Migration Amendment (Character Cancellation Consequential Provisions) Act 2017

Administered by Department of Home Affairs

Legislation au C2017A00010 In force Act

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Migration Amendment (Character Cancellation Consequential Provisions) Act 2017

 

No. 10, 2017

 

 

 

 

 

An Act to make consequential amendments relating to the enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments

Migration Act 1958

 

 

 

 

Migration Amendment (Character Cancellation Consequential Provisions) Act 2017

No. 10, 2017

 

 

 

An Act to make consequential amendments relating to the enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014, and for related purposes

[Assented to 22 February 2017]

The Parliament of Australia enacts:

1  Short title

  This Act is the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

22 February 2017

2.  Schedule 1

The day after this Act receives the Royal Assent.

23 February 2017

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

 

Migration Act 1958

1  Paragraph 5C(1)(b)

Repeal the paragraph, substitute:

 (b) the non‑citizen has been convicted of an offence that was committed:

 (i) while the non‑citizen was in immigration detention; or

 (ii) during an escape by the non‑citizen from immigration detention; or

 (iii) after the non‑citizen escaped from immigration detention but before the non‑citizen was taken into immigration detention again; or

 (ba) the non‑citizen has been convicted of an offence against section 197A; or

 (bb) the Minister reasonably suspects:

 (i) that the non‑citizen has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

 (ii) that the group, organisation or person has been or is involved in criminal conduct; or

 (bc) the Minister reasonably suspects that the non‑citizen has been or is involved in conduct constituting one or more of the following:

 (i) an offence under one or more of sections 233A to 234A (people smuggling);

 (ii) an offence of trafficking in persons;

 (iii) 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;

  whether or not the non‑citizen, or another person, has been convicted of an offence constituted by the conduct; or

2  Paragraph 5C(1)(d)

Omit “significant”.

3  At the end of subsection 5C(1)

Add:

 ; or (e) a court in Australia or a foreign country has:

 (i) convicted the non‑citizen of one or more sexually based offences involving a child; or

 (ii) found the non‑citizen guilty of such an offence, or found a charge against the non‑citizen proved for such an offence, even if the non‑citizen was discharged without a conviction; or

 (f) the non‑citizen has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

 (i) the crime of genocide;

 (ii) a crime against humanity;

 (iii) a war crime;

 (iv) a crime involving torture or slavery;

 (v) a crime that is otherwise of serious international concern; or

 (g) the non‑citizen has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

 (h) an Interpol notice in relation to the non‑citizen, from which it is reasonable to infer that the non‑citizen would present a risk to the Australian community or a segment of that community, is in force.

4  At the end of subsection 5C(2)

Add:

 ; or (f) the non‑citizen has:

 (i) been found by a court to not be fit to plead, in relation to an offence; and

 (ii) the court has nonetheless found that on the evidence available the non‑citizen committed the offence; and

 (iii) as a result, the non‑citizen has been detained in a facility or institution.

5  Paragraph 118(f)

Omit “or 501B”, substitute “, 501B or 501BA”.

6  Paragraph 191(2)(d)

Omit “or 501A”, substitute “, 501A or 501BA”.

7  Subsections 192(1) and (4)

Omit “or 501A”, substitute “, 501A or 501BA”.

8  Subparagraph 193(1)(a)(iv)

Omit “or 501B”, substitute “, 501B or 501BA”.

9  Subsection 196(4)

After “section 501”, insert “, 501A, 501B, 501BA or 501F”.

10  Paragraph 198(2A)(c)

After “section 501C”, insert “or 501CA”.

11  After subsection 198(2A)

Insert:

 (2B) An officer must remove as soon as reasonably practicable an unlawful non‑citizen if:

 (a) a delegate of the Minister has cancelled a visa of the non‑citizen under subsection 501(3A); and

 (b) since the delegate’s decision, the non‑citizen has not made a valid application for a substantive visa that can be granted when the non‑citizen is in the migration zone; and

 (c) in a case where the non‑citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate’s decision—either:

 (i) the non‑citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

 (ii) the non‑citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

Note: The only visa that the non‑citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

12  Paragraphs 476(2)(c) and 476A(1)(c)

Omit “or 501C”, substitute “, 501BA, 501C or 501CA”.

13  Subsections 500(6A) and (6B)

After “this Act”, insert “, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa,”.

14  Subsections 500(6C) and (6D)

After “section 501”, insert “, or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa,”.

15  Paragraphs 500(6F)(a) and (6G)(a)

After “this Act”, insert “or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa”.

16  Paragraphs 500(6H)(a) and (6J)(a)

After “section 501”, insert “or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa”.

17  Paragraphs 500(6K)(a) and (6L)(a)

After “this Act”, insert “or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa”.

18  Paragraph 501E(1)(a)

Omit “or 501B”, substitute “, 501B or 501BA”.

19  Subsection 501F(1)

Omit “or 501B”, substitute “, 501B or 501BA”.

20  Paragraph 503(1)(b)

Omit “or 501B”, substitute “, 501B or 501BA”.

