10-Year Visa Ban Legislation Defeated in the Senate

The Australian government’s attempt to introduce new legislation that would have imposed a 10-year visa ban on any individual who provides false or misleading information to the Department of Immigration has been defeated in the senate.

While the government initially appeared confident in the legislation’s passing, it was subsequently shot down by a coalition of crossbenchers, primarily led by the Greens Party.

The proposed changes to the migration regulations—which would have come into effect on 18 November 2017—would bring the Migration Legislation Amendment (2017 Measure No. 4) Regulation into effect.

The current legislation, section 4020 of the Public Interest Criterion punishes applicants who supply false or misleading information to the Department of Immigration and Border Protection (DIBP)—as well as the Migration Review Tribunal and Administrative Appeals Tribunal—with a 12-month ban on reapplying for a visa.

However, under the government’s proposed legislation this period would have been extended to 10 years before another application could be made.

The Minister for Immigration, Peter Dutton, has issued a statement addressing the changes, saying that they are necessary to prevent foreign nationals from circumventing Australia’s visa rules by simply withdrawing and re-submitting applications.

“[The applicants withdraw] once notified by the Department of suspected fraud, only to re-attempt their visa application after the period of 12 months has elapsed,” Dutton said.

A spokesperson for the Department also added that the 10 year ban period is, “a necessary, reasonable and proportionate measure to protect the integrity of the visa framework”.

“It is the responsibility of the applicant to ensure the documents and information in the visa application is truthful, even if a Migration Agent or third party is acting on their behalf.”

“Decision makers can take into account whether or not the visa applicant deliberately submitted fraudulent documents,” the spokesperson said.

However, the senate outcome was described as a victory for migrants by Greens Senator, Nick Mckim, who called the Department of Immigration’s proposed changes “draconian”.

“Some of the powers that Peter Dutton wanted to give himself included the powers to cancel visas for something like speeding ticket… And those powers to be exercised not only without a conviction for the alleged offence but even without someone being charged,” McKim said.

“The risk here was that the people who did nothing wrong, such as people who may have been represented by an incompetent migration agent or in fact who were defrauded by migration agents would risk being either detained or deported.”

“The idea that someone could be sent to detention without charge, without trial for something as minor as a speeding offence is an outrageous breach of natural justice,” he said.

The new changes would have applied to any visa application made on or after 18 November 2017, and covered a wide range of temporary visa classes, including:

  • Student visas;
  • Family visas;
  • Skilled migration visas;
  • Family and Partner visas.

According to the spokesperson, Immigration Department officers would have retained the discretion to determine whether or not a prospective visa applicant has been deliberately fraudulent.

Applicants who were found to have submitted incorrect information unknowingly or by accident would not have been subjected to the 10-year ban.

A senior migration agent from Absolute Immigration, Grant Frankcombe, welcomed the legislation’s defeat, saying that it was a salient reminder for visa applicants to ensure that the information they are providing to the Department of Immigration is accurate.

“Given the seriousness with which the DIBP view the Public Interest Criteria, it’s essential that applicants provide accurate and complete information as an unintentional omission can impact current or future applications,” Frankcombe said.

“Engaging the services of a professional migration agent can help to ensure that applicants avoid these kinds of problems.”

“We know the pitfalls and are careful to warn client of these when preparing submissions on their behalf,” he said.

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