The Federal Government wants more powers to cancel or refuse immigration visas.

The government is attempting for the second time to ‘strengthen’ the migration 'character test' — potentially allowing visas to be cancelled or refused for people convicted of a serious crime.

Its initial proposal for similar changes was defeated two years ago, lacking support from Labor or crossbench senators.

Under the proposal, a non-citizen convicted of a ‘designated’ offence punishable by at least two years' prison — such as violent or sexual assault crimes — could be refused a visa at the government's discretion. 

The government could make this choice regardless of the sentence the person actually serves. Currently, visas can only be cancelled in cases where a person was actually sentenced to serve more than 12 months' prison.

The government says it wants to kick people out who are staying on ‘technicalities’, including discounts to prison time, or judges who reduced a sentence.

Shadow Immigration Minister Kristina Keneally has previously expressed concern that the changes would see low-level offenders unintentionally caught up and deported.

The government also wants to make it harder for decisions to deport people to be defeated on appeal. It says that having a more “objective” test of conviction, rather than time sentenced, would leave less room for appeal.

The Federal Government has also been accused of shirking its responsibility by not blocking an attempt to appeal a decision, potentially allowing Indigenous Australians to be deported. 

In early 2020, the High Court ruled that Aboriginal people cannot be deported for criminal convictions, as they cannot be deemed ‘alien’ to Australia.

The ruling came in the cases of two men, PNG-born Daniel Love and NZ-born Brendan Thoms. Both failed their migration character tests as a result of serving jail sentences and were to be deported. However, Mr Love is a recognised member of Australia’s Kamilaroi people, and Mr Thoms is a native title holder as a member of the Gunggari people.

In a 4-3 split, the court found Aboriginal Australians were not subject to the ‘alien’ powers in the constitution and therefore could not be deported.

The solicitor general, Stephen Donaghue, says the commonwealth will argue the case was wrongly decided.

Two of the judges that supported the majority decision have since retired, and some believe now is the time to overturn the court’s Love and Thoms decision. 

Amanda Stoker, who is now the assistant attorney general, had previously argued that the decision was “entirely unsatisfactory”, and rejected what she sees as “dividing those who reside in Australia along racial lines”.

More details on that matter are accessible here.