The Explanatory Memo for the Regulation states that
the Regulation supports and otherwise facilitates the compliance activities of the Department of Immigration & Border Protection. In particular, it is intended to ensure that the Police are able to readily identify if a person charged with a criminal offence is a BVE holder. The provision of name, residential address, date of birth, sex and immigration status will provide the Police with more than one personal identifier to cross-check, ensuring a positive identification. This would facilitate information sharing between the Police and the Department, so that cases that come to the attention of the Police can be referred to the Department so that visa cancellation may be considered, if appropriate. ... The Australian Government has become increasingly concerned about BVE holders who engage in criminal conduct after being released into the community from immigration detention.
The disclosure of information would help federal, state and territory police services to inform the department, as soon as reasonably practicable, that a BVE holder has been charged with a criminal offence. This will support and facilitate the department’s compliance activities, specifically by allowing prompt consideration of visa cancellation. Section 116(1)(g) of the Migration Act 1958 (Cth) and Regulation 2.43(1)(p) and (q) provide that a BVE may be cancelled if:
• the person has been charged or convicted of a criminal offence in Australia or another country;
• the person is subject to an Interpol notice relating to criminal conduct or a threat to public safety or for the purpose of locating and arresting the person; or
• the head of an Australian law enforcement or a security agency has advised that a Bridging E visa holder is under investigation and should not hold that visa.
Additionally, the proposed amendments assist in the continuation of a cooperative working environment between the department and federal, state and territory police services, enabling information sharing and collaborative work practices.The Memo notes that
Subsection 504(1) of the Migration Act 1958 (Cth) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, the following provisions may apply:
• subsection 116(1) of the Act provides that the Minister may cancel a visa if he or she is satisfied of at least one of a variety of circumstances, including that:
- the holder has not complied with a condition of a visa;
- another person required to comply with a condition of the visa has not complied with that condition;
- the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community;
- that a prescribed ground for cancelling the visa applies to the holder.
• sub-paragraph 2.43(1)(p)(i) of the Migration Regulations 1994 (‘the Principal Regulations’) provides that for the purpose of paragraph 116(1)(g) of the Act, in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging) (Protection Visa Applicant)) visa, a prescribed ground is that the Minister is satisfied that the visa holder has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country.
• sub-paragraph 2.43(1)(p)(ii) of the Principal Regulations provides that for the purpose of paragraph 116(1)(g) of the Act, a prescribed ground is that in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging) (Protection Visa Applicant)) visa the Minister is satisfied that visa holder has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.
As one practitioner commented to me, the implication of the regulation is that visas can and will be cancelled on the basis of suspicion - a charge is not a conviction. I wonder what Tim Hill (formerly of the IPA), the new 'Freedom Commissioner' at the AHRC, thinks of that.• paragraph 2.43(1)(q) of the Principal Regulations provides that for the purpose of paragraph 116(1)(g) of the Act, a prescribed ground is that in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging) (Protection Visa Applicant)) visa an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the visa holder is under investigation by that agency and that the visa holder should not hold their visa.
