Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to 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.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to oppose the Migration Amendment (Character and General Visa Cancellation) Bill 2014 on behalf of the Australian Greens. We oppose this bill as it hands unprecedented power to the minister of the day to cancel and refuse a person's visa, denies procedural fairness, risks breaching fundamental human rights and will result in people being subjected to indefinite detention. The Minister for Immigration and Border Protection currently possesses wide-ranging powers to refuse and cancel visas. Why on earth he thinks he needs more powers is beyond me. These powers enable the minister to regulate noncitizens in Australia and to protect the Australian community from any risk that may be posed—these are powers that the minister already has. This bill seeks to significantly and unnecessarily expand the powers the minister currently has.

The amendments proposed by this bill have been rejected outright by legal experts across the country. They have said to the Senate committee that inquired into this bill that the Senate should oppose this bill as the changes have not been adequately justified and are completely unnecessary. The government's rationale has been completely insufficient in light of the drastic changes this bill seeks to implement. Simply stating that the character provisions have remained unchanged since 1999 is not sufficient, particularly when the current legislation is far reaching in its ability to revoke or cancel visas, which would have a significant impact on the livelihoods of people.

This bill is an attempt to bolster the government's narrative of fear and suspicion. That is why this bill has been put forward today. Rather than embracing diversity and celebrating the 'Australian way', this bill seeks to stir up xenophobic behaviour and establish a climate of fear in Australian communities. This bill, like many others put before this place by the Minister for Immigration and Border Protection, is just another power grab by the minister. The minister has handed himself unfettered power to determine a person's future. This extension of power is completely unacceptable, particularly when we are talking about people's livelihoods, their children's livelihoods and the impact on their entire families. It seems that the desire for unchecked power has become a recurring theme in this place for the Minister for Immigration and Border Protection.

This bill, if passed, will give the minister unprecedented power to refuse or cancel a person's visa if they fail the character test or if the minister is satisfied that a refusal or cancellation is in the national interest. We know of course how this minister uses the argument of national interest. We have seen it used in this place to deny this chamber access to information that we have requested on a regular basis. It is quite simply not acceptable to leave it up to the minister to determine what constitutes national interest when making a decision about whether to refuse or cancel a person's visa. This is a 'trust me' moment by the minister—'Just trust me and I will do the right thing.' Well this minister has no track record of doing the right thing. We know that in fact, if anything, if we give this minister an inch he will take a mile.

The expansion of the minister's powers will enable him or her to revoke an individual's visa if incorrect information was provided at the time of application, to cancel a visa if the minister is not satisfied of the visa holder's identity, to retrospectively apply the new powers to past visa grant decisions and to overrule the decisions of independent authorities, such as the Administrative Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal. Of particular concern is the minister's ability to overrule merits review decisions and effectively deny a person natural justice. This is a minister who is drunk with power and just wants more. These changes will deny the right to a fair hearing. Should this bill pass there will be no checks and balances in place on the minister's powers. This will undoubtedly result in incorrect decisions being made, putting people at risk of indefinite detention or, worse, putting them in harm's way.

Further to this, if this bill is passed it will increase the circumstances in which a person would fail the character test, will enable visa cancellation on the grounds of association and will make visa cancellation mandatory in certain circumstances where a person is suspected of failing the character test. This bill also seeks to significantly lower the risk threshold, which will result in an increase in individuals failing to pass the character test and to see individuals' visas cancelled in circumstances where they may not actually present a real risk to the community. That is, of course, the minister having his way and making his decision on the final decision. Let's not forget that there are mistakes made in relation to these areas. There have been mistakes made in relation to these issues before. Let's not forget the case of Dr Haneef.

Visa cancellation on character grounds can have significant consequences for individuals. Should a person be denied a visa on character grounds there is a very real risk that they will be subjected to indefinite detention or deportation potentially putting their lives in very real danger. This is particularly concerning, of course, for asylum seekers and refugees. A personal decision by the minister to cancel a visa may result in an individual facing indefinite detention as, unlike other individuals to whom the broadened cancellation powers apply, they cannot be removed from Australia due to fears of persecution or serious harm in their homeland. So this bill allows the minister to cancel their visa but, because they are a refugee, they cannot be removed from the country and therefore they are put in indefinite detention, indefinite incarceration, potentially for the rest of their lives.

