Strengthening the Character Test

In recent months, tensions inside Australias immigration detention centres have increased dramatically. Numerous incidents of protests, riots, assaults and self-harm by detainees have been reported in the Australian media. In response to the dramatic events, some of which caused significant damage to Commonwealth property, the Australian government has introduced the Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011 (the Amendment Act).1 According to its Explanatory Memorandum, the purpose of the Amendment Act is to amend the Migration Act 1958 (the Migration Act) to strengthen the consequences of criminal behaviour by persons in immigration detention.2 This is to be achieved by amending the character test found in ss 501 and 500A of the Migration Act. This comment provides a brief introduction to the character test and its requirements and explains that the Amendment Acts proposed amendments are misguided and unnecessary. In addition, the Amendment Acts potential impact on refugees, to whom Australia owes protection obligations under international law, is discussed. How the Amendment Act operates in relation to protection visa applications is particularly important given that the majority of individuals involved in unrest in detention centres have been asylum seekers and refugees.

What is the character test?

The Migration Act implements a universal visa system to regulate the entry and stay of noncitizens in Australia. To be lawfully present in Australia, a non-citizen must hold a valid visa.3 Under ss 40-41 Migration Act, specified circumstances and conditions may preclude a person from obtaining a visa. One such circumstance is a failure to satisfy the requirement that a visa applicant is of good character.4 Therefore, the Minister or their delegate may refuse to grant a visa to an individual if that person does not satisfy the Minister that they pass the character test.5 There are two stages of visa refusal or cancellation based on the character test.6, First, the applicants character is assessed to determine whether the applicant passes the test. Secondly, where the applicant does not, or is reasonably suspected not to pass the test the Minister may exercise his or her discretion to refuse a visa given the specific circumstances of the case. The test itself is set out in s501(6) of the Migration Act. That section states that a person does not pass the character test if:

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the person has a substantial criminal record; or

Available at: http://www.comlaw.gov.au/Details/C2011A00081 Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011 Explanatory Memorandum. 3 ss 4(2), 13 and 14 Migration Act 1958 (Cth). 4 See Schedule 8 Migration Act 1958 (Cth) (Pubic interest criteria) 5 s 501(1) Migration Act 1958 (Cth) 6 This process is explained in Part 2 of Ministerial Direction [41] 2009 Visa refusal and cancellation under s 501.

Strengthening the Character Test

the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or having regard to either or both of the following: the person's past and present criminal conduct; the person's past and present general conduct; the person is not of good character; or in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: engage in criminal conduct in Australia; or harass, molest, intimidate or stalk another person in Australia; or vilify a segment of the Australian community; or incite discord in the Australian community or a segment of that community; or represent a danger to the Australian community or a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

If none of these elements apply to a person, the person passes the character test. For the purposes of the test, a person has a substantial criminal record if they have been: sentenced to either death or life imprisonment sentenced to a term of imprisonment for 12 months or more sentenced to two or more terms of imprisonment (whether on one or more occasions), where the total of those terms is two years or more acquitted of an offence on the grounds of either unsoundness of mind or insanity and, as a result, the person has been detained in a facility or institution.

How will the Amendment Act strengthen the test?

Despite the obvious breadth of the current character test, the Amendment Act proposes to add the following elements to s 501(6): the person has been convicted of an offence that was committed: while the person was in immigration detention; or during an escape by the person from immigration detention; or after the person escaped from immigration detention but before the person was taken into immigration detention again; or the person has been convicted of an offence against section 197A.7 The effect of this insertion is that a person will not pass the character test if they have been convicted of: escaping from immigration detention; an offence committed in immigration detention; or an offence committed during an escape from immigration. In practice, the Minister or their delegate will need only point to the relevant conviction to demonstrate that the visa applicant is not of good character, and exercise their discretion to refuse to grant a visa.

Section 197A Migration Act 1958 (Cth) provides that it is an offence to escape from immigration detention.
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Strengthening the Character Test

The Report of the Senate Legal and Constitutional Affairs Legislation Committee
In June 2011, following an inquiry into the provisions of the Amendment Act, the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) released a report into the Amendment Acts provisions. The recommendation of the Committee was that the Senate should pass the Amendment Act. This conclusion was reached despite numerous submissions to the inquiry raising a number of troubling issues including the Amendment Acts consistency with: international law and the 1951 Refugee Convention; procedural fairness and established standards for rights of review; seriousness of offences; retrospective commencement and capturing of past offences; and different treatment of detainees. Briefly, in respect of each of these areas, the Committee report noted the following concerns: Consistency with international law and the 1951 Refugee Convention

The Amendment Act does not satisfy any of the three circumstances (national security8, serious crimes that threaten the community, or particularly serious crimes) in which a state party may refuse or revoke protection under the Refugee Convention9. The amendments lower the threshold below that of Articles 7(1), 31(1), 32 and 33 of the Refugee Convention, placing Australia in potential breach of its non-refoulement obligations.

Procedural Fairness and sufficient rights of review

The character test assessment process in general has very limited rights of review, and in some circumstances decision-makers are permitted to act on the basis of secret information provided by the Australian Federal Police and other security agencies.

Seriousness of offences

The amendments remove the features of the existing character test that require a decision maker to focus on matters such as the gravity of offence and type of sentence imposed. This removes the decision makers power to balance the behaviour constituting the offence against positive conduct. Persons convicted for minor offences, like breaking a window or damaging a rubbish bin, would automatically fail the character test.

Retrospective commencement and capturing of past offences

The amendments under the Amendment Act will operate from 26 April 2011, the date of the Minsters announcement of the proposed changes. As such, they will capture conduct before the enactment of the legislation. The explanatory memorandum makes clear that the provisions will apply whether the conviction or offence occurred before, on or after that commencement Retrospective legislation is inherently contrary to the Rule of Law and should be avoided wherever possible. The Amendment Act represents an unjustified violation of this fundamental legislative principle.

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Articles 9, 28 and 32 Refugee Convention 1951 Article 33 Refugee Convention 1951

Strengthening the Character Test

Different treatment of detainees

The punishments imposed by the Amendment Act will result in detainees receiving greater punishment compared to other members of the Australian community, and visa applicants not in immigration detention, who are convicted of similar offences. Double punishment may be avoided by Courts taking the Amendment Acts operation into account in sentencing, however, reductions of sentences on that basis are unlikely to be delivered in practice.

In addition to these specific matters, the report details concerns about the causes of the recent violence and the mental health of detainees. Submissions endeavoured to convince the Committee that the motives behind criminal behaviour in immigration detention centres are complex and should not be oversimplified. Similarly, submissions argued that the impact of detention on the mental health of detainees should be considered as an underlying cause of the self-harm and violence. In summary, the character test does not need to be strengthened. The test is broad enough in its current form to respond to violent or criminal acts in immigration detention. Not only is the Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011 unnecessary, it will also place Australia in potential breach of its obligations under international law, deny refugees protection on the basis of minor or trivial offences, discriminate against visa applicants in immigration detention and, ultimately, fail to address the underlying causes of recent protests, violence, self-harm and damage.

Ben Russo and Anna Wade

Strengthening the Character Test