On 14 October 2019, media reported that a Vietnamese woman was "deported" from Sydney Airport because she was found to be carrying 4.6kg of uncooked pork and other food items in her luggage. There have also been recent reports (see e.g. ABC) that a second Vietnamese tourist was "deported" for carrying pork inside mooncakes (a type of festive cake originally from China but now also consumed in other parts of Asia), which he failed to declare to Customs. The media has claimed that both deportations were effected due to the introduction of legislative amendments in April this year, which allow the cancellation of visitor visas if the visa holder has contravened Australia's biosecurity laws. It is not entirely clear whether the tourists were in fact "deported", or whether they voluntarily left the country after having their visas cancelled. Given the amendment to the Migration Regulations 1994 (Cth) (the Migration Regulations) providing the new cancellation ground which allows cancellation of visitor visas due to contravention of Biosecurity legislation, it is more likely to be the latter scenario.
The legislative framework for visa cancellation
The general discretionary power to cancel a visa is found in s 116 of Migration Act 1958 (Cth) (the Migration Act). Furthermore, there is a policy document which provides guidance to case officers regarding the exercise of this power.
s 116 lists many grounds for visa cancellation, including:
- The visa holder has not complied with a condition of the visa.
- The Minister is satisfied that incorrect information was given, by or on behalf of the visa holder, and the incorrect information was taken into account, or in connection with, making a decision to grant a visa to the person.
- Giving incorrect information in the Incoming Passenger Card (IPC) and where the visa holder has not entered Australia or has entered but has not been immigration cleared.
- The presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.
- Any further grounds as prescribed by regulations (s 116(1)(g)). The relevant regulation is reg 2.43 of the Migration Regulations.
New grounds for visa cancellation
In April 2019, the Australian Government introduced a legislative instrument1 which effected an amendment to reg 2.43. In summary, that instrument introduced new grounds for visa cancellation, namely cancellation of visitor visas for contraventions of Australia's biosecurity laws and cancellation of temporary visas for importing objectionable goods without the required permit. This article will only deal with the first new ground, i.e. biosecurity contraventions.
The text of the relevant amendment (i.e. new paragraph to be inserted at the end of reg 2.43(1)) is as follows:
(s) in the case of a holder of:
(i) a Subclass 600 (Visitor) visa; or
(ii) a Subclass 601 (Electronic Travel Authority) visa; or
(iii) a Subclass 651 (eVisitor) visa; or
(iv) a Subclass 676 (Tourist) visa; or
(v) a Subclass 771 (Transit) visa;
who is in Australia and who has not been immigration cleared—that the Minister reasonably believes that the visa holder has contravened subsection 126(2), 128(2), 532(1) or 533(1) of the Biosecurity Act 2015;
In other words, reg 2.43(1)(s) provides for visitor visa cancellation if the visitor visa holder who is in Australia and who has not been immigration cleared has:
- Failed to answer questions asked by a biosecurity officer2 – this may also include failing to complete an IPC. A person who is asked questions by a biosecurity officer under s 126 of Biosecurity Act 2015 (Cth) (the Biosecurity Act) cannot refuse to answer and seek to rely on the common law privilege against self-incrimination.3 Instead, the Biosecurity Act provides protections to individuals who make self-incriminatory disclosures, i.e. such disclosures cannot be used against them either directly in court or indirectly to gather other evidence against them.4
- Failed to comply with a direction by a biosecurity officer regarding the movement of goods.5
- Knowingly provided false or misleading information to a biosecurity officer.6 This includes giving false or misleading answers when being orally questioned by a biosecurity officer.
- Knowingly provided false or misleading documents to another person.7 This can include a person handing over a completed IPC to an officer upon arrival in Australia, and where the person knows that the answers provided in the IPC is false or misleading.
It is important to note that the Biosecurity Act applies to all individuals, regardless of whether they are Australian citizens/permanent residents or temporary visa holders. However, the specific provision for visa cancellation only applies to the holders of visitor visa only.
Is it possible to cancel the visa when the visa holder has physically passed through immigration clearance by the Australian Customs and Border Protection officer at the airport?
It is important to understand what it means to be 'Immigration Cleared'. Section 172 of the Migration Act provides that (with the exception of a child born in Australia) a person must arrive in Australia and be given permission to enter with the permission of a relevant "clearance authority". In the case of arrival by plane, it will involve the person displaying their passport and valid visa to an immigration officer and then leaving the airport complex entirely to be immigration cleared. Hence, persons who have passed "Customs" clearance can still have their visa cancelled if they are found to be in breach of the relevant biosecurity laws.
Rationale behind visa cancellation on the basis of biosecurity contraventions
The recent (and ongoing) outbreak of African Swine Fever (ASF) was a major factor that drove the amendment of reg 2.43. ASF is a contagious disease affecting pigs and wild boars, which has up to 100% fatality rate.8 There is no vaccine for ASF. Incidents of ASF have been reported in Europe, Africa and Asia since 2016.9 As of 31 October 2019, ten countries in Asia have been affected, with fresh outbreaks being reported in various parts of Vietnam and a confirmed outbreak in Timor-Leste.10 While Australia has yet to report cases of ASF, the ongoing spread of this disease poses a significant risk to Australia's agricultural industry, and by extension, its economy.
