CHAPTER 2
Key issues
2.1
This chapter discusses the key issues raised in submissions and evidence
in relation to the provisions contained in each of the two schedules to the
Bill. It considers the proposed amendments to the character test framework and
then the proposed amendments to the general visa cancellation framework. The
chapter also separately considers the proposed expansion of ministerial powers
that will affect both frameworks.
Introduction
2.2
Submitters have raised various matters in relation to the Bill. A
variety of submissions questioned the utility of the proposed changes.[1]
In contrast, the Department expounded that the proposed amendments are
necessary and could be justified on the grounds that they are 'aimed at
addressing a range of identified issues and gaps in the current legislation'.[2]
Protection of the Australian
Community
2.3
The Statement of Compatibility with Human Rights in the EM stated:
The Australian Government is committed to protecting the
Australian community from the risk of harm by non-citizens. The Government has
a low tolerance for criminal, non-compliant or fraudulent behaviour by non‑citizens
and should be able to refuse entry to people, or cancel their visas, where they
have committed serious crimes or present a risk to the community. Facilitation
of entry needs to be complemented with strong cancellation powers and processes
to ensure that the Government's ability to protect the Australian community and
maintain the integrity of the Migration Programme is maintained into the
future.[3]
2.4
The Police Federation of Australia reiterated this opinion, stating that
the proposed amendments are justified on grounds that they 'ensure that the
migration regime is properly enforced in a manner that best protects the
Australian community'.[4]
2.5
The Refugee Advice & Casework Service (RACS) supported 'a visa
cancellation and character assessment system which protects the Australian
community from harm as a result of criminal conduct', but they contended that
in order to uphold the integrity of the migration system, 'the system must have
adequate procedural safeguards to ensure that decisions are fair and just'.[5]
This argument was echoed by other submitters such as the Asylum Seeker Resource
Centre (ASRC) which opined that the 'current suite of cancellation and refusal
powers in the Migration Act more than adequately protect the security of the
Australian community'.[6]
2.6
Some submitters argued that the proposed amendments overshoot the mark
of protecting Australian nationals from harm.[7]
The ANU Migration Law Program submitted that the character and visa
cancellation system is fundamentally sound and working and that the 'sweep of
changes introduced by the Bill is therefore clearly targeted at a small number
of non-citizens'.[8]
The Southern Communities Advocacy Legal and Education Services (SCALES),
although accepting the necessity of subjecting visa applications to the character
test and general visa cancellation provisions, argued that the proposed
amendments 'are unduly broad in their scope and have the potential to limit
genuine refugees and asylum seekers access to protection visas and asylum in
Australia'.[9]
Finally, some submitters claimed that, if implemented, the Bill could lead to
the unjust cancellation of visas which could seriously effect visa holders and
lead to a climate of fear and suspicion in communities.[10]
Character test
2.7
In its submission to the Inquiry the Department detailed the prevailing
circumstances that support the introduction of the proposed changes:
The character provisions of the Act have been in place since
1999, while the general visa cancellation provisions under section 109 and 116
have remained largely unchanged since 1994, which have meant that many of the
current measures are not reflective of modern jurisprudence. Australian
migration patterns and processes have also changed significantly since the
introduction of these cancellation provisions with higher volumes of limited
stay visa holders coming to Australia and streamlined processes facilitating
entry for tourism, economic and other purposes.[11]
2.8
As noted in Chapter 1, the Bill proposes to broaden the character test
by amending existing provisions and adding new grounds upon which a person may
fail the character test. The Bill also proposes to introduce a mandatory
cancellation power into the character test framework. Many submitters opposed
these proposed changes to the character test.
