Bills Digest No. 106 1997-98
Migration Legislation Amendment (Strengthening of Provisions relating
to Character and Conduct) Bill 1997
WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced
and does not canvass subsequent amendments. This Digest does not have any
official legal status. Other sources should be consulted to determine the
subsequent official status of the Bill.
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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