The amendments will grant the minister the power to cancel a visa if he or she is not satisfied of the visa holder's identity or when incorrect information has been provided at the time of application. These powers will disproportionately affect asylum seekers and refugees, as they fail to recognise the realities of fleeing persecution. We know that often many asylum seekers regularly flee their homes in a hurry, without the time to collect their identity documents. Sometimes their identity documents were taken off them by the very authorities they are fleeing. Asylum seekers are often forced to flee for their lives by whatever means necessary, sometimes—believe it!—using false documents so that the authorities that they are fleeing cannot find them, hunt them down and kill them before they leave their countries. Governments routinely seek to control minorities and opposition groups by denying them passports or identity documents in the first place. Requesting an identity document after an asylum seeker has fled their country can raise interest in that person and their family remaining in their home country, making such inquiries far too dangerous to carry out. Doing so may result in those in genuine need of protection being subjected to indefinite detention or returned to danger. As you can see, Acting Deputy President Peris, the changes in this bill will overwhelmingly impact on those who, by no fault of their own, are not able to have these identity documents at hand.

Additionally, the bill states that an individual will not pass the character test if they have been assessed by ASIO to be, directly or indirectly, a risk to security. This amendment will have significant implications for refugees who are today currently locked up in immigration detention. These assessments, it is important to remember, are not reviewable. The people who these assessments are made of are not able to know why and are not able to see the evidence before them. They are not done in any transparent manner. All the people in immigration detention who have been given an adverse security assessment by ASIO have no right to know why ASIO believes they could be a potential risk to security.

It is clear that the broadened cancellation powers, which do not allow for adequate review, could result in further chances of refugees facing prolonged indefinite detention with no prospect of release, in violation of Australia's international human rights obligations. I understand that the current going theme of this government is not to give two hoots about international conventions or obligations, but when we are passing legislation like this in this place, the Senate should consider it.

It is not just refugees and asylum seekers that will be affected by the changes outlined in this bill. The amendments will have significant implications for long-term residents. Individuals who have lived in Australia for most of their lives could be deported to a country where they have no family ties or livelihood. These amendments could also result in family separation.

Overall, the Australian Greens believe that the amendments proposed in this bill are unnecessary and have not been sufficiently justified by the minister responsible. This bill is nothing more than a power grab by the immigration minister. The minister has handed himself unfettered power to determine a person's future—to decide whether that person has a right to a life here in Australia. The extension of power is completely unacceptable, particularly when we are talking about the livelihoods of individuals and their families. The proposed changes threaten a person's fundamental human rights and will result in the very real risk of arbitrary and indefinite detention for refugees and asylum seekers.

The government seems to be obsessed with treating vulnerable refugees with total contempt in this country. Rather than treating asylum seekers and refugees with care and compassion, this government is obsessed with subjecting them to a life of uncertainty and fear. It is clear that this government is intent on stripping away all rights and protections for these people, putting at risk the very rights that as Australians we hold dear. Instilling fear and playing politics has become the order of the day rather than upholding and celebrating what makes this country great. This minister is obsessed with power. Every bill that is currently before this place at the moment by the immigration minister is about giving him more, unfettered power. He is drunk on power. He cannot get enough of it. He has got an addiction. It is for these reasons that the Greens strongly oppose this bill.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

The people of Australia agree with me and I think most in this chamber that Mr Morrison has been a magnificent Minister for Immigration and Border Protection, ably assisted I might say by his colleague minister in this chamber, Senator Cash. Most Australians were appalled at the situation where there was unfettered entry into our country. The coalition prior to the last election promised that we would stop the boats, and I have to say all credit to Mr Morrison and the government more broadly in that they have actually stopped the boats.

