This chapter starts by considering the impacts of the existing system of visa cancellations and merits review on long-term residents of Australia, their families and children, and on citizens of New Zealand, the largest cohort of deportees.
The chapter then looks at:
the scope of AAT merits review, including the exclusion of ministerial decisions from merits review;
the appropriateness of merits review in cases of violent and sexual crimes;
minor criminality and the visa cancellations and merits review regimes;
the role of victims in the review process;
public confidence in merits review; and
moves to strengthen the visa cancellations regime.
Impacts of visa cancellations and merits review
Impacts on long-term residents
Cancelling a person’s visa is a very serious decision and one which can have severe consequences for the individual. The Committee heard that visa cancellations made on criminal grounds generally lead to a permanent exclusion from Australia. These consequences tend to be most keenly felt by long-term permanent residents of Australia who have never taken up citizenship, and who have their visas cancelled under section 501.
A number of witnesses argued that Australia should not be deporting non-citizens who have lived in Australia for most of their lives but are not citizens, regardless of what crimes they commit.
The Human Rights Commission observed that some of those caught up by section 501 have come to Australia ‘as a very, very young child’ and committed a crime decades later. The Commission said:
If that person is then considered for removal from Australia back to a country that they may never have been in as an adult, may have no real ties to and may not even speak the language of, that is a very significant imposition on that individual and can restrict a number of their basic human rights.
The NSW Council for Civil Liberties referred to such persons as ‘absorbed persons’, citing a number of cases where people who are, ‘for all intents and purposes, absorbed into the Australian community’ have had their visas cancelled. The Council added:
The fact that they are not legally citizens is an accident, a loophole, and it’s quite often an accident of which they’re not aware and have no reason to be aware.
A number of examples were provided, including that of Robert Jovicic:
Robert Jovicic lived in Australia since he was two years old. After living here for 36 years, and in the latter part of that being repeatedly convicted of crimes related to his heroin addiction, he was deported to Serbia even though he could not speak Serbo-Croat, and had no means of support there. He became destitute.
Barrister, Mr Jason Donnelly, explained that previous iterations of the law, and previous ministerial directions, incorporated ‘a greater level of tolerance’ for people who have lived in Australia ‘most of their natural lives’. He said:
There was also the old absorbed person principle, where, if a person had been in Australia for more than 10 years, the minister didn’t even have a statutory power to cancel the person’s visa in those circumstances.
Mr Donnelly acknowledged that Ministerial Direction 65 includes a statement of principle that if a person has lived in Australia for most of their natural life, ‘there is an expectation that the Australian community would exercise a larger level of tolerance for their criminality’. However, he pointed out that the word ‘may’ is included in the sentence, making it discretionary, which it was not under previous regimes.
The Human Rights Commission also observed that a person’s length of time in (and connection to) Australia ‘has become perhaps a less significant consideration’.
The Police Federation of Australia argued that length of time in Australia is not relevant when the crime committed was ‘a serious violent crime or a crime of a sexual nature’.
The Visa Cancellations Working Group drew the Committee’s attention to Article 12(4) of the International Covenant on Civil and Political Rights, saying:
Those people are not considered to be aliens who have been in Australia for that period of time. There should be a restriction on the cancellation of their visas.
Monash University submitted that: ‘From an international ethical standpoint, Australia must take responsibility for offending committed by long term residents.’
The New Zealand High Commission submitted:
There is a public policy case for ‘connections to Australia’ being given more weight in the visa cancellation appeal process, particularly where people have resided in Australia for a long period of time.
Under the current Ministerial Direction, connection to Australia and length of time in Australia are secondary considerations.
Impacts on Australian citizens, including children
Visa cancellations and deportation on character grounds often have a significant impact on families, including Australian citizens and minor children in Australia.
The Law Council of Australia highlighted possible impacts on the family unit that remains in Australia, including loss of the family structure, estrangement of children from their father, and generational impacts, adding:
Whilst it might seem a simple solution sometimes to say, let’s just send them back, and it can be New Zealand’s problem, we haven’t yet measured the impact and what’s going to happen to the generation of often Australian citizens or, potentially, New Zealanders who remain here.
Oz Kiwi told the committee that ‘families are being split up—fathers are separated from their young children’, and explained that custody orders or financial difficulties often mean those deported cannot see their children for long periods of time.
The Committee heard anecdotal evidence suggesting that, in most cases the families of persons deported don’t leave Australia to join their partner due to ‘complicating factors’, such as custody orders, or reluctance of the Australian partner to leave her support network in Australia:
Financially it costs money, and the mother of a young child or young children doesn’t want to go and live in a strange country with no support. It’s very hard, and it has actually led to family break-ups—divorce or separation.
Oz Kiwi believed a large majority of families of New Zealand deportees remain in Australia rather than following the deported person, usually the father.
The New South Wales Council for Civil Liberties provided a case study in which a UK citizen who had lived in Australia for 50 years (since the age of 7) had his visa cancelled after receiving a suspended sentence for a sexual offence. The individual concerned was deemed not to pose a risk to the community by the sentencing judge, who suspended his sentence. However, the Minister decided to cancel his visa and detain him in immigration detention with the intention to deport him to the UK.
The NSW Council for Civil Liberties argued that, because the Minister is not bound by Ministerial Direction 65, he ‘was not obliged’ to consider the man’s caring roles for his elderly father and orphaned grandchild, who are Australian citizens and would be ‘profoundly’ affected by his deportation.
The Council added that, because the above decision was made by the Minister, it was not reviewable in the AAT.
Witnesses including Oz Kiwi were concerned that criminal deportations often infringe upon the rights of the child and the right to family cohesion by removing the father or another carer, leaving the children vulnerable and without access to this person.
The Multicultural Youth Advocacy Network (MYAN) recommended that government decision-makers ‘have relevant and adequate training’ to ensure they fully understand how to apply these considerations ‘consistent with international human rights law, specifically the Convention on the Rights of [the] Child.’
The Visa Cancellations Working Group observed that there has been a recent rise in cancellation of the visas ‘of very young people and children’, which it said ‘underscores the need for merits review’.
The Asylum Seeker Resource Centre cited cases where young people who were child soldiers and on protection visas have been subject to visa cancellation, and separated from their families.
MYAN submitted that the visa cancellations regime ‘risks undermining’ Australia’s youth justice system, which aims to:
…reintegrate young people who commit criminal offences and serve their sentences back into our society as constructive individuals who are willing to pursue their aspirations and fulfil their potential as successful members of Australian society.
