Karen Lo, Partner at Ajuria Lawyers, shares her insights regarding Australian immigration and answers the question: who does the government consider as a controversial visitor?
The Australian immigration system have extremely detailed laws that act as a watchdog, intended to safeguard the local community from visitors deemed to be potential risks due to their “character”. The Minister for Immigration has extensive powers to refuse or cancel a visa on character grounds.
Although there are multiple grounds to do this, the main one is under section 501 of the Migration Act 1958 (Cth): Refusal or cancellation of visa on character grounds Decision of Minister or delegate — natural justice applies, extracted below.
- The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Note: Character test is defined by subsection (6).
- The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
The character test is then set out below:
6. For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(b) the Minister reasonably suspects:
(i) that the person 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
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
Visa applicants who have a substantial criminal record or are reasonably suspected to be a ‘Controversial Visitor’ will generally not be allowed to come to Australia. Even if they have been already granted a visa, and have travelled to Australia, these laws can be cancelled while they are in the country, forcing them to depart.
These issues often come up in the context of entertainment visas, particularly when the visa applicant is a high-profile individual with well-publicized character issues.
If refused or cancelled for character reasons it can be extremely challenging to get someone back to Australia and they can face 3 year bans from the country. For those who get their Australian visa cancelled for character reasons, they may be banned permanently unless the Minister for Immigration chooses to revoke the cancellation.
This can operate under two provisions of the Migration Regulations:
- A condition (condition 4013 under Schedule 4 of the Regulations) on most temporary visas which prevents the grant of a new visa if they have been cancelled on character grounds (other than section 501) unless they can demonstrate compelling and compassionate grounds affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa within three years after the departure.
These are set at a very high threshold to meet and examples under departmental policy and are assessed on a case by case basis.
- If their visa was cancelled under section 501, and condition 5001 of Schedule 4 must be met before an application for a new visa can be approved, then they are permanently excluded from Australia unless the Minister for Immigration has personally revoked the cancellation decision or, acting personally, granted a permanent visa to the person
The Department considers people “controversial visitors” if they:
- would pose a risk or are a danger to the Australian community, or a segment of the Australian community in any way;
- advocate extremist views such as a belief in the use of violence as a means of political expression;
- has incited, or promotes hatred against a group or individual distinguished by race, sex, religion, nationality, or national or ethnic origin or is associated with a group or organization that does the same
- has engaged in speech likely to result in some form of harm to the community, such as views that could jeopardise public health (e.g. the vaccination status of high profile individuals);
- has a record of behaviour linked to disregard for law and order;
- is a high-profile individual with a criminal history or other controversial views, where a decision to allow the individual to enter or remain in Australia is likely to be a matter of public and media discussion or debate.
These just some of examples of when someone would be considered a controversial visitor that would not be allowed in the country. The list goes on to include people who have committed war crimes or affecting foreign policy interests.
Anyone who has concerns about a potential controversial visitor can make a referral to the Department of Home Affairs’ Controversial Visitors Unit. This includes general members of the public as well as visa processing officers.
This unit works with the National Character Consideration Centre (NCCC), the Department of Foreign Affairs and Trade (DFAT) and potentially the media by coordinating talking points and briefings with these stakeholders.
Some recent cases years include alt right political commentator Milo Yiannopoulos whose visa was cancelled in 2019 after he made comments on the Christchurch mosque terrorist attacks on Facebook ahead of his speaking tour in NSW. Another was rapper Tyler the Creator who was referred to the Controversial Visitors Unit by the Collective Shout, a local feminist group. The group petitioned to the then Minister for Immigration Peter Dutton to have the rapper’s visa refused on character grounds on the basis that his lyrics encouraged and glorified rape and violence against women.
It’s important to have an open discussion about any potential character matters with incoming foreign cast and crew as soon as possible as these issues can quickly derail production schedules if not addressed upfront.
This is the case even if the character matter was from many years ago or fairly minor- it’s best that they get advice on what the risks of cancellation or refusal of their visa are as soon as possible as the Department can often apply a very subject assessment to the character laws.
For even minor character matters, they may also demand to see a lot more documentation such as police clearance certificates and written statements on the character matter, before they can grant the visa.
This can delay the process significantly and must be advised on a case by case basis.
Karen Lo is a partner at Ajuria Lawyers, widely regarded as one of Australia’s leading specialist immigration law practices, offering immigration advice and assistance to businesses across all industry sectors, ranging from start-ups to multinationals. She oversees the entertainment division at the firm helping bring in talent to Australia for indie productions to large productions with hundreds in production crew numbers. Karen specialises in employer-sponsored work visas and has advised on and managed corporate immigration programs for clients including lobbying the Government and other stakeholders on their behalf to bring about positive change in immigration law and policy.
Prior to joining Ajuria Lawyers, she worked in the then Department of Immigration and Border Protection, processing complex Partner Visas and worked for the Office of the Migration Agents Registration Authority, delivering sanction decisions against migration agents who had committed serious breaches of the Code of Conduct, including migration fraud. Connect with Karen via email or via LinkedIn
