Migration Amendment (Strengthening the Character Test) Bill 2019
Non-citizens including Australian permanent residents, New Zealand citizens, temporary visa holders, and visa applicants could become subject to new legislation that can result in a visa cancellation or a visa application refusal. Cancellation of a visa means that the former visa holder will become an ‘unlawful non-citizen’ and subject to mandatory detention. Visas that are cancelled under character provisions are subject to removal from Australia, and a permanent re-entry bar.
The government already wields broad powers to cancel visas and refuse visa applications. Some lawyers, academics, and interested third parties believe that already-implemented changes to the character provisions have already gone too far. Others believe that the current regime is fairly balanced. The new provisions if enacted will further expand these powers, as the amendments will effectively lower the threshold for visa cancellation and visa application refusal.
The laws will operate retroactively. A non-citizen that currently passes the ‘Character Test’ could find that after enactment, they suddenly no longer do, even if they’ve done nothing wrong for a long time.
The Australian government first proposed the Migration Amendment (Strengthening the Character Test) Bill 2019 (the ‘Bill’) in 2018. That Bill failed to get through while the government held power prior to the last election. The 2018 Bill was before the House of Representatives but lapsed at the dissolution of Parliament on 11 April 2019. The 2019 Bill was reintroduced by the Honourable David Coleman in July 2019 and mirrors the 2018 version. It was referred to the Legal and Constitutional Affairs Legislation Committee for inquiry. The Committee released their report and have recommended that the Senate passes the Bill. The Senate’s Second reading was moved on 19 September 2019.
The proposed Bill will create an additional ground for visa cancellation and visa application refusal when enacted. Like the majority of cancellation powers, the new powers will be discretionary (not mandatory). New provisions will be inserted into the existing Character framework in section 501 of the Migration Act 1958 (the ‘Act’).
Even long-term residents of Australia can face visa cancellation and subsequent removal from Australia. One way of protecting yourself is to apply for citizenship. If Australian citizenship is granted, these laws will not apply to you. It is possible for a person with a criminal record to become an Australian citizen, but the application should be carefully prepared, guided by sound legal advice.
If you are unable to become an Australian citizen and subject to the new provisions, you will live in Australia with unease and uncertainty. You will not know for sure whether one day you will get a ‘Notice of Intention to Consider Cancellation’ of your visa from the government.
The purpose of this article is to first consider the proposed legislative amendments by explaining the legislative provisions that will change. That section discusses the addition of a new and retroactive way for a person to fail the Character Test. The term ‘Designated Offence’ is then considered, and the types of conduct that fall within the ambit of that term are identified. The onerous and problematic features of the Bill are next discussed. In specific, interesting observations from some submissions to the Legal and Constitutional Affairs Legislation Committee are made. The article concludes with the implications of these amendments upon visa holders including Australian permanent residents, and what steps you can take now to protect yourself.
What will change as a result of this legislation?
The ‘Character Test’ in Australian immigration law is contained in subsection 501(6) of the Migration Act. A person that fails to meet the requirements of the Character Test either may have their visa cancelled, or must have their visa cancelled, depending upon which particular element of the Character Test has not been met. A non-citizen in jail serving a full-time sentence must have their visa cancelled if they have been sentenced to a term of imprisonment of 12 months or more; or if they have been found guilty of offences of a sexual nature towards children. These are the mandatory visa cancellation provisions. There are nine other circumstances that would make a person subject to discretionary cancellation, should they not pass one or more of those nine provisions of the Character Test.
The Character Test will change as a result of this Bill. As the name suggests, the Character Test will expand. Some people that are currently not impacted by the existing laws can become subject to the new laws.
There are currently eleven different ways that a person could fail the Character Test. A twelfth way will be inserted through the addition of a proposed paragraph 501(6)(aaa). A person that has been convicted of a ‘Designated Offence’ will not pass the Character Test.
