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Strengthening The Character Test Bill Passes

In February 2020, the Migration Amendment (Strengthening The Character Test) Bill passed the House of Representatives with the support of the ALP, which had initially opposed the proposed changes. The Bill, which was opposed by the Greens, seeks to amend the Migration Act 1958 so that a person does not pass the character test if they have been convicted of a ‘designated offence’. It would give the Minister a wider discretion to cancel or revoke visas where criminal convictions have been recorded. This article outlines the proposed changes and community responses to the Bill.

The character test

The character test is contained in section 501 of the Migration Act and empowers the Immigration Minister to cancel a person’s visa or to refuse to grant a visa under certain circumstances. These include where the person has a substantial criminal record, where they represent a danger to the Australian community and where they have received a negative security clearance from Australian Security Intelligence Organisation (ASIO).

A substantial criminal record is currently defined as, among other things, having been sentenced to a term of imprisonment of 12 months or to two or more terms of imprisonment totalling 12 months or more.

Importantly, the Minister has a discretion as to whether to cancel or refuse a visa when a person fails the character test. Failing the character test does not automatically lead to a visa being refused or revoked. However, the Minister must refuse or revoke a visa if the character test is failed because of child sex offending or if the person has been sentenced to a single term of imprisonment for 12 months or more.

The proposed changes to the character test

Under the proposed changes, a person would fail the character test if they had been convicted of a designated offence with a maximum penalty of two years or more. This would represent a significant shift from the current test, where the crucial factor is the sentence that was actually imposed. It would mean that a person could have their visa cancelled if they had been found guilty of an assault and sentenced to one month in prison because the maximum penalty applicable to the offence was two years imprisonment.

The change could result in visa-holders having their visas cancelled for very minor offending including offences that were dealt with by non-custodial sentences such as fines or a good behaviour bonds, simply because of the maximum penalty applicable for the offence.

What is a designated offence?

Under the Bill, a person could have their visa cancelled if they have been convicted of an offence committed in Australia that carries a penalty of more than two years imprisonment and involves:

  • Violence or the threat of violence against a person;
  • Non-consensual sexual conduct;
  • Breaching a court or tribunal order made for the protection of a person, such as a Domestic Violence Order;
  • Using or possessing a weapon.

A person could also have their visa cancelled if they aid, abet, counsel, procure, induce, conspire or are in any way knowingly concerned with the commission of a designated offence.

A person would also fail the character test if they had been found guilty of a designated offence in another country, if the offence would have carried a maximum penalty of more than two years if it had been committed in the Australian Capital Territory.

Public response

The passage of the Bill through the House of Representatives has been met with outrage from human rights and civil liberties groups. Jana Favero, the Director of Advocacy and Campaigns at the Asylum Seeker Resource Centre (ASRC) has called it ‘entirely unnecessary and harmful’, representing the introduction of unreasonably low thresholds to refuse or revoke a visa.

Concerns have been raised that the changes could lead to a large increase in visa cancellations. Some of these are likely to relate to people who have lived most of their lives in Australia and have few connections to their country of origin.

The government claims the changes are necessary to prevent criminals from remaining in Australia. It says that the Bill strengthens the character test by including a specific and objective ground for visa refusal or cancellation where a person has committed an offence in certain categories.

The Bill is expected to be debated in the Senate in March.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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