Visa cancellation character test pass lower house

Changes to the Migration Act relating to the character test requirements to be met by all migrants who choose to live in Australia are being made in order to keep criminals out of Australia.

After a fierce debate, the Labor opposition has allowed the proposed changes bill to be passed in the lower house and the bill will now come up in the Senate for vote in late March.

The government has argued it needs to pass its strengthening character test bill to prevent “overseas criminals” staying in Australia. The bill, if passed through the Senate will give the immigration minister much wider powers to cancel visa of people living in Australia long term, who have chosen to not take up Australian Citizenship.

The minister, under the current laws has the discretion to cancel someone’s visa if the minister thinks he/she has failed the character test.

Also, under the current laws, if someone is convicted of a crime and sentenced to a jail term of 12 months or more or convicted of sexual crime involving children, that acts as an automatic trigger for the minister to cancel the visa.

Generally Australian courts when sentencing criminals, take into account their criminal history, circumstances when the crime was committed and any other mitigating factors before deciding the quantum of imprisonment.

In many cases, criminals convicted of a crime punishable with 2 or 3 or more years of imprisonment, may, after the judge has factored in their mitigating circumstances, only be jailed for less than 12 months imprisonment.

Under the current laws, if such person convicted was a migrant, will not lose their visa and right to live in Australia. But after the changes come into force, the measure will change from the quantum of actual sentence handed down to what the maximum punishable sentence is.

In the proposed changes, it is only 2 years.

Also read: Immigration: Failing the Character Test and Mandatory Cancellation of Visa

A case in point: Culpable or Dangerous Driving Causing Death

“Culpable driving” is when a driver causes the death of another person by driving recklessly, negligently or under the influence of drugs or alcohol. It is an indictable offence in Victoria and carries a maximum sentence of 20 years imprisonment (s 318 Crimes Act 1958 (Vic)).

Speaking to Sky News back in October 2021, Alex Hawke, minister for immigration explaining the government’s predicament had this to say on the proposed changes:

 “So you’ll have a criminal who’ll commit a violent offence, it could be a sexual offence, it could be an offence against children … they’ll do a plea deal and they’ll get eight months. he said.

“And we’re starting to see courts and judges in Australia take into account that the federal government might deport someone if they give them a 12-month sentence.

“So this is unacceptable to Australians so we’re asking the parliament urgently to give us these powers to get these people out of Australia.”

These latest proposed amendments incorporate a new category of ‘designated offences’ and propose that a non-citizen would fail the character test if convicted of designated offences, including those

  • involving violence or use of weapons
  • punishable by imprisonment for two years
  • involving violence in foreign countries that would constitute crimes if committed in Australia.


Despite its stated opposition, Labor voted for the bill  as it could not afford to earn the rhetoric from the government that they stand with criminals when the government claims it wants to protect Australians “from foreign criminals”.

It may be a mere formality in the Senate next month.

In an election year, rhetoric and sloganeering gathers a lot more weight than other times. With Labor feeling quietly confident, how could they allow Scott Morrison to do ‘Tampa II’ with this bill twenty years on.

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