Merits review of visa cancellations made on criminal grounds
Conduct of the Inquiry
1.1
On Wednesday 14 March 2018 the Minister for Home Affairs, the Hon Peter Dutton MP, asked the Committee to inquire into and report on the review processes associated with visa cancellations made on criminal grounds. The Committee was to have particular regard to:
the efficiency of existing review processes as they relate to decisions made under section 501 of the Migration Act;
present levels of duplication associated with the merits review process; and
the scope of the Administrative Appeals Tribunal’s jurisdiction to review ministerial decisions.
1.2
The Committee invited an array of stakeholders, groups and individuals to submit to the inquiry, including relevant federal government departments, peak bodies, and industry groups.
1.3
The Committee received 41 submissions from a range of federal government departments, peak bodies, non-government organisations, advocacy groups, academics and concerned citizens. The Committee also heard evidence from organisations and individuals at nine public hearings held in Canberra, Sydney and Melbourne over the course of the inquiry.
1.4
The Committee would like to acknowledge the time and effort taken by academics, advocacy groups and individuals who work in the migration sector, many of whom gave passionate and informed evidence about the visa cancellations regime and its impacts. The Committee has considered all of this evidence and thanks participants for their role in this important inquiry process.
Structure of the report
1.5
The Committee’s report is focussed on the inquiry’s terms of reference. This introductory chapter provides an outline of the conduct of the inquiry and an explanation of the current visa cancellation provisions and processes, including the role played by the Administrative Appeals Tribunal (AAT) in reviewing decisions.
1.6
This chapter also includes statistics on visa cancellations and reviews.
1.7
Chapter 2 analyses the efficiency of existing review processes, firstly considering how visa cancellations may help to protect the Australian community, then looking at the AAT’s processes, and the efficiency of mandatory cancellation and review in the Department of Home Affairs. The chapter seeks to answer whether there is any duplication associated with merits review.
1.8
Chapter 2 also looks at the issues of detention and non-refoulement, in terms of how these impact efficiency in the system.
1.9
Chapter 3 considers the impacts of visa cancellations on long-term residents, Australian citizens and minor children, and citizens of New Zealand. Then looks at the scope of AAT merits review, the appropriateness of merits review in cases of violent and sexual crimes, and the role of merits reviews in cases of minor criminality.
1.10
Also considered is the role of victims in the merits review process, issues of public confidence in merits review, and ways in which visa cancellations and merits review could be strengthened.
Visa cancellation powers in the Migration Act
1.11
Persons wishing to travel in or reside in Australia must hold a valid visa. The Act contains two provisions allowing for the cancellation or refusal of visas for persons who may pose a risk to the Australian community. These are section 501 and section 116.
Section 501 – character cancellation and refusal powers
1.12
Australian visa holders are required to pass the character test. The grounds upon which a person may fail the character test are contained in section 501 of the Act, and are in summary:
if a person has a substantial criminal record;
if a person has committed offences in, or while escaping from, detention;
if a person has committed sexually based offences involving a child;
if the person has an adverse security assessment by ASIO or an Interpol notice suggesting the person is a risk to the Australian community; or if the Minister suspects the person is:
involved with a group, organisation or person involved in criminal conduct;
at risk, if allowed to remain in Australia, of engaging in criminal conduct;
likely to harass, molest, intimidate, or stalk another person in Australia, incite discord, or represent a danger to the Australian community; or
has been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether or not convicted.
1.13
Legislative changes in 2014 saw the introduction of the mandatory cancellation provision, section 501(3A). This provision states that a person’s visa is subject to mandatory cancellation if:
they are currently serving a full-time custodial sentence and have ever been sentenced to death, life imprisonment or 12 months or more imprisonment; or
they have been found to have committed a sexually based crime involving a child.
1.14
A person whose visa has been cancelled mandatorily has 28 days to request that the Department of Home Affairs (the Department) revokes this decision and reinstates the visa. If the Department refuses to reinstate the visa, the person may appeal to the AAT. Persons who have had a visa refused by a departmental delegate may also appeal to the AAT.
1.15
Under section 501, the Minister for Home Affairs and other portfolio ministers have personal powers to cancel or refuse visas on character grounds, and also to set aside AAT decisions and substitute them with a cancellation or refusal decision. Decisions made by ministers personally cannot be reviewed in the AAT, but may still be subject to judicial review.
