A 46-year-old UK citizen, Clifford Tucker (pictured), was removed from Australia to Britain this week. His visa was cancelled because he failed the character test and no discretion was exercised in his favour. He has three Australian citizen children and has lived in Australia for 40 years. He also has a long history of violence and other criminal offences.
An old principle of law is that you should not be punished twice for the same offence. But governments believe they should be able to remove a non-citizen who is seen to be a risk to the community. It can be difficult to maintain this balance. In the Tucker case, the risk to the community superseded his desire to live in Australia and be near his children.
The Migration Act has a powerful provision in section 501, which provides that the minister can refuse or cancel a visa of someone who fails the character test.
The character test has three main parts. First, someone fails if they have a substantial criminal record (i.e. having been sentenced to at leasst 12 months in prison). Second is the association test, which came to prominence in the Dr Haneef case in 2007.
Third is the assessment of past and present criminal or general conduct. Commonly this looks at people who, while they may not have been convicted of criminal offences, have breached visa conditions, worked without permission or overstayed their visa.
Most cases now seem to fall into the criminal record category.
If someone fails the character test, four primary discretionary factors are considered. These are: the protection of the Australian community; whether the person was a minor when they came to Australia; the length of time a person was in Australia before they engaged in criminal activity; and relevant international obligations.
The fourth ground includes consideration of whether there are children who could be affected, or whether a person is covered by the Refugee Convention or other international treaties.
Other factors may also be considered, but those who fail the character test need to have at least one of those four factors in their favour to have any chance of winning their case.
Cancellation under s501 means not only are you removed from Australia; you will never be able to