Further, MYAN recommended that the visa cancellations legislation, which does not currently include a reference to the age of non-citizens, ‘should explicitly exclude children/young people under the age of 18 from such processes’.
Impacts on New Zealand citizens
The Committee received substantial evidence regarding the impact of the visa cancellations regime on citizens of New Zealand residing in Australia, who are the largest cohort of deportees under section 501.
The New Zealand High Commissioner told the Committee that the number of New Zealanders being deported from Australia has skyrocketed as a result of the 2014 changes to the Migration Act. The High Commissioner stated that:
…before the 2014 changes, Australia was deporting about 65 New Zealanders a year, so we were running about one a week. As a result of the change, we quickly went to the figure of one a day, effectively.
Over half of the visa cancellations in 2017 were New Zealanders, despite the fact that New Zealanders make up less than 10 per cent of the migrant population in Australia.
New Zealanders are vulnerable to deportation because historically they have not had a strong incentive to take out citizenship because there was no need. Before 2001, New Zealand citizens in Australia could access most forms of social security without becoming citizens and could obtain Australian citizenship without having to become permanent residents first.
Legislative changes enacted in 2001 meant New Zealanders could no longer automatically access many forms of social security and made it harder for New Zealand citizens to obtain citizenship or sponsor family members for permanent residence, as they had to apply for and be granted permanent resident visas first.
Transitional arrangements were put in place for New Zealanders who were already in Australia at the time the legislation was enacted, meaning New Zealanders who arrived prior to 26 February 2001 are able to ‘continue to apply for citizenship, sponsor family members for permanent residence and access social security payments without being granted permanent visas’.
High Commissioner Seed explained how the 2001 immigration law changes, combined with the 2014 strengthening of the visa cancellations regime, have impacted New Zealand citizens:
Before 2001, New Zealanders essentially were permanent residents from the time they arrived, so their incentive to become citizens of Australia was quite low. … The figure that we use says that, of the other migrant groups that have been in Australian for 10 years after 2001, 70 per cent have become an Australian citizen. For New Zealanders, it’s only seven per cent. … Because we have more people in percentage terms who are not citizens, they became more vulnerable to deportation.
Oz Kiwi said New Zealanders now comprise almost 13 per cent of the immigration detention population, with 173 New Zealanders in immigration detention on 31 May 2018, and commented:
Most Australians would be surprised to learn that any New Zealanders are being held in Australian immigration detention. They would be even more surprised to learn that nearly 300 have been detained on Christmas Island (CI) since 2015. One New Zealander has been held on CI for two years while he appeals his deportation. This individual arrived as a six year old and has resided in Australia for 25 years never having returned to New Zealand in that time.
High Commissioner Seed communicated New Zealand’s view that it is concerned about the application of some aspects of Australia’s migration law to New Zealanders charged with crimes in Australia. Concerns included:
the threshold for what constitutes a ‘serious criminal record’ is now too low, and is now cumulative;
mandatory cancellation is capturing large numbers of New Zealanders; and
the legal changes in 2014 meant that there ‘was less weight given to where their family connection was’.
Australia has a responsibility for long-term resident New Zealanders who ‘have made their life [in Australia] and have the weight of their family here and are essentially products of the Australian system’, the High Commissioner argued.
New Zealand is also concerned with Australia’s treatment of New Zealand minors. The High Commissioner said:
We are especially concerned that Section 116 has been applied to at least one New Zealand minor in the last year. In that case, a 16 year old New Zealand citizen was detained for many months in an adult immigration detention centre hundreds of kilometres from his family and support networks. New Zealand raised serious concerns about whether this treatment of a minor conformed with Australia’s obligations under the UN Convention on the Rights of the Child, including (Art 37) the right for a minor to be held separately from adults. It is noteworthy that the AAT overturned the decision to cancel this New Zealand minor’s visa, on the basis that due consideration had not been given to their best interests. While the relevant visa was reinstated, we cannot know the personal impact that holding a minor in adult detention has had.
Witnesses were most concerned with those New Zealanders who have been in Australia for many years. Oz Kiwi asserted that such persons ‘don’t consider New Zealand home’:
They’ve lived here for 35 of their 38 years, or 45 of their 52 years. They don’t consider New Zealand home. And it’s the same as sending them to Sweden or Russia or Canada or wherever. If they don’t know that country and have no support there, they’re isolated. It’s a recipe for disaster…
Professor Mary Crock said, in her experience, Australia is deporting people who have been in Australia ‘for longer and longer times’ and ‘should be our responsibility’.
New Zealand had to introduce measures quickly to deal with the influx of deported persons from Australia. The High Commissioner explained that there was nothing in place in 2015, but now New Zealand has:
…much stronger procedures in place for ensuring that deep information about returning offenders is taken into account. That issue is much better managed now, and we acknowledge the contribution that the Australian government has made to make that happen. Border Force and others have engaged on it.
New Zealand is now campaigning to encourage New Zealanders who came to Australia before 2001 to take up Australian citizenship. However, citizenship is more complex and costly for those who arrived after this date. Oz Kiwi explained:
A New Zealander here would have to pay $7,000 for a spousal visa, $3,000 to $5,000 for a work visa and then sponsor their spouse and children. … the new New Zealand 189 skilled visa still requires $3,600 from the primary applicant, $1,800 for their partner, $800 for each minor child and $1,800 for a child aged between 18 and 23. So that’s quite an expensive process for a lot of people just to retain the status quo; they become a citizen.
The High Commissioner argued that criminal deportation ‘is threatening to undermine the generally very positive Trans-Tasman relationship’. Oz Kiwi submitted a similar view, saying:
The situation is causing harm to the New Zealand-Australia relationship, with acting New Zealand Prime Minister Winston Peters, just last week, and justice minister Andrew Little both criticising the Australian government for their deportation of New Zealand long-term residents of Australia who no longer consider New Zealand home.
Oz Kiwi suggested that Australia should return to the 10 year rule. This would mirror the way the law is structured in New Zealand, where offenders who have been residents of New Zealand for 10 years or more cannot be deported.
Oz Kiwi raised concerns about access to student loans for some young people from New Zealand, suggesting that this may make offending more likely, saying:
…we know that there are cohorts of young New Zealanders in Perth and on the Sunshine Coast and in Melbourne who, once they reach middle high school, realise that they have no pathway to higher education. So that becomes a trigger for them, and they start falling through the cracks.
The Department of Education and Training submitted that, while New Zealanders pay the same price for a degree as Australians and are eligible for Commonwealth supported places, most New Zealanders are not eligible for student loans through the Higher Education Loan Program (HELP).