1.16
The Act specifies the following powers (summarised):
section 501(1): To refuse a visa application on character grounds with notice given.
section 501(2): To cancel a visa on character grounds with notice given.
section 501(3): The Minister may personally decide to refuse or to cancel a visa in the national interest on character grounds without notice.
section 501(3A): The visa must be cancelled if the visa holder does not pass the character test because of a substantial criminal record, or because they have been convicted, found guilty or had a charge proven of a sexually based offence involving a child, and that the person is currently serving a sentence of imprisonment.
section 501A: The Minister may personally decide to refuse or to cancel a visa in the national interest by setting aside a decision made by a delegate or the AAT.
section 501BA: The Minister may personally decide to cancel a visa in the national interest by setting aside a decision to revoke a mandatory cancellation made by a delegate or the AAT under section 501CA.
section 501C: The Minister may personally revoke a visa cancellation made under section 501(3) after receiving representations from the person whose visa is cancelled.
section 501CA: To revoke a mandatory visa cancellation made under section 501(3A) after receiving representations from the person whose visa is cancelled.
Section 116 – general visa cancellation powers
1.17
The general cancellation power of the Act (section 116) sets out situation-specific grounds for cancelling temporary visas:
A temporary visa may be cancelled where the presence of the visa holder in Australia is or may be a risk to the health, safety or good order of the Australian community, or the health or safety of an individual or individuals. Further, certain temporary visas may be cancelled under section 116 of the Act where the visa holder has been charged or convicted of an offence against an Australian law (i.e. Commonwealth, State or Territory laws).
1.18
The Department provided information on the discretionary grounds for cancelling visas under section 116 of the Act, stating that:
Depending on the circumstances, the cancellation power is either mandatory or discretionary. Grounds specified in section 116(1) can be used to cancel temporary visas where the holder is onshore, offshore or in immigration clearance.
1.19
The Department elaborated on the provisions of the Act that provide grounds for cancelling either a temporary or permanent visa:
A permanent visa can only be cancelled under section 116(1) while the visa holder is offshore.
Grounds specified in section 116(1AA), (1AB) and (1AC) of the Migration Act may be used to cancel both temporary and permanent visas where the holder is onshore, offshore, or in immigration clearance.
1.20
Either the Minister or delegate ‘may exercise the relevant specific cancellation power to cancel a visa under section 116 of the Migration Act.’
1.21
A notice of intention to cancel a visa under section 116 of the Act is provided to the visa holder prior to cancelation irrespective of whether the visa holder is in Australia or overseas.
1.22
The Department stated that the purpose of issuing a notice of intention to cancel was:
to provide the visa holder with an opportunity to respond to the grounds for cancelling the visa as provided by the delegate; and
to enable the delegate to cancel the visa if, after considering the visa holder’s response (or lack of response), they decide that there are grounds for cancelling the visa.
1.23
The notice ‘must invite the visa holder to show the grounds do not exist or there is a real reason the visa should not be cancelled’. The visa holder must do this within a prescribed timeframe.
1.24
The Migration Regulations 1994 include the prescribed timeframe for responding to a notice of intention to cancel, which is five working days if the person is in Australia.
1.25
The Law Institute of Victoria argued that this timeframe is unreasonably short.
1.26
A Departmental policy sets out the matters delegates should consider when moving to cancel a visa under section 116 of the Act, including:
The purpose of the visa holder’s travel to and stay in Australia.
The extent of compliance with visa conditions.
The degree of hardship that may be caused to the visa holder and any family members.
The circumstances in which the ground for cancellation arose.
The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful and cooperative in their dealings with the department).
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act.
Whether there are mandatory legal consequences to a cancellation decision.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.
Any other relevant matters.
1.27
The Department added that decision-makers are also guided by:
…the Act, the Migration Regulations 1994, the policy guidance contained in Procedural Instruction: General visa cancellation powers (s109, s116, s128, s134B and s140), and Ministerial Direction 63 (regarding the cancellation of Bridging visas).
1.28
At a public hearing, the Department commented that the two cancellation powers under sections 501 and 116 of the Act were complementary and allowed them to ‘make, sometimes, quick decisions in the interest of community safety’.
1.29
The Department highlighted that there is no legislative authority that allows for revocation of a visa cancelled under section 116:
A non-citizen who has had their visa cancelled under section 116 of the Act does not have the ability to seek revocation of the cancellation decision as there is no legislative authority that allows for revocation.
