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Notice of legislative change-Migration Amendment (Character and General Visa Cancellation) Bill 2014

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The following information is provided by the Complex Case Policy and Programme Management Branch to Registered Migration Agents about legislative amendments to section 501 (Character) of the Migration Act 1958 (the Act), which came into effect on 11 December 2014. This information is not for external distribution or publication.

The Migration Amendment (Character and General Visa Cancellation) Bill 2014 reflects the government’s position that travelling to, and remaining in, Australia is a privilege, not a right and that any non-citizen who chooses to breach the law or fails to uphold the behavioural standards expected by the Australian community should expect to be refused entry or have their visa cancelled.

Changes to the Character test

The amendments to the Act insert additional grounds on which a person will not pass the character test.  These include where:

  • The Minister reasonably suspects that a person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person and that group, organisation or person has been or is involved in criminal conduct;

  • The person has been charged or indicted with one or more of the following, or there is reasonable suspicion that the applicant has been involved in: people smuggling; people trafficking; the crime of genocide; a crime against humanity; a war crime; a crime involving torture or slavery; or a crime that is otherwise of serious international concern;

  • A person has had a charge proven for or been found guilty of a sexually based offence involving a child, regardless of conviction;

  • the person has been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);

  • An Interpol notice in relation to the applicant, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force;

  • A person has been found by a court to be unfit to plead, however the offence has otherwise been proven and the person subsequently detained at an institution or facility.

 

Further amendments strengthen existing limbs of the character test by providing that a person will not pass the character test:

  • If, in the event that they were allowed to enter or to remain in Australia, there is a risk (as opposed to a significant risk) that the person would engage in any of the conduct referred to in subparagraphs 501(6)(d)(i) – (v) of the Act;

  • Where they have been sentenced to two or more terms of imprisonment where the total of those terms, when calculated as consecutive terms, total 12 months or more (rather than 24 months or more, as is currently the case).

Mandatory Cancellation

Additionally, the legislative reforms include an amendment to allow for mandatory visa cancellation without notice for people who are serving a full-time sentence of imprisonment for an offence against the law of the Commonwealth, a State or a Territory, and who objectively fail the character test on of the following grounds:

  • Sentenced to imprisonment of 12 months or more;

  • Sentenced to death;

  • Sentenced to life imprisonment; or

  • Have a charge proven for or are found guilty of a sexually based offence involving a child.

Some non-citizens who are currently in prison and have already been sent a Notice of Intent to Consider Cancellation (NOICC) under section 501(2) of the Act are captured by the new mandatory cancellation provision in section 501(3A) and will have their visa cancelled without notice.

Changes to the general visa cancellation provisions

The amendments to the general visa cancellation provisions amend several existing grounds as well as inserting new ones to provide the department with a better range of response mechanisms to incidents of fraud and criminality, and better manage risks to the community or individuals.  These include:

  • An amendment to the wording of section 116(1)(a) to refer to a ‘fact or circumstance’ leading to visa grant that no longer exists;

  • The insertion of a new ground at section 116(1)(aa) to provide grounds for cancellation where a fact or circumstance leading to visa grant never existed;

  • An amendment to section 116(1)(e) to lower the risk threshold – this ground is now enlivened when someone is or is likely to be a risk to the community, a segment of the community, or to an individual or individuals;

  • The insertion of a new ground at section 116(1AA) to provide grounds for cancellation where the Minister is not satisfied as the visa holder’s identity;

  • The insertion of a new ground at section 116(1AB) to provide grounds for cancellation where the visa holder provides incorrect information outside of the scope of section 109, and that information led to the granting of a visa or the lifting of a bar;

  • An amendment to section 117(2) to allow the new grounds at sections 116(1AA) and 116(1AB) to be used to cancel permanent visa holders where the holder is onshore.

Other amendments include the insertion of subdivision FA and several new personal Ministerial cancellation powers.  These allow the Minister to cancel without notice, or set aside a non-adverse decision, on grounds at sections 109 or 116 of the Act, where it is in the public interest to do so.  Additionally, sections 338(3) and 411 have been amended to provide that any decision made personally by the Minister will not be merits reviewable.  Cumulatively, these changes provide the Minister with the means to take greater responsibility for cancellation decisions in order to secure outcomes consistent with the public interest.

Regulation Changes

Relevant amendments to the Migration Regulations are expected to come into effect on 12 December 2014.  These include:

  • An amendment that will allow a section 65 delegate to refuse to grant a visa if the visa applicant does not provide a police clearance certificate, however described, or a completed approved Form 80, as evidence that they meet PIC 4001 requirements, if an officer requests that they do so;

  • An amendment to Regulation 2.53 so that a person being considered for visa cancellation must be given 28 days within which to provide reasons as to why their visa should not be cancelled;

  • An amendment to Special Return Criteria 5001 to the effect that a person will be permanently excluded from entering Australia if their visa is cancelled under any part of section 501;

  • An amendment to Special Return Criteria 5001 to provide that where the Minister acts personally to grant a permanent visa to a person who had their visa cancelled under section 501, they are not permanently excluded from Australia;

  • An amendment to regulation 2.41(c) to provide that decision makers considering cancellation of a visa under section 109 need only have regard to whether the decision to grant a visa or immigration clear the visa holder was based wholly or partly on incorrect information or a bogus document;

  • The insertion of two new cancellation grounds at regulation 2.43(1)(oa) and (ob) to provide grounds for cancellation, relying on section 116(1)(g), where a temporary visa holder is either convicted of an offence in Australia, or is the subject of an Interpol notice stating that they are likely to commit the same offence in Australia, or that they are a serious and immediate risk to public safety;

  • An amendment to regulation 2.43(1)(p)(i) to exclude non-citizens whose previous visas were cancelled under regulation 2.43(1)(oa);

  • The insertion of a new cancellation ground at regulation 2.43(1)(r) to provide grounds for cancellation, relying on section 116(1)(g), where the Minister reasonably suspects that the holder of a subclass 771 (transit) visa did not have or has ceased to have the genuine intention to transit Australia within 72 hours;

  • An amendment to the scope of Public Interest Criterion 4013 to include any person cancelled under grounds at sections 116(1AA), 116(1AB), 116(1)(e) or regulations 2.43(1)(oa) or (ob).

Any queries about the information provided above can be directed to the enquiry and feedback form on the Agents Gateway: http://www.immi.gov.au/gateways/agents/contact/feedback/

Source: DIBP - Complex Case Policy and Programme Management Branch


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