Migration Act 1958

For the purposes of this Act, a non‑citizen is of character concern if:

the non‑citizen has a substantial criminal record (as defined by subsection (2)); or

the non‑citizen has been convicted of an offence that was committed:

while the non‑citizen was in immigration detention; or

during an escape by the non‑citizen from immigration detention; or

after the non‑citizen escaped from immigration detention but before the non‑citizen was taken into immigration detention again; or

the non‑citizen has been convicted of an offence against section 197A; or

the Minister reasonably suspects:

that the non‑citizen 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

that the group, organisation or person has been or is involved in criminal conduct; or

subsection (1A) applies to the non‑citizen (spreading hatred and extremism); or

the Minister reasonably suspects that the non‑citizen has been or is involved in conduct constituting one or more of the following:

an offence under one or more of sections 233A to 234A (people smuggling);

an offence of trafficking in persons;

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;

having regard to either or both of the following:

the non‑citizen’s past and present criminal conduct;

the non‑citizen’s past and present general conduct;

in the event that the non‑citizen were allowed to enter or to remain in Australia, there is a risk that the non‑citizen might:

engage in criminal conduct in Australia; or

harass, molest, intimidate or stalk another person in Australia; or

vilify a segment of the Australian community; or

incite discord in the Australian community or in a segment of that community; or

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

a court in Australia or a foreign country has:

convicted the non‑citizen of one or more sexually based offences involving a child; or

found the non‑citizen guilty of such an offence, or found a charge against the non‑citizen proved for such an offence, even if the non‑citizen was discharged without a conviction; or

the non‑citizen has, in Australia or a foreign country, been charged with or indicted for one or more of the following:

the crime of genocide;

a crime against humanity;

a war crime;

a crime involving torture or slavery;

a crime that is otherwise of serious international concern; or

the non‑citizen 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

an Interpol notice in relation to the non‑citizen, from which it is reasonable to infer that the non‑citizen would present a risk to the Australian community or a segment of that community, is in force.

This subsection applies to a non‑citizen if the Minister reasonably suspects that:

both of the following apply:

the non‑citizen is, or has been, a member of an organisation;

at any time the non‑citizen was a member of the organisation, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group; or

all of the following apply:

the non‑citizen has, or has had, an association with an organisation;

at any time during the non‑citizen’s association, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group;

the non‑citizen intends, or intended, by the association, to support terrorism, extremism or hatred or to further acts of terrorism, extremism or hatred; or

the non‑citizen has been or is involved in conduct constituting a hate crime (whether or not the non‑citizen, or another person, has been convicted of an offence constituted by the conduct); or

both of the following apply:

the non‑citizen 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;

in the event the non‑citizen 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

both of the following apply:

the non‑citizen 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;

in the event the non‑citizen 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.

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).

See also subsection 5(1) for definitions of terms used in this subsection.

None of the limbs of subsection (1) or (1A) are intended to limit or otherwise affect each other.

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).

For the purposes of subsection (1), a non‑citizen has a substantial criminal record if:

the non‑citizen has been sentenced to death; or

the non‑citizen has been sentenced to imprisonment for life; or

the non‑citizen has been sentenced to a term of imprisonment of 12 months or more; or

the non‑citizen has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

the non‑citizen 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

the non‑citizen has:

been found by a court to not be fit to plead, in relation to an offence; and

the court has nonetheless found that on the evidence available the non‑citizen committed the offence; and

as a result, the non‑citizen has been detained in a facility or institution.