Mandatory visa cancellation provisions
Australia’s immigration laws include mandatory visa cancellation provisions. They were introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014.
This article is for those that have received notification that their visa has been cancelled under the mandatory cancellation provisions, and for those that have a relationship with someone in that situation.
It is important for people who are not Australian citizens and who are facing criminal charges here to be aware of the operation of these laws. Since the introduction of the mandatory visa cancellation provisions in December 2014, Department of Home Affairs statistics show an explosive increase in visa cancellations. 76 visas were cancelled in 2013/2014 under character grounds. 943 visas were cancelled in 2018/2019, the most recent statistics available. There is no reason to assume that visa cancellations will be not be high again this year.
Some cancelled visas are later reinstated by the Department after considering Representations made by the former visa holder. Some are later reinstated by a decision of the Administrative Appeals Tribunal to set aside the original cancellation. We help with both of these processes.
This article begins by considering why these laws exist. We did not have them before 2014. Next, we consider the circumstances and sentences that will trigger them. We’ll have a look at some legislative definitions including “substantial criminal record” and failing “the character test”. This helps to determine when mandatory visa cancellation provisions will be enlivened. Finally, we’ll review what you can do if your visa has been cancelled (or will soon be cancelled) under the mandatory visa cancellation provisions.
Why do we have mandatory visa cancellation provisions?
The Explanatory Memorandum of the Migration Amendment (Character and General Visa Cancellation) Bill 2014 provide the government’s perspective on why these changes were introduced. The amendments expand the previous character and general visa cancellation framework to enable greater capability for the government to address character and integrity concerns. The amendments were said to reflect the Government’s low tolerance for criminal; non-compliant; or fraudulent behaviour by those who hold visas.
The intention behind these changes is to protect Australians from potential harm that might be caused by someone that has been convicted of a serious crime. If a visa is cancelled, the former visa holder becomes an unlawful non-citizen, and must be kept in immigration detention. Representations can be made to revoke the cancellation. If there are reasons that are sufficient to warrant the cancellation to be revoked, the person would be released from detention. This process enables the Department to protect Australians first, and release former visa holders only after their circumstances have been assessed.
Must be in full-time custody
Mandatory visa cancellation can only occur to those visa that are in full-time custody in a facility or institution. A person that is not in jail will not be subject to mandatory visa cancellation – although the visa can be subject to discretionary cancellation through other mechanisms.
If you are not in full-time custody your visa will not be cancelled automatically. But a person convicted of serious wrongdoing in the past can suddenly find themselves subject to mandatory cancellation now if incarcerated recently for even a relatively minor infraction.
Substancial Criminal Record
Some mistakenly believe that a person with a substantial criminal record will be subject to mandatory visa cancellation, but that isn’t precisely right. Others think that a person that fails the Character Test must have their visa cancelled. That isn’t correct either. Not all those that fail the Character Test will be subject to mandatory visa cancellation. In this section, we’ll explain these terms and their relationship to the mandatory cancellation provisions.
A person that meets the definition of having a ‘substantial criminal record’ does not necessarily mean that their visa is subject to mandatory cancellation. That term is defined in subsection 501(7) of the Migration Act 1958 (‘the Act’). There are six ways of meeting the definition of substantial criminal record. Only three will make a visa holder subject to mandatory visa cancellation. Someone sentenced to death (currently no jurisdiction in Australia can sentence a person to death); one sentenced to life; or someone sentenced to 12 months or more imprisonment, will meet the requirements. This means that a sentence of a year or more in jail is one way of triggering mandatory visa cancellation.
A person sentenced to 2 or more terms of imprisonment where the total of those terms is 12 months or more (regardless of how long ago the previous offence occurred) will also meet the definition of having a substantial criminal record (but they will not be subject to mandatory visa cancellation). Those that are acquitted due to unsoundness of mind or insanity, or that are found by a court not fit to plead, and that are detained in a facility or institution will also have a substantial criminal record, but they are not subject to mandatory visa cancellation either.
If you are in jail now and have been sentenced to 12 months or more imprisonment, your visa will be cancelled. You will not be released at the end of your sentence. You will be transferred to an immigration detention centre. You will be given written notice about the cancellation. You will be invited to make representations about revocation of the decision. Representations must be made in less than 28 days to provide reasons why the cancellation should be revoked. Representations are discussed below.
Fail the Character Test
If a person fails the ‘Character Test’, does that mean that their visa will be subject to mandatory visa cancellation?
There are currently eleven different ways that a person may fail the Character Test. Whether a person will have their visa cancelled or not depends upon which of the eleven situations applies.
Which of the eleven will result in mandatory visa cancellation? The answer is found in subsection 501(3A) of the Act. That provision requires the visa to be cancelled if a person does not pass the Character Test due to having one of the three types of substantial criminal record as explained above. It will also be cancelled if a person does not pass the Character Test because they have been convicted of sexually based offences involving a child.
There are numerous other ways of failing the Character Test, but none of these will lead to mandatory visa cancellation. These include having a substantial criminal record (other than the ones that result in mandatory visa cancellation); being convicted of an offence while in immigration detention; escaping from immigration detention; association with criminal gangs; people trafficking; genocide, crimes against humanity, war crime, torture or slavery, or other serious international concern. Other ways that a person can fail to pass the Character Test include when a person’s past and present general conduct, and their past and present criminal conduct means that the person is not of good character. If there is a risk that if the person were to remain in Australia they would engage in criminal conduct; harass, molest, intimidate, or stalk; vilify a segment of the Australian community or incite discord, or represent a danger, then they would fail the Character Test – but they not be subject to mandatory cancellation. If ASIO has determined they are a risk to security or if there is an Interpol notice made in relation to them, then these situations too would mean a failure to pass the Character Test.
