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Character and General Visa Cancellation

The Migration Amendment (Character and General Visa Cancellation) Bill 2014 has been passed by both Houses of Parliament and will come into effect when Royal Assent has been given by the Governor General.

Schedule 1 of the Bill amends the character test provisions and Schedule 2 amends the general visa cancellation powers of the Migration Act 1958. The purpose of the amendments are designed to ‘strengthen the powers to refuse to grant, or to cancel, a visa on character grounds by inserting additional grounds on which a person will not pass the character test’.

The Bill amendments include:

The ‘Character Test’ provisions are extended to capture:

  • Persons whom the Minister ‘reasonably suspects’ have undertaken, been charged or convicted of specific criminal related activities. Conviction for these activities is not a requirement for this power to be invoked
  • Persons who have been charged, indicted or convicted of specified crimes including child sex offences, people smuggling or trafficking and crimes against humanity
  • Persons who have been assessed by ASIO as a direct or indirect risk to Australia or with an Interpol notice in force
  • Persons with substantial criminal records, defined as being sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or if convicted of an offence they have been found unfit to plead on and been detained in a facility or institution

Mandatory cancellation powers and reviewable decisions:

Powers of mandatory visa cancellation, without notice, have been introduced for persons serving full time imprisonment and who have a substantial criminal record

  • This mandatory cancellation is not reviewable by the AAT, but can be revoked by the Minister personally or the Minister’s delegate
  • The decision not to revoke the cancellation by the Minister’s delegate is reviewable by the AAT
  • Where cancellation is revoked by the delegate of the Minister or the AAT, the Minister personally can set aside the revocation and cancel the visa on character or national interest grounds
  • Inserts new personal powers for the Minister to cancel visas under s106 & s116 and this decision is not reviewable by the AAT
  • A decision to cancel a visa under the new s 133A and s133C of the Act are not reviewable by the MRT
  • A decision made personally by the Minister to cancel a protection visa is not reviewable by the RRT
  • A decision made by a delegate of the Minster to cancel bridging visa for a person who is in detention because of that cancellation, is reviewable by the MRT

Further cancellation powers:

  • Where the decision to grant a visa was based wholly or partially on a fact that did not exist or no longer exists, the Minister may cancel a visa
  • A visa may be cancelled by the Minister if the presence in Australia of the holder is, may be or would be, a risk to Australia
  • If the Minister is not satisfied as to the visa holder’s identity
  • Incorrect information was provided to a government official and that information was taken into account in making a decision to grant a visa

Clarifies that:

  • Subsection 117(2) of the Act (preventing the Minister from cancelling a permanent visa) does not apply to the new grounds for visa cancellation
  • Refusal to grant a protection visa under s 65 of the Act is reviewable by the AAT, unless based on a decision to which a certificate under s502 applies
  • A person who holds a permanent visa that was granted by the Minister acting personally is not excluded from entering Australia or being in Australia under s503.
  • A s501E prohibition does not apply a person who was granted a permanent visa by the Minister acting personally

Information disclosure:

  • The Minister can require the head of an agency of a State or Territory to disclose to the Minister, personal information about a person whose visa may be cancelled under s501, subject to certain specified exceptions

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