Immigration Law

Refusal or cancellation of visa on character grounds

Under section 501 of the Migration Act 1958, a non-citizen visa could be refused to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. The Minister may cancel a visa that has been granted to a person if: (a) the Minster reasonably suspects that the person does not pass the character test and (b) the person does not satisfy the Minister that the person passes the character test.

The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to the refusal and cancellation of visa referred to in the above situation.

What is character test?

A person does not pass the character test if:

  • the person has a substantial criminal record or
  • the person has been convicted of an offence that was committed:  while the person was in immigration detention or during an escape by the person from immigration detention or after the person escaped from immigration detention but before the person was taken into immigration detention again; or
  • the person has been convicted of an offence against section 197A or
  • the Minister reasonably suspects: (i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and (ii) that the group, organisation or person has been or is involved in criminal conduct; or
  • the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:  (i)  an offence under one or more of sections 233A (people smuggling); (ii) an offence of trafficking in persons; (iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern; whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or
  • having regard to either or both of the following:  (i)  the person’s past and present criminal conduct; (ii) the person’s past and present general conduct; the person is not of good character; or
  • in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would” (i) engage in criminal conduct in Australia; or (ii)  harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way, or
  • a court in Australia or a foreign country has: (i)  convicted the person of one or more sexually based offences involving a child’ pr (ii) found the person guilty of such an offence, or found a charge proved for such an offence, even if the person was discharged without a conviction; or
  • the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following: (i) the crime of genocide; (ii) a crime against humanity; (iii) a war crime; (iv) a crime involving torture or slavery; or (v) a crime that is otherwise of serious international concern; or
  • the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
  • an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.

 

What is substantial criminal record mean? 

A person has a substantial criminal record if:

  • the person has been sentenced to death; or
  • the person has been sentenced to imprisonment for life; or
  • the person has been sentenced to a  term of imprisonment of 12 months or more; or
  • the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
  • the person has been acquitted of an offence on the ground of unsoundness of mind or insanity, as a result the person has been detained in a facility or institution; or
  • the person has: (i) been found by a court to not be fit to plead, in relation to an offence; and (ii) the court has nonetheless found that on the evidence available the person committed the offence; and (iii) as a result, the person has been detained in a facility or institution.

 

Deportation from Australia?

A non-citizen including a refugee who commits a crime in Australia may be deported or removed under certain circumstances including failure to pass the character test.

Under the Migration Act, there are powers under sections 200 and 201 to deport a non-citizen.

Apart from these two provisions, section 202 gives the Minister power to deport a person whom appears to the Minister that the person constitute a threat to national security after the Minister has been furnished with an adverse security assessment by the Australian Security Intelligence Organisation.

Under section  203, a non-citizen may also be deported if the person is convicted of certain serious offences, such as treachery and inciting mutiny.

Non-refoulement obligations

Ministerial Direction No 65 directs decision-maker to seek an assessment of an Australia’s international treaty obligations in respect of a refugee before a decision is made to cancel a protection visa.

A person whose visa was cancelled on the basis of character ground, the person may make an application with the AAT within 9 days for merits review of that decision.  There are limited legal grounds for appeal to the Federal Court and such application must be made within 35 days of being notified of the decision.

The legal principle of non-refoulement will not be applied to the situation where there are reasonable grounds for regarding a refugee as a danger to the security of the country, or if a refugee having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the country. (refer to Convention Relating to the Status of Refugees).

Section 197C of the Migration Act provides that:

(1)  For the purpose of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)  An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.