A new Ministerial Direction has been enacted to aid decision-makers in applying the character test in relation to visa cancellation and refusal decisions, and the revocation of mandatory visa cancellations.
Ministerial Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, made under Section 499 of the Migration Act 1958 (the Act), requires decision-makers to consider family violence as a primary consideration when making visa determinations.
It requires other forms of unacceptable behaviour towards vulnerable people, such as the elderly, to also be seriously considered by decision-makers.
The new Ministerial Direction also aims to target forced marriages and worker exploitation.
Ministerial Direction 90 commenced on 15 April 2021.
Let us now take a closer look at this new Ministerial Direction and how it is to be applied in visa-related decisions.
The Character Test
A non-citizen who does not pass the character test may have their visa application refused, or have their visa cancelled.
Under section 501(1) of the Act, a non-citizen may be refused a visa if they do not satisfy the Minister that they pass the character test.
Under section 501(2), a non-citizen may have their visa cancelled if the Minister reasonably suspects that they do not pass the character test, and the non-citizen does not satisfy the Minister that they do pass the character test.
Under section 501(3), the Minister may personally refuse to grant a visa to a person, or cancel a visa that has been granted to a person if the Minister:
- reasonably suspects that the person does not pass the character test; and
- is satisfied that the refusal or cancellation is in the national interest.
Where there is a discretion to refuse to grant or to cancel a visa, the Minister must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Under section 501(3A) of the Act, the Minister must personally cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test in specific prescribed circumstances, that is, where they:
- have a substantial criminal record (as defined in the legislation); or
- a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child, or found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; 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.
The rules of natural justice and the code of procedure for dealing fairly, efficiently and quickly with visa applications do not apply to a decision made by the Minister under section 501(3) or (3A).
What Is The Character Test?
A person will not satisfy the character test if they:
- have a substantial criminal record;
- have been convicted of an offence that was committed whilst they were in immigration detention, during an escape, or after escape and before being placed into immigration detention again;
- have been convicted of escaping from immigration detention;
- the Minister reasonably suspects that they have been, or are, a member of a group or organisation, or an association with a group, organisation or person which has been, or is involved in, criminal conduct;
- the Minister reasonably suspects that they have been, or are, involved in conduct constituting one or more of the following (irrespective of whether there has been a conviction of an offence):
- a people smuggling offence;
- a trafficking of persons offence; or
- the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
- having regard to either, or both, their past and present criminal and general conduct, the person is not of good character;
- if they are allowed to enter or remain in Australia, there is a risk that the person would:
- engage in criminal conduct in Australia;
- harass, molest, intimidate or stalk another person in Australia;
- vilify a segment of the Australian community;
- incite discord in the Australian community or in a segment of that community; or
- represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;
- a court in Australia or in another country has:
- convicted the person of one or more sexually based offences involving a child;
- found the person guilty of such an offence, or found a charge against them proved for such an offence, even if they were discharged without a conviction;
- they have been, in Australia or in another country, been charged with or indicted for (one or more of) the crime of genocide, humanity, a war crime, a crime involving torture or slavery, or a crime that is otherwise of serious international concern;
- they have been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security; or
- an Interpol notice in relation to the person, from which it is reasonable to infer that they would present a risk to the Australian community or a segment of that community, is in force.
What Is A Substantial Criminal Record?
A person will be deemed to have a substantial criminal record if they have been:
- sentenced to death;
- sentenced to imprisonment for life;
- sentenced to a term of imprisonment of 12 months or more;
- sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
- acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result, have been detained in a facility or institution; or
- found by a court to not be fit to plead, in relation to an offence and the court has, nonetheless, found that on the evidence available, they have committed the offence and, as a result, they have been detained in a facility or institution.
If the person has been sentenced to 2 or more terms of imprisonment to be served concurrently, the whole of each term is to be counted in working out the total of the terms. So, for example, if they have been sentenced to 2 terms of 3 months imprisonment to be served at the same time, for the purposes of the character test, the total of these terms is 6 months.
If the conviction has been quashed or otherwise nullified, or if the person has been pardoned in relation to the conviction, and the effect of that pardon is that they are taken never to have been convicted of the offence, any sentence imposed, or the conviction for an offence, is to be disregarded for the purposes of the character test.
A court order to participate in either a residential drug rehabilitation scheme or a residential program for the mentally ill constitutes imprisonment for the purposes of the character test.
How Is Ministerial Direction 90 To Be Applied?
The decision-maker must take into account the following considerations, where relevant to the decision:
- Primary considerations; and
- Other considerations.
In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
Primary considerations should generally be given greater weight than the other considerations.
One or more primary considerations may outweigh other primary considerations.
Protection Of The Australian Community From Criminal Or Other Serious Conduct
Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The following should also be considered:
- the nature and seriousness of the non-citizen’s conduct to date; and
- the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Nature And Seriousness Of The Conduct
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
The types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
- violent and/or sexual crimes;
- crimes of a violent nature against women or children, regardless of the sentence imposed;
- acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
The types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
- causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
- crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
- any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion;
- where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or escape from immigration detention.
Other factors to be considered:
- the sentence imposed by the courts for a crime or crimes (except where the above specifically states that the matter is to be considered, regardless of the sentence imposed);
- the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
- the cumulative effect of repeated offending;
- whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
- whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Risk To The Australian Community Should The Non-Citizen Commit Further Offences Or Engage In Other Serious Conduct
The tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to the following.
- The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
- the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
- information and evidence on the risk of the non-citizen re-offending; and
- evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken);
- where consideration is being given to whether to refuse to grant a visa to the non-citizen- whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Family Violence Committed By The Non-Citizen
This consideration is relevant in circumstances where:
- a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
- there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501 CA has been afforded procedural fairness.
In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
- the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
- the cumulative effect of repeated acts of family violence;
- rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
- the extent to which the person accepts responsibility for their family violence related conduct;
- the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
- efforts to address factors which contributed to their conduct; and
- whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
Best Interests Of Minor Children In Australia Affected By The Decision
The decision-maker must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
In considering the best interests of the child, the following factors must be considered where relevant:
- the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
- the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
- the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
- the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
- whether there are other persons who already fulfil a parental role in relation to the child;
- any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
- evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
- evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Expectations of the Australian Community
A non-citizen who raises serious character concerns through conduct, in Australia or elsewhere, of the following kind will have their visa refused or cancelled:
- acts of family violence;
- causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
- commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
- commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
- involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
- worker exploitation.
Other considerations to be taken into include:
- international non-refoulement obligations;
- extent of impediments if removed;
- impact on victims;
- links to the Australian community, including:
- strength, nature and duration of ties to Australia;
- impact on Australian business interests
International Non-Refoulement Obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
Australia has non-refoulement obligations under the:
- 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention);
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT),
- the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Extent Of Impediments If Removed
The decision-maker must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
- the non-citizen’s age and health;
- whether there are substantial language or cultural barriers; and
- any social, medical and/or economic support available to them in that country.
Impact On Victims
The decision-maker must consider the impact of the decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim/s, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Links To The Australian Community
The following aspects must be considered under this criterion.
The Strength, Nature And Duration Of Ties To Australia
The decision-maker must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that they have to the Australian community. In doing so, decision-makers must have regard to:
- how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia; and more weight should be given to time the non-citizen has spent contributing positively to the Australian community;
- the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Impact On Australian Business Interests
The decision-maker must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
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Australian Government – The Hon Alex Hawke MP – Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs – Media Release – Monday 8 March 2021 – Strengthened character test to safeguard the Australian community