DIRECTION NO 65 Visa refusal and cancellation under s501

DIRECTION NO. 65

MIGRATION ACT 1958

DIRECTION UNDER SECTION 499

Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Dated 22/12/2014

Section 1 Preliminary

1. Name of Direction

Table of Contents

This Direction is Direction no. 65 — Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501 CA. It may be cited as Drection no. 65.

2. Commencement

This Direction commences on the day after it is signed.

3. Revocation

Direction no. 55, given under section 499 of the Migration Act 1958 (the Act) and dated 25 July 2012, is revoked with effect from the date this Direction commences.

4. Interpretation

Where terms used in this Direction have a particular meaning, they are defined in Annex B.

5. Contents

This Direction comprises:

Preamble Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their łask of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA.

Part A Identifies the considerations relevant to visa holders in determining whether to exercise the discretion to cancel a non-citizen’s visa.

Part B Identifies the considerations relevant to visa applicants in determining whether to exercise the discretion to refuse a non-citizen’s visa application.

Part C Identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.

Annex A Provides direction on the application of the character test. The character test is set out in section 501 (6) of the Act.

Annex B Defines terms used in the Direction.

6. Preamble

6.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) Under subsection 501 (1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501 (2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

(3) Under subsection 501 (3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501 (3A) may request revocation of that decision under section 501 CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501 CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

6.2 General Guidance

(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3) The principles provide a framework within which decision-makers should approach their łask of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

6.3 Principles

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not canceling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be canceled, or their visa application refused.

Section 2 Exercising the discretion

7. How to exercise the discretion

(1) Informed by the principles in paragraph 6.3 above, a decision-maker:

a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

8. Taking the relevant considerations into account

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

PART A

9. Primary considerations — visa holders

(1) In deciding whether to cancel a non-citizen’s visa, the following are primary considerations:

a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.

9.1 Protection of the Australian community

(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.  

9.1.1 The nature and seriousness of the conduct

(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501 (6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Whether the non-citizen has re-offended Since being formally warned, or Since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

9.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the non-citizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community Since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

9.2 Best interests of minor children in Australia affected by the decision

(1)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

(2) This consideration applies only if the Child is, or would be, under 1 8 years old at the time when the decision to cancel the visa is expected to be made.

(3)If there are two or more relevant children, the best interests of each Child should be given individual consideration to the extent that their interests may differ.

(4)In considering the best interests of the Child, the following factors must be considered where relevant:

a) The nature and duration of the relationship between the Child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the Child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the Child;
d) The likely effect that any separation from the non-citizen would have on the Child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the Child;
f) Any known views of the Child (with those views being given due weight in accordance with the age and maturity of the Child);
g) Evidence that the non-citizen has abused or neglected the Child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the Child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

9.3 Expectations of the Australian Community

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, ił may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

10 Other considerations — visa holders

(l) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.

10.1 International non-refoulement obligations

(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a pecific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and iłs Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2) The existence of a non-refoulement obligation does not preclude cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, ił is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa should be cancelled.

(5) If, however, the visa being considered for cancellation is a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R) visa (section 501 E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should continue to hold a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, ifthe person’s Protection visa were cancelled, they would face the prospect of indefinite immigration detention.

10.2 The strength, nature and duration of ties to Australia

(1) Reflecting the principles at 6.3, decision-makers must have regard to:

a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young Child, noting that:

i.     less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.   more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

10.3 Impact on Australian business interests

(1) Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

10.4 Impact on victims

(1) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.

10.5 Extent of Impediments if removed

(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural ban-iers; and c) Any social, medical and/or economic support available to them in that country.

Part B

11 Primary considerations — visa applicants

(1) In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.

11.1 Protection of the Australian community

1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision- makers should also give consideration to:

a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

11.1.1 The nature and seriousness of the conduct

(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to:

a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or govemment representatives or officials due to the position they hołd, or in the performance oftheir duties, are serious;
c) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501 (6)(c), is considered to be serious;
e) The sentence imposed by the courts for a crime or crimes;
f) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g) The cumulative effect of repeated offending;
h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.

(2)In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii. evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community Since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii. the duration of the intended stay in Australia.

(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

11.2 Best interests of minor children in Australia affected by the decision

(1) Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the Child.

(2)This consideration applies only ifthe Child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

(3) If there are two or more relevant children, the best interests of each Child should be given individual consideration to the extent that their interests may differ.