2.9
The ANU College of Law: Migration Law Program (ANU Migration Law
Program) submission included a table (Table 2.1 below) which reproduced departmental
statistics outlining the number of warnings issued under the character
framework and the number of cancellations over a seven-year period. In the year 2012–13,
a total of 37,926 visas were cancelled.[12]
In contrast, Table 2.1 shows the relatively small cohort of people who had
their visas cancelled under the character framework.[13]
Table 2.1: Visa
cancellation decisions under Migration Act 1958 s 501, 2006-13
|
2006-7
|
2007-8
|
2008-9
|
2009-10
|
2010-11
|
2011-12
|
2012-13
|
Warnings
|
334
|
617
|
149
|
864
|
1146
|
1240
|
888
|
Cancellations
|
116
|
103
|
86
|
58
|
132
|
157
|
139
|
2.10
The Department commented on the relatively small cohort to which the
amendments would apply by stating that:
The proposed amendments are not designed to necessarily
result in large increases in the number of people whose visa applications are
refused and/or whose visas are cancelled. While it is expected the cohort of
non‑citizens who will be affected by this amendment are relatively small
the criminality and risk posed by this cohort to the Australian community is
significant.[14]
Broadening of the character test
2.11
As noted in Chapter 1, the Bill proposes to broaden the character test
by lowering the thresholds applicable to existing provisions and introducing
five new grounds under which a non-citizen may be deemed to fail the character
test. The most controversial changes to existing provisions are the amendments
to paragraphs 501(6)(b) and 501(6)(d) and the proposed changes to the
definition of substantial criminal record.
2.12
Questioning whether the proposed changes should be applied irrespective
of whether the non-citizen is a visa applicant or a visa holder, the ANU
Migration Law Program suggested that:
...refusal is not the same as cancellation, in terms of both
the impact on the visa holder, especially a long-term resident, and the
potential impact on Australian citizens...once a non-citizen has been permitted
to enter and settle in Australia, the decision to expel that person should not
be reached in the same way as a decision to refuse to grant a visa.[15]
2.13
The Department explained that the decision to cancel or refuse a visa
under the character framework is discretionary and may only be made after
considering the binding guidance provided by Ministerial Direction No
55. This Direction contains different considerations to which decision
makers must have regard in deciding whether to refuse to grant or cancel a visa
for visa holders and visa applicants respectively, in recognition of the fact
that a non-citizen holding a substantive visa will generally have greater ties
to the community, and an expectation that they will be permitted to remain in
Australia for as long as their visa remains in effect.[16]
Proposed amendment to paragraph
501(6)(b)
2.14
The proposed amendment to paragraph 501(6)(b) would mean that any non‑citizen
would fail the character test if the Minister reasonably suspects him or her of
being a member of or having an association with a group or organisation suspected
of criminal conduct. This would have the effect of lowering the threshold from
a proven association to a suspected association. RACS argued that this would
entail an unacceptably low standard of proof, as it would not require the
Minister to engage in any meaningful assessment of circumstances or evidence.
RACS argued that the standard should be raised to one of reasonable belief, to
require the Minister to justify his or her belief through provision of evidence.[17]
Proposed amendment to paragraph
501(6)(d)
2.15
The proposed amendment to paragraph 501(6)(d) would mean that a person would
fail the character test if he or she were to pose a risk of engaging in specified
conduct or representing a danger to all or part of the Australian community. The
Law Institute Victoria (LIV) submitted that any non-citizen could theoretically
fall short of this provision and thereby fail the character test. As a result,
visa holders and applicants could be left in a state of uncertainty with regard
to their migration status.[18]
Submissions claimed that, if the amendment were implemented, the provision would
be too broad, as a decision about whether or not a person passes the character
test could be based on a suspicion that the person may behave in a particular
way. Submissions reasoned that without the implementation of adequate
safeguards, this standard would not be justifiable, given the serious consequences
of visa cancellation or refusal.[19]
2.16
The EM noted that the relevant threshold would be one of 'more than a
minimal or trivial likelihood of risk'.[20]
However, submitters argued that the legislation itself imposes no such
requirements.[21]
Additionally, the current guidelines incorporated into Ministerial Direction
No 55 specify that the grounds in paragraph 501(6)(d) of the Act are
currently 'enlivened if there is evidence suggesting that there is more than a
minimal or remote chance' of the person engaging in the relevant conduct.[22]
It follows that, as implied in the EM, the proposed amendment does not amount
to a substantive change; it simply clarifies the existing law.
