Visa refusal or cancellation results in immediate detention. There are draconian evidence requirements and time limits for appeals to the Administrative Appeals Tribunal (AAT). A non-citizen can be deemed to be of bad character for many reasons. The ATT must consider a list of policy matters when hearing appeals. The Minister can make binding directions and overrule AAT decisions, or personally cancel the visa of permanent residents convicted of an offence so that there is no right of appeal to the AAT.
Appeals to the Administrative Appeals Tribunal
Where the minister signs a deportation order against a permanent resident convicted of a crime (as distinct from an unlawful non-citizen) the person has a right to appeal on the merits to AAT (for more information on this topic, see Appealing government and administrative decisions). However, as is far more likely, the minister will use section 501 of the Migration Act to cancel a prisoner’s permanent visa. If the cancellation decision is made personally by the minister or is made automatically under section 501(3A) (i.e. the mandatory cancellation of permanent residence to those undergoing a sentence of imprisonment of 12 months or more) there is no right of appeal to any merits review body like AAT and the person must be detained until removed or granted a visa. The only “appeal” is to the Federal Court for judicial review (see Appealing government and administrative decisions). If, however, the minister uses the section 201 deportation power or a “delegate” of the minister cancels or refuses under section 501, then there is a review right to AAT.
The AAT is independent of the DIBP and is obliged to “put itself in the shoes” of the decision-maker and make a fresh decision. Usually, only permanent residents or persons whose interests are affected by that deportation have a right of appeal to AAT. However, the AAT also has power to review refusals or cancellations of temporary visas on character or security grounds; cancellations of business visas (after entry); migration agent registration refusals and cancellations.
If deportation is involved, an application in AAT should be made for a stay of the deportation order pending review. DIBP has so far consented to all stay applications.
A person whose interests are affected by a deportation order reviewable by AAT may request a written statement setting out the facts upon which the order was made and the reasons for the decision. The minister must supply the written statement within 28 days of the application being lodged with AAT. The statement will refer to documents such as probation officers’ reports and policy manuals used by DIBP. These documents are required to be lodged at AAT and are usually made available to the person who has applied for review (s 37 Administrative Appeals Tribunal Act 1975 (Cth)).
If a delegate of the minister has cancelled or refused a permanent visa under section 501 of the Migration Act, on character grounds, then very different rules apply. The person must be immediately detained. Section 501G sets out the requirements for the content of character decisions. They must set out reasons for the decision and, if the applicant is onshore, must be accompanied by two copies of every document in the delegate’s possession and control that was relevant to the making of the decision.
An onshore applicant has only nine days from date of notification to seek review. Any application to AAT must be accompanied by one of the sets of documents given to the applicant (s 500(6B)). The minister is then obliged to lodge with AAT all the relevant documents (including non-disclosable information) within 14 days (s 500(6F)). Only then can a hearing be held (s 500(6G)). AAT itself has the power to direct the minister to provide missing documents.
During any hearing, the AAT must not take into account any information presented orally by or for an onshore applicant unless it was set out in a written statement given to the minister at least two working days prior to the hearing (s 500(6H)) nor any document unless it was given to the minister at least two working days prior to the hearing (s 500(6J)). The minister, however, can keep providing information to AAT up to the hearing date (s 500(6J)). Finally, AAT must make a decision within 84 days of the day the onshore applicant was notified of the delegate’s decision (s 500(6L)) or AAT is deemed to have affirmed the primary decision (i.e. the person is deemed to have lost their case!).
Offshore cancellations or refusals under section 501 are also reviewable in AAT, but neither the 84-day rule nor the other draconian evidentiary provisions apply. However, the same government policy on whether a person passes the character test applies to both onshore and offshore applicants.
If a person is the subject of a character visa “cancellation” decision under section 501, as opposed to a mere visa “refusal”, this is an absolute bar to the grant of any future visa other than a criminal justice visa. This is because all substantive visas require satisfaction of clause 5001 in schedule 5 of the Migration Regulations, which states that an applicant must not have had a visa “cancelled” under section 501 for either general conduct or criminal conduct. Strangely enough, a visa refusal under section 501 does not seem to have the same draconian effect, although an applicant would still have to pass the character test.
Given the draconian nature of these decisions where an applicant is onshore, it may sometimes be better for a person to leave Australia to avoid the mandatory detention aspects of an onshore decision, and run their appeal to the AAT from offshore. However, under the new scheme of automatic cancellations, for persons sentenced to more than 12 months imprisonment, or those convicted of child sexual offences, that option is not available.
Where the AAT has jurisdiction, it will decide the application exercising the same powers and discretions as the minister. It will consider the legal validity of the order and also any policies that it considers are appropriate. The AAT is not bound by the policies used by the minister but it is bound by any “directions” made by the minister under section 499 of the Migration Act.
A non-citizen is deemed to be of bad character if they have a “substantial criminal record”. This is defined in section 501(7) to include being:
• sentenced to death;
• sentenced to imprisonment for life;
• sentenced to a term of imprisonment of 12 months or more;
• sentenced to two or more terms of imprisonment (on one or more occasions) where the total of those terms is two years or more; or
• acquitted of an offence on the grounds of unsoundness of mind or insanity as a result of which the person has been detained in a facility or institution.