The Department also explained that since 1 January 2016 there has been a ‘special cohort’ of New Zealand citizens eligible for student loans. They must meet all of the following long-term residency criteria:
Hold a New Zealand Special Category Visa (subclass 444);
First began residing in Australia at least 10 years ago and at that time were a child under the age of 18 with no spouse or de facto partner; and
Have been in Australia for at least:
a total of eight out of the past 10 years; and
a total of 18 months out of the last two years.
Oz Kiwi recommended that any New Zealander who has completed high school in Australia should have access to student loans:
If someone came here as, say, a nine-year-old and completed nine years of their education here and finished high school but they don't quite make the 10-year rule, they still have to remain dependent and living at home to make that 10th year in order to qualify for the HELP loan.
The Committee acknowledges that cancelling the visas of non-citizens on character grounds can have significant impacts on Australian citizens with connections to that person, including their spouse or dependent children.
The needs of Australian citizens affected by the removal of a non-citizen are considered in both the departmental and AAT merits review processes. However, these needs do not outweigh the need to protect the Australian community from criminals, especially those who have committed violent crimes.
The Committee has heard compelling evidence from the New Zealand High Commission and others regarding the impact of the 2014 changes to the Migration Act on New Zealand citizens living in Australia.
We note that many New Zealand citizens affected by visa cancellations have been resident in Australia for many years and have not taken up citizenship because, under previous laws, it did not seem necessary or beneficial for a range of reasons.
The Committee believes these special circumstances applying to New Zealanders who have lived in Australia for many years should be taken into account by all decision-makers in section 501 cancellations.
A specific provision should be included in the Ministerial Directions which allows the historic special immigration status of New Zealand citizens, and its impact on take up of citizenship in Australia, to be considered. However, it should be a secondary consideration and not considered in cases where the person has ever been convicted of a serious violent crime, such as rape, murder, sexual offences involving children, aggravated assault or armed robbery.
The Committee also supports moves to encourage New Zealanders who are permanent residents in Australia to become citizens if they wish, particularly those who arrived in Australia before 2001. The Committee notes the High Commission is campaigning around this issue.
Citizens of countries other than New Zealand who have been long-time residents of Australia, but never become citizens, have also been affected by the strengthened laws. The Committee understands some of these people may not have known they were not Australian citizens and, therefore, vulnerable to deportation if they commit serious crimes.
Long-term permanent residents of Australia, from all countries, including New Zealand, must understand that, unless they become citizens, they are not protected from possible deportation for criminal activity, regardless of the length of time they have lived in Australia.
Non-citizens who are permanent residents of Australia must understand the risks associated with choosing not to apply for citizenship. The Department of Home Affairs should ensure it communicates these risks to long-term residents of Australia in the strongest terms. This may, in turn, act as a deterrent to committing crimes.
The Committee recommends that Ministerial Directions 65 and 63 be
revised to include a specific provision allowing the historic special immigration status of New Zealand citizens, and its impact on take up of citizenship in Australia, to be a secondary consideration in reviewing character cancellations.
This consideration should not be taken into account if the applicant has ever been convicted of a serious violent or sexual crime, such as rape, murder, sexual offences involving children, aggravated assault or armed robbery.
The Committee recommends that all young people from New Zealand who are living permanently in Australia, and who complete at least four years of their higher education in Australia, are eligible to access student loans through the Higher Education Loan Program (HELP).
Scope of AAT merits review
Ministerial decisions cannot be reviewed by the AAT and the Minister can also overturn any decision made by the AAT in relation to character cancellations. A number of witnesses and submitters were concerned that these powers are too broad and are being applied too liberally by the current government. However, other witnesses supported the need for a minister to have the ultimate say in order to protect the community.
The Department of Home Affairs confirmed that the AAT does not have the ability to review cancellation or revocation decisions made by the minister or other portfolio ministers, and that the minister can overturn a decision of the AAT ‘if it is in the national interest to do so’.
According to the Department, these provisions are designed for use ‘in exceptional cases’ and are currently used in cases with ‘serious criminality’, such as those involving ‘national security, organised crime and crimes against humanity’:
These provisions for personal ministerial decision-making recognise that the government is ultimately responsible for ensuring that decisions reflect community standards and expectations.
Ms Dawn Joyce submitted that the Minister’s discretionary powers are being used in ‘ordinary and straightforward matters; rather than to merely deal with cases that are ‘exceptional or unforeseeable’’.
Detailing the history of the provisions, Dr Louise Boon-Kuo said the Minister’s personal powers under the Act were envisaged only for ‘exceptional’ use. However, their use ‘became routine’ from 2002–03, when then Immigration Minister, the Hon Phillip Ruddock MP made around 80 per cent of character cancellation decisions. She added:
Subsequent Immigration Ministers made far fewer personal decisions on character; these accounted for 15 per cent in 2003–04, and 19 per cent in 2006–07.
Home Affairs submitted that in FY2017/18 (as at 31 March 2018), the Minister and other portfolio Ministers had made 192 section 501 decisions, with 513 section 501 decisions being made by delegates. Thus, the ministers made around 27 per cent of decisions in that year.
The Department also provided evidence regarding which cases are allocated to ministers, saying:
…the cases that Minister Dutton would see, for example, would be those related to national security or sexually based offences where the person has been sentenced to more than 12 months in jail. Similarly, the other ministers will be on the more severe end of criminality, such as murders, significant drug charges and things of that nature.
The Department confirmed that it uses ‘a risk matrix’ to allocate cases to either a minister, or departmental delegate. The ‘Character Case Allocation by Category’ matrix shows that the Minister for Home Affairs, Minister for Immigration and Border Protection personally reviews cases in the following crime categories:
organised and gang-related crime;
crimes against humanity; and
child exploitation, assault and abuse.
The matrix also demonstrates that cases are allocated to the Minister for decision if they are ‘high profile/sensitive’, with media and public interest, or if they are ‘cases requiring the use of the Minister’s personal powers’.
The Visa Cancellations Working Group contended that avoiding the possibility of merits review is ‘the chief reason’ decisions are made personally by a minister, which it said ‘troubles the working group’.
A number of witnesses argued that the AAT should be able to review all decisions, including those made by the ministers.
The Australian Human Rights Commission proposed that ‘a tribunal should be able to correct an error irrespective of whether it’s made by a junior public servant or a minister of the Crown’.
The NSW Council for Civil Liberties argued that ministers:
…are prone to making wrong decisions, especially where public opinion has been aroused. They are subject to pressures. They can be ill-informed. They can be overly sure of their own wisdom, or that of their advisors. And of course, Ministers can act corruptly.
