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Government lowers bar to trigger visa cancellation



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 ‘about’ 100 cancellations per year. After the amendment there have been ‘about’ 1000 per year. Approximately 40% of these have been New Zealanders. It's little wonder there has been some trans-Tasman friction over the issue.

The ultimate decision to not revoke a cancellation is discretionary. There is a published ministerial guideline (currently direction 90) which deals with how the discretion is exercised. As you would expect the primary considerations are the safety and expectations of the Australian community (everyone is expected to be law abiding etc). Crimes which involve family violence or children understandably tilt the discretion in favour of non-revocation.

Under the proposed amendments, although the discretion would remain, a person would not meet the character test if the penalty for their offence was two years or more. This is regardless of the actual sentence given or even whether a custodial sentence is given at all. It would create a situation where the state criminal justice systems might release someone on a community corrections order on the basis that they are low risk or re-offending but they would still be at risk of visa cancellation.

Even under the current system, it often seems unfair to me that people who have served their sentences are then deported. Serious violent serial offenders are relatively rare and in a different category. Many people caught in this net are one off offenders who have learnt their lesson. Many do have supportive family and community ties in Australia. Families that survive the imprisonment are often separated by the deportation.

There are also issues with long term residents. For me, the high water mark is the case of Stefan Nystrom. Nystrom was 27 days old when he arrived in Australia. He committed a large number of serious crimes (both as a minor and as an adult). He never obtained Australian citizenship. His permanent residence was cancelled and he was deported to Sweden in 2006, a country where he had never been, had no ties and couldn't speak the language. Although length of residence is given some weight in decision making, at what stage should we be deciding that people like Nystrom are our problem to deal with?

I am really not sure why it is thought to be necessary to lower the character threshold. I accept that achieving a balance is difficult. In many cases the existing cancellation powers already operate to produce a harsh outcome. The proposed changes will only make things worse. There is no pressing law and order issue here. The changes are unnecessary and are to a large extent flying under the radar without much public awareness.



Paul Cutler is a Sydney based barrister and migration lawyer.

Main image: Australian Coat of Arms (Getty Images)

Topic tags: Paul Cutler, Visas, Migration Amendment, Cancellation, Criminals, Strengthening the Character Test



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Existing comments

With this government, you would fail the character test if you voted Labor. Quick quips aside, it's pretty typical of this government to avoid taking responsibility when things go wrong. If someone came to Australia when they were just a few days old, I think we bear some responsibility for how they turned out.

Erik Hoekstra | 08 March 2022  
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Its quite absurd that we live in fear of seeing our family members deported. Its equally absurd that having two children and a secure job is clearly not enough to qualify for citizenship. A friend from the UK found only when a mortgage was taken out for more than $1m that they suddenly were eligible.
Now how many can afford to take out a mortgare at all today?
The way the LNP is thinking (if they ever do that) citizens aren't even safe.

Anthony James O'Connell | 08 March 2022  

This is an issue of when it is proper, in a civil context, to anathematise or excommunicate. Persistent, hardened heresy against serious values would be a reason although there is plenty of room for discussion as to what persistent and hardened heresy is or what values are serious.

If you believe that God is real, the track towards understanding starts with questions in theology, runs through expressions of secularised philosophy, and ends, or is fulfilled by, the practicalities of ideology, which, in good scientific method tradition, can test outcomes against the hypotheses made in theology and philosophy.

The writer is searching for a canonical answer to the height of the bar. Only the explicit use of other canons can produce an honest canonical answer.

roy chen yee | 10 March 2022  

Power corrupts, and absolute power corrupts absolutely. The problem with the current visa-cancellation provisions of Australian law is that too much power is in the hands of one person and that appeals to the misuse or abuse of that power are meaningless. If 'exile' is to be a possible component of the punishment following conviction for some crime, then its imposition or not should be the role of the sentencing judge who has heard all the evidence, not a member of the executive who is not accountable to follow the conventions of the process of law.

Ginger Meggs | 10 March 2022  

The government withdrew this bill from the Senate on 30 March 2022.

Paul Cutler | 04 April 2022  

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