Last updated 1 September 2016
If a delegate of the minister has cancelled or refused a permanent visa under s 501 of the Migration Act 1958 (Cth) (Migration Act) on character grounds, then very different rules apply.
If the cancellation decision is made personally by the minister there is no right of appeal to any merits review body such as the Administrative Appeals Tribunal (AAT) (s 501A(7) Migration Act), and the person must be detained until removed or granted a visa. The only appeal is to the Federal Court for judicial review (see the Complaints against Government – Judicial Review chapter).
If the cancellation decision is made by the Department of Immigration and Border Protection (DIBP) delegate, an application for review may be available to the AAT (s 500(1) Migration Act). An onshore applicant has only nine days from the date of notification to seek review (s 500(6B) Migration Act). Any onshore application to the AAT must be accompanied by one of the sets of documents given to the applicant as notice of the decision to cancel the visa (s 500(6C) Migration Act). The Minister for Immigration and Border Protection (the minister) is then obliged to lodge with the AAT all the relevant documents (including non-disclosable information) within 14 days (s 500(6F) Migration Act). A hearing cannot be held until at least 14 days after the minister is notified of the application to the AAT (s 500(6G) Migration Act). The AAT itself has the power to direct the minister to provide missing documents (s 500(6K) Migration Act).
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) Migration Act), nor any document unless it was given to the minister at least two working days prior to the hearing (s 500(6J) Migration Act). The minister, however, can keep providing information to the AAT up to the hearing date (s 500(6J) Migration Act). Finally, the AAT must make a decision within 84 days of the day the onshore applicant was notified of the delegate’s decision (s 500(6L) Migration Act) or the AAT is deemed to have affirmed the primary decision (i.e. the person is deemed to have lost their case).
Where the AAT has jurisdiction, it will decide the application exercising the same powers and discretions as the minister’s delegate. It will consider the legal validity of the order and also any policies which 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 s 499 of the Migration Act.
The minister’s power to overrule Administrative Appeals Tribunal decisions
The minister may overrule a decision of a DIBP officer or the AAT not to cancel a visa on the basis of character test, where the minister is satisfied that cancellation is in the national interest (s 501B Migration Act).