As explained above, a person will be subject to mandatory visa cancellation if they are in jail serving full-time and have been sentenced to either at least 12 months imprisonment, or if they have been found guilty of committing an offence against a child of a sexual nature. The latter will apply even if the person is discharged without a conviction.
Under departmental policy, offences against children are considered broadly. The wrongdoer need not necessarily commit direct physical harm to a child. Possession of Child Exploitation Material, internet grooming, and similar offences fall within the ambit of these provisions.
The Migration Amendment (Strengthening the Character Test) Bill 2019, as the name suggests, will insert new provisions into the Act. A twelfth way of failing the Character Test will be inserted. New provisions will insert a list of ‘Designated Offences’. A person found to been convicted of a Designated Offence will not be subject to mandatory visa cancellation, though their visa can be cancelled under discretionary provisions. The impact of this proposed law will be considered in another article.
The important thing to remember is that if you are currently in jail doing a full-time sentence, even for a relatively low-level infraction, your visa will automatically be cancelled if in the past you had been sentenced to one year or more, or if you had been found guilty of sex crimes against a child. Your visa will also be automatically cancelled if you’re in jail now and one of these circumstances apply.
Representations to revoke the cancellation
If you have had your visa cancelled due to the mandatory visa cancellation provisions, you will be able to provide written reasons to seek revocation of the cancellation. Successful representations would mean that your visa would be reinstated. You would be released from immigration detention.
Historically, roughly a third of all revocation representations have been successful.
Ministerial Direction 79
Ministerial Direction 79 provides detailed instructions for decision-makers to determine whether a visa cancelled under mandatory cancellation provisions should be reinstated.
Representations should address both primary and secondary considerations that the delegate will need to weigh.
There are three primary considerations. The first is the protection of the Australian community from criminal and other serious conduct. Decision makers must have regard to the principle that visa holders are expected to obey our laws and not cause or threaten harm to the community. The delegate must also consider the nature and seriousness of your conduct to date; and the risk to the community should you re-offend.
When considering the nature and seriousness of the conduct, violent and/or sexual crimes will be viewed very seriously. Violent crimes against women or children will be viewed very seriously, regardless of the sentence that is imposed. Crimes against vulnerable community members such as the elderly and the disabled, or government representatives in the performance of their duties, are serious. Other factors that must be considered include the sentence that has been imposed; the frequency of offending and whether there is a trend of increasing seriousness; and other related factors.
When considering the risk to the community, the nature of the potential harm and the likelihood of it occurring are relevant. A low risk associated with high potential harm would weigh against revocation.
The second primary consideration is the best interests of children in Australia that would be affected by the decision. A child that has had a long and deep relationship with a wrongdoer can be negatively impacted should the non-citizen be removed from Australia and particularly so if it is a parent. Amongst other things, the view of the child will be relevant.
The last primary consideration are the expectations of the Australian community. Non-revocation can be considered appropriate when the nature of the character concern or offences are such that Australians would expect that the person should not be permitted to hold a visa and re-enter the community.
In addition to the primary considerations, there are other considerations to be weighed by the delegate. Specified considerations include international non-refoulement obligations. This means that we should avoid forcing a person that has escaped from persecution to return to a place where they are likely to suffer serious harm or death. This consideration applies to refugees that have been granted a protection visa.
The strength, nature, and the duration of your ties to Australia are relevant. A visa holder may have resided in Australia since their childhood. A person that has spent time contributing positively to the Australian community would have this factor given more weight that a person that started offending soon after they arrived. The strength, duration, and the nature of family or social ties with Australians is also relevant. The impact upon those significant others of a decision to not revoke the cancellation is something the decision-maker must take into consideration.
The impact upon Australian business interests can be considered. The impact of non-revocation would generally only be given weight if it would compromise a major project or impact upon the delivery of an important service in Australia.
The impact upon victims, and family members of victims of the criminal behaviour, is another potential consideration.
The remaining other consideration specified in Ministerial Direction 79 is the extent of impediments to you if you are removed from Australia. The delegate should consider what you would experience if you are removed to your home country. Your age and your health can be relevant. Whether you would experience substantial language or cultural barriers should be considered. The extent of social, medical, and economic support available to you in your home country can also be taken into consideration.
Should the department not revoke the mandatory cancellation, you will be able to apply for a review of the decision with the Administrative Appeals Tribunal. You will not be eligible for any visa while awaiting a hearing, so you would need to remain in immigration detention until the outcome of the review is known. That process currently takes months to come to a hearing.
This article is for general information purposes and must not be considered legal or immigration advice. Should you require more information or be in the situation that these provisions apply, please be in contact with Craig DoRozario or Tom Foran in our Immigration Law team.
To obtain a free 20 minute consultation in relation to your immigration matter, please contact our office on (07) 5532 3133. Your immigration matter will be conducted by Craig DoRozario (MARN 1910298) and/or Tom Foran (MARN 1172414).
Code of Conduct: https://www.mara.gov.au/media/553229/Code_of_Conduct_April_2017.pdf