Regulating Crimmigrants through the 'Character Test': Exploring the Consequences of Mandatory Visa Cancellation for the Fundamental Rights of Non-Citizens in Australia

Abstract

This article critically examines legislative reforms to the ‘character test’, related changes to policy and government administration, with a particular focus on the recent introduction and enforcement of an unprecedented regime of mandatory visa cancellation for non-citizens considered to be of bad character. Non-citizens subject to mandatory visa cancellation include those possessing a ‘substantial criminal record’. These individuals are subject to extended periods of imprisonment after the expiration of non-parole periods, or lengthy periods of immigration detention upon the expiration of their prison sentence. They are vulnerable to removal from Australia notwithstanding deep and enduring community ties. Justified by politicians as a measure of effective crime control, visa cancellations on the grounds of bad character have increased rapidly since 2014, largely as a consequence of the introduction of mandatory visa cancellation. The revision of the character test, and introduction of mandatory visa cancellation, coheres with global ‘crimmigration’ trends as a means of effecting social exclusion for those represented as undesirable and unworthy of the ‘privilege’ of community membership. This article examines mandatory visa cancellation in light of the concept of ‘crimmigration’, and critiques the reasoning behind its introduction and the regulations and procedures governing its application. This article argues that mandatory visa cancellation, detention, attendant legal processes, and the sanction of removal, are, in several and sometimes distinctive ways, effectively punitive, and often conflict with individual’s fundamental rights.