(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
(d) the person is a threat to national security; or
(e) the person’s presence in Australia would prejudice Australia’s international relations.
Spreading hatred and extremism
(1A) This subsection applies to a person if the Minister reasonably suspects that:
(a) both of the following apply:
(i) the person is, or has been, a member of an organisation;
(ii) at any time the person was a member of the organisation, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group; or
(b) all of the following apply:
(i) the person has, or has had, an association with an organisation;
(ii) at any time during the person’s association, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group;
(iii) the person intends, or intended, by the association, to support terrorism, extremism or hatred or to further acts of terrorism, extremism or hatred; or
(c) the person has been or is involved in conduct constituting a hate crime (whether or not the person, or another person, has been convicted of an offence constituted by the conduct); or
(d) both of the following apply:
(i) the person has made one or more public statements, or has endorsed a statement publicly, (whether in Australia or overseas, and including online statements) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
(ii) in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community; or
(e) both of the following apply:
(i) the person has encouraged one or more other persons to make a statement publicly (whether in Australia or overseas, and including an online statement) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
(ii) in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community.
Note 1: Antisemitic statements are an example of statements that involve harmful ideas based on superiority over or hatred of other persons on the basis of ethnic origin, as mentioned in subparagraphs (d)(i) and (e)(i).
Note 2: See also subsection 5(1) for definitions of terms used in this subsection.
Limbs do not limit each other
(1B) None of the limbs of the grounds for refusal or cancellation of a temporary safe haven visa are intended to limit or otherwise affect each other.
Minister not required to determine whether membership or association is ongoing
(1C) The Minister is not required to determine whether a person’s membership of or association with an organisation is continuing or has concluded when making a decision for the purposes of paragraph (1A)(a) or (b).
(2) For the purposes of subsection (1), conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
Refusal or cancellation of temporary safe haven visas
(3) The Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person’s temporary safe haven visa if:
(a) the person has been sentenced to death (see subsection (4)); or
(b) the person has been sentenced to imprisonment for life (see subsection (4)); or
(c) the person has been sentenced to a term of imprisonment of 12 months or more (see subsections (4) and (5)); or
(d) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(e) the person has been convicted of an offence against section 197A.
(4) For the purposes of subsection (3), a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) the person has been pardoned in relation to the conviction concerned.
(5) For the purposes of subsection (3), if a person has been convicted of an offence and the court orders the person to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Minister to exercise power personally
(6) The powers under subsections (1) and (3) may only be exercised by the Minister personally.
Minister to table decision
(7) If the Minister makes a decision under subsection (1) or (3) to refuse to grant, or to cancel, a temporary safe haven visa, the Minister is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision.
(8) A statement under subsection (7) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(9) A statement under subsection (7) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
Minister to notify person of decision
(10) If the Minister makes a decision under subsection (1) or (3) to refuse to grant a person a temporary safe haven visa, or to cancel a person’s temporary safe haven visa, the Minister must, in writing, notify the person of the decision. However, failure to do so does not affect the validity of the decision.
(10A) If the notification under subsection (10) relates to a decision to cancel a person’s temporary safe haven visa, the notification must be given in the prescribed way.
Natural justice and code of procedure not to apply to decision
(11) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (1) or (3).
Automatic refusal to grant visa to an immediate family member
(12) If the Minister refuses to grant a person a temporary safe haven visa under subsection (1) or (3), then the Minister is also taken to have refused to grant a temporary safe haven visa to each immediate family member of the person. The immediate family member need not be notified of the refusal.
Automatic cancellation of immediate family member’s visa
(13) If a person’s temporary safe haven visa is cancelled under subsection (1) or (3), then a temporary safe haven visa held by each immediate family member of the person is also cancelled. The immediate family member need not be notified of the cancellation.
Definitions
(14) In this section:
court includes a court martial or similar military tribunal.
immediate family member of a person means another person who is a member of the immediate family of the person (within the meaning of the regulations).
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(1) 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).
(2) 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.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
(3B) Subsection (3A) does not limit subsections (2) and (3).
(4) The power under subsection (3) may only be exercised by the Minister personally.
(4A) If the Minister makes a decision under subsection (3) in relation to a person, the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day the decision was made.
(4B) Subsection (4A) does not apply if:
(a) the decision was made on the basis that the Minister reasonably suspects the person does not pass the character test because of the operation of paragraph (6)(a), (e) or (g); or
(b) the person was the subject of an adverse security assessment, or a qualified security assessment, under the ASIO Act when the decision was made.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(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
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; 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
(baa) subsection (6A) applies to the person (spreading hatred and extremism); or
(ba) the Minister reasonably suspects that the person 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 person, or another person, has been convicted of an offence constituted by the 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 might:
(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
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
(f) the person 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 person 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 person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
Otherwise, the person passes the character test.
Spreading hatred and extremism
(6A) This subsection applies to a person if the Minister reasonably suspects that:
(a) both of the following apply:
(i) the person is, or has been, a member of an organisation;
(ii) at any time the person was a member of the organisation, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group; or
(b) all of the following apply:
(i) the person has, or has had, an association with an organisation;
(ii) at any time during the person’s association, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group;
(iii) the person intends, or intended, by the association, to support terrorism, extremism or hatred or to further acts of terrorism, extremism or hatred; or
(c) the person has been or is involved in conduct constituting a hate crime (whether or not the person, or another person, has been convicted of an offence constituted by the conduct); or
(d) both of the following apply:
(i) the person has made one or more public statements, or has endorsed a statement publicly, (whether in Australia or overseas, and including online statements) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
(ii) in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community; or
(e) both of the following apply:
(i) the person has encouraged one or more other persons to make a statement publicly (whether in Australia or overseas, and including an online statement) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;
(ii) in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community.
Note 1: Antisemitic statements are an example of statements that involve harmful ideas based on superiority over or hatred of other persons on the basis of ethnic origin, as mentioned in subparagraphs (d)(i) and (e)(i).
Note 2: See subsections (11A) and (11B) for other rules relating to this subsection. See also subsection 5(1) for definitions of terms used in this subsection.
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person 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 person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
Concurrent sentences
(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.