CHAPTER 3
Conclusions and Recommendations
3.1
The committee notes that the main intent of the Bill is to strengthen
the character and general visa cancellation provisions in the Migration Act 1958
(Cth) so as to ensure that non‑citizens who commit crimes in Australia,
pose a risk to the Australian community or represent an integrity concern are
appropriately considered for visa refusal or cancellation. The Bill also aims
to introduce a mandatory cancellation power for non-citizens who objectively do
not pass the character test and are in prison.[1]
3.2
The committee also notes that, while the nature of Australia's migration
program has changed dramatically over the past two decades, the relevant
frameworks in the Bill have not been substantially changed to reflect this
change.[2]
Generally speaking, the committee considers that the provisions Bill represent
a sound and justifiable approach to the need to update the relevant frameworks
in the Act so as to bring them into line with the current migration
program.
3.3
The committee acknowledges the criticisms of the provisions of the Bill
made in submissions to the inquiry. These criticisms mainly focus on the
lowering of thresholds in relation to the character test and general visa
cancellation, the introduction of a mandatory cancellation process into the
character framework, the introduction of new personal ministerial powers to
cancel and refuse visas and potential human rights issues that may result from
the proposed amendments.
3.4
The committee considers that the criticisms of a broader character test
and general visa cancellation framework are unfounded. A determination under
either of these frameworks is discretionary and, when made by any person other
than the Minister acting in a personal capacity, the determination is subject
to a review process. This provides sufficient checks and balances to ensure a
fair outcome. The committee does concede that in the interests of clarity the
government may wish to consider a more specific and detailed definition of the
terms ‘people smuggling offence’ and ‘sexually-based offences involving a
child’.
3.5
The committee notes that the proposed mandatory cancellation process is
designed to create a streamlined process to provide a greater opportunity to
ensure non-citizens who pose a risk to the community remain in detention until
their immigration status is resolved or they are removed. The committee notes
that although the mandatory cancellation process is not discretionary the
decision to revoke the cancellation is discretionary and, therefore, where that
decision is made by any person other than the Minister in a personal capacity
it is subject to merits review and judicial review. Further, even if a decision
not to revoke is made by the Minister in a personal capacity, the committee
accepts that the Minister would take into account all relevant factors
including, for example, the seriousness of the criminal activity, and
Australia’s obligations under international law.[3]
3.6
The committee is mindful of the arguments against the proposed introduction
of new ministerial personal powers. The arguments centre around the fact that a
decision taken personally by the Minister is not reviewable on its merits. The
committee observes that the Minister would be required to act lawfully and in
accordance with the legislation when exercising proposed new ministerial powers
and a decision taken by the Minister personally would still be subject to
judicial review. The committee takes the view that this review system provides
sufficient safeguards against any abuse or error associated with the exercise of
these proposed powers.
3.7
The committee acknowledges the human rights concerns raised by submitters.
However, the committee notes that the Statement of Human Rights attached to the
EM stated that 'questions of proportionality will be resolved by way of
comprehensive policy guidelines on matters to be taken into account when
exercising the discretion to cancel a person's visa, or whether to revoke a
mandatory cancellation decision'.[4]
The current guidelines in Ministerial Direction No 55 affirm
Australia's commitment to upholding its human rights obligations with
particular reference to non-refoulement, the International Convention on Civil
and Political Rights and the Convention on the Rights of the Child. The committee
acknowledges that these guidelines are not binding when determining matters
under the general visa cancellation framework but considers that the guidelines
could be extended to apply to cancellation decisions made under the general
visa cancellation framework.
Recommendation 1
3.8
The committee recommends that the current Direction No. 55 made under
section 499 of the Migration Act 1958 (Cth) be updated and extended so as
to reflect the proposed amendments to the Migration Act 1958 (Cth) and, in
particular, to ensure the direction applies to cancellation decisions made
under the general visa cancellation framework.
Recommendation 2
3.9
Subject to recommendation 1, the committee recommends that the Senate
pass the Bill.
Senator the
Hon Ian Macdonald
Chair
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