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Government lowers bar to trigger visa cancellation

  • 07 March 2022
Most people would agree that the government should have the power to cancel the visas of, and deport, non-citizens who are serious or dangerous criminals. Nobody wants to be the victim of a crime or to live in an unsafe society. We have enough criminals without keeping additional ones.

However,  the passage of the Migration Amendment (Strengthening the Character Test) Bill 2021 through the lower house with the support from the opposition  on 16 February 2022 raised real questions for me about how low the bar should be, to trigger a visa cancellation.

Although it was largely drowned out by the controversy over the religious discrimination bill, I did see some news bites of the Prime Minister accusing the opposition of being ‘weak on’ or ‘on the side of’ criminals in respect of the proposed bill. This criticism was not justified in my view.

Powers to cancel (or refuse) visas on the basis of character have existed for a long time. However it was in 1999 that the current “character test” was inserted into the Migration Act. There are multiple factors which could make someone “not of good character”. The most common is if the person has a “substantial criminal record” (section 501(6) Migration Act). Typically this means sentenced to a term of imprisonment of 12 months or more.

Putting that in perspective, while it's true that a 12 month prison sentence wouldn't be given for something trivial, there is a general policy that short prison sentences (less than 6 months) are generally not imposed. Accordingly, 12 months is already close to the minimum prison sentence that a court would consider.

Up until 2014, if the Minister had a reasonable suspicion that someone was not of good character, the visa holder would be given the opportunity to make submissions to the Minister about why they were actually of good character prior to a decision being made.

'In many cases the existing cancellation powers already operate to produce a harsh outcome. The proposed changes will only make things worse.' 

This was replaced in 2014 with a system where cancellation of the visa was mandatory if the Minister was satisfied that the person was not of good character.  The visa holder could then (within 28 days) apply for revocation of the cancellation decision.

The effect of this 2014 amendment is starkly reflected in the cancellation statistics published on the Department of Home Affairs website. Prior to the amendments there were