contents of this article are correct as at 24 December 2014
On 11 December 2014 Migration Amendment (Character and General Visa cancellation) Bill 2014 became law which makes some significant changes to the character requirements and general visa cancellation provisions in the Migration Act 1958 (the Migration Act).
The Migration Act has been amended so that people in Australia on temporary visas can now have their visas cancelled even if they pose a low level of risk to the Australian community. The Migration Act will also be amended to provide the minister with the power to cancel a visa if he or she is not satisfied as to the visa holder's identity.
Amendments have been made to the Act so that visas can be cancelled if a fact or circumstance that led to the grant of a visa never existed or no longer exists. Visas can be cancelled if incorrect information was given by a person (or their representative) and that information was taken into account in the granting of a visa.
An amendment to the regulations will allow a Department officer to refuse to grant a visa if they request a police clearance certificate and it is not provided.
The Minister will be given more personal powers so that the government can quickly take action against noncitizens who pose a risk to the Australian community. The Minister will be able to personally set aside a decision of a delegate (Department officer) or of a Tribunal (such as the Migration Review Tribunal) if the Minister believes it is in the public interest to do so.
Natural Justice may or may not apply to the decision. If natural justice does not apply, this means a visa holder whose visa is cancelled does not get an opportunity to argue against cancellation and will not be able to see the reasons why the Minister cancelled their visa.
Another key reform will be that if a non-citizen is sentenced to a term of imprisonment for 12 months or more their visa (including permanent residency visas) will be automatically cancelled. The visa holder will then have an opportunity to provide submissions to the Department to revoke the cancellations. If the Department does not revoke the cancellation, the visa holder will have the opportunity to apply to a Tribunal. Very strict time conditions may apply in this case and people should contact a lawyer immediately if they are in this position.
The Migration Act will also be amended to provide that a person does not pass the “character test” if the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
- the crime of genocide;
- a crime against humanity;
- a war crime;
- a crime involving torture or slavery;
- a crime that is otherwise of serious international concern.
In addition, any person who has been found by a court to have engaged in sexually based offences involving a child automatically fails the character test.
People who fail the character test, but are not currently in gaol, will likely have to make submissions to the Department of Immigration that they are not a risk to the Australian community.
Lastly, and very importantly, people who have been sentenced to a term of imprisonment for 12 months in the past will be liable to automatic visa cancellation if they receive a gaol sentence in Australia of any length.
The new amendments will also make it compulsory that people being considered for visa cancellation be given 28 days to respond to provide reasons why their visa should not be cancelled. If you receive notification from the Department that your visa is being considered for cancellation contact a lawyer immediately.
If you have any queries concerning visa cancellation, please click this link to contact Visa Lawyers Australia for a discussion.