Australian Immigration Daily News

On 23 February 2017, amendments to the Migration Act 1958 relating to the cancellation of visas on character grounds came into force.

The amending legislation is entitled the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017.

As the name of this legislation indicates, the purpose of these amendments was to introduce further changes to the Migration Act “consequential to” an earlier amendment that came into force in December 2014, which was the Migration Amendment (Character and General Visa Cancellation) Act 2014.

The principal purpose of these amendments appear to be to provide clarification of the legal effects flowing from the addition of sections 501BA and 501CA, which were added to the Act through the amendments that were made in December 2014.

In brief summary, section 501BA relates to circumstances where a person’s visa has been cancelled under the mandatory cancellation provisions of section 501(3A) of the Act.  This mandatory cancellation provision was also introduced in December 2014. 501(3A) provides that a visa must be cancelled if the visa holder does not pass the character test by reason of having a substantial criminal record as defined under section 501(6) or because of having committed sexually based offences involving a child and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory of Australia.

Section 501CA is a provision that enables a mandatory visa cancellation on character grounds to be revoked (in other words, for the visa to be reinstated) by a delegate or by the Administrative Appeals Tribunal after receiving representations from the person whose visa has been cancelled. Under 501CA, the cancellation may be revoked if the delegate or the AAT is satisfied either that the visa holder passes the character test of section 501 or that there is another reason why the cancellation decision ought to be revoked.

Section 501BA is a provision that gives the Minister personal powers to overturn a decision by a delegate or the AAT to revoke the mandatory cancellation of a visa under section 501(3A).  (It would seem that it would have been more logical for the order of 501CA and 501BA to be “reversed”, with a section enabling the cancellation to be revoked being the earlier numbered section, and the section enabling the Minister to personally override the revocation of the cancellation coming next – but whatever!).

Following so far? It is a bit “head-spinning”, but a bit of background about what the December 2014 amendments were all about really does assist with understanding of these latest “consequential” amendments!

OK, here are the key provisions of the latest, February 2017 amendments:

• Detention powers: Sections 192(1) and 192(4) of the Migration Act have been amended to add references to section 501BA.  The effect of the amendment to s 192(2) is that if an officer knows or reasonably suspects that a non-citizen’s visa may be cancelled under s 501BA, the officer may detain the non-citizen.  The effect of adding the reference to 501BA to section 192(4) is that if a non-citizen is detained under section 192(1), the person must be released from “questioning detention” if the officer becomes aware that the visa is not one which may be cancelled under 501, 501A, or 501BA.
• Procedural fairness: The new amendments also add a reference to s 501BA to existing subsection 193(1)(a)(iv).  As described in the Explanatory Memorandum to the new amendments, the effect of this change is that if a person’s visa is cancelled by the personal decision of the Minister to override the revocation of the cancellation of a visa on character grounds, the visa holder does not need to be informed that they may only apply for a visa within 2 days after section 194 is complied with in relation to their detention, and does not need to be made aware of section 196. The policy rationale for this change is that a person who had previously had her/his visa cancelled by a delegate under the mandatory cancellation provisions of section 501(3A) will previously have been detained under section 189 and will therefore previously have been informed of their rights under sections 195 (which provides that a detainee has only 2 working days after being told of the consequences of their detention under s 194 to apply for a new visa) and under section 196.
• Period of detention:  References to sections 501A, 501B, 501BA and 501F have been added to subsection 196(4).  The stated purpose of this amendment is to clarify that when a person is taken into immigration detention as a result of having their visa cancelled on character grounds, the detention is to continue unless a court makes a final determination either that the detention is unlawful or that the person is not an unlawful non-citizen.
• Removal power if no representations made seeking revocation of cancellation:  A reference to section 501CA has been added by the amendments to subsection 198(2A)(c).  The purpose of this change is to clarify that if a visa holder whose visa has been cancelled personally by the Minister under the mandatory cancellation provisions of section 501(3A) does not make representations seeking revocation of the mandatory cancellation within the period allowed after being invited by the Minister personally to make such representations ,  or who has made representations to the Minister and the Minister  has decided  not to revoke the cancellation,

then the person is subject to removal.

• Bar against further visa application: A reference to sections 501B and 501BA has been added to subsection 501E(1)(a). The Explanatory Memorandum states that the purpose of this amendment is to prevent a person who has had a visa personally cancelled by the Minister pursuant to the override powers conferred by 501BA from making a further visa application while in the migration zone.
• Cancellation/refusal of other visas/visa applications:  Subsection 501F(1) has been amended to add references to sections 501B and 501BA. The effect of this amendment is that if a person’s visa is cancelled personally by the Minister under 501BA, any application that the person has made for a visa, other than for a protection visa or another visa specified in the regulations, is taken to be refused.  Furthermore, any other visa that is held, other than a protection visa or another kind of visa specified in the regulations, is taken to be cancelled.
• Exclusion from Australia: A reference to section 501BA is added by the amendments to subsection 503(1)(b).  The effect of this change is that a person whose visa has been cancelled by the Minister personally under section 501BA is not entitled to enter Australia or to be in Australia at any time during the period determined by the regulations. 

Questions? This email address is being protected from spambots. You need JavaScript enabled to view it.