Sarah* says the time her husband Peter* was violent with her was a shocking, one-off incident. She did not want to separate from him, but she says the government made that choice for her when it tried to deport him. 

Peter, who has been in Australia since he was nine, had his visa revoked after he was charged with assault occasioning actual bodily harm against Sarah.

In 2016, aged 22, he was sentenced to 18 months in jail but spent another three years in detention fighting deportation before he was finally released in November, 2020.

Sarah said her husband, who arrived in Australia on a humanitarian visa, would be killed if he were to be deported to South Sudan.

"Maybe there is a time when yes, cancelling visas is necessary, but I feel like people deserve to get a second chance.

"I would never want anyone to go through this."

Draft legislation targets family violence

Both Sarah and Peter are using pseudonyms because Peter fears speaking about his case could jeopardise his visa situation.

Sarah said it was difficult when her husband was in jail, but the indefinite detention that followed was worse.

She said she put her own life on hold, unable to plan for the future, while she fought to get him released.

Draft legislation that will be debated in the Senate on Tuesday would create new ways for the government to deport more people for failing the character test.

If passed, the Strengthening the Character Test Bill will allow the government to cancel the visas of people who are convicted of common assault if it involves family violence.

It is understood that spitting, grabbing a sleeve, breach of a restraining order or striking out at a person but not making contact are examples of offences that would be considered common assault.

A person can also fail the character test for common assault if it is deemed to have caused harm to a person's mental health.

It's one of several ways the Strengthening the Character Test Bill — a list of amendments to The Migrant Act 1958 — would expand the federal government's powers to deport non-citizens who break the law.

Immigration Minister Alex Hawke has said a loophole in immigration law is enabling people who are a risk to the community to stay in Australia.

But critics of the bill say the existing laws already provide the federal government with almost unfettered power to revoke visas held by perpetrators of serious crimes — as well as a range of lesser offences.

"The government haven't provided a single example of a person's visa that they'd like to cancel but can't," said Hannah Dickinson, principal solicitor at the Asylum Seeker Resource Centre (ASRC).

A joint submission signed by 17 legal and support services that work with victim-survivors of family violence has been made to the government, calling for the bill to be scrapped.

Minister Alex Hawke declined to meet with the group prior to the Senate debate next week.

'Dozens face deportation for traffic offences'

Ms Dickinson said it would result in more people being placed in indefinite detention for years, and more people fighting deportation.

She said some individuals had faced deportation for traffic offences, including at least 55 New Zealanders.

Ms Dickinson said she knew of cases where people have had their visas cancelled despite not having been convicted of a crime.

Of 1,459 people in detention in Australia last September, 846 were there because their visas were cancelled on character grounds.

Those with refugee status remain in detention indefinitely, withheld from the community but often unable to be deported because of concerns for their safety.

Many have been in Australia since they were children.

"It is a political bill. And its resurrection is concerning for that reason, because the government is pursuing something that experts have criticised … and yet the government is still pursuing it before an election."

She said the bill would also result in the separation of families against their wishes.

Ms Dickinson said the family violence measures in the bill were "paternalistic" and disregarded the wishes of victim-survivors of family violence.

"Those voices need to be at the centre of any response to family violence."

She said there were also concerns that the threat of deportation would discourage victim-survivors from reporting family violence.

Victims are commonly seeking protection and support for them and their partner, not seeking for the partner to be permanently removed from Australia, argues the ASRC.

Sarah says separation was forced

In Sarah's case, she said she did not want Peter to be deported because they had not broken up. She said she felt their separation was forced upon her.

"I did a lot of crying. It really affected my mental well-being."

Other proposed amendments to the act include changes to the way the character test is applied.

Under the current law, any non-citizen's visa can be revoked if they fail the character test. There are some circumstances where they fail the test automatically, such as if they receive a 12-month jail sentence.

But many visas are cancelled purely at the discretion of the immigration minister or his delegates, who can cancel a visa on a range of other grounds, such as if the minister "reasonably suspects that the person does not pass the character test," or based on the person's "general conduct".

If the new bill is passed, a person will automatically fail the test if they are convicted of a crime which has a maximum sentence of two years' imprisonment, regardless of whether they received the maximum sentence or not, and even if they are not sentenced to any imprisonment.

Penalties differ from state-to-state

Ms Dickinson said the bill was vague and would create "chaos" in the justice system, because sentences and offences differed from state to state.

For example, the maximum imprisonment for common assault in New South Wales and Victoria is two years, which could lead to visa cancellation.

But in WA, the maximum penalty is 18 months in prison.