(4)In considering the best interests of the Child, the following factors must be considered where relevant:

a) The nature and duration of the relationship between the Child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the Child turns 18), and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the Child;
d) The likely effect that any separation from the non-citizen would have on the Child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the Child;
f) Any known views of the Child (with those views being given due weight in accordance with the age and maturity of the Child);
g) Evidence that the non-citizen has abused or neglected the Child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the Child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

11.3 Expectations of the Australian Community

(l) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, ił may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Governmenťs views in this respect.

12 Other considerations — visa applicants

(1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a) International non-refoulement obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.

12.1 International non-refoulement obligations

(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.

3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).

4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.

(5) If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R)visa section 501 E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them — sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, ift he person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.

12.2 Impact on family members

(1) Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

12.3 Impact on victims

(1) Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

12.4 Impact on Australian business interests

(1) Impact on Australian business interests if the non-citizen’s visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

PART C

13. Primary considerations — revocation requests

(1) Under subsection 501 (3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a Stałe or a Ten-itory. A non-citizen who has had his or her visa cancelled under section 501 (3A) may request revocation of that decision under section 501 CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.

13.1 Protection of the Australian community

(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

(2) Decision-makers should also give consideration to:

a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13.1.1 The nature and seriousness of the conduct

(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) The sentence imposed by the courts for a crime or crimes;
d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeated offending;
f) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g) Whether the non-citizen has re-offended Since being formally warned, or Since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
h) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197 A of the Act;

13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

13.2 Best interests of minor children in Australia affected by the decision

(l) Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

(2) This consideration applies only if the Child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3) If there are two or more relevant children, the best interests of each Child should be given individual consideration to the extent that their interests may differ.

(4) In considering the best interests of the Child, the following factors must be considered where relevant:

a) The nature and duration of the relationship between the Child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the Child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the Child;
d) The likely effect that any separation from the non-citizen would have on the Child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways; e) Whether there are other persons who already fulfil a parental role in relation to the Child;
f) Any known views of the Child (with those views being given due weight in accordance with the age and maturity of the Child);
g) Evidence that the non-citizen has abused or neglected the Child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the Child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

13.3 Expectations of the Australian community

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, ił may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

14. Other considerations — revocation requests

(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims; e) Extent of impediments if removed.

14.1 International non-refoulement obligations

(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation ofthose obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.

(2)The existence of a non-refoulement obligation does not preclude non- revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.

(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501 CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, ił is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class W R) visa (section 501 E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister deterrnines that section 48A does not apply to them — sections 48A and 48B of the Act refer).

(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

14.2 Strength, nature and duration of ties

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young Child, noting that:

i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

14.3 Impact on Australian business interests

(1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

14.4 Impact on victims

(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

14.5 Extent of impediments if removed

(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.

ANNEX A – Application of the character test

Section l Overview of the character test

Discretionary visa cancellation or refusal

(1) Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision-maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test.

(2) Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501 (6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.

(3) Section 501 (6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test. (4) In considering a person with unresolved criminal matters, decision-makers should note:

(4) In considering a person with unresolved criminal matters, decision-makers should note:

a) Where a person already fails the character test, any other outstanding criminal matters would not generally prevent consideration of their case under section 501 ;
b) A person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined;
c) Where a person is in Australia, and they are facing charges in another country, and the charges will not be resolved in absentia, the conduct that is the subject ofthose charges may be considered in the context of section 501 (6)(c)(i) and/or (ii).

(5) Ifthe person does not pass the character test, section 501 (1) of the Act enables a visa to be refused and section 501 (2) of the Act enables a visa to be cancelled.

Mandatory visa cancellation

(l) Under section 501 (3A), a person’s visa must be cancelled if:

a) The decision-maker is satisfied that the person does not pass the character test because of the operation of: i. Paragraph 501 (6)(a) (substantial criminal record), on the basis of paragraph 501 (7)(a), (b) or (c) (the person has been sentenced to death, imprisonment for life, or to a tenn of imprisonment of 12 months or more); or

i. Paragraph 501 (6)(a) (substantial criminal record), on the basis of paragraph 501 (7)(a), (b) or (c) (the person has been sentenced to death, imprisonment for life, or to a tenn of imprisonment of 12 months or more); or
ii. paragraph 501 (6)(e) (sexually based offences involving a Child); and

b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

(2) In considering whether a person is liable for mandatory cancellation, decision-makers should note:

a) that the term ‘serving a sentence of imprisonment, on a full-time basis’ does not include periodic detention or home or residential detention. However, a person who has been serving a sentence of imprisonment on a full-time basis and who is participating in a work release scheme, or is permitted home visits is liable for mandatory cancellation;
b)that mandatory cancellation is not enlivened unless and until a delegate makes a finding that they are satisfied that the requirements as set out in section 501 (3A)(a) and (b) are met. Once a delegate is satisfied that these requirements are met, the delegate must cancel the person’s visa.

