Migration Amendment (Strengthening the Character Test) Bill 2018 [2018] AUSStaCSBSD 243 (14 November 2018)

• Migration Amendment (Strengthening the Character Test) Bill 2018
• Broad discretionary power
• Trespass on personal rights and liberties 16

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Migration Amendment (Strengthening the Character Test) Bill 2018

Purpose	This bill seeks to amend the Migration Act 1958 to provide additional grounds for non-citizens who commit serious offences to be considered for visa refusal or cancellation
Portfolio	Immigration, Citizenship and Multicultural Affairs
Introduced	House of Representatives on 25 October 2018

Broad discretionary power
Trespass on personal rights and liberties ^[16]

1.22 Section 501 of the Migration Act 1958 (the Migration Act) provides both compulsory and discretionary powers to the minister to cancel a visa issued to, or refuse to issue a visa to, a person who does not meet the 'character test'.^[17] Subsection 501(6) of the Act sets out a range of circumstances under which a person will not be considered to pass the 'character test'. The bill seeks to add an additional element by providing that a person does not pass the character test if they have been convicted of a 'designated offence'.^[18] The bill defines a designated offence as an offence against a law in force in Australia or a foreign country that satisfies two conditions.^[19] First, the offence must have one or more physical elements involving:

• violence against a person;

• non-consensual conduct of a sexual nature;

• breaching an order made by a court or tribunal for the personal protection of another person;

• using or possessing a weapon; or

• aiding, abetting, counselling or procuring; inducing; conspiring; or being knowingly concerned in, or a party to, the commission of one of the above offences.^[20]

1.23 Second, the offence must be punishable by imprisonment for two years or more, regardless of whether the person actually received that sentence.^[21] The minister's power to refuse or cancel a visa with respect to a person who does not meet the character test by reason of being convicted of a designated offence would be discretionary.^[22]

1.24 The Act currently enables a visa to be refused or cancelled where a person has failed the character test because they have a 'substantial criminal record',^[23] which is defined as including any person who has been sentenced to a total term of imprisonment of 12 months or more.^[24] The Act also enables the minister to exercise discretionary visa refusal and cancellation powers where a person is not of good character, having regard to their past and present criminal conduct and general conduct.^[25]

1.25 The statement of compatibility explains that the proposed amendments are intended to ensure the character test 'aligns directly with community expectations, that non-citizens who commit offences such as murder, assault, sexual assault or aggravated burglary will not be permitted to remain in the Australian community.'^[26] It states that the practical effect of the amendments will be greater numbers of people being liable for consideration of refusal or cancellation of a visa as they would not meet, or would no longer meet, the relevant character requirements.^[27] As such, the amendments are likely to result in more people being held in immigration detention, removed from Australia and potentially separated from their family.^[28] This raises scrutiny concerns as to whether the measures proposed in the bill unduly trespass on personal rights and liberties.

1.26 The committee notes that in providing a basis for cancelling or refusing a visa that is not based on the length of sentence a person has actually received, the proposed amendments would allow the minister the discretion to cancel or refuse to issue a visa to a person who has been convicted of a designated offence but who may have received a very short sentence or no sentence at all. For example, a person carrying pepper spray may be convicted of possession of a weapon,^[29] and although the person may only be given a minor fine, this conviction would empower the minister to cancel their visa, leading to their detention and removal from Australia.^[30] As the power to cancel would be based simply on the fact of conviction, there is nothing in the legislation that would require the minister to consider the person's overall good character, their family or other connections to Australia or the length of their stay in Australia (noting that this could apply to permanent residents who have lived in Australia for many years).

1.27 The committee also notes that subsection 501(5) of the Act provides that neither the code of procedure for dealing with visa applications^[31] nor the rules of natural justice apply to decisions to refuse or cancel a visa made under subsections 501(3) and (3A). Under subsection 501(3) the minister has a discretionary power to cancel a visa if the minister reasonably suspects that a person does not pass the character test—including, under the proposed amendments, because the person has been convicted of a designated offence—and the minister is satisfied that cancellation is in the 'national interest'. As a result, the minister in acting under this power is not required to give the affected person an opportunity to present their case before making the decision. The committee has previously raised scrutiny concerns about the exclusion of natural justice requirements for decisions taken in relation to visa cancellations.^[32]

1.28 In addition, while decisions made by a delegate of the minister to cancel or refuse a visa under section 501 are generally subject to merits review by the Administrative Appeals Tribunal (AAT),^[33] the minister has the power to overturn the AAT's decision if the minister is satisfied it is in the national interest to do so. Further, there is no right to merits review where the minister personally exercises a visa cancellation or refusal power under section 501 or a related power.^[34]

1.29 The committee notes that it has previously raised scrutiny concerns about the existing framework, noting that the broadly framed powers under section 501 are not, as a practical matter, constrained by law 'due to the breadth of discretion, the absence of procedural fairness obligations, the fact that merits review is unavailable, or a combination of these factors'.^[35]

