New Character Provisions Likely

The Minister for Immigration has introduced a Bill that amends the Migration Act 1958 in terms of what is known as the character provisions.

 
The Bill has been referred to the Senate, Legal and Constitutional Committee for consideration.

If the Bill does become law in its present form a number of significant changes will be introduced including mandatory cancellation of a visa for an offence where the person has received a sentence of 12 months or more, or where they have committed a "sexually based offence involving a child"

 

One proposed amendment is a new s 501(6), the intention of which is to lower the threshold of evidence required to show that a person who is a member of a criminal group or organisation, such as a criminal motorcycle gang, terrorist organisation or other group involved in war crimes, people smuggling or people trafficking, does not pass the character test. The intention is that membership of the group or organisation alone is sufficient to cause a person to not pass the character test. 

Further, a reasonable suspicion of such membership or association is sufficient to not pass the 

character test. There is no requirement that there be a demonstration of special knowledge of, 
or participation in, the suspected criminal conduct by the visa applicant or visa holder.

These proposed changes, if made into law, will give the Government broad ranging visa cancellation powers. The existing powers of the Minister in relation to the character provisions are already quite extensive with the result that large numbers of visa holders (many of whom have been permanent residents of many years standing) have had their visas cancelled and forced to return to their country of origin.

The introduction of broader powers which can be exercised on the basis of a “reasonable suspicion” will undoubtedly expose a large number of visa holders to potential adverse action by the Minister ,and because a decision can be based on suspicion only, will be difficult to challenge.