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Australian Character Test changes proposed

Posted on October  05 , 2014

Australia’s Minister of Immigration has introduced a new Bill which  proposes to change the character requirements for entry into and holding visas in Australia, allowing he Minister greater powers to cancel visas.

The Bill amends section 501 of the Migration Act 1958 (Cth) to broaden the existing grounds for the Minister to refuse or cancel a visa on character grounds.  The additional grounds will include:

  • The Minister “reasonably suspects” that the person has been a member of a group or association that has been or is involved in criminal conduct;
  • The Minister “reasonably suspects” involvement in people smuggling, trafficking in persons, genocide and other crimes against humanity;
  • Conviction by an Australian or foreign court for a sexual offence against a child – visa cancellation is mandatory for this ground;
  • Being charged by an Australian or foreign court with a crime of “serious international concern”, e.g. genocide, war crimes or torture;
  • ASIO has assessed the person to be “directly or indirectly a risk to security”; and
  • An current Interpol notice has been issued in relation to the person “from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community”.

Another  new mandatory ground for the cancellation of a visa without noticed that applies where a person is “serving a full-time sentence of imprisonment for an offence against the law of the Commonwealth, a State or a Territory”.  This decision would not be reviewable by the Administrative Appeals Tribunal, but the Minister may revoke the cancellation.  Decisions not to revoke the cancellation would be reviewable by the AAT,  however, the Minister may act personally to set aside that decision “in the national interest”.  Rules of natural justice are specifically excluded from applying to this decision.

Changes to existing provisions of the character test include:

  • Lowering “significant risk” to “risk” for section 501(6)(d), which refers to the degree of risk that the person would engage in criminal conduct, harass or stalk others, vilify the community, “incite discord” or “represent a danger”; and
  • Changing the definition of “substantial criminal record” so that a person only needs to have received terms of imprisonment amounting to more than 12 months (down from two years).

The Bill also introduces provisions allowing the Minister to cancel a visa where “the decision to grant the visa was based, wholly or partly, on a particular fact or circumstances that did not exist” or one where “the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists.”

The Minister will also be able to cancel a visa if:

  • he or she is not satisfied as to the visa holder’s identity; and
  • incorrect information was given during the process, and this was taken into account or in connection with a grant decision.

The bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee, with a report due on 24 November 2014.

Source: TimeBase, an independent, privately owned Australian legal publisher