More people would be deported, some for minor offences or where time had already been served, while pressure on the court system would increase, families could be separated and refugees returned to harm under a proposal to broaden the character test, writes Kaldor Centre Senior Research Associate Dr Sangeetha Pillai in a Senate submission.

While governments rightly regulate visas on the basis of character, the Strengthening the Character Test Bill 2019 should not be passed, Dr Pillai’s submission argues. She is scheduled to appear before the Senate Standing Committee on Legal and Constitutional Affairs at an inquiry hearing on Monday 16 August 2019.

Since 2014, visa-holders sentenced to at least 12 months jail for their crime have automatically had their visas cancelled, opening up the prospect of removal from Australia. Under the new proposal, those who have committed a crime that carries a maximum sentence of at least two years would automatically fail the character test, even if they are not sentenced to jail. The Minister would then have the power to revoke their visas and remove them from Australia.

Dr Pillai’s submission raises four key concerns: One, the proposals do not serve any identifiable policy goal, and would increase pressures on decision-makers and the justice system. Two, the retrospectivity of the plan raises rule of law concerns. Three, it could damage Australia’s foreign relations, particularly with New Zealand. And four, it runs counter to Australia’s international human rights obligations, and will disproportionately affect vulnerable groups including refugees in a way that is out of step with other jurisdictions.

‘Regulation of the presence of non-citizens in Australia in a way that mitigates risk to the community is an important aspect of executive power. However, it is important to balance the need for such regulation with the severe consequences that visa cancellation can have for permanent residents and their family. For instance, a person who has their visa cancelled may face permanent separation from their dependent children, spend extended periods of time in immigration detention pending removal, or be removed to a foreign country they have never lived in as an adult, where they may have no connections and no understanding of the national language or culture,” Dr Pillai writes.

The bill is also impractical. Its provisions would likely dissuade people from pleading guilty to criminal offences, because any conviction of a designated offence, irrespective of sentence, will lead to deemed failure of the character test. ‘This will place increased strain on the criminal justice system, where a large number of cases are currently resolved by way of guilty plea,’ she writes.

Because the bill is retrospective, many people would be deemed to have failed the character test on the basis of prior convictions that attracted no sentence, or a very light sentence. 

More than 1,000 New Zealanders have been sent back between 2016 and 2018 since the introduction of mandatory visa cancellation in 2014, a change NZ Prime Minister Jacinda Ardern has called ‘corrosive’ to the bilateral relationship.

It is likely that the Bill, ‘if passed, will lead to an increase in the number of visa cancellations for refugees and asylum seekers owed non-refoulement obligations’ or the indefinite detention of asylum-seekers, where there is no country to remove them to.

Such broad discretion to deport people at risk of refoulement is not permitted under the law in New Zealand, the United Kingdom or the United States, said Dr Pillai, who has compared the relevant laws in other jurisdictions.

Read the full submission here

Visit the committee inquiry page here.