By Emma Robinson
Griffith Law School
Visa cancellation on character grounds regularly makes the headlines and has done so for many years. Section 501 of the Migration Act 1958 (Cth) contains a discretionary and mandatory power to cancel a visa where a visa holder has failed the so-called character test. Various amendments over the years have widened its reach, with another attempt, the Migration Amendment (Strengthening The Character Test) Bill 2019 (Cth) (the Bill), currently before the House of Representatives.
The Bill seeks to add to the grounds on which a person can fail the character test and thereby enliven the discretionary cancellation power. The present iteration of the character test already contains a broad range of conduct that would cause a person to fail the character test, including a substantial criminal record; an association with others involved in criminal conduct; a person’s past or present criminal or general conduct; offences relating to people smuggling, trafficking, genocide or war crimes and the list continues.
The proposed amendment states that a person does not pass the character test if they have been convicted of a “designated offence”, defined as an offence involving physical elements such as violence against a person, non-consensual conduct of a sexual nature AND punishable by imprisonment for life or for a fixed term of not less than 2 years or for a maximum term of not less than 2 years.
While failing the character test due to a designated offence will enliven the discretionary cancellation power and afford the visa holder the opportunity to respond, the Minister may instead exercise his or her personal power to cancel under s 501(3). In such cases natural justice does not apply as the visa holder is not given the opportunity to respond prior to the visa cancellation. The repercussions of visa cancellation are significant: the non-citizen becomes unlawful, may be detained, will be removed from Australia and potentially, face a life-long ban on returning. It is therefore critical to scrutinise proposed changes to the s 501 character cancellation power. History has shown us the far-reaching nature of this power, which is worth revisiting now.
In 2006 the Commonwealth Ombudsman launched an own-motion enquiry into the use of the s 501 power to cancel the visas of long-term Australian residents and made recommendations that long-term residents be treated differently to other lawful non-citizens.
Despite this, s 501 continues to be used to cancel long-term resident visas, and the introduction of mandatory cancellation under s 501(3A) in 2014 super-charged character cancellation. Under s 501(3A) the visas of non-citizens serving time who fail the character test on certain grounds, must be cancelled. The mandatory nature of the s 501(3A) cancellation power provides the non-citizen no opportunity for response prior to cancellation. Upon cancellation they become unlawful non-citizens, subject to immigration detention and removal from Australia.
Just last week we learned that a long-term permanent resident, living in Australia since the age of three, had his visa cancelled under s 501(3A). The Department of Home Affairs’ attempt to deport him to PNG, his place of birth, was thwarted when PNG refused him entry into the country pending confirmation of his PNG citizenship.
Three separate attempts to cancel the of Indigenous Australian men under s 501(3A) also made headlines recently. Two of these cases are now the subject of a High Court challenge.
The current Ministerial direction setting out how a decision-maker is to exercise their discretion to cancel under s 501, lists the strength, duration and ties of the non-citizen to Australia as a consideration for the decision maker to take into account. The Direction provides however, that decision-makers should generally give more weight to primary considerations, being, the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and the expectations of the Australian Community.
Even prior to the introduction of the mandatory character cancellation power, the Haneef case highlighted the broad discretionary power to cancel under s 501. In this case, the Minister used his personal power to cancel Dr Haneef’s visa on character grounds, without natural justice despite the lack of an adverse security assessment by ASIO. The cancellation was later set aside by the Federal Court, a decision upheld on appeal to the Full Federal Court. In his Report of the Inquiry into the Case of Dr Mohamed Haneef, Mr Clarke QC found the cancellation of Mr Haneef’s visa, in the absence of an adverse ASIO assessment, “mystifying”.
The Parliamentary Joint Committee on Human Rights has reported on the current Bill’s incompatibility with several human rights including Australia’s non-refoulement obligations, the right to an effective remedy, right to liberty, prohibition on expulsion without due process, right to protection of the family and the obligation to consider the best interests of the child.
Given the already far-reaching powers contained in s 501 and the often problematic exercise of those powers, the need and justification for strengthening the character test should be questioned.
 Section 501(6)
 Substantial criminal record is defined in s 501(7) and includes imprisonment for life, a single sentence of 12 months or more, 2 or more sentences that add up to 12 months or more.
 Also, breaching an order made by a court or tribunal for the person protection of another person, using or possessing a weapon, aiding or abetting any of the designated offence.
 Section 15, Migration Act
 Section 189, Migration Act
 Section 198, Migration Act
 If special return criterion 5001 is a criterion of the visa subclass applied for.
 Commonwealth Ombudsman (Australia) and John McMillan, Department of Immigration and Multicultural Affairs : Administration of s 501 of the Migration Act 1958 as It Applies to Long-Term Residents (Commonwealth Ombudsman, 2006).
 Direction No. 79 – Migration Act 1958 – Direction under Section 499 Visa Refusal and Cancellation under S501 and Revocation of a Mandatory Cancellation of a Visa under S501CA. Paragraph 8(4)
 Section 501(3), Migration Act
 Minister for Immigration & Citizenship v Haneef  FCAFC 209
 MJ Clarke, Report of the Inquiry into the Case of Dr Mohamed Haneef (2008) at viii.
 Parliamentary Joint Committee on Human Rights Human Rights Scrutiny Report (2019) <http://www.aph.gov.au/joint_humanrights/>.