(3)The purpose of mandatory cancellation of the visas of certain visa holders who are in prison is to ensure that persons who pose a risk to the safety of the Australian community remain either in criminal or immigration detention until that risk has been assessed. In this context, there are some circumstances in which ił may not be appropriate for a decision-maker to consider whether a person does not pass the character test (and is therefore liable for the cancellation of his or her visa). T hese circumstances include where a non-citizen is serving a sentence of imprisonment but will not have a visa which is in effect at the end of that sentence. This situation may arise:

a) where a person in prison has been granted a Bridging E visa (B V E) in order to maintain their lawful status while in prison. In circumstances where the B VE will cease upon the person’s release from prison, ił is not recommended that mandatory cancellation consideration be commenced. b) where a person is the holder of a criminal justice visa (CJV). CJVs are granted to non-citizens whose entry and/or continued presence in Australia is required for the purposes of the administration of criminal justice. A criterion for a CJV is that a criminal justice stay certificate (CJSC) or a criminal justice stay warrant (CJSW) about the non-citizen is in force. If the CJSC or CJSW is cancelled any CJV granted because of the CJSC or CJSW is cancelled by operation of section 164 of the Act. The only other power under which CJVs may be cancelled is on character grounds under section 501 of the Act. However, in circumstances where the CJV holder is serving a sentence of imprisonment, this is unlikely to be appropriate.

Section 2 Application of the character test

1. Substantial criminal record (section 501(6)(a))

(1) A person does not pass the character test if the person has a substantial criminal record. The term ‘substantial criminal record is defined in section 501 (7) of the Act.
(2)For the purposes of the character test, a person has a substantial criminal record if:

a) the person has been sentenced to death; or
b) the person has been sentenced to imprisonment for life; or
c) the person has been sentenced to a term of imprisonment of 12 months or more; or
d) the person has been sentenced to 2 or more terms of imprisonment where the total of those terms is 12 months (if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms)( (A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.) or
e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
f) the person has been found by a court to not be fit to plead, in relation to an offence; and as a result, the person has been detained in a facility or institution.

2. Immigration detention offences (section 501(6)(aa) & (ab))

(1) A person does not pass the character test if the person has been convicted of an offence that was committed;

a) while the person was in immigration detention; or during an escape by the person from immigration detention; or
b) after the person escaped from immigration detention but before
c) the person was taken into immigration detention again.

(2) A person does not pass the character test if the person has been convicted of an offence against section 197A.

3. Membership/Association (section 501(6)(b))

(1) A person does not pass the character test if the Minister reasonably suspects:

a) that the person has been or is a member of a group or organisation, or has or has had an association with a group, organisation or person; and
b) that the group, organisation or person has been, or is, involved in criminal conduct.

(2) A suspicion is less than a certainty or a belief, but more than a speculation or idle wondering. For a suspicion to be reasonable, it should be:

a) a suspicion that a reasonable person could hold in the particular circumstances; and
b) based on an objective consideration of relevant material.

(3) A member is a person who belongs to a group or organisation. The evidence required to establish reasonable suspicion of membership of a group or organisation will depend on the circumstances of the case. Decision-makers should note that failure of this limb of the character test does not require an assessment that the person was sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is sufficient under this element of the test that the decision-maker has a reasonable suspicion that:

a) the person has been, or is a member of a group or organisation; and
b) the group or organisation has been, or is, involved in criminal conduct.

(4) In establishing association, the following factors are to be considered:

a) the nature of the association;
b) the degree and frequency of association the person had or has with the individual, group or organisation; and c) the duration of the association.

(5) Decision-makers should note that in order for a person to fail the association limb of the character test, the delegate must have a reasonable suspicion that the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation — mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association. In order to not pass the character test on this ground, the association must have some negative bearing upon the person’ s character.

(6) In some cases the information concerning association will be protected from disclosure by section 503A of the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of inforrnants or other people at risk.

4. Involvement in certain criminal activities (section 501(6)(ba))

(1) A person does not pass the character test if the Minister reasonably suspects the person has been, or is involved in, conduct constituting one or more of the following:

a) an offence of people smuggling (as described in sections 233A to 234A of the Migration Act;
b) an offence of trafficking in persons;
c) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern.

