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Review processes associated with visa cancellations made on criminal grounds

On 14 March 2018, the Minister for Home Affairs asked the Committee to inquire into and report on the review processes associated with visa cancellations made on criminal grounds. In conducting the Inquiry, the Committee is to have particular regard to:

(a) the efficiency of existing review processes as they relate to decisions made under section 501 of the Migration Act;
(b) present levels of duplication associated with the merits review process; and
(c) the scope of the Administrative Appeals Tribunal's jurisdiction to review ministerial decisions.

As a preliminary point, the Law Council recognises that it is both necessary and appropriate to regulate people seeking to enter and remain in Australia in terms of character. The executive should have powers where necessary to prevent or remove a dangerous individual from obtaining or retaining the right to enter and remain in Australia.

However, the Law Council notes that a decision to cancel or refuse a visa based on character grounds can have a profound effect on an individual’s life. These powers need to be transparent and subject to proper scrutiny and oversight, and there must be an appropriate mechanism for review of such decisions to ensure consideration of factors that weigh in favour of not cancelling or refusing a person’s visa.

For reasons outlined in this submission, the Law Council’s view is that it is entirely appropriate for the Administrative Appeals Tribunal (AAT) to have the power to conduct merits review in respect of visa cancellations made on criminal grounds. The Law Council submits that existing review processes contribute to good administration, and that the jurisdiction of the AAT should not be restricted any further than it already has been.

There are, however, certain aspects of the manner in which the law regarding visa cancellations and refusals on character grounds is currently being applied that could be improved to ensure consistency, fairness and efficiency. Specifically, the Law Council has concerns with the scope of executive power in relation to visa cancellations on criminal grounds, as set out in this submission.

Further, and as noted below, the jurisdiction of the AAT to review decisions of the Minister, and his delegates is already circumscribed by certain parameters. It is submitted that in many cases, this attempt to limit the availability of merits review has led to an increase in expensive and time-consuming judicial review.

The Law Council strongly supports the role of merits review in the Australian administrative law framework, and endorses the view of the former Administrative Review Council that an effective review tribunal should improve the quality of future agency decision-making so as to benefit all Australians. This process is referred to in this context as the ‘normative effect’ of tribunal decisions, where the involvement of merits review leads to departmental decision-making that is consistent and equitable as between individuals in similar situations, and compliant with the rule of law.

You can read the full submission below.

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