Migration Amendment (Strengthening the Character Test) Bill 2021 [Provisions]

On 25 November 2021, the Senate referred the Migration Amendment (Strengthening the Character Test) Bill 2021 [Provisions] to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 28 January 2022. VISA thanks the committee for the opportunity to make the following submission.

Executive Summary

VISA: The Victorian Immigration Solicitors’ Alliance, concurs with The Law Council of Australia

The 2021 Bill would expand the circumstances in which a person would not satisfy the
character test in subsection 501(6) of the Migration Act 1958 (Cth) (Migration Act) and
thus be subject to a decision of the Minister (or delegate) to refuse or cancel their visa.

Subject to one change, the 2021 Bill is the same in substance as the Migration
Amendment (Strengthening the Character Test) Bill 2019 (2019 Bill), which was subject
to an inquiry by the Committee. The Law Council made a submission to that inquiry (the
Law Council’s 2019 submission; attached to this submission) and appeared before
the Committee.1

In that submission, the Law Council submitted that the 2019 Bill should not pass:

While… the Executive should possess the power where necessary to prevent or
remove a dangerous individual from obtaining or retaining the right to enter and
remain in Australia … [the Bill] … is neither necessary nor proportionate, and the
existing provisions of the Migration Act are sufficient to respond appropriately to
individuals who commit serious offences and provide clear risks to the community.

In October 2021, the Senate voted on and did not pass the 2019 Bill.
The Senate voted
on a Bill which included Government amendments which have been retained in the 2021
Bill. While these changes narrow the scope of the Bill slightly, they do not affect the Law
Council’s view, which is that the 2021 Bill should not pass

In this further brief submission, the Law Council has:
• set out an overview of the character test power in section 501 of the Migration Act;
• set out an overview of the changes made to the character test power by the 2021
Bill, which details its misgivings; and
• addressed the changes introduced to the character test power as compared to the
2019 Bill, which the Law Council considers exemplify rather than resolve the issues
with the proposed scheme.

(PDF 1162 KB) 

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