2.17
The Department also submitted that:
This amendment gives primacy to the protection of the Australian community and is particularly important
in the offshore visa context.
In
considering whether a non-citizen should be granted a visa to come to Australia, there is an expectation that the non-citizen will not cause or threaten harm to either individuals
or the Australian
community. Where there is information that suggests that a visa applicant presents
more than a minimal or remote
risk of causing harm to an individual or the broader Australian
community, it is entirely appropriate that the non-citizen's
visa application be considered for refusal under subsection
501(1) of the Act.[23]
Proposed broadening of the
definition of substantial criminal record
2.18
Under the proposed amendments to the Act, a person would be considered
to have a substantial criminal record if he or she were sentenced, cumulatively
or concurrently, to prison terms totalling 12 months (whether the sentences
were handed down on one or more occasion). The Refugee & Immigration Legal
Centre (RILC) made the point that this amendment would reduce the threshold for
defining when a person has a substantial criminal record.[24]
2.19
The New South Wales Council for Civil Liberties (NSWCCL) pointed out that
some jurisdictions institute mandatory penalties for criminal offences, no
matter how trivial the offence, and that the tendency in criminal law is for
penalties to increase.[25]
NSWCCL argued that it follows that, should the amendments come into force, a
person could be held to fail the character test under paragraph 501(6)(a) for
committing one or more relatively minor non-violent crimes.[26]
2.20
The Department explained that the current provisions which define
whether a person has a substantial criminal record for the purposes of the
character test do not capture particular cohorts of concern. The Department
submitted that proposed amendments are necessary to ensure that these particular
cohorts of non-citizens of concern are captured and, as such, objectively fail
the character test.[27]
2.21
The Bill also proposes to provide that a person will be considered to
have a substantial criminal record if a court has found that he or she
committed an offence but was unfit to plead and, as a result, he or she was
detained in a facility or institution. RACS submitted that, as people from
refugee backgrounds often face mental health issues, this amendment may have
serious repercussions on the way in which that cohort is treated by decision
makers.[28]
In contrast, the Department submitted that the proposed amendment is
justified as it would more effectively cover 'the various ways in which
jurisdictions within Australia address court and sentencing proceedings for
mentally ill people who commit a serious crime'.[29]
Reasonable suspicion of involvement
in or being charged with specified crimes
2.22
In relation to the proposed provisions on the commission of crimes of
serious international concern, the Australian Human Rights Commission (AHRC)
submitted that the effect of these provisions would be to enable the Minister
to refuse or cancel a visa on the basis of suspected conduct that would, if
proved, constitute criminal conduct. This could be done in the absence of any
conviction. The AHRC stated that it could not ascertain why these provisions
would be necessary given that, where there is sufficient evidence that a person
has committed one of these crimes, he or she would be charged and prosecuted
for the crime and if found guilty and sentenced he or she would fail the
character test under the existing paragraph 501(6)(a).[30]
2.23
Both the Refugee Council of Australia (RCOA) and NSWCCL had specific
concerns relating to the proposed inclusion of involvement in people smuggling
in the criteria for failing the character test.[31]
The RCOA submitted that amendments made through the Anti-People Smuggling
and Other Measures Act 2010 (Cth) 'significantly broadened the scope of
people smuggling offences in Australia, to the point of criminalising acts
which are humanitarian in nature and which lack any criminal intent' (such as
sending money to a relative overseas to help them escape from persecution). RCOA
argued that the proposed changes in the Bill would therefore mean that a person
may be held to fail the character test in circumstances where he or she has
acted without criminal intent.[32]
2.24
In support of the proposed amendments, the Department submitted that
they are necessary and justified to ensure that non-citizens suspected of
crimes of serious international concern are captured by the character framework
and, as such, would objectively fail the character test.[33]
Sexually based offences involving a
child
2.25
The proposed new provision where a person fails the character test if he
or she is charged with a sexually based offence involving a child and the
charge is proven has been criticised by submitters. Submitters noted their
concerns that there is no corresponding legislative definition of the term
