2020 NSWCCL AGM

Item 8.2        Policy on visa cancellation on character grounds.

Preamble

Section 501 of the Migration Act enables the Minister for Home Affairs or his delegates to cancel the visa or to refuse a visa of any person who is decreed to have failed what is termed ‘the character test’.  The grounds on which this can be done are many:  they include inter alia serving a total of 12 months’ imprisonment; conviction for any offence, no matter how inconsequential, while in immigration detention; being a person who 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; being a person whose criminal or general conduct is such that the person is not of good character; or having been ordered by a court to participate in a drug rehabilitation scheme.  If a court has found a person guilty of an offence against a child, or found a charge against the person proved for an offence against a child, whatever the penalty or  even if the person was discharged without a conviction, they fail the character test.  Persons can also be found to have failed the character test if there is only a risk that that they may engage in criminal conduct, vilify a section of the Australian community,  or incite discord in a section of that community.   Harassment, which is defined as including threats to the property of a person, also constitutes a failure of the character test.

Persons are taken to have been sentenced to twelve months of imprisonment if they have received sentences for separate crimes which add up to twelve months or more, even when a court has ordered that two or more sentences be served concurrently.

If the Minister suspects one of these conditions apply to a visa holder, he may cancel the person’s visa, and the rules of natural justice apply.  Such decisions are subject to review by the Administrative Appeals Tribunal.  But the Minister is able to overrule the Tribunal.

But if he thinks it is in the national interest to cancel the visa as well, the rules of natural justice do not apply.  But under subsection 501 (3A), if the Minister is satisfied (as opposed to suspecting) that the character test has been failed, he must cancel the visa, and the rules of natural justice do not apply. 

Section 500A enables the Minister to refuse a Safe Haven visa on similar grounds.  So refugees are explicitly included.

Under section 499 of the Act, the Minister the Minister may give written directions  to a person or body having functions or powers under this Act if the  directions  are about the performance of those functions or the exercise of those powers. 

Under section 116, visas may be cancelled where they have been granted on the basis of misinformation; but also where  the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

In many respects, this legislation is unjust.  A person who has served their time after a criminal conviction should not be subjected to a second penalty or other forms of harm; and though the High Court has found that having a visa cancelled and subsequent detention do not count as a punishment, the effect on the person is the same as if it was.  A person who has reformed while in prison should not be treated as a risk to the Australian community.  A person who has been found by a parole board not to be a risk should not be treated as though they are such a risk.  It is unjust to deprive a family of a close member on whom they depend for financial or emotional support.  And while there is a case for sending persons who were criminals before they entered Australia back to the countries where they became criminals, it is not just to send back people who became criminals during their time in Australia.  

The ability of the Minister to overrule the AAT is contrary to the rule of law, and should be abolished.  

Policy

The CCL preferred position is that section 501 of the Migration Act be repealed. 

However, until that happens, the following changes should be made

Funding

Legal representation should be assured for all people for cancellation cases being heard at the General or Migration and Refugee Divisions of the Administrative Appeals Tribunal.

Funding should be available for legal representation for people facing cancellation at the primary stages.

Increased funding should be provided for the federal courts of Australia to ensure timely processing of cases.

Changes to the Act, and to directions made under section 499.

 The Act and the current direction should be amended to enshrine

• The principle that the following people ought not have their visas cancelled in any but the most serious circumstances, for example national security:
  • people who have lived in Australia for over 10 years;
  • people who arrived in Australia as children;
  • people with serious disability, impairment or health issues;
  • people who will face serious harm if they were removed from Australia;
  • people who have been recognised as refugees;
  • people who are considered by the sentencing judge or a parole board to not represent a significant ongoing risk to the Australian community.
• The principle that a person’s visa should not be cancelled if they have no criminal record and are awaiting hearing of charges in any but the most serious circumstances.
• The principle that the primacy of freedom of speech in respect of s 501(6)(d) (risk of vilifying or inciting discord) ought to be given significant weight, and balanced against potential harm to the community.

Law and policy regarding sections  500Aand 116  should be updated to reflect the foregoing.

Legislative timeframes should be instituted for decision-making.

Protections against cancellation should be inserted for all of the above categories of people.

Departmental and Ministerial powers

Mandatory cancellation under s 501(3A) ought to be abolished. (Cancellation can proceed under other limbs of s 501.)

• All visa cancellations ought to be revocable by the Minister for other reasons, in addition to proving satisfaction of the character test.
• All ministerial decisions under the Migration Act should be subject to the rules of natural justice.  They should all be subject to merits review.
• Ministerial personal powers ought to be reserved for the most serious cases.
• The Minister should not have power to set aside a positive AAT decision, other than for new reasons of national security. Such decisions should also be reviewable by the AAT.
• The character test should be amended as follows:
  • Subsection (6)(b) ought to make clear that association alone is insufficient, and there must be attendant risk;
  • Subsection (7A) ought to be abolished so that concurrent sentences are counted in the way they are imposed by the court.
  • The term ‘national interest’ should be defined in the Act.
  • Paragraph 501(6)(aa), which means that a person fails the character test for any offence committed while the person was in immigration detention, should be repealed.

Reviews – merits and judicial

• Section 501(6L), the provision meaning the AAT will be taken to have affirmed a cancellation decision if no decision has been made within 84 days, ought to be reversed, so that the decision is taken to be set aside.
• Timeframes for response across the cancellation regime ought to be harmonised: in all cases, people affected should have 35 days from the date of the decision to respond or to seek review.
• Subsection 501(6H) should be abolished. If it is not abolished, it should be applied to all documents given to the Tribunal, including by the Minister. (Subsection 501(6H) requires material presented to the AAT as part of an application for a review of a visa cancellation, to be given in written form to the Minister two days before a hearing.  It creates a serious imbalance.)  

Detention

• An effective detention review mechanism ought to be legislated, entitling a person to appear before an independent body regarding the appropriateness of their ongoing detention.

Resolution

That the proposed policy on visa cancellation on character grounds, together with its preamble, be adopted.

Moved at the NSWCCL AGM October 21st 2020 by: Martin Bibby

Seconded by: Angelo Catallo