The inquiry into the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016
On 25 February 2016, the Senate referred the inquiry into the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. The Committee reported on 16 March 2016. The Bill passed the House of Representatives but lapsed due to the 2016 election.
This Bill replicates Schedule 2 of the Migration and Maritime Powers Amendment Bill (No 1) 2015 (the earlier Bill). RCOA made a submission on this earlier Bill and this submission restates our opposition to these provisions.
Our key concerns
Visa cancellations on character grounds
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) (Character Act) introduced new powers to refuse or cancel visas on grounds related to a person’s character or criminal record. The Character Act has the effect of automatically cancelling a visa if, among other things, the person was imprisoned for a sentence of 12 months or more, or was convicted of a sexually based offence involving a child.
The Character Act also creates new personal Ministerial powers to reverse decisions made by the Administrative Appeals Tribunal or an officer of the Department. In addition, the Act significantly decreased the threshold under which a person would fail the ‘character test’ and increased the Minister’s powers to cancel visas on the basis of incorrect information.
Significant concerns raised by that Act included:
- The considerable risk of prolonged indefinite detention, especially in relation to refugees who cannot be removed to their country of origin due to the risk that they may face persecution or other forms of serious harm in their country of origin, and stateless people who have no country which is obliged to accept them.
- The mandatory nature of the visa cancellation powers, which significantly decreases the capacity of the system to consider the individual circumstances of a case before a person is detained
- The very low thresholds for visa cancellation, which trigger visa cancellations even in the absence of a real risk to the community, and
- The continued trend towards increasing the personal discretionary powers of the Minister, including to reverse carefully made decisions by merits review tribunals.
These concerns have increased since the introduction of the Character Act. There has been a very significant increase in the number of people being detained as a result of visa cancellations. This has included people on permanent refugee visas as well as on bridging visas, and stateless people, all of whom are now at risk of indefinite detention.
RCOA has surveyed its members to gather initial information on his rapid increase in visa cancellations. Significant concerns so far raised include:
- Failure to recognise vulnerabilities – visa cancellations have occurred despite significant histories of psychiatric illness, disabilities, or statelessness.
- Disproportionate punishment – people have had their visas cancelled in circumstances where they were given good behaviour bonds by the court, and for drink driving.
- Unreasonable prolonging of detention – people have been subject to detention since early 2015 and have not yet been allocated an officer to process their case.
- Inadequate processes – people serving time in prisons are given very little notice (generally a day’s notice) before they are moved into detention.
- Lack of access to legal advice or representation – while people are given a form to respond to the Minister within 28 days, there is a lack of free legal advice or representation.
- Unduly punitive enforcement – there have been reports of handcuffs being used, and transfers to Christmas Island.
- Increased risks in detention centres – the increased numbers of visa cancellations has led to a change in the composition of detention population. We have already seen these visa cancellation provisions result in a death in Yongah Hill, with a refugee whose visa had been cancelled burning himself to death. There are also concerns that the mixing of detainees with visa cancellations contributed to the death of another young asylum seeker in August 2015.
Among other things, the current Bill would:
- require a refugee to be held indefinitely even if there is no prospect they can ever be removed, or even if the visa decision is unlawful
- extend a ban on most further visa applications in cases where the Minister has personally cancelled a visa automatically cancel or refuse any other visas in cases where the Minister has personally set aside a decision by the Administrative Appeals Tribunal or a Departmental officer
- exclude a person for a prescribed time from entering Australia who has a visa refused or cancelled personally by the Minister under ss 501B, 501BA.
While the current Bill is framed as merely extending certain provisions that applied to earlier cancellation powers, RCOA is concerned that this does not reflect the lack of procedural fairness and absence of procedural safeguards in the new cancellation powers. We also express concern that some of these provisions apply retrospectively, without adequate justification.
RCOA recommends that this Bill not be passed.
Read the full submission