TABLE OF CONTENTS
Pathway Advice and Character Issues
Visa Cancellation on character grounds can have permanent consequences
Character issues now spill into many areas of migration law
Mandatory Visa Cancellation for Imprisonment for Certain Crimes
28 Days to Apply to Have the Mandatory Cancellation Revoked
Person Remains in Detention Once a Visa is Cancelled
Merit Review, Mandatory Cancellation and Revocation of Cancellation
What is the Relevance of s 501(3A) to Sentencing Principles
Other Character Cancellation Powers
The Character Test in the Non-Mandatory Cancellation Context
Substantial Criminal Record – Imprisonment
Offences in Immigration Detention
Involved in a Group Involved in Criminal Conduct
Further General Grounds to Fail the Character Test
Sexually Based Offences Involving a Child
ASIO Adverse Assessment or an Interpol Notice
Additional Definitions of Substantial Criminal Record
Administrative Appeals Tribunal Review
Judicial Review of AAT Decisions
Can’t Go Behind the Conviction
The Minister’s personal decisions including those in the national interest
Important to analyse at this point is what is the role of the Administrative Appeals Tribunal (AAT)?
Broadly speaking, if the Minister makes a decision personally there is no merit review although there is always judicial review. The Federal Circuit Court has no jurisdiction over decision made by the Minister personally, applications for judicial review have to be made to the Federal Court.
If a decision is made by a delegate then there is a right of review to the AAT (s 500(1)(b). But even then the minister retains a residual power to overturn a decision of the AAT in favour of a former visa holder (see 501BA] (2) where the minister can revoke an AAT decision ‘in the national interest’! Again there are still rights of judicial review against any personal decisions by the Minister.
The merit review power of the AAT against a decision of a delegate not to revoke the mandatory decision to cancel is found in s 500(1)(ba) which identifies, “decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa” as within the set of decisions the AAT can review.
But there is no merit review against the mandatory cancellation decision (see s 500 4A(c) which takes away the jurisdiction of the AAT in relation to mandatory cancellation decisions including –
(c) a decision of a delegate of the Minister under subsection 501(3A) to cancel a visa.)
Merit review will be dealt with in more detail later.