The Human Rights Commission stated that other common law countries with merits review do not exclude ‘particular classes of decision-maker’, making Australia’s system unique among like countries.
Many submitters also opposed the Minister’s right to overturn AAT decisions, arguing that it constitutes a ‘duplication’:
…after a primary decision has been made by a delegate of the Minister and it is reviewed by the AAT, the Minister is able to set aside decisions of the AAT if certain conditions are met. This represents a duplication of executive decision-making — first by a delegate and then by the Minister.
The Attorney-General’s Department reported that the Minister has set aside the decision of the AAT ‘60 times since 2009’.
The Federation of Ethnic Communities’ Council of Australia was concerned that ministerial intervention should be reserved for ‘high threshold’ cases, saying:
Cancelling a visa on the basis of character assessments is a very subjective judgement, one which we understand at times needs to be there, but our recommendation is really that ministerial discretion also offer the public and the individual high levels of transparency.
The Human Rights Commission stated that is not aware of any other area of government decision-making in the AAT’s jurisdiction where a minister has the power to overturn the AAT’s decisions, saying: ‘This is a very unusual provision, where the minister is able to step in and overturn a decision by an independent merits review tribunal.’
Mr Jason Donnelly (private capacity) confirmed that, as a matter of contrast, in citizenship cases the AAT is able to review decisions made personally by the ministers.
Professor Mary Crock suggested that the only other area where a review tribunal’s powers are curtailed in this way in the area of national security.
The Visa Cancellations Working Group argued that the intention of Australia’s merits review system was to ensure ‘all decisions affecting an individual’s interests would be subject to merits review’. As such, it recommended that the Minister:
…be exhorted to substantially reduce, or to cease, the making of personal decisions regarding cancellation. … The effect of a personal decision is that no merits review is available, and the decision does not need to follow the guidelines established in Direction no. 65, leading to significant uncertainty and inefficiency.
As well as recommending curtailing its use, the Visa Cancellations Working Group proposed ‘the tabling of such decisions in parliament, with reasons’, arguing this would improve decision-making and increase accountability.
The Human Rights Commission supported this recommendation.
The Committee rejects suggestions that it is inappropriate for ministerial decisions on character cancellations and refusals to be exempt from review in the AAT.
The government is elected to serve the interests of the Australian community and protect it from threats, including those posed by non-citizens who fail the character test.
Deporting dangerous and violent criminals, or preventing them from coming to Australia, is in Australia’s national interest. It is right and proper that the Minister retains the ultimate power to decide if a person who fails the character test can or cannot reside in, or travel to, Australia.
Violent and sexual crimes
The Committee heard evidence of concern about the AAT setting aside decisions to deport persons convicted of violent or sexual crimes. The Police Federation of Australia reported having evidence of:
…a lot of people who’ve been convicted of aggravated armed robberies and all of those sorts of things, where the AAT has seen fit that they should remain here, even though they’re not Australian citizens.
The Police Federation made the claim that the AAT has overturned ‘200 … decisions pertaining to violent criminals convicted of the most heinous of crimes’.
The Police Federation further argued that anyone convicted of a crime of violence should have their status to remain in Australia ‘immediately reviewed’ and that such people ‘forfeit their right to stay here if they commit a serious violent crime or a crime of a sexual nature’.
They argued that many instances where the AAT has overturned a decision made by a departmental delegate, ‘it would be in the national interest to have those people deported from the country’.
Monash University analysed statistics from the Department of Home Affairs and submitted that visa cancellations under s501 for serious offences such as murder, manslaughter, aggravated assault, armed robbery and sexual offences ‘appear to make up less than half of cancellations’:
By comparison, the largest categories of visa cancellation by most serious crime type are for common assault (which may be very minor or result in substantive harm that falls short of grievous harm), drug offences (which could include individual possession or other arguably ‘victimless’ crimes) and other forms of non-violent crime, including driving offences, which may not result in serious harm against individuals.
The Law Council argued that the majority of cases involving serious violent criminal offending go to the ministers at the moment, with very few ending up in the AAT:
It is really very unusual to see very serious criminality before the tribunal, and then what tends to happen is, even if there is serious criminality, the reason it’s decided by a delegate rather than the minister is that the department and, to his credit, the minister recognises there’s a very significant number of other factors—positive factors—to take into consideration. … So you need to understand that the number of cases you’re looking at is very, very small …
Some submitters suggested that any non-citizen who commits a violent crime should simply be deported. Ms Maria Aylward wrote:
If you can’t obey the law then you don’t deserve to be here. The taxpayer should not be paying for non-citizens incarceration. Simply arrest and deport! There is no other solution, without the hard line we are endangering the lives of Australians.
Ms Aylward further suggested that such non-citizens should not have access to appeals in the AAT.
Victoria Legal Aid disputed the idea that crimes of violence and sexual crimes should lead to automatic deportation, and proposed that the context in which offending occurs ‘is highly relevant as to whether they pose a continuing risk’.
Commenting on context, Mr Michael Chalmers (private capacity) pointed out that not all sexual offences are on an equal footing of seriousness. He said:
In relation to sexual assaults on children these are serious but could include an indecent assault by an 18 year old on a seventeen year victim, say for a female victim having her breasts touched.
The Law Council opposed the idea of limiting the AAT’s jurisdiction, saying:
The Law Council firmly believes that the existing review processes contribute to good administration and that the jurisdiction of the tribunal should not be restricted any further than it already has been.
The Committee notes that any moves to change the AAT’s jurisdiction to review decisions made under sections 501 or 116 would require legislative change. The Attorney-General’s Department said:
The AAT’s jurisdiction, powers and procedures in relation to migration decisions, including visa and citizenship decisions, are set out in the Migration Act and other migration legislative instruments. The Department of Home Affairs has responsibility for the administration of the Migration Act, including policies governing decision-making considerations contained in it.
Weighting of considerations under Ministerial Direction 65
The Committee explored the idea of revising Ministerial Direction 65 to place more weight on the impact of a person’s offending on the victims.
The Department of Home Affairs observed that the way the Direction is structured – with only two levels (primary and secondary considerations) – provides significant discretion in their application. The Department remarked:
Given the discretionary nature of cancellation revocation decisions, the weight applied to various considerations may differ between the department’s decision-makers and the AAT.
The Attorney-General’s Department was asked about the possibility of changing the ministerial directions to stipulate that more weight be placed on victims. Its representative said, ‘that’s a matter for the government and indeed would be informed by the Department of Home Affairs who is responsible for those guidelines’.