Section 5C of the Act will also be amended to update the definition of the words ‘character concern’. Items 1 to 4 of the Bill expand the definition of a person of ‘character concern’ under s 5C to including people that have been convicted of a ‘Designated Offence’, which is defined under s 5C(1)(a) with the same words employed in the definition of ‘Designated Offence’ under s 501(7AA).
A non-citizen will not pass the Character Test if they have ever been convicted of a Designated Offence carrying a maximum penalty of no less than two years. It won’t matter how long you were actually sentence – it is the maximum penalty for the offence that is relevant. If you have ever been convicted of a crime that has a maximum sentence of two years or more, then you will have committed a Designated Offence and will meet the new definition of character concern.
Designated Offences will be specified by the insertion of a new proposed subsection 501(7AA). It will include offences against a law in Australia or a foreign country which involves one or more identified ‘physical elements’, and that is punishable to a maximum or fixed term of not less than 2 years.
What types of conduct will be specified…? Designated Offences include:
- Violence against a person (including murder, manslaughter, kidnapping, assault, aggravated burglary, and the threat of violence)
- Non-consensual sexual conduct including sexual assault and sexting
- Breaching a personal protection order
- Using or possessing a weapon
A person that aids, abets, counsels, or procures the commission of one of these offences; induces the commission of the offence; be ‘knowingly concerned’ in or a party to the offence; and conspiring with other to commit the offence, will also meet the definition of having committed a Designated Offence.
Designated Offences in Australia must be punishable for a fixed or maximum term of two years or more. If the offence occurred outside Australia, then it must be such that if it were committed in the ACT it would be punishable for imprisonment for life or for a fixed or maximum term of two years or more.
To be clear, you do not need to have been penalised for imprisonment for two years to be subject to this provision. Discretionary visa cancellation (and visa application refusal) will be triggered if the maximum term of a sentence for the conduct is two years or more.
Concerns about the changes
Submissions made about the Bill to the Parliamentary Committee make interesting reading. A few submissions are supportive. The majority were not.
Current laws already set a (too?) low threshold
Some submissions suggested that already-implemented changes to the Character provisions have gone too far by providing the Department of Home Affairs with extensive cancellation and refusal powers. The introduction of mandatory cancellation provisions in 2014 resulted in an astonishing increase in visa cancellations. The February 2019 Joint Standing Committee on Migration report in relation to the existing character provisions expressed the view that the existing character provisions in the Act “operate well and are achieving the aim of protecting the Australian community”. Non-citizens in Australia that engage in criminal activity are already punished for their wrongdoing through the criminal justice system. Many submissions expressed a view that the Department should not enjoy a further expansion of the already wide-ranging executive powers at the potential expense of individual human rights. Some submissions claim that the government has not provided examples of non-citizen character concerns that cannot be captured by existing provisions.
The practical effect of the changes will be a greater number of people becoming liable to visa cancellation or visa application refusal. The legal processes involved in issuing notices and dealing with responses will further strain the Department of Home Affairs. A near-certain outcome will be appeals to the Administrative Appeals Tribunal and Australian Courts. Taxpayers will need to cover these costs or suffer a reduction of expenditure for other government services.
Maximum penalty and not actual sentence
To meet the definition of Designated Offence, the maximum term of imprisonment for the offence is relevant. However just because Parliament has prescribed a maximum penalty of two years or more for a particular offence does not necessarily mean that the person deserved or deserves the strictest penalty. The particular circumstances of the offence and the offender should be considered. The use of the maximum penalty is an arbitrary threshold.
The current laws are sentence-based. The sentence imposed by a court reflect different degrees of culpability. The reason why judges are able to exercise discretion in sentencing is to account for individual circumstances. The judiciary weigh up a range of complex factors to make sentences in line with well-established tenants of the criminal justice system. Most accused persons who have committed crimes punishable by two or more years in jail receive far lower sentences in the interests of justice. It is hard to accept the notion that a person attracting a minimal sentence necessarily represents an unacceptable risk to the Australian community.