"sexually based offences involving a child" and therefore sexually-active
children may be caught by this provision. For example, it was argued that a
16-year old who has sex with his or her 14-year old partner or a teenager who sends,
receives or shares naked photos of him or herself could be accused of
committing sexually based offences involving a child.[34]
2.26
The EM stated that the amendment is intended to apply irrespective of
the level of penalty or orders made in relation to the offence.[35]
The ANU Migration Law Program submitted concerns that this would appear to
ignore the fact that a court would have heard all the evidence and should
therefore be in the best position to impose a penalty that reflects the seriousness
of the charge.[36]
2.27
The EM acknowledged that, currently, these offences may be dealt with
under subsection 501(6) of the Act, but stated that the aim of this addition
was to remove the subjectivity from this assessment in cases where the
non-citizen does not fail the substantial criminal record test.[37]
The Department also confirmed that:
In the unlikely event that a youth involved in relatively
minor offences has their visa mandatorily cancelled, that non-citizen would be
able to seek revocation of the mandatory cancellation. A decision to revoke is
discretionary, and would take into account, for example, the seriousness of the
offending involved.[38]
ASIO-assessed risks to security
2.28
The LIV suggested that the proposed addition of paragraph 501(6)(g) to
the character framework would have the effect of deferring 'the Minister's
assessment regarding the risk posed by a non-citizen to an external body (being
ASIO) without the Minister or non-citizen being permitted to effectively
examine the basis for any negative assessment'.[39]
Both the LIV and the RILC stressed that there is no formal definition of the
threshold of risk which is needed to support an adverse assessment and, given
that an adverse risk assessment may be made to assist in the carrying out of
Australia's responsibilities to a foreign country, it would be possible for a non-citizen
to become the subject of a negative risk assessment even if he or she posed no
actual risk to the Australian community or citizens.[40]
2.29
The Department stated that the purpose of the proposed provision is to
acknowledge that a person who is the subject of an adverse ASIO assessment is
likely to represent a threat to the security of a segment of the Australian
community. The Department submitted that this means that the new ground simply
provides an objective basis on which to find that a person does not pass the
character test. When considering whether to exercise the discretion to cancel
or refuse a visa the decision maker would then consider the objective fact of a
negative assessment together with any other relevant considerations.[41]
Subject of an Interpol notice
2.30
Submissions questioned the reliability of Interpol notices and expressed
concerns about the use of an Interpol notice as a ground under which a
non-citizen may be found to fail the character test.[42]
The LIV acknowledged that the wording of the proposed paragraph implies that
the existence of a notice would not in itself cause a person to fail the
character test as further analysis would be required to infer that the person presents
a risk to the Australian community. However, the LIV questioned the value of
Interpol notices as a mechanism to assess risk given that the content of
notices is largely dependent upon information provided by member states, Interpol
rarely undertakes procedures to assess the veracity of the information provided
by member states and the review mechanisms for a notice are neither independent
nor comprehensive.[43]
2.31
As with an ASIO assessment, the Department explained that the purpose of
the proposed provision would be to acknowledge that a person who is the subject
of an Interpol notice is likely to represent a threat to the security of a
segment of the Australian community. It follows that the inclusion of this new
ground for failing the character test would ensure that people in this cohort
do not avoid scrutiny under the character test framework. The Department
confirmed that:
The existence of an Interpol notice in respect of a person
will not, of itself, mean that the person does not pass the character test. The
veracity and reliability of the Interpol notice would be a relevant
consideration in terms of determining whether it was reasonable to infer that
the person would present a risk to the Australian community or a segment of
that community.[44]
Mandatory visa cancellation under
the character test
2.32
Proposed subsection 501(3A) would provide that the Minister would have
to cancel a visa in specified circumstances. The Department justified proposed
subsection 501(3A) by submitting that:
Under existing provisions non-citizens in prison who do not
pass the character test can be released from prison prior to the character visa
cancellation or refusal process being finalised. This has meant that criminals