1.30 The committee notes that in light of the already extremely broad discretionary powers available for the minister to refuse to issue or cancel the visa of a non-citizen, the explanatory materials have given limited justification for the expansion of these powers by this bill. The explanatory memorandum states that the new provisions, in stating that a designated offence must be one punishable by a period of two years imprisonment, sets an objective standard 'which relies upon established existing criminal law and law enforcement processes in states and territories to determine the seriousness of a given offence', ensuring discretionary decisions are based on objective standards of criminality and seriousness.^[36] However, the committee notes that section 501^[37] already gives a power for the minister to cancel a visa if a person has been sentenced to a term of imprisonment for 12 months or more. Including a new power to cancel a visa based on conviction for an offence punishable by two years or more, does not take into account the individual circumstances of that conviction. As noted by the statement of compatibility the amendments 'expand the framework beyond a primarily sentence-based approach and instead allow the Minister or delegate to look at the individual circumstances of the offending and the severity of the conduct'.^[38] As such it leaves a broad discretion to the minister or his or her delegate, unconstrained by any legislative requirement to consider individual circumstances and without appropriate procedural safeguards.

1.31 The committee notes that section 501 of the Migration Act 1958 already gives the minister a broad discretionary power to refuse or cancel a visa in the absence of procedural fairness obligations and where merits review is largely unavailable. The committee considers, in these circumstances, expanding powers to empower the minister to cancel a visa (which could lead to the detention and removal of a non-citizen), raises scrutiny concerns as to whether the measure unduly trespasses on rights and liberties.

1.32 The committee therefore draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of amending the character test set out under the section 501 of the Migration Act 1958.

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[16] Schedule 1, items 5 and 6. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i) and (ii).

[17] Migration Act 1958, subsections 501(1) to (3A).

[18] Schedule 1, item 5, proposed paragraph 501(6)(aaa).

[19] Schedule 1, item 6, proposed subsection 501(7AA).

[20] Proposed subparagraphs 501(7AA)(a)(i) to (viii).

[21] Proposed paragraph 501(7AA)(b). If the offence is an offence against a law in force in a foreign country, in order to be a 'designated offence' the act or omission constituting the offence must constitute an offence against a law in force in the Australian Capital Territory (ACT) and be punishable by imprisonment for two years or more were it to have taken place in the ACT. See Schedule 1, item 6, proposed paragraph 501(7AA)(c).

[22] Migration Act 1958, sections 501(1) to (3). Statement of compatibility, p. 10.

[23] Migration Act 1958, paragraph 501(6)(a).

[24] Migration Act 1958, paragraphs 501(7)(a) to (c). Paragraphs 501(7)(d) to (f) contain further provisions relating to a person who has been: sentenced to two or more terms of imprisonment; acquitted on the grounds of insanity or unsoundness of mind; or been found unfit to plead but found to have committed the offence and been detained in a facility or institution.

[25] Migration Act 1958, paragraph 501(6)(c).

[26] Statement of compatibility, p. 9.

[27] Statement of compatibility, p. 10.

[28] Statement of compatibility, p. 10.

[29] See, for example, section 5AA of the Control of Weapons Act 1990 (Vic) and Schedule 3, item 21 of the Control of Weapons Regulations 2011, which makes it an offence, punishable by up to two years imprisonment, to possess, use or carry a prohibited weapon, including an article 'designed or adapted to emit or discharge an offensive, noxious or irritant liquid, powder, gas or chemical so as to cause disability, incapacity or harm to another person'. See also proposed subparagraph 501(7AA)(a)(iv) which states that using or possessing a weapon is a designated offence.

[30] Statement of compatibility, p. 10; Migration Act 1958, s. 189.

[31] Migration Act 1958, Part 2, Division 3, Subdivision AB.

[32] See Senate Standing Committee for the Scrutiny of Bills, Fifteenth Report of 2014, 19 November 2014, pp. 897-900.

[33] Migration Act 1958, s. 500(1)(b). Subsection 500(4A) specifies a number of decisions that are not subject to review by the Administrative Appeals Tribunal, including decisions made under s. 501(3A) to cancel a visa.

[34] See paragraph 501(1)(b) (allowing applications for AAT review to only be made in relation to decisions of the delegates of the minister) and subsections 501A(7), 501B(4) and 501BA(5) of the Migration Act 1958.

[35] See Senate Standing Committee for the Scrutiny of Bills, Fourth Report of 2016, 16 March 2016, p. 306. See also Senate Standing Committee for the Scrutiny of Bills, Fifteenth Report of 2014, 19 November 2014, pp. 891-907.

[36] Explanatory memorandum, p. 7.

[37] See paragraph 501(6)(a) and subsection 501(7) of the Migration Act 1958.

[38] Statement of compatibility, p.10.