(2) In order to fail this limb of the character test, a person is not required to have been convicted of an offence constituted by the conduct.

5. Not of good character on account of past and present criminal or general conduct (section 501(6)(c)(i) and (ii))

(1) A person does not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct. (2)The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Minister Immigration and Multicultural Affairs [2002] FCAFC 440 at [33]

(2)The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Minister Immigration and Multicultural Affairs [2002] FCAFC 440 at [33]

(3) In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person’s character. a) In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] ‘the words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.’

(4) In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of ‘ good character’. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour. a) In Godley, Lee J went on to say ‘For a finding to be made under s501 that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term ‘present criminal conduct is to be understood), becomes past criminal conduct must be a matter of judgement. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character’. ‘Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

a) In Godley, Lee J went on to say ‘For a finding to be made under s501 that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term ‘present criminal conduct is to be understood), becomes past criminal conduct must be a matter of judgement. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character’. ‘Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

5.1 Past and present criminal conduct

(1) In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:

a) The nature and severity of the criminal conduct;
b) The frequency of the person’s offending and whether there is any trend of increasing seriousness;
c) The cumulative effect of repeated offending;
d) Any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges’ comments, parole reports and similar authoritative documents; and
e) The conduct of the person Since their most recent offence, including:

i. The length of time Since the person last engaged in criminal conduct;
ii. Any evidence of recidivism or continuing association with criminals;
iii. Any pattern of similar criminal conduct; iv. Any pattern of continued or blatant disregard or contempt for the law; and v. Any conduct which may indicate character reform.

5.2 Past and present general conduct

(1) The past and present general conduct provision allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence.

a) In considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.

(2) The following factors may also be considered in determining whether a person is not of good character:

a)Whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:

i. Involvement in activities such as terrorist activity, activities in relation to trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or
ii. A history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or another country; or
iii. Involvement in war crimes or crimes against humanity; b) whether the person has been removed or deported from Australia or another country and the circumstances that led to the removal /deportation; or

c) whether the person has been:

i. dishonourably discharged; or
ii. discharged prematurely; from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct that, in Australia would be regarded as serious.

(3) Where a person is in Australia and charges have been brought against that person in a jurisdiction other than an Australian jurisdiction, and those charges will not be resolved in absentia, the conduct that is the subject of those charges may be considered in the context of its impact on the person’s overall character.

6 Risk in regards to future conduct (section 501(6)(d))

(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501 (6)(d) of the Act. The types of conduct specified are discussed below.

(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501 (6)(d) of the Act.

(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501 (6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501 (6)(d) of the Act.

6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))

(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.

(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.

6.2 Risk of harassing, molesting, intimidating or stalking another person in Australia (section 501(6)(d)(ii))

(1) A person will not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will harass, molest, intimidate or stalk another person in Australia.

(2) ‘Harassmenť, ‘molestation’ ‘intimidation’ and ‘stalking’ are to be given their ordinary meaning. Section 501(11) of the Act clarifies the scope of conduct amounting to harassment or molestation. Conduct and behaviours that may fall under this całegory include, but are not limited to, the following:

a) conduct that could be construed as harassment or intimidation (whether or not ił breaches the terms of an Apprehended or Domestic Violence (or similar) Order);
b) conduct that potentially places children in danger, such as unwelcome and/or inappropriate approaches, including, but not limited to, approaches made through electronic media; or
c) conduct that would reasonably cause an individual to be severely apprehensive, fearful, alarmed or distressed regarding the person’s behaviour or alleged behaviour towards the individual, any other individual, or in relation to their property or that of any other individual.

6.3 Risk of vilifying a segment of the community, of inciting discord or of representing a danger through involvement in disruptive and/or violent activities (section 501(6)(d)(iii), (iv) and (v))

(1) In deciding whether a person does not pass the character test under section 501 (6)(d)(iii), (iv) or (v) of the Act, factors to be considered include, but are not limited to, evidence that the person:

a) Would hold or advocate extremist views such as a belief in the use of violence as a legitimate means of political expression;
b) Would vilify a part of the community;
c) has a record of encouraging disregard for law and order; For example, in the course of addressing public rallies.
d) has engaged or threatens to engage in conduct likely to be incompatible with the smooth operation of a multicultural society; For example, advocating that particular ethnic groups should adopt political, social or religious values well outside those generally acceptable in Australian society, and which, if adopted or practised, might lead to discord within those groups or between those groups and other segments of Australian society.
e) participates in, or is active in promotion of, politically motivated violence or criminal violence and/or is likely to propagate or encourage such action in Australia;
f) is likely to provoke civil unrest in Australia because of the conjunction of the person’s intended activities and proposed timing of their presence in Australia with those of another individual, group or organisation holding opposing views.

