Michelle Rowland (Greenway, Australian Labor Party, Shadow Assistant Minister for Communications) Share this | Link to this | Hansard source

I rise to speak in support of the Migration Amendment (Character and General Visa Cancellation) Bill 2014. This bill is designed to strengthen character and general visa cancellation provisions to ensure that noncitizens who commit crimes in Australia and pose a risk to the Australian community or represent an integrity concern are appropriately considered for visa refusal or cancellation. The proposed changes in this bill represent the first significant update of the visa cancellation provisions since the inception of the act and are necessary to ensure current constraints are rectified when it comes to administering the character requirements of the Migration Act.

We recognise that government must have the capacity to act quickly against noncitizens who pose a threat or seek to do harm in our country. These proposed changes are necessary to protect the public through enhancing the capacity to refuse or cancel a visa for a noncitizen seeking to enter or remain in Australia. It is imperative that we have an immigration system that is equipped to be able to easily identify people who seek to come to this country yet who fail the character test and in that respect pose a threat or risk to Australian citizens.

A number of changes contained in this bill arise from the review of the character and general visa cancellation framework—the review—conducted by the department of immigration in 2013. It is important to state that these changes will have no impact on the vast majority of those seeking to visit Australia. It is essential that we have a network that is able to efficiently process those seeking to visit Australia, while ensuring the system has the capacity to prevent people who fail the character test from entering or staying.

One area this bill seeks to address is a deficiency in the information sharing between the federal government and the states and territories. The bill provides greater power to the Commonwealth to obtain information from the states and territories, with more information about visa holders that will provide for a more rigorous assessment of visa applicants and broader grounds for not passing the character test.

The bill outlines amendments to the general visa cancellation provisions in sections 116 and 109 of the act, to enhance measures for dealing with noncitizens who present an integrity, identity or fraud risk; introduces lower thresholds for cancelling temporary visas, reflective of the lower tolerance for behaviour concerns in the temporary visa context; and introduces stronger ministerial decision-making powers in relation to the general visa cancellation provisions.

In order to quicken the process of visa cancellation, an effective reversal of the onus of proof has been put in place in respect of visa cancellations where a noncitizen is serving a full-time sentence of imprisonment and is found to objectively not pass the character test. It is important to note that the changes in section 501 relating to the character test and those in section 116 relating to the general visa cancellation provisions are discretionary, except the mandatory cancellation power which gives effect to the onus reversal that I have just described.

The minister or decision maker is not compelled to make a certain decision. However, these changes mean that there are more circumstances in which people are in the frame for their visa to be cancelled. This legislation provides an increase in the decision-making power of the minister and, as a result, gives greater authority to the minister. Accordingly, there is an expectation that this increased power will be exercised in a manner consistent with the intention of the legislation.

The bill seeks to expand the powers of the minister to require the head of an agency, state or territory to disclose to the minister personal information that is relevant to whether a person passes the character test and the possible refusal or cancellation of a visa under section 501. Currently the information-sharing capabilities between state and territory agencies and the minister are informal.

The bill also seeks to broaden the existing grounds for not passing the character test. Under the bill, the existing grounds would be broadened to include the following. Where there is a reasonable suspicion that a person has been or is a member of a group or organisation, or has had or has an association with a group or organisation or person, that has been or is involved in criminal conduct. Currently this test requires that a person actually be aware of the criminal conduct of the group or organisation. Where a noncitizen has been convicted of a crime or crimes and they have received sentences totalling 12 months rather than 24 months, regardless of how that total is reached, including serving these sentences concurrently. Currently a person fails the character test if the person has had one sentence of 12 months or a number of sentences totalling 24 months. Where there is a reasonable suspicion that the person has been or is involved in conduct constituting an offence of people smuggling or an offence of trafficking in persons as described in the Migration Act, or 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. Currently the test requires that a person has actually been convicted of such an offence. Circumstances where a person has, in Australia or in a foreign country, been charged or indicted for one or more of the crimes 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. This would ensure that such people come within the ambit of the character test, even if the penalty were less than 12 months imprisonment. Circumstances where a court, in Australia or in a foreign country, has convicted a person of one or more sexually based offences involving a child or proved such a charge against a person. This would ensure that such people come within the ambit of the character test even if the penalty were less than 12 months imprisonment where it is regarded that there is a risk a person will engage in criminal activity and the like as opposed to a significant risk. Circumstances where a person has an adverse ASIO assessment. Circumstances where an Interpol notice in relation to the person is in force, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community. Circumstances where a person is mentally unfit to plead but has been found to have committed an offence and as a result has been detained in a facility or an institution. This extends the current provision, which provides for a failure of the character test for persons who have been acquitted on the ground of insanity yet have been found to have committed an offence and detained in a facility.

The bill contains provisions which apply to the general visa cancellation powers under sections 109 and 116 of the act. These provisions seek to lower the threshold for the cancellation of temporary visas. Until now, this cohort has been considered against the same higher threshold tests that apply under the character test provisions in section 501 of the act which pertain to permanent visa holders. These provisions also clarify the current framework, which states that a minister may cancel a visa where a decision to grant the visa was based wholly or partly on a particular fact or circumstance that no longer exists or that never existed. This part of the bill also seeks to clarify existing provisions that the minister may cancel a visa under section 116(1)(e) if the presence of its holder in Australia is or may be or would or might be a risk to the health, safety or good order of the Australian community, a segment of the Australian community or the health or safety of an individual or individuals. This makes clear that it is enough that an individual Australian, rather than a broader segment of the community, may be at risk. It also makes clear that potential risk as opposed to demonstrated risk is enough to activate the power.

The proposed legislation also inserts a new ground into section 116 for cancellation of a visa if the minister is not satisfied as to the visa holder's identity. These provisions also seek to insert a new ground into section 116 for cancellation of a visa if the minister is satisfied that incorrect information was given by or on behalf of the visa beholder as part of a relevant statutory process and that information was taken into account in the visa being granted.

The provisions also introduce personal ministerial powers such as they exist under the character test grounds to set aside and substitute decisions of delegates and tribunals and to cancel a visa personally on the grounds under section 109 or section 116 with or without natural justice where it is in the public interest to do so. This is to ensure that, where there is a real and immediate risk posed by a non-citizen, the government can act swiftly to remove that person before the risk is realised.

The bill seeks to insert a new mandatory ground for cancellation of a visa where a person does not pass the character test, because the person has a serious criminal record as newly defined in the act and is serving a full-time sentence in prison. Where this provision applies, an effective reversal of onus is put in place. That is, the visa will be mandatorily cancelled without notice, a cancellation notice will be provided after the fact, upon notification the non-citizen will be provided an opportunity to seek revocation of the decision and, where the decision is not revoked, the non-citizen will have access to merits review. These provisions will help expedite the process of cancelling a person's visa who fails the character test and ultimately expedite deportation upon release from prison. It will also ensure that, where such processes are not complete upon the expiration of the person's prison sentence, there is an ability to have the person placed in immigration detention rather than be released into the community.

The amendments contained within this bill are intended to provide the government with the capacity to protect the community from non-citizens who pose a risk or threat. The amendments will provide for the capacity to ensure a more rigorous system will be in place to act on those failing the character test and integrity standards the community would expect of non-citizens who wish to visit or live in Australia.

Scott Morrison (Cook, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I move:

That the question be now put.

Question agreed to.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

The question now is that the bill be read a second time.

Question agreed to.

Bill read a second time.