New Zealand’s approach
New Zealand removes Australian (and other) citizens pursuant to the laws that exist in that country. New Zealand’s approach reflects some accountability for non-citizens that have made New Zealand their home and that have contributed to their society.
Australia removes a disproportionately high number of New Zealand citizens. Many have lived in Australia for years. Some spent their formative years here and are a product of the Australian education system. Removing those non-citizens effectively off-loads problems that have arisen in Australia to other jurisdictions. Imbalance creates an atmosphere conducive to retaliation.
A person facing court over a charge that carries a maximum sentence of two years or more would also face the additional ‘double jeopardy’ of removal from Australia if convicted.
Impact upon long-term residents
About twenty years ago, under the previous Character provisions in existence at that time, a non-citizen could not have been removed if they had lived in Australia for less than ten years. That restriction no longer exists. The proposed amendments will cast a wider net than the current laws.
Implications for visa holders including permanent residents
We don’t know for sure how many people will be impacted by the proposed amendments. One submission postulated a five-fold increase, including many who are unlikely to be an ongoing threat to Australian society. The result would be the largest expansion of the character provisions in history. There will be a substantial number of visa holders that currently pass the Character Test that will suddenly fail it.
A submission to the inquiry reports 2015 NSW statistics on three statutory offences (common assault; knowingly contravening an AVO; and assault occasioning actual body harm). These all meet the criteria of have two years or more as the maximum penalty. According to the submission, 87% resulted in non-jail sentences. For common assault, 41% resulted in good behaviour bonds and 15% were fines. The median length of the bond was 12 months and the median fine was $600. The statistics did not distinguish visa holders from Citizens. In other words, 87% of those found guilty of one of these statutory offences did not go to jail but would become subject to the amended character provisions if the Bill becomes law.
The actual number of those that will be subject to discretionary cancellation or visa application refusal will depend upon how the decisions makers decide to administer the provisions. There is potential for a very large number of people becoming impacted.
The amendments create an objective standard. The Bill introduces mandatory failure of the Character Test and a discretionary power to cancel a visa (or refuse a visa application). A person that has committed a Designated Offence in the past will not know whether they will one day receive a Notice of Intention to Consider Cancellation letter. Non-citizens that were sentenced to fines or dismissals are potentially caught by these provisions.
It is conceivable that the Bill may have no substantial impact on the number of visa cancellations and removals from Australia. But many additional people will fail the Character Test, and this will cause those impacted uncertainty and unease.
There could also be impacts on Citizenship. The “good character” provisions in the citizenship legislation are not directly related to the character provisions in the migration legislation. Over time it may emerge that citizenship policy will align more closely to the application of migration policy. This could lead to a growing number of residents that become unable to access Australian citizenship.
Clause 7 of the schedule of amendments in the Bill provides that the new requirements of the Character Test are intended to apply to visa applications submitted prior to the commencement of the Bill, and to offences committed before that date. Some argue that retroactive legislation undermines the rule of law. Visa holders that may have lived in Australia for decades and who received a fine or minimal sentence for committing a Designated Offence can suddenly become liable to visa cancellation. They would not have known that their actions could result in visa cancellation in the future.
Protect yourself and your loved ones
If you are a New Zealand citizen holding a subclass 444 visa, you should contact us so that we can assess your eligibility for Australian citizenship. Most New Zealand citizens in Australia will only become eligible for Australian citizenship by first becoming an Australian permanent resident. There are special pathways to permanent residency that are only available to New Zealand citizens. Please contact us for details.
If you are an Australian permanent resident, then you should consider applying for Australian citizenship. The existence of a criminal record makes a citizenship application approval more difficult so you would need sound legal advice and a professionally prepared application.
The proposed amendments do not impact upon Australian citizens, so you can avoid fear of your visa being cancelled by taking steps now to change your residency status.
For more information about the proposed changes and how Potts Lawyers can help, contact Immigration Lawyers Craig DoRozario or Tom Foran in our Southport office.
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