Migration Act 1958 General Direction under section 499 Visa Refusal under section 501 (Direction No. 5 of 1997) (Cth)

MIGRATION ACT 1958

GENERAL DIRECTION UNDER SECTION 499 – VISA REFUSAL UNDER SECTION 501

General Direction - Visa Refusal S501 - No.5

PREAMBLE:

It is Government policy that all non-citizens who apply to enter or stay in Australia must meet certain standards of behaviour, conduct and character ("the good character requirement"). All applicants for visas, both temporary and permanent, must be considered against the legal requirements of the Migration Act 1958 (the Act) and the Migration Regulations (the Regulations). This General Direction covers applications for permanent or temporary visas, but not for protection visas, and the consideration of these applications against the good character requirement of section 501 of the Act, either as a stand alone power or through Public Interest Criterion 4001 of the Regulations. These directions will be updated.

If the Minister (or his or her delegate) is satisfied that the applicant does not meet the good character requirement under section 501 of the Act, the section provides a power to refuse to grant a visa (and to cancel a visa that has already been granted - cancellation is not covered in this General Direction). Public Interest Criterion 4001, which is prescribed in the Regulations as a criterion for the grant of a visa, requires a decision-maker to consider whether refusal to grant the visa would be justified under section 501 in that the non-citizen does not meet the good character requirement, and, if refusal is justified, whether the visa should be refused.

Further to my Media Release of 13 June 1997 foreshadowing measures to strengthen powers relating to the exclusion or removal of non-citizens who do not meet the good character requirement, this General Direction under section 499 of the Act gives further guidance to decision makers as to the matters which the Government expects to be taken into account when assessing the good character requirement and deciding whether to refuse a visa if satisfied that the applicant does not meet that requirement. The Government expects that all relevant factors are to be considered in making such decisions, but the matters set out in this General Direction are regarded by the Government as of primary importance.

THEREFORE I, Philip Maxwell Ruddock, the Minister for Immigration and Multicultural Affairs, hereby give the following General Direction pursuant to section 499 of the Act to any person or body having functions or powers under section 501 of the Act:

1.         This General Direction may be cited as General Direction - Visa Refusal S501 - No.5.

2.         When considering under section 501 the good character requirement relating to non-citizens who are seeking a visa and the ensuing discretion which arises after a finding that the applicant does not meet that requirement, the view of the Government is that non-citizens must comply with expected standards of behaviour that reflect community attitudes to such matters as criminality, provocative conduct, and complicity with others who are involved in, or connected with, organised criminal behaviour.

3.         The following matters are regarded by the Government to reflect significant concerns in the community about the character and conduct of non-citizens. Decision makers are to have due regard to this community concern in deciding whether the person meets the good character requirement under section 501. These matters are:

.           where a non-citizen has committed a crime, been sentenced for a single period exceeding 12 months or for periods cumulatively for 24 months or more, regardless of whether that person has been detained in any place or the sentence has been served or suspended;

.           where a non-citizen has been convicted of offences, or the non citizen has behaved or conducted themselves in a manner which could give rise to concerns in the Australian community, or a segment of that community;

.           where there is membership of, or close association with, any group or organisation however small, which is involved in criminal activity;

.           where there have been offences against migration law involving penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody.

4.         Offences against the person (eg: murder, rape, kidnapping, assault) and offences relating to prohibited drugs are regarded by the Government as being of particular concern when considering non-citizen visa applicants and the good character requirement and should be given due regard under section 501.

5.         Due regard must also be given to the nature, severity and frequency of any offences when considering a non-citizen visa applicant and the good character requirement under section 501. In relation to these offences, the Government considers that due regard should be given to:

.           whether the offence would be classified as an offence in Australia;

.           whether comparable sentences would be meted out in Australia for a similar offence.

6.         If, after a finding that the person does not meet the good character requirement under section 501, the following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to refuse to grant a visa:

.           where the visa applicant has a spousal or partner relationship with an Australian citizen, permanent resident or eligible New Zealand citizen:

-           whether, at the time of entering into or establishing the relationship, there was knowledge on the part of the Australian citizen, resident or eligible New Zealand citizen of the non- citizen's conduct (which by its nature then brings that person within the scope of section 501 of the Act);

-           if there was such knowledge, whether the relationship was entered into and established notwithstanding that the non- citizen had not been granted a visa for Australia; and

-           in assessing the compassionate claims of the Australian partner in the above situation, decision makers are expected to have due regard to the circumstances under which the relationship was established.

. whether the non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought them within the deportation provisions at section 201 of the Act or the visa refusal and cancellation provisions at section 501 of the Act .

7.         This direction is to take effect from the date of signature.

Dated this25thday of November 1997

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs.