Scott Morrison (Cook, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The purpose of this bill is to strengthen the character and general visa cancellation provisions in the Migration Act to ensure that non-citizens who commit crimes in Australia, pose a risk to the Australian community or represent an integrity concern are appropriately considered for visa refusal or cancellation. The bill also introduces a mandatory cancellation power for non-citizens who objectively do not pass the character test and are in prison.

The current legislative framework for the character and general visa cancellation provisions has been in place for some time. The general visa cancellation framework has been in place, without significant change, since the Migration Reform Act came into effect in 1994. Similarly, the character framework has been in place since 1999 without significant change.

Since that time, the environment in relation to the entry and stay in Australia of noncitizens has changed dramatically, with higher volumes of temporary visa holders in Australia and streamlined processes facilitating entry of temporary residents for economic and other purposes.

It is clear that facilitation of entry at the visa application stage needs to be complemented with strong visa cancellation grounds and processes at the post visa grant stage to ensure the integrity of the migration program. This includes having appropriate responses available where noncitizens in Australia do not abide by the law, including by breaching visa conditions, or engaging in criminal activity or migration fraud.

Consistent with community views and expectations, the Australian government has a low tolerance for criminal, noncompliant or fraudulent behaviour by noncitizens. Entry and stay in Australia by noncitizens is a privilege, not a right, and the Australian community expects that the Australian government can and should refuse entry to noncitizens, or cancel their visas, if they do not abide by Australian laws. Those who choose to break the law, fail to uphold the standards of behaviour expected by the Australian community or try to intentionally mislead or defraud the Australian government should expect to have that privilege removed.

To meet this expectation the government must not only have the ability to act decisively and effectively, wherever necessary, to deal with unlawful, fraudulent or criminal behaviour by noncitizens, but also have the legislative basis to effect a visa cancellation or refusal for those noncitizens. This bill seeks to enhance the government's ability to do so in three key ways:

First, by amending section 501 of the act to:

The amendments proposed in this bill give the government the necessary capabilities to identify noncitizens who are liable for visa cancellation under the character provisions, or refusal under the character provisions and deal with them appropriately.

By introducing a power to obtain personal information which assists with the identification and consideration of noncitizens potentially liable for visa cancellation or refusal under section 501, the government will be able to deliver greater surety in its commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by noncitizens including those who pose an integrity risk to the migration program.

Similarly, the broadened grounds for not passing the character test, the increased capability to deal with fraud and integrity issues, and the introduction of a lower threshold for cancellation of temporary visas will provide the government with the necessary tools to ensure that such people are subject to visa cancellation or refusal consideration under the appropriate provision of the act.

The proposed measures will amend the character test within section 501 of the act to prescribe certain cohorts of noncitizens, such as those who have a charge proven for a sexual offence against a child, and persons involved in criminal conduct or activities such as people smuggling or war crimes, as not passing the character test. Additionally, amendments will be made to ensure that any noncitizen convicted of a crime or crimes, who receives a sentence totalling twelve months, regardless of how that total is reached, will fall within the definition of having a substantial criminal record and will not pass the character test.

Changes will be made to extend the character test to include noncitizens who commit crimes, but do not receive a sentence on the basis of issues surrounding their mental health. This cohort of people is often responsible for very serious offences, but under the current provisions, ensuring they are prevented from posing a further risk to the Australian community is difficult. The measures proposed will rectify that problem.

The second key measure is to amend the general visa cancellation provisions within the act to:

Amendments proposed to section 116 of the act will provide the necessary balance between the protection of the Australian community and the facilitation of entry for temporary visa holders. This cohort of noncitizens has until now been considered against thresholds similar to those applied in section 501, which are set at a high level to reflect the potential impact of removing a person's permanent visa. The amended provision will provide that noncitizens on temporary visas, who pose even a low level of risk, will be eligible for visa cancellation. Measures will also be introduced to better manage the cancellation of visas where the circumstances applicable to the grant of the visa never existed or no longer exist.

The act will also be amended to provide that a visa may be cancelled where incorrect information was provided by or on behalf of a noncitizen either as part of a statutory process, or outside of such a process, and was relevant to the person making a valid application for a visa or a decision to grant a visa to the person.

The 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.

The measures proposed will ensure that the government can move quickly to take action against noncitizens who pose a risk to the Australian community by delivering consistency in personal ministerial decision-making powers across both the character and general visa cancellation powers. This will involve the introduction of personal ministerial powers to set aside and substitute decisions of delegates and tribunals, and to cancel a visa personally on the grounds under section 109 or section 116 with or without natural justice where it is in the public interest to do so. The latter of these amendments ensures that where a real and immediate risk is posed by a noncitizen, the government can act quickly and decisively to remove that person from the Australian community before that risk can be realised. As with the existing personal ministerial decision-making powers under the character provisions, such decisions would not be subject to merits review processes.

The third key measure this bill seeks to introduce is mandatory visa cancellation under section 501 of the act where a noncitizen is serving a full-time sentence of imprisonment in a custodial institution and they are found to objectively not pass the character test on the basis of, for example, having been convicted of an offence or offences and sentenced to a term of imprisonment of 12 months or more, or having been convicted of, or found to have been guilty of, or had a charge proved against them for a sexually based offence involving a child. Under this process, a noncitizen will have their visa mandatorily cancelled without prior notice of an intention to cancel a visa, with a notification of the cancellation decision provided after the fact. Upon notification, the noncitizen will be provided with the opportunity to seek revocation of the cancellation decision. Where a decision is taken by a delegate to not revoke the decision, the former visa holder will have access to merits review. This will be a streamlined process which will deliver the key benefit of providing a greater opportunity to ensure noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved.

These amendments are designed to strengthen and build upon the existing character and general visa cancellation framework and are consistent with the original intent of the provisions—to provide the government with sufficient capability to address character and integrity concerns. This bill addresses the significant changes in the environment relating to the entry and stay of noncitizens in Australia since mid to late 1990s and reflects this government's and the Australian community's low tolerance for criminal, non-compliant or fraudulent behaviour by those who are given the privilege of holding a visa to enter and stay in Australia. The bill demonstrates this government's clear commitment to ensuring that noncitizens do not pose a risk to the Australian community. I commend the bill to the House.

Debate adjourned.