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CONTENTS
Migration Legislation Amendment (Strengthening of
Provisions relating to Character and Conduct) Bill
1997
Date Introduced: 30 October 1997
House: House of Representatives
Portfolio: Immigration and Multicultural
Affairs
Commencement: Proclamation
The main purpose of the Bill is to strengthen those provisions
in the Migration Act 1958 (the Act) which provide for the
refusal or cancellation of visas on character grounds.
The Migration Reform Act 1992 established a system of
visas as the sole authority by which non-citizens enter and stay in
Australia, and also established elaborate statutory provisions
which govern how decisions on visa applications and cancellations
are to be made. It also expanded the right of many individuals to
independent review of decisions.
The number of cases where decisions to refuse visas on character
grounds have been overturned is not large, but recent high profile
cases have captured a good deal of media attention (as have high
profile cases where the Administrative Appeals Tribunal (AAT) has
allowed non-citizens to remain after committing serious criminal
offences in Australia).
For example on 7 November 1996 the Minister for Immigration and
Multicultural Affairs refused to grant a visa to Gerry Adams on the
basis that the Minister was satisfied that Adams was not of good
character (see Adams v Minister for Immigration and
Multicultural Affairs, Federal Court, Drummond J, 2 July
1997).On 30 July 1996 in Irving v Minister for Immigration,
Local Government and Ethnic Affairs, the Full Federal Court
upheld the Minister's decision refusing a visa to David Irving, 'an
English historian who challenged accepted facts on the genocide of
the Jewish race under the Third Reich.'(1)
More recently, in mid 1997, Lorenzo Ervin, who had been
convicted of air piracy and kidnapping in the United States in
1969, received considerable publicity when the Acting Minister for
Immigration and Multicultural Affairs cancelled his visa.Ervin
sought judicial review of the decision in the High Court.However,
on 10 July 1997, counsel for the Minister proposed that the
Minister's decision cancelling Ervin's visa be set aside.
Some concern has been expressed that the failure to grant visas
to persons such as Irving, Ervin and Adams may restrict the free
expression of political ideas in Australia.(2) And, Joseph
O'Reilly, executive director of the Victorian Council for Civil
Liberties, was recently quoted as stating:
A consistent reading of the (existing) policy would exclude both
Aung San Su Kyi and Nelson Mandela. ... But it is to avoid
controversy at home rather than let terrorists in, that we exclude
these people.(3)
However, these cases do not always involve political figures.In
Re 'Wag' v Minister for Immigration and Multicultural
Affairs, decided by the Administrative Appeals Tribunal (AAT)
in July 1996, the AAT affirmed the Minister's decision to reject
the applicant's visa application on the grounds of bad
character.(4) While the applicant did not have a criminal record,
the AAT was satisfied that he had sexually abused one of his
daughters, now in Australia, and that he had been physically
violent to other members of his family.
More recently, in Grandlouis v Minister for Immigration and
Multicultural Affairs, the AAT set aside the Minister's
decision refusing David Grandlouis' application for a spouse
visa.Grandlouis had been convicted of manslaughter in 1986.He was
released from prison in 1991 and married an Australian citizen in
1993.He has a daughter who is an Australian citizen.It was argued
on Grandlouis' behalf that while he was not of good character when
he committed crimes, he is currently of good character.Grandlouis
has not offended since 1990.The Tribunal concluded that while it
might be a rare case in which the applicant has shown that he or
she has reformed:
the time that has lapsed since Mr Grandlouis' offences, the lack
of evidence suggesting a likelihood of his re-offending, and the
overwhelming evidence of thorough rehabilitation, make this a such
a case.Thus the Tribunal is satisfied that Mr Grandlouis is a
person of good character within the meaning of s 501 of the
Act.
Clause 12 repeals section 339 of the Act, as
amended by the Migration Legislation Amendment Bill (No 4) 1977,
and substitutes proposed section 339.(See also
Clause 13.)Proposed section 339 provides that the
Minister may issue a conclusive certificate in relation to a
decision if the Minister believes, for example, that it would not
be in the national interest to change the decision.
Clause 16 repeals existing subsection 499(1),
which enabled the Minister to give general directions in writing to
any person exercising functions or powers under the Act, and
substitutes a new subsection.The proposed
subsection provides that the Minister may give written
directions to any person exercising functions or powers under the
Act.The proposed subsection would appear to
broaden the Minister's power to issue directions but these
decisions are required to be consistent with the Act and
Regulations.
Clause 21 adds further subsections to section
500 of the Act.Existing section 500, amongst other things, provides
that decisions of the Minister under section 501 may be appealed to
the Administrative Appeals Tribunal (AAT).The amendments to s
500appear to be driven by the proposed subsection at 500(6L) that
imposes a 42 days time limit on AAT review of decisions made under
proposed s 501 of the act.Proposed subsection
500(6A) provides that section 28 of the Administrative
Appeals Tribunal Act 1975 does not apply to a decision under
section 501 if the decision relates to a person in the migration
zone.(5) Section 28 provides that persons affected by a decision
may obtain from the decision-maker reasons for the
decision.Proposed section 501G provides comparable
procedures that are intended to work in the context of the new 42
day time limit.