I chaired the Senate Legal and Constitutional Affairs Legislation Committee, which looked into the Migration Amendment (Character and General Visa Cancellation) Bill 2014. I did not get an opportunity to speak on the committee's report when it was tabled, so I just want to make a couple of very brief comments on the committee's view of this bill. In so doing, can I again thank the committee secretariat for the work that they have done in presenting a balanced report to the Senate for the Senate's information. Can I also thank all of those who gave evidence to the committee.

This committee has at times made recommendations that were sometimes not of the government's liking, but I am pleased to say that in most instances the minister has been prepared to look carefully at what the committee has said, and in some cases there have actually been amendments. So I thank the minister for that, but, more importantly, I want to emphasise that the committee system does work and that sometimes issues arise in the committees of parliament that were not properly assessed by the department and the advisers to the minister. I am pleased to see that the minister has an open mind on views of the committee.

The whole purpose of this bill—and I am repeating here something from the minister's second reading speech, so it will not be a big quote—is:

… to strengthen the character and general visa cancellation provisions in the Migration Act to ensure that non-citizens who commit crimes in Australia, pose a risk to the Australian community or represent an integrity concern are appropriately considered for visa refusal or cancellation.

Who could object to that? If people are here applying for visas, but they are committing crimes in Australia, or they are posing a risk to the Australian community, or they are representing an integrity concern, then clearly the minister should have all of the appropriate powers for visa refusal or cancellation.

The bill also 'introduces a mandatory cancellation power for noncitizens who objectively do not pass the character test' or 'are in prison'. Again, which Australian would think that was unfair? If someone were in a prison, obviously for committing a criminal offence, who would think that it is unreasonable that their visa application should be closely assessed? I point out that a variety of submissions to the inquiry questioned the utility of the change.

There is a statement of compatibility with human rights, and this is set out in the explanatory memorandum. I just want to highlight that. The statement said:

The Australian Government is committed to protecting the Australian community from the risk of harm by non-citizens. The Government has a low tolerance for criminal, non-compliant or fraudulent behaviour by non-citizens and should be able to refuse entry to people, or cancel their visas, where they have committed serious crimes or present a risk to the community. Facilitation of entry needs to be complemented with strong cancellation powers and processes to ensure that the Government's ability to protect the Australian community and maintain the integrity of the Migration Programme is maintained into the future.

Again I ask: which Australian could object to that?

You have heard from the previous speaker, representing the Greens, the usual form of inflammatory, usually inaccurate—usually inaccurate, and I emphasise that—commentary on this and any other bill. There is a standard approach by the Greens political party: throw out there every objection, every threat, every misstatement of the truth that you can grab from anywhere that might grab a media headline from the ABC or the left-wing press. A lot of what was said in the Senate today by the previous speaker fits that category: a bit short on fact and reality but good for a one-line grab in the media.

I point out that the Police Federation of Australia, in their submission to the inquiry, said that the proposed amendments are justified on the grounds that they ensure that the migration regime is properly 'enforced in a manner that best protects the Australian community'.

I indicate that the committee noted:

… while the nature of Australia's migration program has changed dramatically over the past two decades, the relevant frameworks in the Bill have not been substantially changed to reflect this change. Generally speaking, the committee considers that the provisions—

of the—

Bill represent a sound and justifiable approach to the need to update the relevant frameworks in the Act so as to bring them into line with the current migration program.

To put it another way, the current rules were there when we had an ordered migration program and when people understood what the rules were for entry into Australia. In the last 10 years or so there has been an influx of illegal maritime arrivals. Under the Howard government these were stopped. Under the Rudd-Gillard-Rudd governments, the doors were opened to anyone who had the thousands of dollars needed to pay a criminal people smuggler to come into Australia. This activity, of course, whilst it allowed in a lot of wealthy people who had the money to pay the criminal people smugglers, meant that those who were waiting in squalid refugee camps around the world for their chance to get into Australia under Australia's very generous refugee entry provisions had to wait another year because some wealthy person had jumped the queue, paid the criminal people smuggler and then expected to be welcomed with open arms in Australia. Well, I am sorry; that is not how we do things in Australia. That is how the Greens political party would do it, that is how the Labor Party did it, but that is not the way that most Australians want. This bill is part of a general approach by the minister to do what the Australian people want him to do.

