the
person is not prevented by section 501E of the Act from applying for a protection visa
(subsection 501E(2) of the Act). Individuals would not be subject to involuntary removal
from Australia to the country to which their protection claims relate unless and until any
claims for protection they have advanced through a valid protection visa application have
been assessed according to law.
Where the visa which is refused or cancelled is a protection visa or the person has
previously applied for or held a protection visa, or where the person subsequently makes a
protection visa application, the effect of subsection 197C(3) of the Act is that the person
will be protected from removal in breach of Australia's non-refoulement obligations where
a 'protection finding' is or has been made in the course of considering that protection visa
application. A 'protection finding' reflects the circumstances in which Australia's non-
refoulement obligations are engaged. Where a person has a 'protection finding', it is
irrelevant that the protection visa was refused or cancelled on another basis, such as
character. A person with a 'protection finding' cannot be removed to the country by
reference to which that finding was made unless they request this in writing, or where the
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Minister or delegate makes a decision under section 197D of the Act that, for example due
to improving country conditions, a 'protection finding' would no longer be made in the
person's case. A decision under section 197D is subject to merits review.
As such, this amendment does not affect Australia's commitment to complying with its non-
refoulement obligations in relation to Article 3 of the CAT and Articles 6 and 7 of the
ICCPR.
Right not to be arbitrarily deprived of the right to enter one's own country
Article 12(4) of the ICCPR states:
No one shall be arbitrarily deprived of the right to enter his own country.
To the extent that a permanent visa holder may have their visa cancelled on the basis of an
aggregate sentence, the amendments in this Bill may engage the right under Article 12(4),
depending on the strength, nature and duration of their ties to Australia and their ties to
their country of citizenship. Even if Australia accepted that it was a non-citizen's 'own
country' for the purposes of Article 12(4), the cancellation of their visa, or the non-
revocation of the mandatory cancellation of their visa would not be inconsistent with
Article 12(4) as this would occur after careful consideration of the person's individual
circumstances. This includes consideration of the strength, nature and duration of the
person's ties to Australia, and the risk the person may pose to the Australian community.
Merits review and/or judicial review of either the cancellation decision or the non-
revocation decision is available. Therefore, any such decision, which may ultimately affect
the person's ability to re-enter Australia, would not be arbitrary, and would be reasonable,
necessary and proportionate in their individual circumstances.
Expulsion of aliens
Article 13 of the ICCPR states:
An alien lawfully in the territory of a State Party to the present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with law
and shall, except where compelling reasons of national security otherwise require, be
allowed to submit the reasons against his expulsion and to have his case reviewed by,
and be represented for the purpose before, the competent authority or a person or
persons especially designated by the competent authority.
As the cancellation of a visa held by a non-citizen lawfully in Australia can lead to removal,
the cancellation process as a whole can amount to expulsion as contemplated in Article 13
of the ICCPR.
Decisions to cancel a visa on character grounds are made in accordance with section 501 of
the Act and the relevant procedures and Ministerial Directions, and review mechanisms
available are not being limited by this Bill. The processes for visa cancellation based on
aggregate sentences will remain in accordance with the procedural requirements of Article
13 and review of the decisions is available - merits review by the Administrative Appeals
Tribunal and/or judicial review for decisions made by a delegate, and judicial review of
decisions made by the Minister personally.
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The majority of discretionary decisions to cancel or refuse a visa on character grounds are
made under section 501(1) of the Act for refusals and section 501(2) of the Act for
cancellations. Such decisions afford natural justice prior to the making of the decisions,
allowing the person to comment and provide any supporting documents or evidence to the
Department as to why their visas should not be cancelled or refused, and provide any
countervailing considerations. This is the case for both decisions made by the Minister
personally, and decisions made by delegates of the Minister.
In a limited number of cases, a non-citizen's visa may be considered for refusal or
cancellation by the Minister personally under section 501(3), without natural justice, where
the Minister is satisfied that refusal or cancellation is in the national interest. National
interest is determined by the Minister personally, and the Minister's satisfaction that a
decision is in the national interest must be attained reasonably.
Although these rare decisions to refuse or cancel the visa in the national interest under
subsection 501(3) are made without affording the non-citizen an opportunity to provide
reasons as to why their visa should not be cancelled or refused or any countervailing
considerations, the non-citizen is able to seek revocation of the decision. Further, it is open
to the Minister to make a decision to revoke the cancellation or refusal if the non-citizen
satisfies the Minister that they pass the character test.
Like all decisions made on character grounds, decisions of the Minster made personally,
including where made in the national interest, are subject to judicial review. During judicial
review, the Court could consider whether or not the power given by the Migration Act has
been properly exercised. For a discretionary power such as a personal decision by the
Minister under the Migration Act, this could include the consideration of whether the power
has been exercised in a reasonable manner.
Similarly, where a person's visa is mandatorily cancelled under section 501(3A) of the Act
because they do not pass the character test on the basis of a substantial criminal record and
are serving a term of imprisonment, a discretionary revocation power under section 501CA
of the Act is available to consider whether there may be reasons to revoke the cancellation
and the affected person is able to submit reasons why their visa should not have been
cancelled through that process. Decisions not to revoke a mandatory visa cancellation are
subject to merits review by the Administrative Appeals Tribunal and/or judicial review for
decisions made by a delegate, and to judicial review if the decision was made by the
Minister personally.
Further, the Bill specifically preserves the availability of the review and revocation powers
described above in relation to those decisions that were affected by the Pearson decision
and which are being validated by the Bill. The Bill includes provisions to ensure that those
persons in relation to whom previous visa decisions are validated upon commencement of
the Act will have the ability to pursue or continue review and revocation avenues in certain
circumstances, even if the relevant timeframes since their original decision have already
passed.