Some witnesses disagreed with the idea in principle, as it implicitly suggests connections to Australia, the needs of minor children in Australia, and impacts on the applicant’s family should be lower-ranked considerations. The Victorian Multicultural Commission said it is ‘appropriate’ to consider ‘family circumstances and carer responsibilities’ more highly in considering whether to permanently remove a person from Australia.
The Visa Cancellations Working Group argued that the protection of the community is already often ‘given primacy over all other considerations, in circumstances where that is not morally or logically appropriate’.
The primary focus of visa cancellation on character grounds is protecting Australia from serious criminals, particularly those with a history of violence. Australians rightly have an expectation that such persons will be deported.
The AAT must take seriously the requirement that it consider the expectations of the Australian community as a primary consideration in assessing applications for review.
The Committee believes there is an expectation from the community that the AAT will prioritise its safety over the needs of criminals. As such the Committee is recommending changes to the Ministerial Directions which are used by the AAT to inform its decisions regarding character cancellations.
The current ministerial directions appear to put the best interests of minor children on the same level of importance as the expectations of the Australian community and protecting the community from the risk of the applicant reoffending.
The directions also imply that the impacts on victims of a non-citizen’s offending are on an equal footing to other secondary considerations, such as: the length of time the offender has been in Australia, the impact on family and friends, and impacts on business interests.
The Committee believes there is an expectation from the community that when non-citizens commit violent crimes they will be deported.
It is the belief of the Committee that non-citizens who commit crimes such as murder, aggravated assault, rape, sexual offences involving children, and weapons offences must not be allowed to remain in Australia simply because they have children in Australia, or have lived here for many years.
The Committee believes that factors such as length of time in Australia and the needs of minor children should be given less weight in cases where the crimes that trigger cancellation or refusal are serious violent crimes.
As such, the Committee is recommending the Ministerial Directions be revised to create a stronger distinction between serious violent offending and other kinds of criminal offending.
In line with the Migration Amendment (Strengthening the Character Test) Bill 2018, serious violent crimes includes designated offences such as murder, manslaughter, kidnapping, assault, aggravated burglary, sexual assault, sexual offences involving children, breaching an order made by a court or tribunal for the personal protection of another person, and weapons offences.
Further discussion of the Bill is later in this Chapter.
The Committee recommends that Ministerial Directions 65 and 63 be
revised to create a distinction between serious violent offending, and other types of offending, with serious violent crimes more likely to result in visa cancellation or refusal. In line with the Migration Amendment (Strengthening the Character Test) Bill 2018, serious violent crimes includes designated offences such as murder, manslaughter, kidnapping, assault, aggravated burglary, sexual assault, sexual offences involving children, breaching an order made by a court or tribunal for the personal protection of another person, and weapons offences.
The revised Ministerial Directions should state that, in cases of serious violent offending:
the likelihood of the applicant reoffending is a primary consideration;
the impact of the applicant’s crimes on victims is a primary consideration; and
the applicant’s strength, nature and duration of ties to Australia is a secondary consideration, and is not to be given more weight than consideration of the impact on victims.
Some witnesses argued that persons are being detained and deported under sections 501 and 116 for non-violent, and in some cases, relatively minor crimes.
The Visa Cancellations Working Group submitted an analysis of the Department’s published statistics regarding the types of offences involved in visa cancellations. The two highest categories are assault and drug offences, with assault including ‘non-aggravated assault, and threats of assault’. Murder is a separate and relative small category.
The Working Group highlighted the variation in seriousness of offences for which people face deportation – from ‘cannabis crop-sitting’ to importation of commercial quantities of drugs. It argued that the statistics show, ‘contrary to popular opinion, it is not child sex offences, organised crime offences, or murders that lead to the bulk of visa cancellations’.
Mr Chalmers gave an example of a high-range drink driving charge leading to visa cancellation. He said:
There’s no accident and no-one’s hurt. I can tell you that that person will go to a local court and get loss of licence, obviously, and they’ll get a good behaviour bond. That’s what happens to the two people who are in Villawood Immigration Detention Centre. Why are they in detention?
Further examples of relatively minor offending were provided by the Visa Cancellations Working Group, including this one:
A man with a pending application for Australia’s protection, who has five young children in Australia also seeking protection, has his visa automatically cancelled under section 501(3A) on the basis of a conviction relating to misrepresenting details of used cars for sale.
In its submission to the Committee’s previous inquiry into migrant settlement outcomes, the Police Federation of Australia suggested including suspended sentences in the definition of a ‘substantial criminal record’, ‘may also have some unintended consequences’. Specifically, that this inclusion may see ‘less serious offenders … caught up in the provisions of the Act’. The Police Federation suggested this should be reviewed.
Oz Kiwi argued that the 2014 change from ‘a single 24-month sentence to a 12-month cumulative and retrospective sentencing’ means more minor criminality is being picked up by the system. It said:
Deportation should be reserved for serious offences, for recidivist offenders, for violent offending and for those who pose a danger to others. A number of those who have contacted Oz Kiwi have very minor convictions—for example, marijuana possession, unpaid court fines or traffic offences—and for some it’s their first offence that lands them in detention. The accumulation of these offences has sometimes meant courts imposing sentences of 12 months or imposing a suspended sentence of 12 months.
Oz Kiwi provided three cases relating to family violence where non-citizens breached apprehended violence orders, received suspended sentences, and ended up in detention as a result of section 501 cancellations.
Oz Kiwi noted that, in one of these cases the consequence was that the non-citizen ‘missed the birth of his first child’.
The New Zealand High Commissioner suggested that if non-citizens ‘have in fact improved their circumstance and if the offending is at the minor end of the scale then, again, it seems unfair’ to deport them.
The Visa Cancellations Working Group proposed that suspended sentences and cumulative sentences should not be allowed to trigger ‘automatic failure of the character test’.
However, there were different views on such consequences, with one witnesses taking a more ‘hard line’ approach. Ms Maria Aylward argued:
…any crime should be grounds for deportation. I’m sorry. It needs to be as simple as that. We make so many exceptions, and the bureaucratic mess gets greater and greater.
Victoria Legal Aid cautioned against the idea of a two-tier system ‘that attempts to rank the seriousness of offending’, submitting:
Creating a two-tier system based on offence would merely swap the current situation which sees some visa holders subject to mandatory cancellation because they fall one side of an arbitrary line (presently a 12-month sentence), for one where the arbitrary line is the offence for which they are convicted. In our experience, neither measure (sentence duration or offence) is sufficiently nuanced to make for an accurate, efficient or cost-effective method of evaluating risk to the community.