I conclude by making a brief reference to the recommendations of the committee. The second recommendation is that the committee recommends the Senate pass the bill, subject to recommendation 1. The committee acknowledges the human rights concerns raised by submitters. However, the committee noted that the statement of human rights attached to the explanatory memorandum stated that:

… questions of proportionality will be resolved by way of comprehensive policy guidelines on matters to be taken into account when exercising the discretion to cancel a person's visa, or whether to revoke a mandatory cancellation decision.

The current guidelines in ministerial direction No. 55 affirm Australia's commitment to upholding its human rights obligations with particular reference to non-refoulement, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. The committee acknowledged in its report that:

… these guidelines are not binding when determining matters under the general visa cancellation framework but considers that the guidelines could be extended to apply to cancellation decisions made under the general visa cancellation framework.

So the committee, in its first recommendation, suggested to the minister and the government that the current directions be updated and extended so as to reflect the proposed amendments to the Migration Act and, in particular, to ensure the direction applies to cancellation decisions made under the general visa cancellation framework. I am sure that the minister would have carefully considered that recommendation of the committee and I would hope that the minister may have been able to adopt and accept that recommendation and put it into practice. With that qualification, I strongly support this bill, as did the committee that investigated it.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

As the Australian Greens spokesperson on legal affairs, I rise to oppose the passage of the Migration Amendment (Character and General Visa Cancellation) Bill 2014. I do this on the grounds that it hands unprecedented power to the immigration minister and puts Australia at risk of breaching a number of fundamental human rights, including freedom from arbitrary detention and freedom of association. The bill also creates a perpetual environment of legal uncertainty for visa holders in Australia, subjecting them to the possibility of visa cancellation on the basis of an extremely wide executive discretion that, in most cases, cannot be subjected to meaningful review. I am joined by some of the most credible legal voices in Australia when I call on the Senate not to pass this harmful legislation.

The government has not articulated why these changes are necessary. We are not talking about a small tweaking of the legislation; we are talking about broad and sweeping changes that have the potential to harm a great number of people. This is part of this government's agenda to instil fear in the Australian community and to play to the worst in our country, rather than to the best. It is a part of their shameful agenda to break the hopes and spirits of those who come to us fleeing persecution. It is not only at odds with our obligations under international law; it is also at odds with who we can be as a nation—a generous, accepting, welcoming and diverse nation. I worry about this government's legacy into future years and the seeds of fear and division they are sowing. I fear that we will all reap this crop and I fear that the damage that they are doing to our social fabric will not be easily repaired.

This is complex legislation with far-reaching consequences, so it is important to consider exactly what this bill does. As currently drafted, the migration act contains a range of powers that allow the immigration minister to cancel a person's visa if he or she poses a risk to the safety of the Australian community. These already include powers to cancel or refuse visas on the grounds that the applicant or visa holder fails what is called the 'character test'. Currently, a person does not pass the character test if they have a substantial criminal record; a conviction for immigration detention offences;    an association with persons suspected of engaging in criminal conduct or with past and present criminal or general conduct; or if they    pose a significant risk of particular types of future conduct. Currently, the minister may also refuse to grant or may cancel a person's visa if he or she reasonably suspects that the person does not pass the character test and the minister is satisfied that the refusal or cancellation is in the national interest. This power can only be exercised by the minister personally.

The proposed amendments in this bill will change this situation drastically, further expanding the already broad scope of the character test by broadening the power to refuse to grant or cancel a visa. If passed, this bill will increase the circumstances in which a person would fail the already broad character test; make visa cancellation mandatory in certain circumstances where a person is suspected of failing the character test; increase the minister's powers to cancel visas for providing incorrect information; give the minister further, wide-ranging personal powers to cancel a visa where a person does not meet the character test, a person gives incorrect information in relation to a visa or a circumstance relevant to the grant of the visa no longer exists. These ministerial powers would not able to be reviewed on their merits. These powers may even, in some circumstances, go against decisions of independent tribunals that are based on the examination of evidence and finding on the basis of merit, including certain findings of fact.

