Migration Amendment (Strengthening the Character Test) Bill 2019
The proposed changes to the character test widen the Australian governments ability to refuse or cancel the visas of non-citizens who have committed certain offences.
The new laws are in response to recommendations by the 2017 Joint Standing Committee on Migration report on migrant settlement outcomes titled ‘No one teaches you to become an Australian’.
The Bill strengthens the character test in section 501 of the Migration Act 1958 (Migration Act) by providing a new specific and objective ground to consider visa cancellation or refusal where a non-citizen has been convicted of –
- offences involving violence against a person (including murder, assault and kidnapping);
- offences involving weapons; or
- breaching of an apprehended violence order (or similar) or non-consensual sexual acts.
The current provisions in the Migration Act allow for a visa to be refused or cancelled where a non-citizen commits an offence and receives a sentence of 12 months or more, or commits a sexual criminal offence involving a child. A decision to refuse or cancel a visa may also be based on consideration of a person’s past and present criminal or general conduct.
With the implementation of the Bill, visas may ultimately be cancelled or refused at the Minister or delegates’ discretion where a non-citizen has committed an offence attracting a sentence of less than 12 months, but poses an ‘unacceptable risk to the safety of law-abiding citizens and non-citizens’.
The Bill introduces a new paragraph 501(6)(aaa) to the character test in the Migration Act, providing that a non-citizen does not pass the character test if they are convicted of a designated offence. The new subsection 501(7AA) sets out the elements of a designated offence. The first physical element of a designated offence requires that the non-citizen has committed an offence against a law of Australia involving one or more of:
- violence against a person;
- non-consensual conduct of a sexual nature;
- breaching a court or tribunal order for the protection of another person;
- use or possession of a weapon;
- or aiding, abetting, counselling or procuring the commission of a designated offence.
The operation of section 501(6)(aaa) of the Migration Act will result in the mandatory refusal or cancellation of the non-citizen’s visa if convicted of a designated offence carrying a maximum sentence of not less than two years. s501(6)(aaa) is distinct from the current provisions in the Migration Act which allows the Minister or his delegate to consider the refusal or cancellation of a non-citizens visa if they have been sentenced to a term of imprisonment of 12 months or more. The proposed changes to the character test operate to eliminate discretion in circumstances where the non-citizen has been convicted of a relevant offence with a maximum sentence of not less than two years.
Are you faced with a visa refusal or cancellation on character grounds? Please schedule an appointment with our Migration Agents in Sydney to discuss.