New bill makes it easier to cancel a visa on ‘character’ grounds

A new bill that makes it easier to cancel or refuse the visa of a non-citizens on character grounds is before Parliament.

The Migration Amendment (Strengthening the Character TestBill 2018  amends the character test in section 501 of the Migration Act 1958 to broaden the grounds for visa cancellation or refusal where the person has been convicted of a serious crime.

What are the new grounds for visa cancellation?

Under the new bill, a non-citizen would fail to meet the character test and be at risk of visa cancellation if the non-citizen commits a designated offence against a law of Australia or a foreign country. 

Designated offences must carry a two year or more maximum jail sentence and include offences involving violence, sexual assault, domestic abuse and the use or possession of weapons.

The Migration Amendment (Strengthening the Character Test) Bill 2018 complements the existing provisions in the character test, including the mandatory cancellation powers which provide that a person’s visa must be cancelled if they have been sentenced to 12 months or more in prison.

While the existing provisions have been effective, according to the Minister for Immigration, Citizenship and Multicultural Affairs, the 12 month sentence threshold does not always capture people guilty of all serious crimes committed in Australia and overseas.

“Unlike the mandatory cancellation framework, the new provisions will not require that the person be sentenced to a custodial sentence of more than 12 months,” Mr Coleman said in a statement.

“A conviction is sufficient grounds to consider cancellation as long as the offence carries a maximum sentence of two or more years imprisonment.”

Designated offences

The below list of designated offences will be inserted into s501 of the Migration Act 1958, such that anyone convicted of these crimes, whether in Australia or overseas, will be at risk of having their Australian visa cancelled or refused.

  • violence against a person, including (without limitation) murder, manslaughter, kidnapping, assault, aggravated burglary and the threat of violence; or
  • non-consensual conduct of a sexual nature, including (without limitation) sexual assault and the non-consensual commission of an act of indecency or sharing of an intimate image; or
  • breaching an order made by a court or tribunal for the personal protection of another person; or
  • using or possessing a weapon; or
  • procuring, or assisting in any way with one of these designated crimes; and
  • the offence carries a maximum sentence of two or more years imprisonment.

It is not necessary that a person is convicted of the relevant offence, it is sufficient that the offence occurred in order for the Department of Home Affairs to be entitled to refuse or cancel the visa.

Examples of recent visa cancellations under s501

Last month, the Australia Border Force reported visa cancellation and deportation of 15 non-citizens under s501 of the Migration Act:

On 9 September, a 55-year-old UK national was removed from Perth after his visa was cancelled due to his significant criminal history. He had previously been sentenced to more than 4 years imprisonment for criminal damage by fire and has a number of other serious convictions dating back to 1988.

A 33-year-old New Zealand national was removed from Brisbane on Tuesday 11 September. He had previously been sentenced to 5 years imprisonment for assault – Grievous Bodily Harm and has an extensive criminal history including drug offences.

On Wednesday 12 September, a 79-year-old British national was removed from Sydney Airport. In 2014 he was convicted of numerous counts of assault and committing an act of indecency against a child under 16 years.

A 59-year-old New Zealand national was removed after being released from prison in the Northern Territory on Thursday. He was jailed in 2016 for importing a marketable quantity of a border controlled drug. His visa was cancelled under s501 while in prison.

Also on 13 September, a 48-year-old UK national was removed from Brisbane. He had been jailed for 12 months for possessing child exploitation material and was detained by the ABF after being released from criminal custody.

On Friday 14 September, a 39-year-old New Zealand national was removed Brisbane after having his visa cancelled under s501 of the Migration Act. He has a significant criminal history including being sentenced to five years imprisonment for trafficking dangerous drugs.

 And also on 14 September, a 31-year-old Indian national was removed from Sydney. The man had previously been sentenced to two years imprisonment for using a carriage service to groom a child under 16 years for sexual activity.


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