21  Subsections 503A(1) and (2) and 503B(1)

Omit “or 501C” (wherever occurring), substitute “, 501BA, 501C or 501CA”.

22  Application of amendments

(1) The amendments made by items 8, 18 and 19 of this Schedule apply in relation to a decision under section 501BA of the Migration Act 1958 made after the commencement of this item.

(2) The amendment made by item 10 of this Schedule applies in relation to an invitation under section 501CA of the Migration Act 1958 given before or after the commencement of this item.

(3) Subsection 198(2B) of the Migration Act 1958, as inserted by item 11 of this Schedule, applies in relation to:

 (a) a decision under subsection 501(3A) of that Act made before or after the commencement of this item; and

 (b) an invitation under section 501CA of that Act given before or after that commencement.

(4) The amendment made by item 12 of this Schedule applies in relation to a decision under section 501BA or 501CA of the Migration Act 1958 made after the commencement of this item.

(5) The amendments made by items 13 to 17 of this Schedule apply in relation to a decision made after the commencement of this item.

(6) The amendment made by item 20 of this Schedule applies in relation to a decision under section 501BA of the Migration Act 1958 made before or after the commencement of this item.

(7) The amendment made by item 21 of this Schedule applies in relation to information communicated before or after the commencement of this item.

[Minister’s second reading speech made in—

House of Representatives on 1 September 2016

Senate on 10 October 2016]

(98/16)

 

Overview

The Migration Amendment (Character Cancellation Consequential Provisions) Act 2017, enacted by the Parliament of Australia on 22 February 2017, was designed to address the legislative gaps and consequential amendments arising from the Migration Amendment (Character and General Visa Cancellation) Act 2014. This legislation aims to refine the procedures for character-based visa cancellation and its repercussions. It amends the Migration Act 1958 to incorporate new grounds for visa cancellation and to ensure consistency across related provisions, thereby enhancing the effectiveness and integrity of Australia's immigration laws. The Act seeks to clarify and strengthen the legislative framework surrounding the cancellation of visas based on character grounds, ensuring that the legal provisions are aligned with the policy objectives of maintaining national security and public safety. The consequential amendments made by this Act are intended to ensure that the legal framework supports the effective implementation of character-based visa cancellation and its associated processes.

Scope and Application

The Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 applies to non-citizens who are subject to provisions of the Migration Act 1958 and aims to provide consequential amendments following the enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014. The Act primarily affects individuals who are non-citizens of Australia and are subject to visa cancellation provisions under the Migration Act, including those who have been convicted of certain offences, have associations with criminal conduct, or pose a security risk. It also applies to the Minister for Immigration and Border Protection and relevant officials in administering and enforcing these provisions. Geographically, the Act operates within the Commonwealth of Australia and applies to all states and territories under the jurisdiction of the Australian federal government. The Act does not specify any exclusions, exemptions, or thresholds for its application. The Act extends its application through amendments to the Migration Act 1958, which may be further defined or refined through subordinate instruments and regulations issued under the authority of the Act.

Key Provisions

The Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 introduces consequential amendments to the Migration Act 1958, following the enactment of the Migration Amendment (Character and General Visa Cancellation) Act 2014. The Act primarily seeks to update and refine the conditions under which a non-citizen's visa may be cancelled due to character grounds. Key amendments include expanding the grounds for visa cancellation under subsection 5C(1) to include more detailed situations involving criminal conduct and associations with criminal groups or activities (section 1). It also modifies the criteria for considering a non-citizen unfit to plead under subsection 5C(2) (section 4). Additionally, the Act updates references to certain sections of the Migration Act to include new sections introduced by the 2014 Act, ensuring consistency across the legislation (sections 5 to 8). The obligations imposed by the Act require non-citizens to adhere to the expanded criteria for visa cancellation, meaning they must be aware of their legal status and the potential implications of their actions. The Act also mandates that officers must remove non-citizens whose visas have been cancelled and who have not applied for a new visa within the specified timeframe (subsection 198(2B)). Furthermore, the Act introduces a requirement for officers to consider specific provisions when making decisions about non-citizens, ensuring that the decisions are made in accordance with the updated legal framework (subsections 500(6A) to 500(6D), and 500(6F) to 500(6J)). Breaches of the provisions under this Act can lead to serious consequences. For example, non-citizens who fail to comply with the requirement to leave Australia when their visa has been cancelled may face criminal charges and penalties. While specific maximum penalties are not detailed in the Act itself, penalties for visa-related offences can be severe, often including substantial fines and imprisonment. Additionally, non-citizens who commit serious crimes or pose a security risk may face further legal action under other sections of the Migration Act 1958 or related criminal legislation. These penalties underscore the importance of compliance with the Act's provisions to avoid severe legal repercussions.

Legal classification tags

Area of Law
Immigration & Refugee Law
Instrument
Act
Concepts
Commencement Provisions
Repeal & Amendment
Offence Provisions
Reporting & Disclosure Obligations

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.