Push for new visa cancellation powers 'incompatible' with human rights

A parliamentary committee has cautioned there remains a lack of evidence to justify the government’s push to bolster visa cancellation powers.

Immigration Minister Alex Hawke has said the laws send a 'clear message' the Australian community has no tolerance for non-citizens who commit serious crimes.

Immigration Minister Alex Hawke has said the laws send a 'clear message' the Australian community has no tolerance for non-citizens who commit serious crimes. Source: AAP

A government push for greater visa cancellation powers continues to attract widespread concern from lawyers and advocates, amid a fresh warning from the parliamentary committee on human rights.

The proposed laws would give the government the power to cancel visas where a non-citizen has been convicted of so-called “designated offences” regardless of the length of sentence imposed.

The Coalition’s attempt to enforce the measures has stalled since 2019, but the legislation was reintroduced to the lower house on 24 November in the final sitting fortnight of the year.

The joint committee on human rights this week released a review of the revised legislation, cautioning there remains a lack of evidence to justify the proposed laws.

Immigration lawyer and deputy chair of the Visa Cancellations Working Group Sanmati Verma told SBS News the findings echoed long-held concerns.

“There is really nothing to show us what an expansion of the character powers in this way would do to protect the community,” she said.

“Decisions on character grounds — really they need to be taken on the most considered, most careful basis, really, where there is no other option available.” 

Under the proposed laws, the Migration Amendment (Strengthening the Character Test) Bill 2021 strengthens the character test in section 501 of the Migration Act by providing an additional ground to consider visa refusal.

The so-called “designated offence” is defined as an offence committed in Australia or overseas which is punishable by at least a maximum sentence of two years imprisonment and involves violence or threats of violence, non-consensual conduct of a sexual nature, breaching an order made by a court or tribunal for personal protection of another person, or using or possessing a weapon.

The laws state an offence must “cause or substantially contribute … to bodily harm”, “harm to another person’s mental health” or involve “family violence” to ensure “low-level offending is not captured".

Immigration Minister Alex Hawke has argued that additional powers are required because “not all non-citizens convicted of serious criminal offences objectively fail the character test.”

“This new ground does not enliven mandatory cancellation powers. The amendments only seek to provide an additional, objective ground to consider refusing or cancelling a visa,” he told parliament when reintroducing the bill on 24 November.

“Decision-makers exercising the discretion to refuse or cancel a person's visa are guided by comprehensive policy guidelines and ministerial directions, and take into account the individual's circumstances and the relevant international obligations.”

Laws risk being 'incompatible' with human rights

In Australia, most visa cancellations are made under sector 501 of the Migration Act.

Through these powers, the government can cancel visas of non-citizens over character concerns as well as for criminal convictions, or if they are considered part of a group suspected of wrongdoing.

This includes mandating that a visa must be cancelled when the visa holder has been sentenced to 12 months or more imprisonment, or has been found guilty of a sexually-based crime involving a child.

The joint committee on human rights has questioned any need for change to this framework, citing that the minister already has the power to cancel visas, taking into account “past or present criminal or general conduct.”

“The committee considers it has not been established that the measure is necessary, and addresses a pressing and substantial concern for the purposes of international human rights law,” its report, released on Wednesday, said.

“The committee considers it has also not been established that the measure would, in all instances, be proportionate to the objectives sought to be achieved.” 

The 10-member parliamentary committee is made up of five Coalition and five Greens and Labor members.

Its report has also continued to raise concerns about the risk of the government's revised laws being “incompatible with a number of human rights.”

It said “expanding the bases on which visas may be cancelled” increased “the risk of a person being arbitrarily deprived of liberty … in the absence of any opportunity to challenge mandatory detention”.

The report also said expanding the minister’s powers to cancel visas would also risk “breaching the prohibition of expulsion of aliens (non-citizens) without due process.”

“Further, in relation to non-citizens who have strong ties to Australia, including close family members in Australia, the committee considers that the measure significantly risks impermissibly limiting the right to return to one's 'own country' (as part of the right to freedom of movement), the right to protection of the family, and the rights of the child.” the report said.

The report also said a lack of review processes surrounding decisions to deport people following visa cancellations could “expand the risk of Australia not meeting its non-refoulement obligations.”

Non-refoulement is an obligation not to return asylum seekers or refugees to a country where they may be in danger of persecution. 

Asylum Seeker Resource Centre principal solicitor Carolyn Graydon said the laws would increase the number of people facing deportation — many of whom have lived their entire lives in Australia.

"[This process] will tear apart families [and] result in people facing indefinite detention that have already completed any criminal justice sentence that they were [given],” she told SBS News.

Refugee Council of Australia senior policy officer Asher Hirsch said the Council shared these concerns, warning the powers would “substantially violate” Australia’s international obligations.

“It’s an unfair system where we have two standards for people who are non-citizens they are doubly punished,” he said. “Where vulnerable people can find themselves in very precarious situations.” 

Law Council of Australia president Jacoba Brasch, said her organisation also opposed the proposal for “lowering the threshold” for visa cancellation or refusal on character grounds.

“This could permit cancellation or refusal of visas for persons… who have received only a short sentence, no sentence at all or a community corrections order,” she said.

In October, a government effort to legislate the laws was voted down in the Senate following opposition from Labor and the Greens, resulting in them being reintroduced last month.

In a statement, Labor’s Home Affairs spokesperson Kristina Keneally said the opposition “strongly supports” the current powers to cancel or refuse visas on character or criminal grounds.

“If non-citizens in Australia commit these crimes, the Government can and should cancel their visas,” she said.

6 min read
Published 11 December 2021 at 6:43am
By Tom Stayner
Source: SBS