Federal Government Proposes Changes to Migration Character Test

Tuesday 13 November 2018 @ 9.41 a.m. | Legal Research | Immigration

The Federal Government has introduced the Migration Amendment (Strengthening the Character Test) Bill 2018 (Cth) (‘the Bill’) on 25 October 2018. This Bill aims to make changes to the character test for prospective migrants to Australia for the purpose of ensuring increased safety to Australian citizens.

Main Aims of the Bill

The provisions of this Bill contain grounds related to visa refusal or visa cancellation for non-citizens who have committed serious offences. The Bill proposes to make the following changes:

  • Amendment of the character test, contained in the Migration Act 1958 (Cth) section 501 to provide grounds for visa refusal or cancellation where the person has committed a serious crime;
  • Amendment of the definition of ‘character concern’ in the Migration Act 1958 (Cth) section 5C.

According to a media release  issued by the Department of Home Affairs, the following designated offences are proposed to be inserted into the Migration Act 1958 (Cth) as part of the amendments:

  • violence against a person, including (without limitation) murder, manslaughter, kidnapping, assault, aggravated burglary and the threat of violence; or
  • non-consensual conduct of a sexual nature, including (without limitation) sexual assault and the non-consensual commission of an act of indecency or sharing of an intimate image; or
  • breaching an order made by a court or tribunal for the personal protection of another person; or using or possessing a weapon; or
  • procuring, or assisting in any way with one of these designated crimes; and
  • the offence carries a maximum sentence of two or more years imprisonment.

These offences are proposed to be inserted into the Migration Act 1958 (Cth) to constitute grounds for visa cancellation or refusal under the Bill.

Justification for the Amendments

In his second reading speech in the House of Representatives, Minister for Immigration, Citizenship and Multicultural Affairs David Coleman stated that there was currently a gap in relation to the current character test. He said:

‘Currently, a noncitizen would need to be sentenced to a minimum of 12 months in order for mandatory cancellation or refusal of their visa. However, this threshold is not capturing all those found guilty of serious criminality, including those who may not serve any custodial sentence and who may pose a continued risk to the safety of the community.’

Mr Coleman noted that the bill was based on a report by the Joint Standing Committee on Migration titled ‘No One teaches you to become an Australian’. This report made the following statement:

‘More Australians will feel safer knowing there are consequences for migrants who commit criminal offences. Strengthening the Character test provisions under section 501 of the Migration Act 1958 to remove repeat offenders will make Australia safer for everyone.’ (p xv)

On this issue, Mr Coleman stated that strengthening the character test provided a clear ground for consideration of cancellation of a visa or refusal to grant a visa on a discretionary basis:

‘Strengthening the character test in this way provides a clear and objective ground for which to consider the cancelling the visa of or refusing to grant a visa to a noncitizen who has been convicted of offences that involve violence against a person, including murder, manslaughter, kidnapping, assault, aggravated burglary and the threat of violence, nonconsensual conduct of a sexual nature, using or possessing a weapon or breaching an order made by a court or tribunal for the personal protection of another person.’

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Sources:

Migration (Strengthening Character Test) Bill 2018 (Cth), and associated second reading speech and explanatory memorandum, as published on TimeBase LawOne.

[media release] The Hon David Coleman MP, Minister for Immigration, Citizenship and Multicultural Affairs, ‘Strengthening the character test for non-citizens’, 25 October 2018.

[committee report] Joint Standing Committee on Migration, Inquiry into Migration Settlement Outcomes, 'No one teaches you to become an Australian', December 2017.

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