The cancellation or refusal of visas on character grounds are serious matters. They might mean that a person would be deported to another country or subjected to immigration detention. For asylum seekers—people seeking protection from persecution—in Australia, the cancellation or refusal of a visa on character grounds can result in indefinite detention.

Many of these issues were explored by the 2013 Background paper from the Australian Human Rights Commission which reviewed the human rights issues raised by section 501 of the Migration Act governing the refusal and cancellation of visas. The commission's paper outlines the risk that people who are refused visas or those whose visas are cancelled may be subject to arbitrary detention and family separation. The Australian Greens are concerned that, if enacted, this bill has exactly this potential for harm.

But it is not just applicants for protection visas whose lives will be affected by the changes proposed in this bill. The proposed amendments will also apply to people who have resided in Australia for a long time—sometimes, from childhood. In many cases, Australia is the only nation, the only home, they have ever known.

Given what is at stake, the government needs to make the case for why the existing visa cancellation powers in the Migration Act—which have been widely criticised for already being excessive—need to be changed. They are yet to make this case. If the government wants to make these broad and sweeping changes, the onus is on them to explain how the existing laws are not working and why each of the proposed changes is a necessary and proportionate response, given the serious impacts such powers have on the rights and freedoms of people living in Australia. As many commentators—including some who made submissions to the inquiry into the impacts of this legislation—have emphasised, the government has completely failed to make this case. No independent evidence or research has been made public that illustrates the need for these changes.

Although the explanatory memorandum says that the amendments aim to limit risk to the Australian community and to better capture visa holders who raise integrity concerns, it actually fails to set out why these amendments are a proportionate response to the harm that the bill seeks to avoid. It is a mere assertion.

The bill significantly expands the role for personal ministerial decision-making powers over visa cancellation and refusal—one individual; few checks and balances. The bill gives power to the minister to override any tribunal decisions, including those made through the Administrative Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal in relation to decisions not to cancel or not to refuse visas.

In addition, the bill proposes to exclude natural justice requirements from the exercise of ministerial powers. 'Natural justice' is really just another way of saying 'a duty to act fairly—to not be biased and to make sure someone has a fair hearing before making a decision'. Why would the minister's powers need to exclude this requirement? This is an unnecessary expansion of the minister's powers and undermines the integrity of the visa cancellation and refusal system. It puts those who are not yet citizens—or non-citizens who are permitted to be in Australia—at a perpetual risk of visa cancellation. As the Law Institute Victoria has submitted, this confers:

… on the Minister and his delegates a disproportionate amount of power to be exercised at any time at their discretion. In effect permanent residency is no longer permanent.

The situation is made worse by the introduction of mandatory cancellation provisions. At present, even if a person fails the character test they will not have their visa cancelled unless the minister, or a delegate, exercises a discretion to cancel. In considering whether to exercise this discretion, the minister may then take into account the particular personal circumstances of the visa holder, and without any action by the minister the visa will not be cancelled. This bill reverses the current position. Under this bill, all visas will be cancelled without notice in cases where a person is serving a full-time sentence of imprisonment for any offence, however minor, and the minister or their delegate is satisfied that the person has a 'substantial criminal record'. If the bill is passed, it is likely the minister will develop a blanket decree as to what constitutes a 'substantial criminal record', and there will be no opportunity for a visa holder to offer any other mitigating factors or explanations as to why the offence occurred.

Such a decision to cancel will be not reviewable by the Administrative Appeals Tribunal. So for a person whose past experience of trauma, torture or persecution may have contributed to the offence they have committed there will be no discretion; the cancellation of their visa will be mandatory.

Why on earth would the government need to go this far, when the minister can already intervene to cancel visas if the grounds warrant it? It is just another example of punitive overreach.

