Proposed change to Migration Act opens the way to deporting children

By Dave Martin and Rebecca Powell
migratino act

On 25 October the Minister for Immigration, Citizenship and Multicultural Affairs introduced the Migration Amendment (Strengthening the Character Test) Bill 2018 to federal parliament to further strengthen his powers to cancel and refuse visas on character grounds under section 501 of the Migration Act 1958 (Cth). The current Bill expands Ministerial powers to cancel and refuse visas and deport non-citizens from Australia.

The proposed amendments increase potential for human rights violations, particularly in regard to rights of the child as well as against those convicted non-citizens receiving non-custodial sentences.

Children under the age of 18 and first-time offenders who might ordinarily be given a non-custodial or lower level sentence are more likely to be caught up in these expanded powers. The explanatory memoranda accompanying the Bill contains a clause with specific grounds for not differentiating between adults and persons under the age of 18 in the application of section 501.

The Bill allows visa cancellation for non-citizens convicted of ‘designated offences’ that carry a maximum sentence of two years in prison, regardless of mitigating circumstances, any magistrate or judicial sentencing discretion, and the actual sentence imposed. The proposed amendments increase potential for human rights violations, particularly in regard to rights of the child as well as against those convicted non-citizens receiving non-custodial sentences. Given the potential impact the Bill has on children and first time offenders in particular, possible human rights violations include the right to protection of children against deportation, the right to family life, non-refoulement considerations and the right to fairness and due process in the criminal justice system.

This Bill follows a concerning trend to expand Ministerial powers in the name of protecting the Australian community from those perceived to pose a risk to it.

If the Bill is passed, this will be the second time section 501 has been amended to expand MInisterial power to cancel visas. In December 2014, it was amended to require visa cancellation of non-citizens convicted of 12 month prison sentences or more. Since then, there has been a significant increase in visa cancellation and deportations of convicted non-citizens from Australia. Since the December 2014 amendments, from 2013/14 to 2016/17 section 501 visa cancellations increased fifteen-fold and the number of removals under section 501 increase four-fold from 2014/15 to 2017/18.

Source: Question on Notice, 2018-2019 Budget Estimates, Legal & Constitutional Affairs, BE18/174.

Source: Question on Notice, 2018-2019 Budget Estimates, Legal & Constitutional Affairs, BE18/174.

This Bill follows a concerning trend to expand Ministerial powers in the name of protecting the Australian community from those perceived to pose a risk to it.

The origins of the Bill paint a clearer picture of those the government is seeking to target and exclude from the Australian community. Arguably the Bill stems from the December 2017 report from the government’s Inquiry into Migrant Settlement Outcomes, that was mandated to:

“…give particular consideration to social engagement of youth migrants, including involvement of youth migrants in anti-social behaviour such as gang activity, and the adequacy of the Migration Act 1958 character test provisions as a means to address issues arising from this behaviour.”

This Inquiry was announced shortly after a series of events in Melbourne concerning young people from African and Pasifika backgrounds reportedly involved in gang related activities and violent crimes gained significant media coverage. The Australian Border Force and Victoria Police moved to cancel visas and deport those associated with these crimes, including persons under the age of 18.

The Inquiry report No one teaches you to become Australian asserts that strengthening the character test will make Australians feel safe and be safer. This has been exploited as a significant issue of bipartisan policy debate and commentary surrounding the Victorian state election.

Jason Wood, the chairman of the Federal Joint Standing Committee on Migration, who has worked on the Bill directly, references Sudanese gangs and children under 18 years old as the target of the proposed changes. In a recent interview with the Herald Sun, he stated “This no age restriction clause was necessary because a lot of Sudanese and other gang-related violence was being committed by youths aged under 18, particularly in Victoria”. This calls into question how offending by young people is viewed by the government, who look to favour a risk reduction approach by removal as opposed to rehabilitation. Rehabilitation is not mentioned in the Bill. Evidence shows that rehabilitation, particularly for young people, is of benefit to the community by assisting with reintegration, crime prevention and reducing the commission of further offences.

Based on our extensive research1, 2, we are concerned by the impact the proposed Bill will have on New Zealanders, many of whom are long term or permanent residents of Australia. New Zealanders have become the largest deportee nationality group under section 501, which has included a number of long-term residents. They are the largest nationality group in Australia’s immigration detention network since June 2016 while they await visa cancellation appeal outcomes and/or removal from Australia.

We are also concerned about the application of this Bill against children under the age of 18, who are perceived to be a risk to the Australian community because they have been convicted of an offence captured by the broad sweep of the Bill, whether or not they have been sentenced for it. Racial targeting of African and Pasifika youth is of utmost concern.

The human rights of people, particularly long-term residents and children, whose visas are cancelled and they are at risk of deportation, are often compromised. Australia has obligations under international human rights treaties that must be upheld and considered in the visa cancellation process. The right to due process where a visa is cancelled personally by the Minister, and mitigating considerations, such as whether a convicted non-citizen is a child, or if they have children and family in Australia; the length of residence and ties to Australia; and lack of access to rehabilitation opportunities as a result of their visa cancellation, are all linked to rights enshrined in international human rights treaties including the Convention on the Rights of the Child and the International Convention on Civil and Political Rights to which Australia is party. These are important human rights considerations that are often secondary in visa cancellation decision-making given the way that visa cancellation decision making guidance is structured under Ministerial Direction No. 65.The system is therefore weighted far too heavily towards the reduction of risk via deportation and away from these important principles.

While protecting the Australian community from criminal offending is a reasonable objective of the government, expanding Ministerial power to cancel visas impacts on the lives and human rights of individuals. The measures for expanded visa cancellation presented in this Bill appear to be directed as a deterrent measure for children involved in allegedly gang-related criminal activity and other offenders. If introduced, the legislation would ensure the deportation of these additional categories of people, with serious consequences for fairness and Australia’s compliance with its obligations under international human rights treaties.


Rebecca Powell’s research: “Balancing risk and human rights in the deportation of convicted non-citizens from Australia to New Zealand”

2 Dave Martin and co-authored the article “Why New Zealanders are feeling the hard edge of Australia’s deportation policy” published on The Conversation 

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