The Migration Amendment (Strengthening the Character Test) Bill 2021

Written By Rimsha Acharya

The Migration Act 1958 aims to regulate national interest in the movement of non-citizens

into Australia through implementation of visas. This is a means by which non-citizens are

either permitted to enter Australia, refused entry into Australia, or subjected to revocation of

their entry and thus deported from Australia. One of the criteria that needs to be satisfied to

be granted a visa is to pass the character test to ensure the protection of the Australian

community from criminal or other serious conduct. Section 501 of the Migration Act 1958

provides the grounds for refusal or cancellation of a visa of the applicant for not passing the

character test.

The Act provides Minister for Immigration breadth of discretion of power to cancel and

refuse visa on character grounds. The breadth of discretion and power given to the minister

has been a controversial topic and has also been described as “God like”. The 2014

amendment of section 501 of the Act introduced mandatory visa cancellations of non-citizens

where they have been sentenced to 12 months or more imprisonment or convicted of sexual

crimes involving a child.

The Migration Amendment (Strengthening the Character Test) Bill has been introduced again

in the Parliament. It was debated and rejected in 2019 and 2021. The bill aims to further

enhance the power given to the minister to refuse or cancel a non-citizen’s visa even if they

have not been sentenced. Immigration Minister Alex Hawke has claimed that the amendment

is required for cancellations of visas where non-citizens have received a reduced sentence.

Moreover, Prime Minister Scott Morrison has made comments to say that the judges are

deliberately handing out reduced sentence, so individuals do not fail the character test. These

comments and claims brings into question the independence of the judiciary and the

significance of sentencing in relation to offenders.

Moreover, when making decision relating to visa applications non-refoulement obligations is

secondary to the interest of the Australian community. The minister is not bound by the non-refoulement

obligation when cancelling a non-citizen’s visa. This puts at risk those who hold

protection visa and are subjected to cancellation of their visas should the new bill pass. It has

been reported that 846 out of 1,459 people in detention in Australia in September 2021 were

there as their visas were cancelled on character grounds. Those with protection visas and

refugee visas who do not pass the character test under the new bill will be held in detention

centres as they are not able to be deported. There has been several reports of the extremely

poor conditions of immigration detention. It is expected that there will be an increase in visa

cancellation and immigration detention should the bill pass. This will further exacerbate the

poor conditions of immigration detention and put the lives of non-citizens at risk.

The character test in the Migration Act aims to protect the Australian community however,

the new bill increases the risk of non-citizen’s deportation and detention. Safeguards should

be placed to ensure limits on the discretionary power given to the Immigration Minister.