In addition, this bill provides that a person will not pass the character test where they have been assessed by ASIO as, directly or indirectly, a risk to security, or in circumstances where an 'Interpol notice' has been issued and is in force in relation to the person:

… from which it is reasonable to infer that the person would present a risk to the Australian community …

What is concerning about these provisions is that they effectively give up to ASIO the minister's duty to assess the risk posed by a person, without the minister or the person affected even being permitted to look at the reasons for the negative assessment. It is a case of, 'Take it on trust'—because ASIO never get things wrong, do they?

Of course this is especially worrying, because there is a real risk that ASIO's information, and, in particular, Interpol notices, can be wrong—and, indeed, have been wrong in the past, just as the Law Institute Victoria pointed out in their submission on this bill. They described the 2013 case of Egyptian asylum seeker Sayed Ahmed Abdellatif:

In Mr Abdellatif's case, it was found that an Interpol 'Red Notice' issued in relation to him at the request of the Egyptian government contained baseless information that he had been convicted of 'serious terrorism charges including murder and explosives possession.' Commenting on Mr Abdellatif's case, former Minister for Immigration Brendan O'Connor observed that Interpol notices were 'often wrong' and routinely contained false information, citing notices that had been issued in the past against Australian citizens in error.

And if we need any clear example about how governments or agencies or courts can get things wrong, we need look no further than the case of Australian journalist Peter Greste, still languishing in an Egyptian jail after a trial that excited condemnation from observers all around the world for its inadequacy, with the inexplicable verdict of guilty based on no credible evidence. Why is this government, so critical of the Greste decision and the findings of the Egyptian court in that case, so ready to rely on red notices issued at the behest of governments or institutions that are so potentially unreliable? And, again, these notices and assessments will cause visas to be revoked—deporting people, destroying lives—without the possibility of a review.

The features of Australian law being expanded by this bill, especially indefinite immigration detention, have consistently been criticised by domestic and international human rights bodies as amounting to arbitrary detention. This bill also seeks to limit the longstanding and fundamental right to freedom of association. Ironically this is one of the traditional rights that Attorney-General Brandis is so fond of citing and extolling, and it is a right that is now increasingly under threat throughout Australia. Under these provisions, a visa can be cancelled or refused on the basis of a person's association with another person who may not have even been convicted of any criminal offence but whom the minister 'reasonably suspects' has been involved in criminal conduct. This test, and in particular its reliance upon 'reasonable suspicion', applies an unacceptably low standard.

The proposed change is not limited to individuals who have been found guilty of criminal conduct by a court. Like many other clauses in this bill it does not require the minister to engage in any meaningful assessment of circumstances or evidence relating to the alleged conduct. As the Law Institute of Victoria has pointed out the minister would have the discretion to cancel the visa of a person in a range of possible scenarios that do not actually pose a risk to the Australian community:    entering their usual church where the priest was under investigation for a child sex offence,    joining in with a group with no convictions watching a current television series that has been illegally downloaded, or attending a political rally that may turn out to have associations with criminal or terrorist organisations or be attended by others with such associations without any knowledge that that is the case. It could include people who are related to another person in some way but who do not have any involvement in, or connection to, the criminal conduct. It could even potentially be a case where a person 'associates' with someone through being a neighbour or an acquaintance through a sporting club. And so we see here an evolving landscape in Australia, where vague associations are layered upon suspicions and build up a picture that could lead to a totally innocent person having their visa and their right to live in Australia cancelled. The zeal with which this government sets about denying asylum seekers and refugees justice, dignity and respectful treatment in Australia is shameful.

And, yes, there is more. This bill also proposes to allow the minister to cancel a visa if he or she is not satisfied as to the visa holder's identity.    The Australian Greens agree that establishing a person's identity is important for upholding the integrity of the migration program; however, the proposed changes do not acknowledge that there may be genuine and legitimate reasons individuals may have difficulties in providing evidence of their identity. The Refugee Advice and Casework Service have pointed out exactly how it has already occurred. They said:

… RACS has several clients who are from the Rohingya ethnic group who, according to the UNHCR, are among the world’s most persecuted people. Many Rohingya people have never been issued with any identity documents by the Burmese authorities and Burma (Myanmar) refuses to grant the Rohingya people citizenship, leaving them stateless. Retention of identity documents is a major problem for Rohingyas for both historical and political reasons.

