Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Hansard source

The opposition will be supporting the Migration Amendment (Character and General Visa Cancellation) Bill 2014. This bill is designed to ensure that non-citizens who commit crimes in Australia and who pose a risk to the Australian community or have dubious integrity will be considered before a visa refusal or cancellation. Labor recognises that the government must have the capacity to act quickly against non-citizens who pose a threat or who may seek to do harm in our country.

The proposed changes in this bill represent the first significant updating of the visa cancellation provisions since the inception of the act. It is imperative that we have an immigration system that is able to easily identify people seeking to come to this country and who fail a character test. A number of changes contained in this bill arise from the review of the character and general visa cancellation framework conducted by the Department of Immigration and Border Protection in 2013. It is important to state that these changes will have no impact on the vast majority of those seeking to visit Australia. One area this bill seeks to address is the inadequate information sharing between the Commonwealth and the states and territories.

The bill provides greater power to the Commonwealth to obtain information from the states and territories that will allow a more rigorous assessment of visa applications and broader grounds for failing the character test. The bill contains amendments to the general visa cancellation provisions in sections 116 and 109 of the act—namely, to strengthen the measures for dealing with non-citizens who present an integrity, identity or fraud risk, to introduce lower thresholds for the cancellation of temporary visas or to provide stronger ministerial powers.

To expedite the process of visa cancellation there will effectively be a reversal of the onus of proof, where a non-citizen is serving a full-time sentence of imprisonment and has been found to objectively fail 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 largely discretionary. However, although the minister or a competent officer is not compelled to make a decision, these changes mean that there are more circumstances in which visas can be cancelled. Labor expects that the minister's increased powers 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 or a state or territory to disclose personal information that is relevant to whether a person passes the character test and the possible refusal or cancellation of a visa. At present, arrangements for sharing information between state and territory agencies and the minister are informal. This bill also seeks to broaden the existing grounds for failing the character test. The grounds will now also include where there is a reasonable suspicion that a person has been or is a member of a group or organisation or who has had or has an association with a group of organisation and that the person has been or is involved in criminal conduct. At present, this test requires a person actually to be aware of the criminal conduct of the group or the organisation. Where a non-citizen who has been convicted of a crime or crimes and received sentences totalling 12 months, regardless of how that total is reached, including serving the sentences concurrently, at present the person fails the character test if he or she has had one sentence of 12 months or a number of sentences totalling 24 months.

The bill also seeks to broaden existing grounds whereby 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 a person as described in the Migration Act; the crime of genocide; a crime against humanity; a war crime; a crime involving torture or slavery; or a crime that otherwise is of serious international concern whether or not the person or other person has been convicted of an offence constituted by a conduct. At present, the test requires that a person has actually been convicted of such an offence.

The bill also seeks to broaden the existing arrangements under circumstances where a person has in Australia or in a foreign country been charged with or indicted for one or more of the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery, or a crime that is otherwise a serious international concern. This would ensure that such people come within the ambit of the character test even if the penalty was less than 12 months imprisonment.

The bill also seeks to broaden existing grounds for failing the character test in circumstances where a court in Australia or a foreign country has convicted a person of one or more sexual offences involving a child or provided such charge against a person that would ensure that such people come within the ambit of the character test even if the penalty was less than 12 months imprisonment.

The bill also seeks to broaden the existing grounds whereby it is believed there is a risk of a person who is engaged in criminal activity even as not a significant risk. There are also new circumstances where the person has had an adverse ASIO assessment, where there is an Interpol notice from which it is reasonable to infer that the person would represent a risk to the community or in 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 existing provision, which provides for a failure of the character test for persons who have been acquitted on the grounds of insanity yet have been found to have committed an offence and been detained in a facility.

The bill also contains provisions that allow for 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 under provisions section 501 of the act, which applies to permanent visa holders.

These changes also clarify provisions for the minister to cancel a visa when the decision to grand the visa was based wholly or partly on a particular fact or circumstance that no longer exists—that is section 116(1)(a)—or that never existed: 116(1)(aa). 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, may be, would or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community or to the health or safety of an individual or individuals. This makes clear that it is enough that an individual Australian rather than the 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 for section 116 for the cancellation of a visa if the minister is not satisfied that a visa holder's identity has been confirmed. These provisions also seek to insert a new ground in section 116 for cancellation of a visa if the minister is satisfied that incorrect information was given by or on behalf of the visa holder as part of a relevant statutory process and that information was taken into account in the visa being granted.

These provisions also introduce personal ministerial powers to set aside and substitute decisions of delegates and tribunals and to cancel a visa personally on the grounds of section 109—that is, cancellation of a visa if the information is incorrect—or section 116, the general visa cancellation provision, with or without natural justice where it is in the public interest to do so. This is to ensure that when there is a real and immediate risk posed by a noncitizen the Commonwealth can act swiftly to remove that person.

The bill inserts 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 prison sentence. Where this provision applies there is an effective reversal of the onus of proof—that is, the visa will mandatorily be cancelled without notice, a cancellation notice will be provided after the fact and, where the decision is not revoked, the noncitizen will have access to a merits review. These provisions will help expedite the process of cancelling the visa of a person who has failed the character test and will ultimately expedite deportation upon release from prison. They will also ensure that, where such processes are not complete after the person's prison sentence is complete, the person can be placed in immigration detention rather than released into the community.

Labor supports these amendments, which provide for a more rigorous system to exclude noncitizens who do not adhere to the integrity standards that the community would expect of those who wish to visit or live in this country.