Authors: Arran Gerrard
This paper examines the scope and operation of s 501 of the Migration Act 1958 (Cth) which gives the Minister for Immigration and Border Protection the power to cancel or refuse to grant a person’s visa on the ground that they do not satisfy what is commonly referred to as the character test. The consequences of this power are severe and extreme including the loss of the person’s lawful status and the obligation to be detained pending removal from Australia. Notwithstanding the drastic effect of this power, there are a clear lack of procedural safeguards to ensure that the power is exercised in a manner which is fair and just. This paper will investigate whether the current process actually accords natural justice in the making of cancellation decisions and whether the current regime of merits review is adequate to protect against or cure any deficiency in the decision making process. It will demonstrate how integral an opportunity for a merits review hearing is for persons who otherwise have significant difficulties in representing themselves particularly in relation to decisions which have potentially extreme consequences.
Keywords: migration law procedural fairness hearing rule visa cancellation character based decisions