The Committee has heard from participants in the inquiry that some people have been ‘caught up’ in the system whose offending was less serious, non-violent and historic.
The Act allows for discretion in whether or not to cancel or refuse a visa, and whether or not to revoke a visa cancelled mandatorily.
The Committee is satisfied that the existing provisions provide ample opportunity for delegates or ministers to apply leniency in cases of non-violent and minor offending. Additionally, cases where the offending is minor or non-violent generally go to the delegate, and therefore are eligible for merits review in the AAT. This is appropriate.
Victims of crime and the review process
Ensuring victims are heard
The Committee explored the question of whether the needs of victims of crime are being taken into account sufficiently in the merits review process.
The Attorney General’s Department expressed the view that impacts on victims were already considered in both the original decision and the AAT’s review, with impacts on victims considered as a secondary consideration in Ministerial Direction 65:
For migration decisions, the migration guidelines also provide that a secondary consideration is the victim impact of the original conduct. So, from that point of view, the original decision-maker within the department of immigration has regard to the victim’s impact. When it’s reviewed by the AAT, the AAT must also have regard to victim’s impact as provided by the ministerial guidelines. So it’s already part of the decision-making that the AAT needs to consider.
The AAT confirmed that it is already able to hear evidence from the victims of an applicant’s offending, ‘but it is a matter for the parties to decide what evidence and which witnesses they might call for hearings’.
In response to questioning, the AAT submitted that it takes into account information about the impacts on victims and their family members ‘when the information is made available’, which is generally through sentencing remarks and victim impact statements provided by the Minister’s representative in support of the departmental case.
The Police Federation of Australia supported the suggestion that victims could play a greater role in the AAT process, saying:
If the victim felt they were still feeling aggrieved by the crime that was committed against them, why wouldn’t you allow them such an opportunity?
Also of this view was the Victorian Victims of Crime Commissioner who was concerned about the impact on victims when a person is successful in their appeal and allowed to remain in Australia. He said:
If that decision is then overturned, the victims of that offender will be left largely without hope. The fear that the offender will commit further offences against the community or them in particular may return, with the probability of it never, ever diminishing in their mind.
The Commissioner questioned how a tribunal member who does not understand the harm caused to victims of the applicant’s offending can make an informed decision about what the applicant is ‘capable of’, and added:
How can the tribunal know what the actual impact on the victim and/or their community was, is or may continue to be without hearing from the victims?
The Commissioner claimed that the AAT can seek any evidence it wants to and contended that ‘clearly, the victims are, as they usually are, are overlooked’.
Going further, the Commissioner stated that, in his view, AAT has a ‘responsibility’ to seek this evidence:
It should not, in my view, be left to the minister’s delegate or anyone else but should be done, on every single occasion, at the direction of the tribunal.
Considering the practicalities of giving victims a say at the tribunal, the Commissioner recommended victims be given an opportunity to present their point of view either in person, or via a written sworn statement. He said:
I ask that this committee recommends giving the victim of a person who it has been determined should be deported from Australia a legislated right to be heard. I further submit that the appeal hearing should include a victim impact statement of the financial, familial, social, physical and physiological impact of the crime committed by the person.
The AAT expressed concern with the suggestion that it be compelled to seek additional evidence about the impacts of criminality on victims, saying it would be complex, impossible or highly impractical in cases where offending occurred a long time ago, and difficult to achieve in the short timeframe the AAT has to assess cases.
The tribunal also stated that resources would likely need to be provided to support any victims who may choose to participate in the review process, as well as their families.
The Human Rights Commission opposed the idea, saying:
The impact of the decision on the victim and affected family members is also one of the considerations under direction 65, so it’s well within the remit of decision-makers to take that into account.
It was also concerned that bringing the victims of an applicant’s crimes into an administrative review process was inappropriate, because the AAT is not a court and ‘administrative tribunals are effectively an arm of the executive’.
The Refugee Council cautioned against treating the AAT like a court, asserting that visa cancellations should not be used as ‘a way of punishing criminals for what they have done’.
Also expressing this view, the NSW Council for Civil Liberties said that a criminal court proceeding, not the AAT, is the right and proper place for weighing up ‘the balance between the rights of the victim and the rights of the accused’.
The Law Council of Australia contended it is the responsibility of the Department and its lawyers to determine if they wish to present victim testimony as part of their case in the AAT.
The Visa Cancellations Working Group questioned the ‘usefulness’ of having victims of crime specifically invited to participate in AAT reviews, saying:
…a different victim will have an entirely different perspective about what happened, and what they want to happen, than another victim. One might call for the death penalty; another might be horrified at the thought of a person being removed as a result of that offending.
Not all victims may want an offender deported. The Immigration Advice and Rights Centre pointed out that in many cases the victim of an applicant’s crimes was a family member, such as the spouse or children in domestic violence cases. In these cases, deportation of the perpetrator could adversely impact the victims.
Dr Louise Boon-Kuo was also concerned that the system of deportation on criminal grounds may mean victims of intimate partner violence hesitate to report it due to the fear that ‘the ultimate outcome might involve permanent separation between family members’.
Some witnesses were concerned for the mental health and well-being of victims, who may be traumatised again by having to tell their story.
However, the Victims of Crime Commissioner rebuked this assertion, saying, as long as they were not compelled, ‘many people are strong enough to be able to come forward.’
The Human Rights Commission and Law Council of Australia both cautioned that bringing victims of crime into the AAT’s process risked making it a ‘punitive’ process, which could be unconstitutional.
Explaining the reasons it had come to this conclusion, the Law Council said:
The criminal justice system is essentially backwards looking. It’s to punish primarily the person for their conduct. The 501 power is not a form of punishment. That would be unconstitutional. 501 is essentially forward-looking. It is to protect the Australian community from future conduct.
Case study: the Aylward family’s story
The Committee heard evidence from Ms Maria Aylward and other members of the Aylward family in Melbourne. Ms Aylward’s sister, Korinne Aylward, and her partner, Greg Tucker, were murdered on
8 December 2013 by Turkish citizen Mustafa Kunduraci after a dispute about payment for home renovation services he had performed for them. Korinne Aylward and Greg Tucker left behind a number of children, some of whom are now cared for by Ms Aylward’s younger sister, Katelyn, and herself.
The family contends that Mr Kunduraci ‘played the immigration department and the immigration tribunal’, being granted various visas despite being ‘known to police for domestic violence’.
Ms Aylward told the Committee that, in her view:
Any person that breaks the law in Australia should be deported if they are not an Australian citizen. For too long, we have looked at the circumstances of the offender and not those of the victim.