A non-citizen is also deemed to be of bad character if they have (or had) an association with another individual, a group or an organisation, whom the minister reasonably suspects has been or is involved in criminal conduct. The minister’s policy states that this includes having an “alliance”, “link” or “connection” and includes a person with blood or family ties to a criminal organisation. Actual membership of a criminal organisation is not essential. A non-citizen can also be found to be of bad character even if their criminal record is less than the above, as the minister or delegate can still have regard to either past and present criminal conduct or past and present general conduct. “Criminal conduct” means conduct that is punishable by law and has actually been punished by conviction for an offence.
All other conduct, both good and bad – including conduct that may be a crime but was never prosecuted, no conviction was recorded or the non-citizen was acquitted – is treated as “general conduct”. Accordingly, even an acquittal by a court is not conclusive of good character as the minister or delegate can still make a finding on the balance of probabilities that the crime was committed. Indeed, general conduct is probably the most dangerous area open for abuse by government officials, as it is described in the minister’s section 499(1) policy direction as including a situation where there is a significant risk (something less than the balance of probabilities) that the person would:
• engage in criminal conduct in Australia;
• harass, molest, intimidate or stalk another person in Australia;
• vilify (i.e. defame or speak ill of, abuse, revile with abusive language, malign) a segment of the Australian community;
• incite discord (i.e. provoke conflict, disharmony, disagreement) in the Australian community or in a segment of the community; or
• represent a danger to the Australian community or to a segment of that community by 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 (“disruptive” activities do not necessarily involve some irrevocable breakdown in social relationships but may encompass a temporary division or rift ranging from heated and angry confrontation to acute conflict).
General conduct also includes those activities that would, in the absence of any countervailing factors, constitute a failure to pass the character test such as:
• engaging in business activities that fall short of criminal fraud requiring proof beyond reasonable doubt but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen’s moral qualities;
• continual evasion or non-payment of debt;
• continual disregard as to payments of family maintenance;
• involvement in activities such as organised crime, terrorism, extortion, drugs, fraud and breaches of immigration law;
• provision of a bogus document or a false or misleading statement in connection with any application for the grant of a visa or any kind of government benefit;
• making a false or misleading declaration on an approved form about their character or conduct or both;
• having been removed/deported from Australia or another country;
• having been dishonourably discharged from the armed forces of any country or discharged prematurely as a result of serious disciplinary action; and
• offences that are the subject of unresolved charges taking into account whether there is a pattern of conduct and/or the seriousness of the offence.
Section 499 policy directions allow the minister to make binding directions on delegates and AAT that must be complied with. The directions are binding both in relation to the matters to be taken into account and what weight should be given to different considerations. There are three primary considerations, as discussed below.
This is an assessment of the level of risk to the community and involves consideration of the seriousness and nature of the conduct, whether it is likely to be repeated and matters of general deterrence where it is important to “send a message”. Very serious conduct includes:
• production, importation, distribution, trafficking, commercial dealing or selling of illicit drugs, particularly heroin;
• organised criminal activity;
• serious crimes against the Migration Act including offences attracting sentences and imprisonment of 12 months or more for bringing non-citizens into Australia in contravention of the Act, harbouring unlawful non-citizens, arranging a contrived marriage/de facto/interdependency relationship, providing false or misleading information about such a relationship, nominating a person on the basis of a contrived relationship, using or possessing a visa granted to another person or presenting false or forged documents or making a false or misleading statement in connection with ensuring entry or stay in Australia;
• sexual assaults, particularly those involving children;
• armed robbery and home invasion;
• murder, manslaughter, assault, any other form of violence against persons;
• terrorist activity;
• serious theft, including “white collar” crime;
• crimes against children;
• any other crime involving violence or the threat of violence; and
• ancillary offences such as attempting or conspiracy to commit above offences or being an accessory.
The minister’s directions state that the Australian community expects non-citizens to obey Australian laws and the government’s views as to what constitute serious offences must be given due regard.
This applies to children who would be under 18 at the time when the decision is intended to come into effect. The section 499 direction states that the child’s best interests will generally be served by remaining with its parents, but that countervailing situations may point to the child’s best interests being served by separation from the non-citizen, including evidence that the non-citizen has abused or neglected the child or that the child has experienced physical or emotional trauma arising from the non-citizen’s conduct. Decision-makers are specifically required to consider:
• the nature of the relationship between the child and the non-citizen;
• the duration of the relationship;
• the length of any separations and reasons for separation (the hypothetical prospect for developing a better/stronger relationship in the future would normally be given less weight than the proven history of the relationship);
• the age of the child;
• whether the child is an Australian citizen or permanent resident;
• the likely effect of any separation;
• the time (if any) the child has spent in Australia;
• the circumstances of the receiving country, including educational facilities and standards of health support systems to which the child may have to go, or return; and
• any language or cultural barriers for the child in the country of future residence.
AAT must consider all of the above matters as part of a ministerial direction under section 499 of the Migration Act. AAT can, if it believes that the wrong decision has been made, reverse either a deportation order or a cancellation/refusal. It can also change the decision in the other matters where it has jurisdiction. The latest ministerial direction no. 65 can be found at www.border.gov.au/visas/Documents/ministerial-direction-65.pdf.
The minister still has a right to overrule an AAT decision if they think it is not in the public interest. In practice, most cases where the minister might be likely to overrule AAT (serious criminal cases and national security cases) do not go to AAT in the first place because the minister makes a “personal” decision in the “national interest” that excludes any appeal right to AAT.