Proposed subsection 500(6B) provides that
appeals to the AAT from decisions made under section 501 of the Act
must be made within 7 days of notification of the decision.
Proposed subsection 500(6F) provides that where
an application has been made to the AAT to review a decision made
under section 501 the Minister must lodge with the AAT within 14
days of notification of the application two copies of the documents
relevant to the decision.Importantly the Minister must also lodge
documents containing non-disclosable information.While the AAT may
have regard to that non-disclosable information it cannot disclose
it to the applicant.
Proposed subsection 500(6L) provides that the
AAT must complete its review of decisions made under section 501
within 42 days of the day on which the applicant
was advised of the decision.If the AAT has not completed its review
in that time the subsection deems the AAT to have affirmed the
original decision.The 1996-97 AAT Annual Report states that the
average time from receipt of an application for review of a
decision to the hearing date is 45 weeks.
The requirements of proposed subsection 500(6L)
may be said to work in the applicant's favour in the sense that the
application for review will be resolved quickly.This is
particularly so given that an applicant will probably be in
detention pending the outcome of his or her application.On the
other hand it is uncertain how the AAT will need to react to meet
the requirements of the proposed subsection.Will, for example, the
AAT need additional resources?
Clause 23, the key clause in the Bill, repeals
section 501 of the Act and inserts proposed section
501.In short, the proposed section allows the Minister or
their delegate to refuse or cancel a visa where the visa applicant
does not pass the character test.Under proposed subsections
501(1) and (2), the applicant must satisfy the Minister
that he or she passes the character test. In other words the onus
of proof is reversed: it is not for the Minister to show that the
applicant does not pass the character test.Natural justice applies
to decisions made under these subsections.However, natural justice
does not apply to decisions made by the Minister
personally under proposed subsection
501(3) to refuse or cancel a visa.
The character test is defined in proposed subsection
501(6).For example, a person fails the character test if
he or she has a substantial criminal record, defined in
proposed subsection 501(7) as, for example, a
sentence of imprisonment of 12 months or more.Proposed
subsection 501(10) provides that the sentence may be
disregarded in relation to the character test if the person has
been pardoned or if the conviction has been nullified.Persons who
have been imprisoned for political or religious reasons for the
relevant time period would appear to fail the character test unless
they fall within proposed subsection 501(10).It
would seem, therefore, that the President of South Africa, Nelson
Mandela, for example, would not pass the character test established
by proposed subsection 501(6).
Proposed subsection 501A provides that the
Minister personally may set aside a favourable decision made by the
Minister's delegate or by the AAT (called the 'original decision')
not to exercise the powers granted by proposed subsections
501(1) and (2).In other words if the visa applicant failed
the character test but, nevertheless, the delegate or the AAT
granted the visa or did not cancel the visa, the Minister
personally may set aside that decision if he or she is satisfied
that it is in the national interest to do so.
Proposed subsection 501B allows the Minister,
acting personally, to set aside an unfavourable 'original decision'
of a delegate even while that 'original decision' is subject to
review by the AAT.The min decision would not be reviewable by the
aat.
Proposed section 501C enables the Minister to
revoke a decision made by him or her under proposed subsections
501(3) or 501A(3).Proposed subsection 501C(8)
provides that where the Minister revokes the earlier decision he or
she must notify each House of Parliament within 15 days of the
revocation.
Proposed section 501E provides that when a visa
is refused or cancelled under proposed sections 501, 501A
or 501B, the applicant cannot apply for another visa
unless the applicant seeks, for example, a protection visa (a
person seeking refugee status under the United Nation Convention in
Relation to the Status of Refugees, to which Australia is a party,
would seek a protection visa).Similarly if a visa has been refused
or cancelled on character grounds, any other visa that the person
may have applied for, or have, is also refused or cancelled.
Clause 26 inserts proposed section
503A which provides for the protection and non-disclosure
of certain information provided to a migration officer by a law
enforcement or intelligence agency on the condition that it be
treated as confidential information.The Minister, after consulting
the relevant agency, may authorise disclosure of the information to
a relevant court or tribunal.Proposed subsection
503A(5), however, provides that if the information is
disclosed to a tribunal the tribunal cannot divulge the
information.In other words, the tribunal cannot divulge the
information to the visa applicant.
- Irving v Minister for Immigration, Local Government and
Ethnic Affairs (1996) 139 ALR 84.
- See for example: D Langsam, Ervin? Irving? Adams? Arafat?
Kalejis? Not all good characters' The Republican 29
August-4 September 1997: 3.
- Ibid.
- Re 'Wag' v Minister for Immigration and Multicultural
Affairs (1996) 44 ALD 663.
- The 'migration zone' is defined in section 5 of the Act as
follows: '"migration zone" means the area consisting of the States,
the Territories, Australian resource installations and Australian
sea installations and, to avoid doubt, includes: (a) land that is
part of a State or Territory at mean low water; and (b) sea within
the limits of both a State or a Territory and a port; and (c)
piers, or similar structures, any part of which is connected to
such land or to ground under such sea; but does not include sea
within the limits of a State or Territory but not in a port.'
Max Spry
17 November 1997
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 1997
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Last updated: 18 November 1997
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