Ms Aylward expressed strong support for the idea that victims should be invited to appear and provide a victim impact statement before the AAT in review cases. She added:
What I see not just from a victim's point of view but from a community perception—I talk to a lot of people and I'm involved in a lot of advocacy groups—is that the AAT doesn't see the faces of the victims of decisions that are made.
The AAT published comments in relation to the roles played by review tribunals in reviewing Mr Kunduraci’s visa applications. Mustafa Kunduraci is a Turkish immigrant who first came to Australia in 1996 and subsequently settled in Australia. Over the years from 1996 to 2013, Mustafa Kunduraci applied for various visas, most of which were granted by the Department of Immigration.
On two occasions, visas were refused and Mr Kunduraci appealed to the AAT’s forerunners – the Immigration Review Tribunal (1996) and the Migration Review Tribunal (2007) – and these decisions were overturned.
The AAT contends that neither of the cases about Mr Kunduraci heard by its forerunners had ‘criminal conduct or character [as] a basis upon which the visa was refused by the then Department of Immigration’.
According to the published decisions of the two tribunals which overturned the visa refusals:
The 1996 visitor visa was refused by the Department because it was concerned Mr Kunduraci intended to remain in Australia. The question of ‘credibility in terms of character and conduct’ was asked and there were no issues noted. The tribunal found ‘there is 'very little likelihood' that the Principal will remain in Australia after the expiry of his visa’, and set aside the Department’s decision, thus allowing Mr Kunduraci to travel to Australia.
The 2007 partner visa for Mr Kunduraci was refused by the Department of Immigration because it believed that the applicant did not meet the regulations; specifically that the visa applicant and his sponsor had not been living together for over a year, their relationship had ‘broken down’, and there was no proof of cohabitation. The tribunal agreed that the relationship had ended but found that, under the regulations, the applicant should be granted a visa because of the child in Australia that had resulted from the marriage. The tribunal remitted the decision to the Department for reconsideration, and Mr Kunduraci was granted a visa to remain in Australia.
Ms Aylward believes the tribunals deciding Mr Kunduraci’s cases should have used investigative powers to look more deeply into his background, where Ms Aylward says there was evidence of previous bad character. She said the AAT told her that, as an administrative appeals tribunal, it does not seek evidence in this way because it is ‘not an investigative tribunal’.
Ms Aylward questioned the ‘point’ of the AAT if it does not seek additional evidence on top of what the applicant and the Department provide, saying:
To me, and as a community person, there is no point, because all they’re doing is going, ‘Well, I’m having an opinion about this really, and I decide that, ‘Well, they had a tough upbringing. We’ll give them a go.’’
According to media reports, three years after being granted the visa to remain in Australia, Mr Kunduraci was charged and convicted for assaulting and threatening to kill his former partner. His sentence was six months in prison, suspended for 12 months. This sentence was not sufficient to trigger the cancellation of his visa. Three years later, he killed Korinne Aylward and Greg Tucker.
The Committee heard a range of evidence on this issue. Some witnesses thought that the current process of evidence gathering for merits review in the AAT is insufficient to ensure the voices of victims are heard. Others believed that the views of victims are more relevant in the criminal justice process.
The Committee understands that the AAT generally relies on the Department of Home Affairs to provide evidence including victim impact statements and/or sentencing remarks, and that it does not generally seek evidence from victims directly.
The Committee is concerned that this process means there is no guarantee that victims of the applicant’s offending will have their views represented in the appeals process, and no opportunity for them to state their case against the applicant remaining in Australia.
Victims of crime can be directly affected by a decision to allow a non-citizen to remain in Australia. They may live in fear that the person will commit further crimes against them or their loved ones. They may be traumatised when they find out that a person they believed was going to be deported has been allowed to stay. Victims may be left feeling unsafe and unprotected.
Decision-makers in both the Department and the AAT need to take seriously their responsibility to consider the impacts of their decisions on victims of crime. The best way to ensure victims are considered in the process is to give them a voice.
Some witnesses argued that it was not appropriate to invite victims into the appeals process, or that having victims participate may further traumatise them. The Committee acknowledges these concerns, but believes that victims should be given the choice.
Some victims may not want to make a submission but others will. In cases where the victims of crime are family members of the offender, these victims may not want the person deported, and their statement could reflect that.
The Committee believes that, where the crime that triggers visa cancellation has a clearly identifiable victim or victims, these victims should have the opportunity to make a statement to the AAT, if they wish to do so. This could be in person, or in writing.
The Committee is recommending that the government impose upon the AAT an obligation to inform known victims of an applicant’s offending that the applicant has lodged an appeal. These victims would be invited to make either a written or verbal statement to the AAT in relation to the impacts upon them if the applicant should remain in Australia.
The Committee recommends that the Australian Government regulate to guarantee that victims of crime, or their families, are provided with an opportunity to make a written or oral statement as part of the appeals process in the Administrative Appeals Tribunal, and:
where victims/families provide a statement, this evidence should be a primary consideration, especially if the review applicant poses a continuing threat to victims, their families or the Australian community; and
where victims/families choose not to provide a statement, the impact on victims should be a secondary consideration.
Public confidence in the review process
The Committee received evidence suggesting the AAT does not enjoy the confidence of sectors of the media and the public, due to decisions it has made to overturn deportations. For instance, Mr Brian Woods submitted that ‘public commentators are angered and shocked’ about many AAT decisions.
Mr Woods pointed out that comments from the public on articles regarding overturned deportations were generally opposed to the AAT’s decision. He suggested the public see the AAT as operating on ‘its own criteria of inexperienced human rights interpretations’, rather than deciding cases based on the law.
Evidence provided by the Attorney-General’s Department indicated that it is a misconception that the AAT overturns most visa cancellations decisions. In 2016-17 the AAT affirmed 52 per cent of the Department’s decisions regarding visa cancellations and refusals and set aside (overturned) 19 per cent. The rest were withdrawn. This set aside rate of 19 per cent is less than the set aside rate for all decisions reviewed in the AAT, which was 26 per cent.
The Australian Human Rights Commission commented on media coverage of AAT decisions, saying it tended to focus on the offending, without considering any of the reasons for the decision, which are set out in the AAT’s published decision records. The Commission added:
As decisions are made on a case-by-case basis, in assessing whether any particular decision was appropriate, the full reasons for that decision setting out all of the relevant circumstances need to be taken into account.
Professor Narelle Bedford argued that the AAT has been ‘unfairly maligned’ by the media and some public commentators, partly because some of the criticisms directed towards the AAT were actually for actions taken ‘earlier in the decision-making continuum’, such as by departmental delegates.