(2) The operation of section 501 (6)(d)(iii), (iv) and (v) of the Act must be balanced against Australia’s well established tradition of free expression. The grounds in these sub-paragraphs are not intended to provide a charter for denying entry or continued stay to persons merely because they hołd and are likely to express unpopular opinions. However, where these opinions may attract strong expressions of disagreement and condemnation from the Australian community, the current views of the community will be a consideration in terms of assessing the extent to which particular activities or opinions are likely to cause discord or unrest.

7 Sexually based offences involving a child (section 501(6)(e))

(1) A person will not pass the character test if a court in Australia or a foreign country has convicted them of one or more sexually based offences involving a Child or found them guilty of such an offence, or found a charge proven against them, even if the person was discharged without conviction. (2) Sexually based offences involving a Child include, but are not limited to offences such as: a) Child sexual abuse;

(2) Sexually based offences involving a Child include, but are not limited to offences such as:

a) Child sexual abuse;
b) Indecent dealings with a Child;
c) Possession or distribution of Child pornography;
d) Internet grooming; and
e) Other non-contract carriage service offences.

(3) This provision applies irrespective of the level of penalty or orders made in relation to the offence.

9. Crimes under International Humanitarian Law (section 501(6)(f))

(1) A person will not pass the character test ifthe person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

a) the crime of genocide;
b) a crime against humanity;
c) a war crime;
d) a crime involving torture or slavery;
e) a crime that is otherwise of serious international concern.

9 National security risk (section 501(6)(g))

(1) A person will not pass the character test if the person has been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979)

10 Certain Interpol Notices (section 501(6)(h))

(1) A person will not pass the character test if an Interpol notice in relation to the person is in force, and ił is reasonable to infer from that notice that the person would present a risk to the Australian community or a segment of that community.

ANNEX B – Interpretation

Act – means the Migration Act 1958.

Character test – is the character test prescribed in s501 (6) of the Act and set out in Annex A of this Direction.

Decision-maker – means a person (sometimes referred to as a delegate), or a body (such as the Administrative Appeals Tribunal) with the power to perform functions or exercise powers under s501 of the Act.

Immigration detention – is defined in section 5 of the Act and means:
a. being in the company of, and restrained by:
i. an officer; or ii. in relation to a particular detainee — another non-citizen directed by the Secretary to accompany and restrain the detainee; or b. being held by, or on behalf of an officer;
i. in a detention centre established under this Act; or
ii. in a prison or remand centre of the Commonwealth, a Stałe or Territory; or iii. in a police station or watch house; or iv. in relation to a non-citizen who is prevented, under section 249 of the Act, from leaving a vessel — on that vessel; or
v. in another place approved by the Minister in writing.

Minor is defined in section 5 of the Act as a person is who less than 18 years old.  Non-citizen is defined in section 5 of the Act as a person who is not an Australian citizen
Remove is defined in section 5 of the Act as remove from Australia.

Serious conduct Behaviour or conduct of concern where a conviction may not have been recorded, or where the conduct may not, strictly speaking, have constituted a criminal offence. Such conduct may include, for example, involvement in activities indicating contempt or disregard for the law or human rights, or a history of serious breaches of immigration law. It also includes conduct which may be considered under s501 (6)(c) and/or s501 (6)(d).

Section 501 means section 501 of the Act

Substantial criminal record is defined in section 501 (7) of the Act.

 Substantive visa is defined in section 5 of the Act and means a visa other than: a. a bridging visa; or
b. a criminal justice visa; or c. an enforcement visa.

Visa Subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: a. travel to and enter Australia;
b. remain in Australia

Visa applicant is defined in section 5 of the Act as an applicant for a visa and, in relation to a visa, means the applicant for the visa.

Visa holder is defined in section 5 of the Act as the holder of a visa and, in relation to a visa, means the holder of the visa.

Note

This article is a copy of the original document created by webmaster for ease of use. There is no guarantee is free of errors or omissions. For original document please refer to the Department of Immigration.

Summary
Ministerial Direction no 65
Article Name
Ministerial Direction no 65
Description
Rules for Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA. Ministerial Direction 65
Author
Publisher Name
Australian Government
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DIRECTION NO 65 Visa refusal and cancellation under s501
5 (100%) 4 votes