The LIV Migration Law Committee is concerned that Joint Standing Committee on Migration chair Jason Wood MP has made inaccurate statements about visa cancellation provisions in a Bill currently before parliament.

In an article in the Herald Sun published on 11 February 2019, Mr Wood sought to justify the government Bill on the basis that the Minister does not currently have that power.

“The Minister of the day will have the discretion to use the toughened character test to deport violent thugs, teen gang members and other convicted offenders even if they haven’t been jailed”, he said.

“This is an important change in the Migration Act because at present they must be sentenced to a minimum of 12 months jail.

“It will also get around the current situation where defence barristers are pleading with judges and magistrates to hand out sentences of less than 12 months so their clients can avoid deportation.”

However, under the current provisions of section 501 of the Migration Act 1958 (Cth) (Migration Act), the Minister for Home Affairs has the power to cancel the visas of criminals who do not receive any jail time.

The LIV considers that the existing provisions under s501 of the Migration Act already provide the Minister with very broad powers to cancel and refuse visas on character grounds.

The Migration Amendment (Strengthening the Character Test) Bill 2018 will expand existing visa cancellation provisions to enable the Minister to cancel the visa of a person convicted of, or associated with, a violent, sexual, breach-based, or weapon possession offence where they could have been sentenced to at least two years’ jail.

The justification for the expanded measures as proposed in the Bill has not been made sufficiently clear, according to LIV Migration Law Committee co-chairs Samantha Fitzsimmons and Chris Spentzaris.

The LIV is concerned that the proposed amendments make the power far too broad and remove any requirement for the Minister to consider whether the person poses a risk to the community.

In the LIV's view, any power to refuse or cancel a visa should be administered cautiously and with proper regard to all circumstances of the individual case.

The LIV contributed to the Law Council of Australia's submission to the inquiry into the Migration Amendment (Strengthening the Character Test) Bill 2018.

Read the Law Council's submission here.