As such, the amendments made by this Bill do not limit Article 13 of the ICCPR.
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Rights relating to families and children
Article 3(1) of the CRC states:
In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.'
Article 17(1) of the ICCPR states:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.'
Article 23(1) of the ICCPR states:
The family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
Where an individual's visa is cancelled or refused, they may be detained and/or removed
from Australia under the provisions of the Migration Act, which may result in separation of
the family unit. The rights relating to families and children - including the best interests of
any children under 18 and the impact of potential separation from family members -will be
taken into account as part of the consideration whether to refuse or cancel the visa, or, where
the visa has been mandatorily cancelled, in any decision whether to revoke that cancellation.
In particular, decision-makers treat the best interests of affected children in Australia as a
primary consideration.
Any separation from family members in Australia caused by an unlawful non-citizen being
detained or removed as a result of having their visa cancelled or refused on the basis of an
aggregate sentence will not be inconsistent with Articles 17 and 23 of the ICCPR and Article
3 of the CRC as the decision to refuse or cancel, or not to revoke a mandatory visa
cancellation, will appropriately weigh the impact of potential separation from family and the
best interests of any children against the non-citizen's risk to the Australian community.
Right to privacy
Article 17(1) of the ICCPR states:
'No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.'
The amendment made by the Bill to insert new s 5AB, which will apply to the provisions of
the Migration Act and Regulations generally, will also affect the operation of s 5C of the Act,
in effect clarifying the definition of 'character concern' in s 5C, which refers to non-citizens
who have a 'substantial criminal record', to ensure it aligns with the meaning of 'substantial
criminal record' in s 501(7). It does this by allowing aggregate sentences to count towards
working out if a non-citizen has a substantial criminal record - where s 5AB makes clear that
provisions such as s 5C apply in relation to a single sentence imposed by a court in respect
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of two or more offences in the same way in which those provisions apply in relation to a
sentence imposed by a court in respect of a single offence.
The effect of new s 5AB on s 5C is to ensure that the circumstances in which the Department
can collect and disclose identifying information for the purpose of identifying non-citizens
who are of character concern on the basis of having a substantial criminal record are
consistent with the situations in which a non-citizen will have a substantial criminal record
for the purpose of the character test. The Bill also ensures that any such actions to collect or
disclose information relying on the definition of character concern and substantial criminal
record are valid despite the effect of the Pearson decision.
The amendments are to achieve a legitimate purpose under the ICCPR -- to protect the
Australian community from non-citizens who pose an unacceptable risk. Permitting the
collection and disclosure of identifying information, such as photographs, signatures and
other personal identifiers as defined in s 5A of the Act, for the purpose of identifying persons
of character concern, including those who have been sentenced to an aggregate term of
imprisonment of 12 months or more, is a reasonable and proportionate measure to achieve
the intended operation of the character provisions for the purpose of protecting the Australian
community. Any interference with the privacy of a non-citizen who has been convicted of an
offence or offences, including where they have received an aggregate sentence, in order to
help identify them, would therefore not be unlawful or arbitrary.
Rights relating to the criminal process and penalties
Article 14 (7) of the ICCPR states:
No one shall be liable to be tried or punished again for an offence for which he
has already been finally convicted or acquitted in accordance with the law and
penal procedure of each country.
Article 15 (1) of the ICCPR states:
No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence, under national or
international law, at the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time when the criminal offence
was committed. If, subsequent to the commission of the offence, provision is made
by law for the imposition of a lighter penalty, the offender shall benefit thereby.
The possibility of visa refusal or cancellation on character grounds is an existing consequence
of a non-citizen committing one or more offences. The Bill will ensure that certain persons,
namely those who have been sentenced to a term of imprisonment of 12 months or more on the
basis of an aggregate sentence, are automatically considered not to pass the character test which
also has the effect that, where they are also serving a term of imprisonment, their visa will be
subject to mandatory cancellation. The Bill will also validate decisions affected by the Pearson
decision to refuse or cancel a visa on the basis of a substantial criminal record where that record
was constituted by an aggregate sentence.
The rights in Article 14(7) and 15(1) are focused on criminal proceedings and penalties for
criminal offences. Visa refusal or cancellation, including following a person being sentenced
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for a criminal offence, is not a criminal proceeding and is not a criminal punishment or penalty.
The purpose of the character test and the powers to refuse or cancel a non-citizen's visa where
they have a substantial criminal record (including where the person has been sentenced to a
term of imprisonment of 12 months or more, and including on the basis of an aggregate
sentence) is to ensure that serious offenders, including those who have committed multiple
offences, and who may hold a history or high risk of recidivism and a clear disregard for the
law, can be removed from the Australian community. This regime, and the measures in the
Bill, are not designed as a punishment. Rather, visa refusal and cancellation and the subsequent
removal of unlawful non-citizens from Australia have a protective and not punitive purpose.
Visa refusal or cancellation is an administrative consequence which can flow from a criminal
act and the regime is designed to protect the Australian community by allowing segregation
and removal of the non-citizen from the community, and not to punish or further punish that
non-citizen for past conduct.
Therefore, the measures in the Bill do not constitute a further punishment or penalty within the
meaning of Articles 14(7) and 15(1) of the ICCPR and therefore do not limit those rights.
Conclusion
The Bill is compatible with human rights as, to the extent it may limit some human rights, those
limitations are reasonable, necessary and proportionate.
The Honourable Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs
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