who may potentially present a risk to the community can reside lawfully in the
community while this consideration takes place. The proposed mandatory
cancellation process assists in ameliorating this risk.[45]
2.33
RCOA accepted that this process is only proposed to apply in limited
circumstances but still questioned the need for such a provision arguing that:
...provisions on visa cancellation should allow for flexibility
in decision‑making so as to mitigate the risk of prolonged indefinite
detention and ensure that cancellation powers are exercised only in cases where
an individual presents a genuine risk.[46]
2.34
Some submitters argued that a mandatory cancellation process would
effectively result in a reversal of the onus of proof, as it would require an
affected person to justify why his or her visa should not be cancelled.[47]
Submitters also argued that this change is unnecessary as there is no compelling
need to introduce mandatory powers given that the Minister currently holds
sufficient discretionary powers to efficiently cancel the visa of an incarcerated
non-citizen.[48]
2.35
However, the Department described circumstances where a non-citizen prisoner
with a serious criminal history may be released from prison before his or her visa
is cancelled. The Department stated that this can occur where a non-citizen
spends a significant time in remand prior to sentencing, and this period is
taken as time served by the sentencing judge. As a result, the non-citizen may
only spend a short time in prison and this could result in the Department only
becoming aware of the case shortly before the person is released upon
completion of his or her sentence.[49]
Further, the Department explained that:
[The current discretionary powers of the Minister]...necessitate
the provision of natural justice to a non-citizen at the front end of the
process. This can be a time consuming and lengthy process and where a
non-citizen comes to the attention of the immigration department toward the end
of their sentence, means that a risk exists that a decision about whether or
not to cancel their visa will not be made before the non-citizen is released
into the community at the completion of their sentence. This is unacceptable
where such a person poses a risk to the safety of the Australian community
because they have a substantial criminal record on the specified bases...[50]
2.36
Some submissions insisted that cancellation of a visa on character
grounds could be equated to an effective banishment from Australia and, in
certain circumstances such as where Australia owes non-refoulement obligations
to a visa holder, it may amount to indefinite detention.[51]
The ANU Migration Program considered this to be punitive and advanced that the
proposed mandatory cancellation process could have the effect of further
blurring the boundaries between criminal law and migration law, such that the
mandatory cancellation process may be judicially interpreted as creating a form
of a double punishment.[52]
2.37
The Department clarified that where a person's visa is cancelled under
this provision, the affected person may seek revocation of the decision and if
the decision not to revoke is taken by a delegate, this would be subject to a
merits review. Moreover:
In deciding whether or not to revoke the cancellation of the
visa...the Minister or delegate would take into account all relevant factors
including, for example, the seriousness of the criminal activity, and
Australia's obligations under international law...The cancellation of a visa
under [this] proposed subsection...is not concerned with convicting or punishing
the visa holder for the crime for which they have been convicted. Rather,
[it]...is concerned with ensuring that the person is kept in immigration
detention until such time as the cancellation decision is revoked or otherwise
set aside, or the immigration status of the person is otherwise resolved.[53]
Disclosure of information to the
Minister
2.38
The Statement of Compatibility with Human Rights attached to the EM explained
that the proposed section 501L was included in the Bill to address difficulties
in information sharing, as the legislation of some States and Territories does
not recognise the authority of the Commonwealth to obtain information that may
be relevant to a determination under the character framework. Formalising a
power to obtain information was recommended by the ANAO Audit Report No.55
2010–11.[54]
The Department stated its belief that formal agreements with the relevant
States and Territories would not be possible, or not without risk, and that the
new enforcement powers under the Australian Privacy Principles may not provide
the Department with sufficient coverage.[55]
General visa cancellation
2.39
The main proposals for changing the general visa cancellation framework
concentrate on proposed amendments to section 116 of the Act. Specifically, the
Bill proposes to make one key amendment and add two key provisions to that
section.