The New Zealand High Commissioner expressed confidence in the AAT’s decision-making, saying: ‘Its deliberations help to ensure that visa cancellation decisions reflect the expectations of the Australian community.’
The AAT submitted that it is obligated by law to carry out its functions in a way that ‘promotes public trust and confidence in the decision-making of the Tribunal’. However, it also recognised ‘a need to communicate more effectively and to help the public understand’. The Tribunal has taken steps to improve its public messaging, including by introducing a monthly review bulletin ‘which tries to explain in plain English the decisions that have been made by the tribunal’.
While the AAT has taken steps to better explain what it does to the public and the media, it clarified that it ‘wouldn’t seek to enter the policy debate about the actual law’.
The Law Council stated that it believes the AAT carries out its reviews in a way ‘which promotes public trust and confidence in the decision-making of the tribunal body itself’.
Concerned with ‘political comments directed at the work of the AAT’, the Law Council argued that the AAT’s disagreement with certain decisions made by the Department was a natural part of a well-functioning system.
The Visa Cancellations Working Group argued that community views may not always align against the AAT in overturned decisions. For instance, it submitted that the Australian community generally do not consider it ‘appropriate to deport individuals raised in Australia since early childhood’.
The Police Federation was asked if it supported the AAT continuing to ‘play a major role’ in providing merits review. Mr Burgess said:
I think the AAT has a role. I don’t think there’s any argument about the AAT having a role. I think it’s about the AAT playing a role that the wider community would expect of them.
In the opinion of the Police Federation, the community would have more confidence in the AAT, if the Tribunal ensured ‘all the relevant facts are available’ when it makes it decisions.
An alternative view was put by the Springvale Monash Legal Service, who pointed out that Australia is made up of many diverse ethnic communities, some of which are being heavily effected by visa cancellations:
When we’re talking about, say, South Sudanese people having their visas cancelled, where is the community expectation of the South Sudanese diaspora being met in terms of procedural fairness and things like that? As well as the wife and children of people who are having their visas cancelled, they are part of that community. They are part of the community expectations that we should be taking into account.
Mr Aiden Hammerschmidt (private capacity) proposed that concerns around the AAT’s decisions could be ameliorated by introducing a two-tiered review facility within the AAT, where straightforward cases could be reviewed at a lower level, and ‘more complex or publicly significant cases’ could be referred to an appellate review panel.
The Committee believes that AAT members conduct their reviews with close consideration of the legislation, regulations and ministerial directions.
Decisions published by the AAT are detailed, and suggest that due care and attention is being applied to weighing up the considerations to make the ‘right and preferable’ decision in each case.
However, the Committee is of the view that the AAT has made some decisions that do not align with the community’s expectations that serious violent criminals will be deported from Australia.
The Committee believes that clearer ministerial directions, as recommended in this report, would go some way towards ensuring that the AAT does not prevent the deportation of serious violent criminals.
The Committee also notes that existing regulations allow review applicants or the Minister to lodge additional information for the AAT to consider including ‘affidavits or witness statements, expert reports or letters of support’.
The Committee heard that information regarding an applicant’s conduct in prison, reports from parole boards, etc., are generally collected and provided as part of the Department’s case at the AAT. However, relying on the Department to source and provide all relevant information on the applicant may pose a risk in some circumstances.
The AAT has an obligation to ensure it is has the necessary information to fully assess an applicant’s character and past conduct. This could include information from state authorities that have dealt with the person.
The Committee believes there may be merit in the idea that the AAT should inform relevant authorities when applications for merits review are lodged. ‘Relevant authorities’ would include corrections facilities, parole boards, state police departments, state-based courts and others, depending on the nature of the applicant’s offending. These authorities would then have the option to submit information to the AAT.
Ensuring the AAT had this information may help build public confidence in the AAT’s review processes and decisions. The Committee notes, however, that this idea may be difficult to implement, given the practical limitations imposed by the strict 84 day timeframe for AAT reviews.
While not making a recommendation, the Committee encourages the Department of Home Affairs to investigate possible processes that would ensure relevant authorities are informed of applications for review of visa cancellations on character grounds.
Strengthening the visa cancellations regime
On 25 October 2018, the Australian Government introduced the Migration Amendment (Strengthening the Character Test) Bill 2018 (the Bill) into the House of Representatives.
If passed, the Bill ‘introduces measures that enhance the Government’s ability to protect the Australian community’. The explanatory memorandum to the Bill, which provides details on the proposed amendments, states that the Bill provides additional grounds to consider visa cancellation or refusal:
The Bill strengthens the character test in section 501 of the Migration Act 1958 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), weapons, breaching of an apprehended violence order (or similar) or non-consensual sexual acts.
The Bill specifically allows for discretionary cancellation and deportation of non-citizens who have been convicted of ‘certain designated crimes’, regardless of any sentence imposed, and even where no custodial sentence is imposed.
Designated offences are those which:
…involve violence against a person, including murder, manslaughter, kidnapping, assault, aggravated burglary and the threat of violence, nonconsensual conduct of a sexual nature, using or possessing a weapon or breaching an order made by a court or tribunal for the personal protection of another person.
The Bill has been considered by three Parliamentary Committees: Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee); Senate Legal and Constitutional Affairs Legislation Committee (SLCALC); and Parliamentary Joint Committee on Human Rights (JCHR).
The Scrutiny Committee raised a number of concerns about the Bill and found:
…that section 501 of the Act already provides the minister with considerable and broad discretionary power to refuse or cancel a visa, and does not contain procedural fairness obligations or adequate merits review.
The Scrutiny Committee recommended that the Senate as a whole debate the appropriateness of amending the character test.
The SLCALC recommended that the Bill be passed stating that:
The committee is satisfied that the bill strikes the appropriate balance between the protection of the Australian community and the rights of non-citizens who have committed criminal acts, and therefore recommends the passage of the bill.
The JCHR expressed concern on a number of human rights issues in relation to the Bill and sought advice from the Minister for Home Affairs.
To date the Bill has not passed the House of Representatives.
The Migration Amendment (Strengthening the Character Test) Bill 2018 seeks to introduce additional criteria for cancelling or refusing visas based on violent offences, regardless of any sentence imposed.
This important legislation will ensure violent offenders can be removed from Australia at the earliest possible opportunity.
The Committee believes this legislation would address a number of community concerns around non-citizens who commit acts of violence in Australia. As such, the Committee urges the Australian government to pass and enact this legislation without delay.