Reg 2.43(1)(s) is limited to holders of visitor visas only, as the statistics from the Department of Agriculture and Water Resources show that non-residents constitute 68% of infringements issued for breaches of the Biosecurity Act and 59% of infringement notice fines are unpaid by non-residents. When deciding whether a visa should be cancelled under reg 2.43(1)(s) decision-makers are able to take into account other factors, such as the seriousness of the breach, the potential threat posed by the prohibited items and the personal circumstances of the visa holder.
The Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) indicated in the Explanatory Statement accompanying the amending legislative instrument, that reg 2.43(1)(s) is designed to target people who attempt to deceive biosecurity officers about the presence of prohibited items in their luggage. This includes passengers who correctly declare their goods on their IPC, but subsequently make deliberately false or misleading statements to biosecurity officers about the declared goods. For example, a passenger may declare that they are bringing goods that fall under the category of "meat, poultry, fish, seafood, eggs, dairy, fruit and vegetables". When questioned, the passenger may state that they only have fruit in their luggage when in fact they are also carrying poultry products. Prior to reg 2.43(1)(s), there was only a power to cancel a person's visa on the basis that they made a false declaration on their IPC.
The introduction of reg 2.43(1)(s) therefore achieves two key objectives:
- Fills in a gap in the visa cancellation powers – where visa cancellation is not available in a situation where a passenger correctly declares their goods in their IPC but later makes false or misleading statements to a biosecurity officer.
- Provides a stronger deterrent as infringement notices have not been enough to deter and/or punish non-compliance. Passengers were able to pay the fine to discharge their liability and continue to be in Australia despite their breach of biosecurity laws. It has also been noted that if visitors leave Australia without paying the fine, they are not prevented from re-entering Australia as the fine is not considered a "debt owed to the Commonwealth".
Consequences of visa cancellation
There are very serious consequences for a person who has had their visa cancelled under reg 2.43(1)(s). The amendments to the Migration Regulations also include an amendment to a Schedule 4 Public interest criterion (4013) so that it now bars such persons from applying for most of the common types of Australian temporary visas (including visitor visa and student visa) for three years.
There is limited procedural fairness offered to visitor visa holders who find themselves at risk of visa cancellation because of their breaches of Australian biosecurity laws. In practice, visitors would usually be subject to oral questioning by officers, and given only 10 to 20 minutes to respond. There is no provision for merits review by the Administrative Appeals Tribunal (AAT) if the person's visa is cancelled while in immigration clearance.
Because the new grounds for visa cancellation were introduced through an amendment of the Migration Regulations, it is concerning that Parliament has not had an opportunity to scrutinise and debate the proposed amendments before they were passed. On the other hand, the urgency of protecting Australia from emerging biosecurity threats may explain the haste with which these new grounds were introduced.
It is extraordinary that visitors who contravene Australia's biosecurity laws are exposed to the prospect of visa cancellation and potentially prevented from entering Australia for three years following visa cancellation, whereas Australian permanent residents/citizens may be fined for similar offending behaviour and are otherwise still allowed to reside in Australia. Having regard to the statistics which show visitors comprising the majority of biosecurity infringement notices (see above), one wonders if an expanded education campaign is a better solution to reduce the number of infringements.
At present, there are no initiatives to disallow the amendments to reg 2.43, so it appears that these amendments are here to stay for the foreseeable future.
Therefore, whenever visiting a foreign jurisdiction (this includes travelling to overseas countries and even travelling interstate within a country), visitors should use their common sense and make attempts to find out about that jurisdiction's laws before travelling. In particular, visitors should pay attention to local customs and biosecurity laws, because without doing their research and taking appropriate steps to comply beforehand, they may find themselves running afoul of these laws upon, or soon after, setting foot in that jurisdiction. Heavy penalties can be imposed for non-compliance in some circumstances.
Please note that the foregoing is provided by way of general information only and is not intended to be immigration legal advice. We encourage you to contact one of our registered migration agents to obtain advice tailored to your circumstances.
1 Migration Amendment (Biosecurity Contraventions and Importation of Objectionable Goods) Regulations 2019 (Cth).
2 Biosecurity Act 2015 (Cth) s 126(2).
3 Biosecurity Act 2015 (Cth) s 635(1).
4 Biosecurity Act 2015 (Cth) s 635(2).
5 Biosecurity Act 2015 (Cth) s 128(2).
6 Biosecurity Act 2015 (Cth) s 532.
7 Biosecurity Act 2015 (Cth) s 533.
8 Food and Agriculture Organisation of the United Nations, ASF situation in Asia update (31 October 2019) < http://www.fao.org/ag/againfo/programmes/en/empres/ASF/situation_update.html >.
9 World Organisation for Animal Health, Global Situation of ASF (20 May 2019) < https://www.oie.int/fileadmin/Home/eng/Animal_Health_in_the_World/docs/pdf/Disease_cards/ASF/Report_17._Global_situation_of_ASF.pdf >.
10 Food and Agriculture Organisation of the United Nations, ASF situation in Asia update (31 October 2019) < http://www.fao.org/ag/againfo/programmes/en/empres/ASF/situation_update.html >.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.