Character cancellations: What the media didn’t report; NZ government weighs in on new bill

Media reports over the last couple of days have highlighted the seriousness of character cancellations under section 501(3A) of the Migration Act 1958 (Cth). This includes details of the over 800 non-citizens who have had their visas cancelled due to being sentenced to a term of imprisonment of 12 months or more. Under section 501(3A), the Minister must cancel a visa if a non-citizen is serving a sentence of imprisonment for 12 months or more, or has been convicted of child sex offences, because they do not pass the character test. This mandatory cancellation provisions was inserted into the Act in December 2014.

What the media failed to report was that the number of visas cancelled last program year (2017-18) was down around 30 per cent from the previous year and the least of any full year since the new provision was enacted, according to the Department of Home Affairs’ website.

The effect of this small but important legislative change, however, can be seen with the few cancellations and visa refusals under section 501 for the three years from 2011 to 2014. During this period, only 384 visas were cancelled, not even 40 per cent of the 907 visas cancelled last year.

When a visa has been cancelled under section 501(3A), the visa holder will be able to make representations to the Minister as to why this cancellation should be revoked. Successful revocation of a visa cancellation is roughly one in three.

The flutter of media articles stem from a media release from the Minister of Home Affairs, who is pressuring other parties to pass legislation ratcheting up the character test even more. The Minister states that the Migration Amendment (Strengthening the Character Test) Bill 2018, is scheduled for debate in the first sitting period of parliament in 2019. This bill, if passed, will invariably see more visas cancelled or refused because holders or applicants do not satisfy the amended character test. Those who are convicted of a “designated offence” may fail the new character test if the maximum sentence for the offence is 2 years or more regardless of the actual sentence received, among other things.

The Senate Legal and Constitutional Affairs Legislation Committee, a committee of senators tasked with accepting public submissions and reporting on the bill have recommended that the bill be passed. Of interest are the range of public submissions, including one from the Government of New Zealand, perhaps due to New Zealand citizens representing just under half of all nationalities whose visas were cancelled in the last 12 months.