The changes proposed in this bill are unnecessary in light of the broad cancellation powers and processes which are already available to the government to protect the Australian community.

The Australian Greens will not support this bill because overall it makes it far easier for visa holders or applicants to fail the character test. And then    it waters down the principles and protections that come from natural justice when the consequences of such a fail are being applied. Even further, this bill dramatically restricts visa holders' human rights and reduces the procedural fairness available to a person who might be subject to these powers. This bill creates a very real risk of arbitrary and indefinite detention for applicants who are seeking protection and effectively renders all visa holders subject to the perpetual risk of visa cancellation.

This bill also expands the discretionary powers of the immigration minister without providing for judicial oversight or sufficient safeguards to protect against misuse or overuse of these expansive powers. In the future, when we look back on how we are treating people who are in Australia and seeking protection or residency, we will see that this has been a dark time. Year by year restrictions are growing, rights are being curtailed, the arbitrary use of powers by the minister and officials is being expanded, and protections, checks and balances are being dismantled. Essentially, this bill has the effect of handing unfettered power to the immigration minister of the day—whoever that is today and in the future—and that is simply unacceptable when we are talking about people's lives. This bill is shameful and should not pass this place. Australia is so much better than this. The Australian Greens oppose this bill in the strongest possible terms.

Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I thank senators for their contribution to the second reading debate on the Migration Amendment (Character and General Visa Cancellation) Bill 2014. I thank the Senate Standing Committee for the Scrutiny of Bills for their contribution in the consideration of the bill. I also thank the Senate Legal and Constitutional Affairs Legislation Committee for their reports on the bill. In relation to the committee's majority recommendations, I confirm that the work is underway on a new ministerial direction to replace ministerial direction 55 to reflect the proposed amendments to the Migration Act 1958 as they apply to character decision-making. Consideration will also be given to appropriate ministerial guidance in relation to the general visa cancellation provisions to address the committee's concerns.

The purpose of this bill is to strengthen the character and general visa cancellation provisions in the Migration Act to ensure that noncitizens who commit crimes in Australia, pose a risk to the Australian community or represent an integrity concern are appropriately considered for visa refusal or cancellation. The bill also introduces a mandatory cancellation power for noncitizens who objectively do not pass the character test and are in prison. This bill is part of the government's commitment to ensuring the protection of the Australian community and the integrity of our migration programs.

The current legislative framework for the character and general visa cancellation provisions has been in place for some time. Amendments are necessary to ensure that we keep step with modern jurisprudence. Further, with streamlined processes facilitating entry of temporary residents for economic and other purposes, it is clear that facilitation of entry at the visa application stage needs to be complemented with strong visa cancellation grounds and processes at the post-visa-grant stage. This includes having appropriate responses available where noncitizens in Australia do not abide by the law, including by breaching visa conditions or engaging in criminal activity or migration fraud.

Consistent with community views and expectations, the Australian government, unlike the Australian Greens, has a low tolerance for criminal, non-compliant or fraudulent behaviour by noncitizens. Entry and stay in Australia by noncitizens is a privilege, not a right, and the Australian community expects that the Australian government can and should refuse entry to noncitizens or cancel their visas if they do not abide by Australian laws. Those who choose to break the law, fail to uphold the standards of behaviour expected by the Australian community or try to intentionally mislead or defraud the Australian government should expected to have that privilege removed.

To meet this expectation, the government must not only have the ability to act decisively and effectively wherever necessary to deal with unlawful, fraudulent or criminal behaviour by noncitizens but also have the legislative basis to effect a visa cancellation or refusal for those noncitizens. The bill ensures that protection of the Australian community and integrity of migration programs is paramount. It is reasonable that if noncitizens do not abide by Australian laws then they forfeit their right to remain here. I commend the bill to the Senate.

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

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

Question agreed to.

Bill read a second time.