The Legislation Would Identify Specific Offences That Would Cause A Person to Fail the Character Test
The Morrison Government has introduced legislation in the Australian Parliament which is intended to strengthen the character provisions of the Migration Act 1958 by “providing a new and specific objective ground to consider visa cancellation or refusal where a non-citizen has been convicted of offences involving violence against a person, weapons, breaching of an apprehended violence order (or similar order intended to restrain a person from committing acts of domestic violence), or non-consensual sexual acts”.
The legislation is entitled the “Migration Amendment (Strengthening the Character Test) Bill 2018.
The bill was introduced to the Parliament on 25 October 2018. It was referred to the Senate’s Legal and Constitutional Affairs Legislation Committee on 15 November 2018. A report from that Committee is due on 18 January 2019.
The Explanatory Memorandum that accompanies the bill states that the legislation was introduced in response to the recommendations of the 2017 Joint Standing Committee on Migration report on migrant settlement outcomes entitled “No one teaches you to become an Australian”.
The principal feature of the bill is to add language to section 501 of the Migration Act to further define the circumstances under which a person will be considered to have “failed” the character test for the purposes either of refusal of a visa application or for the cancellation of a visa.
The bill would provide that a person does not “pass” the character test if he/she has been convicted of a “designated offence”.
The term “designated offence” would be defined at a new subsection 501(7AA) of the Migration Act to be an offence against a law in force in Australia or in a foreign country in which the physical elements of the offence involve one or more of the following:
- Violence against a person, including murder, manslaughter, kidnapping, assault, aggravated burglary and the threat of violence;
- Non-consensual conduct of a sexual nature, including sexual assault, the non-consensual commission of an “act of indecency” or the non-consensual sharing of n “intimate image”;
- Breaching an order made by a court or tribunal for the personal protection of another person;
- Using or possessing a “weapon” as defined under a new section 501(7AB) proposed by the bill;
- Aiding, abetting, counseling or procuring the commission of a designated offence;
- Inducing the commission of a designated offence , through threats, promises, or otherwise;
- Being in any way knowingly concerned in, or a party to, the commission of a designated offence, whether directly or indirectly;
- Conspiring with others to commit a designated offence.
The bill would also provide that in order to be characterizes as a designated offence, the offence must be one that would attract a certain level of punishment.
Thus, for offences against a law that is in force in Australia, a designated offence must be one that is subject to punishment either by imprisonment for life; imprisonment for a fixed term of not less than 2 years; or imprisonment for a maximum term of not less than 2 years.
For offences committed against the laws of a foreign country to be “designated offences”, the bill would provide that the offence be one that if it had taken place in the Australian Capital Territory, would be one that would have constituted an offence against the laws of the ACT and be punishable either by life imprisonment or by a fixed or maximum term of 2 years.
The bill would further specify that for the purposes of the designated offence of using or possessing a “weapon”, the term “weapon” will be intended to mean “a thing made or adapted for use for inflicting bodily injury” and one which the person in possession of it intends or threatens be uses to inflict bodily injury.
The bill provides that these new character provisions will apply both to decisions to the determination of visa applications that have been made before commencement of the legislation and which have not been finally determined as of the date of commencement, as well to as the determination of visa applications made post-commencement and decisions to cancel visas made after the legislation has commenced.