Risk to health, safety and good
order of the community
2.40
The ANU Migration Law Program noted its support for the extension of paragraph
116(1)(e) to include risks posed to individuals, and not just risks posed to the
community. However, it did not support the lowering of the threshold for this
ground from actual risk to the mere possibility of a risk.[56]
Similarly, the AHRC argued that this provision would represent a significant
lowering of the threshold needed to engage a cancellation power, stating:
The concept of 'risk' is itself conjectural; a 'possibility
of a risk' amounts to a possibility of a possibility. That is a threshold so low
arguably any person could meet it.[57]
2.41
The submission of the LIV echoed the concerns of the AHRC and observed
that the proposed amendment could provide for discrimination on the basis of a
disability or illness. LIV argued that as there is no requirement that a decision
on whether a person posed a risk to the health of the community would need to be
based on medical facts and the relevant condition would only need to present a
low level of risk to the community. The submission also suggested that the
amendment might act as a disincentive for non-citizens to seek medical
treatment on the basis that they may fear that their visa would be cancelled if
the diagnosis was adverse.[58]
2.42
The Department explained that this amendment would only be a
clarification of existing provisions and is necessary to ensure that the
particular cohort of non‑citizens who fall foul of this proposed
amendment is appropriately captured for visa cancellation. The Department
stated that the current provision:
...already allows for the cancellation of a person's visa on
the ground that they have a communicable disease, where that disease poses a
risk to the health of the Australian community. Issues such as the
communicability of the disease, treatment options and mortality rates are now,
and would continue to be, important considerations in determining whether a
person should have their visa cancelled on the basis of their posing a risk to
the health of the Australian community.[59]
Inconsistent disclosures relating
to identity
2.43
As noted in Chapter 1, proposed subsection 116(1AA) would empower the
Minister to cancel any visa (temporary or permanent) if he or she is not
satisfied as to the visa holder's identity. The RACS submission was cognisant
of the importance of establishing a person's identity to uphold the integrity
of the migration program. However, RACS was concerned that the proposed
provision would not include adequate procedural safeguards to ensure that
individuals who have legitimate difficulties in providing evidence of their identity
are not caught by this proposed amendment.
2.44
Submissions suggested that this provision would unfairly impact on
people from refugee backgrounds, who often have legitimate reasons for being
unable to obtain evidence of their identity.[60]
To this extent, the LIV observed that:
Issues of identity are often complex and undergo change for a
variety of different reasons. Identities are often defined by the ways in which
other people and governments identify individuals and record information about
them. Official records can often conflict with what individuals understand
their identity to be.[61]
2.45
The NSWCCL questioned the need for the proposed new subsection by noting
that Division C of Part 2 of the Act already permits cancellation of a visa
where information supplied by the applicant is false. NSWCCL argued that if
contradictory information about identity had been given then, as a matter of
logic, that information is false, making the proposed subsection 116(1AA)
redundant.[62]
2.46
The EM highlighted that the migration program is based on a presumption
that 'non-citizens provide correct information during all of their transactions
with the department, and are honest and truthful at all times.'[63]
As a consequence, the Department stated that the proposed amendment is necessary
to allow the cancellation of visas of those who have not been honest and
truthful.[64]
The Department submitted that this proposed amendment is necessary to put
beyond doubt that the Minister may cancel a visa if not satisfied as to a
person's identity, providing an example of where the existing provisions fail
in this regard because they:
...do not capture a situation in which a visa holder has
provided two or more contradictory pieces of information about their identity. In
such cases, it may not be possible for the Minister or delegate to form a
conclusion regarding which document or piece of information is genuine, and in
relation to which document non-compliance occurred.[65]
Incorrect information provided during
the migration process
2.47
Submitters have pointed out that if the proposed amendment relating to
the provision of incorrect information were adopted it might unfairly affect asylum
seekers. Submitters argued that when first engaging with the migration program
asylum seekers may be faced with an ongoing fear of persecution, mental health
issues or overarching pragmatic needs, such as need to facilitate safe passage
