Fortress Australia champion and prime minister of the nation Scott Morrison oversaw the passing of a raft of amendments to the Migration Act 1958 (Cth) in November 2014.
These served to strengthen the character test set out in section 501 of the legislation, along with making some other rather nasty reforms.
During the seven years since the changes were made by the then immigration minister, over 6,000 noncitizen residents have had their visas cancelled and either been deported to the country in which they were born or placed in ongoing immigration detention.
Prior to the reforms, the character test saw residents without citizenship status being deported if they’d been sentenced to at least 24 months prison. This saw small numbers of noncitizens having their visas cancelled annually. However, the 2014 changes dropped this to just 12 months’ time.
And as this law applies to multiple sentences and those handed down in the past, numerous residents have since been deported due to accumulating minor offences, with the largest cohort of people captured by these reforms being New Zealanders, who account for over 2,300 of deportees.
But this has not satisfied Morrison. His government went on to introduce laws into parliament in 2019 that sought to tighten the screws even further. And despite that bill having been voted down in October this year, the immigration minister has since tabled what’s basically the same bill again.
Draconian in reach
The recently introduced Migration Amendment (Strengthening the Character Test) Bill 2021 seeks to provide the immigration minister with discretionary powers to cancel the visa of a noncitizen if they’ve been convicted of certain offences here or overseas, regardless of the sentence applied.
Termed “designated offences”, the crimes stipulated are those that carry a maximum of at least two years prison time, and involve violence or the threat of it, non-consensual sexual acts, breaches of court protection orders, those involving a weapon, or procuring or assisting in such offences.
“The bill sends a clear message that the Australian community has no tolerance for noncitizens who have been convicted of such crimes,” said immigration minister Alex Hawke on introducing the new version of the failed 2019 legislation into parliament on 24 November.
Hawke also pointed out that this means the new laws would only really apply to those convicted of a designated offence which a court has determined didn’t warrant a gaol sentence of over 12 months as it wasn’t serious enough.
The minister further outlines that the proposed laws would not capture those convicted of common assault, unless their crime involves “bodily harm to another person”, “harm to another person’s mental health” or family violence.
“This new ground does not enliven mandatory cancellation powers,” the minister continued. “The amendments only seek to provide an additional, objective ground to consider refusing or cancelling a visa. The decision to refuse or cancel a visa using this ground will be discretionary.”
The Parliamentary Joint Committee on Human Rights delivered its assessment of the Strengthening the Character Test Bill on 8 December. It considers the laws may infringe upon a number of basic rights, especially as it will capture “those with strong ties with Australia, including family ties”.
Since the 2014 amendments came into play, there have been numerous documented cases involving adults who’ve been living in Australia since childhood being deported, which has seen families being split apart and individuals sent to countries where they have almost no ties.
The assessment further outlines that under current laws the minister already has the discretion to deport noncitizens in relation to the designated offences, so there appears to be no pressing or substantial reason that triggers the need for these further changes to migration law.
“The committee therefore considers, consistent with its previous findings in relation to substantially similar measures,” the assessment concludes, “there is a risk that this measure would be incompatible with a number of human rights.”
These laws will also capture refugees and stateless people currently under a protection visa or who arrive seeking asylum after having committed a designated offence overseas. And the implication of falling foul of these laws for these people is they can now be detained indefinitely.
Earlier this year, the government legalised indefinite immigration detention in response to a 2020 Federal Court case that saw an Iraqi refugee and long-term resident, who’d had his visa cancelled on character grounds prior to the 2014 changes, released after six years in detention.
Abiding by the principle of non-refoulement that Australia is bound to under international law, the federal government does not return refugees or asylum seekers back to the country from which they fled if it determines they risk facing potential irreparable harm.
In the case last year involving the Iraqi man in detention, a legal loophole in the nation’s migration law was determined, which meant the government couldn’t simply continue to detain him without the purpose of returning him to his country of origin “as soon as practicable”.
So, the Morrison government passed the Clarifying International Obligation for Removal Bill in May, which enshrined in the nation’s laws the ability for Canberra to hold a refugee, asylum seeker or stateless person in indefinite and ongoing immigration detention under these circumstances.
In August this year, the government was holding 117 noncitizens in immigration detention centres who’d been in there for over five years.
The newly-introduced laws before parliament further indicate a broad authoritarian drift in this country, with the Morrison government being so bold as to simply reintroduce failed legislation a month after it was voted down, which reveals a belligerent refusal to accept the want of the people.
Indeed, so successful have the section 501 character test amendments been in turfing out residents that deportee rights group Route 501 cofounder Filipa Payne told Sydney Criminal Lawyers in June that the government has now turned to another 2014 enhanced law to continue the deportations.
Section 116 of the Act provides a long list of reasons for visa cancellation that are at the discretion of the minister to act upon. These include an individual’s presence being “or may be, or would or might be, a risk to the health, safety or good order of the Australian community”.
The Home Affairs Department provides that in August this year it was holding 162 noncitizens who’d had their visas cancelled on character grounds in the Christmas Island detention centre. And in January this year, at least some of these detainees were being deported over driving offences.
“Entry and stay in Australia is a privilege, not a right”, maintained Hawke as he introduced the new migration bill into parliament last month.
And if this second attempt at passing these laws is successful, it might be thought the current immigration minister will be proving this point to as many noncitizens captured by the new amendments that he deems unworthy to stay here.