to Australia. These submitters stated that incorrect information provided by an
asylum seeker may be a reflection of their vulnerable situation and may arise
from procedural difficulties that stem from things such as language barriers; as
such, the provision of incorrect information may be the result of a misunderstanding,
and not be indicative of intentional dishonesty.[66]
2.48
By contrast, the Department explained that, at present, only incorrect
information provided in a statutory process can be considered in the
cancellation process and, as such, a non-citizen who provides incorrect
information in non‑statutory processes, such as at an entry interview or
a refugee status assessment, is not caught by the general cancellation
framework. Therefore, the Department justified this proposed amendment on
grounds that the amendment would secure the integrity of the migration program,
making processes more internally consistent.[67]
Expansion of personal ministerial powers
2.49
The Bill proposes to expand the personal powers of the Minister both
within the character framework and the general visa cancellation framework of
the Act. Some submitters argued that there has been little justification for
the introduction of these new personal powers and they appear to be unnecessary.[68]
It was submitted that an expansion of personal ministerial powers would effectively
undermine the rule of law by denying procedural fairness to an affected party and
limiting the right of review to a judicial review.[69]
Further, submitters argued that, given the lack of procedural safeguards
incorporated into the proposed provisions, the proposed new powers have the
potential to undermine the integrity of the visa cancellation and refusal
frameworks as they may be used for political purposes.[70]
2.50
In response to this argument, the Department emphasised that:
The Minister is required to act lawfully and in accordance
with the legislation in exercising his personal powers. Where the Minister
makes a personal decision to refuse to grant or cancel a visa without notice,
the non-citizen may seek revocation of that decision. In addition, Minister's
decisions are judicially reviewable.[71]
2.51
As the proposed new powers would be exercisable by the Minister in a
personal capacity, the LIV queried how the Minister would be able to manage
these individual decisions.[72]
Further, the AHRC queried how the Minister would be better qualified to make
findings of fact than an independent tribunal.[73]
2.52
The EM stated that the government is ultimately responsible for ensuring
that decisions reflect community standards and expectations.[74]
The Department reiterated this point, noting that:
Merits review tribunals are required to determine what is the
correct or preferable decision based on the merits of the case before them. The
personal powers of the Minister in the Act (both the existing powers and the
new powers) recognise that the Australian community ultimately holds the
Minister responsible for decisions within his or her portfolio, even where
those decisions have resulted from merits review. Therefore, it is appropriate
that merits review not be available in respect of decisions that are made by
the Minister personally. These amendments do not affect a non-citizen's
capacity to seek judicial review of a decision to cancel their visa.[75]
2.53
ANU Migration Law Program challenged whether this provided sufficient
justification for the new provisions, submitting that the proposed new powers
would make further inroads into the first-tier review of administrative
decision making, thereby undermining transparency and potential for independent
scrutiny. It suggested that if these provisions proceed:
...they should be amended to provide that the Minister must
advise Parliament of each exercise of his personal power—in the same way that this is required when
the Minister exercises his personal power to grant a visa under s351 and s417
of the Act.[76]
2.54
The Department responded to this suggestion by stating that it would be:
impractical to create an additional requirement for the
Minister to report on an intention to make a consideration under section 501,
particularly where a cancellation or refusal decision may not result from that
consideration...Given that decisions to refuse to grant or cancel a visa without
notice can be made quickly and in the national interest, it would not be
possible to advise Parliament of an intention to consider the making of a
decision in these circumstances.[77]
Human Rights issues
2.55
An attachment to the EM contains a statement of compatibility with
Australia's international human rights obligations. The statement notes that:
This amendment Bill is compatible with the human rights and
freedoms recognised or declared in the international instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.[78]
2.56
The statement goes on to explain that the proposed amendments do not
change the framework within which the character and general cancellation powers
function in that, generally, when the powers are enlivened the Minister will
retain discretion over whether to cancel a visa or refuse an application.
Furthermore, where a person's visa is cancelled by means of a mandatory
cancellation provision, the person will generally be afforded natural justice,
or at very least he or she will be invited to make representations to the Minister
and the Minister will retain a power to revoke the mandatory cancellation.[79]
2.57
The main points of concern raised by submissions were in relation to the
rights contained in the International Convention on Civil and Political Rights
(ICCPR) and the Convention on the Rights of the Child (CRC).
Civil and Political Rights
2.58
Article 9 of the ICCPR provides that everyone has a right to liberty
which should not be taken away except in accordance with the law. As such, it
prohibits arbitrary detention or detention that does not have a legitimate
purpose.[80]
2.59
As noted in Chapter 1, visa holders who have had their visas cancelled
under the provisions of the Act must be detained and then removed from
Australia unless granted a visa. Submissions have noted that as some non-citizens
in this predicament would be owed a right to non‑refoulement, or may be stateless,
these people could be held in immigration detention indefinitely and this would
appear to breach Article 9 of the ICCPR.[81]
2.60
The Statement of Compatibility with Human Rights in the EM explained
that:
This Bill does not limit a person's right to security of the
person and freedom from arbitrary detention...these amendments present a
reasonable response to achieving a legitimate purpose under the Covenant—the safety of the
Australian community and integrity of the migration programme...The Government
has processes in place to mitigate any risk of a person's detention becoming
indefinite or arbitrary through: internal administrative review processes;
Commonwealth Ombudsman Own Motion enquiry processes, reporting and
Parliamentary tabling; and, ultimately the use of the Minister personal
intervention powers to grant a visa or residence determination where it is
considered in the public interest.[82]
2.61
Articles 19, 21 and 22 of the ICCPR respectively provide for the rights of
freedom of expression, peaceful assembly and freedom of association. The AHRC
submitted its concerns that the proposed amendment to paragraph 501(6)(d) could
make a non-citizen liable for visa cancellation on the basis of a risk that
they may incite discord in a segment of the community. The AHRC argued that
this could have 'a serious and unjustified chilling effect on the freedom of
expression of visa holders'.[83]
2.62
In a similar vein, the ANU Migration Law Program and the SCALES have
argued that the proposed amendment to paragraph 501(6)(b) could impinge on a
non-citizen's rights to peaceful association and freedom of association.[84]
2.63
The Statement of Compatibility with Human Rights in the EM acknowledged
these potential concerns but stated:
These amendments are targeted...for the purpose of protecting
the Australian community from the risk that people...may present to national
security, public order, public safety, public morals, and the protection of the
rights and freedoms of others. While the effect of these amendments effectively
prohibits or creates a disincentive for the membership of particular
organisations, any restrictions this amendment may present on a person are seen
as reasonable, proportionate, and necessary and aimed at achieving a legitimate
objective...to protect the Australian community.[85]
Rights relating to families and
Children
2.64
Article 3 of the CRC provides that decisions made by public institutions
should be taken with the best interests of the child in mind. Articles 17 and
23 of the CRC aim to protect the unity of the family unit. The AHRC noted that
detention and deportation may result in a child being separated from his or her
family unit or parent contrary to his or her best interests. Under the proposed
amendments, long-term permanent residents may have their visas cancelled and
then be removed from Australia, leaving children and family in Australia.[86]
2.65
The Statement of Compatibility with Human Rights in the EM acknowledged
that, although a cancellation decision may result in the separation of the
family unit, rights relating to families and children will be taken into
account when a cancellation decision is made or after a request for revocation
of a mandatory cancellation is made. In other words, the relevant decision
maker will weigh family considerations against other factors such as the risk
the person presents to the Australian community.[87]
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