1.30
Persons who have had a visa refused by a departmental delegate may lodge an appeal with the AAT or seek judicial review of the decision providing they are onshore. The appeal must be lodged with the AAT within seven working days from receipt of the notification to cancel their visa.
1.31
Decisions made by the Minister personally to cancel a visa under section 116 cannot be reviewed by the AAT. In cases where the visa holder is offshore, non-citizens may seek judicial review through the courts.
1.32
The AAT submitted that it receives a relatively small number of applications relating to decisions under section 116 of the Act. Most of the visa cancellation decisions reviewed by the AAT refer to cancellations made under section 501 of the Act.
Ministerial directions
Ministerial Direction No. 65
1.33
In addition to the statutory guidelines set out in section 501 of the Act, the Department’s decision makers take a number of considerations into account prior to making a decision to cancel an individual’s visa under section 501. Ministerial Direction 65 sets out pertinent considerations that must be taken into account:
Ministerial Direction 65, which commenced on 23 December 2014, is binding for departmental delegates and the AAT, and outlines the relevant primary and secondary considerations that must be taken into account. The Minister and other portfolio Ministers are not bound by Ministerial Direction 65, but may turn their mind to these considerations in determining whether to exercise their discretion to cancel, refuse or not revoke mandatory cancellation of a visa.
1.34
Primary considerations for the decision maker under Ministerial Direction 65 include:
the protection of the Australian community from criminal or other serious conduct;
the best interests of minor children in Australia; and
the expectations of the Australian community.
1.35
Other considerations that must be taken into account include:
international non-refoulement obligations;
the strength, nature and duration of ties;
impact on Australian business interests;
extent of impediments if removed.
1.36
The AAT is also guided by the provisions set out in the direction. When reviewing a decision made under section 501 or 501CA of the Act, the AAT is:
…informed by the general guidance and principles set out in paragraphs 6.2 and 6.3 of [Ministerial Direction 65], take into account the primary considerations and the other considerations that are relevant to the individual case.
1.37
The Department stated that its decision makers, like those in the AAT, are obliged to take Ministerial Direction 65 into account, but noted that the weight applied to various considerations may differ between them.
1.38
The AAT highlighted that greater weight was generally applied to primary considerations in Ministerial Direction 65:
The direction states that primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. The direction also states that, in applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
1.39
Ministers are not obliged to consider the Ministerial Direction when making decisions to cancel an individual’s visa. However, when it is preparing visa cancellation cases for the Minister’s consideration, the Department chooses to take into account the considerations in the Direction.
Ministerial Direction No. 63
1.40
Ministerial Direction 63 provides a framework for decision makers in the Department of Home Affairs to guide decisions about whether to exercise their discretion to cancel a non-citizen’s Bridging visa. It relates to the Bridging E visa, which is a temporary visa.
1.41
Ministerial Direction 63 incorporates a set of principles, which ‘provide a framework within which decision-makers should approach their task of deciding whether to cancel a non-citizen’s Bridging E visa’.
1.42
The principles are summarised below:
Mandatory detention applies to anyone without a valid visa.
Non-citizens must obey Australia’s laws.
The government has a ‘low tolerance’ for non-citizens on temporary visas who break the law.
The government provides education to non-citizens around its expectations to encourage compliance with Australia’s laws and standards of behaviour.
Non-citizens who engage in criminal conduct should ‘expect’ to have their visas cancelled, including while investigations are ongoing.
Individual circumstances, mitigating factors and the seriousness of the crime/s, will be taken into account.
1.43
Ministerial Direction 63 requires a delegate who is considering cancelling a bridging visa to consider primary and secondary considerations. The two primary considerations are, in summary:
1
the Government’s view that a person on a bridging visa who has been convicted of an offence, charged with an offence, is the subject of an adverse Interpol notice, is being investigated by law enforcement and is considered a threat, or does not have the intention to leave Australia, should be considered for cancellation; and
2
the best interests of children under the age of 18 in Australia who would be affected by the cancellation.
1.44
The secondary considerations are:
1
the impact of a decision to cancel the visa on the family unit;
2
the degree of hardship that may be experienced by the visa holder;
3
the circumstances: mitigating factors, the seriousness of the offence, the reason for the person being the subject of an Interpol notice, or under investigation by law enforcement;
4
consequences of cancellation, including indefinite detention and Australia’s non-refoulement obligations;
5
any other matter delegates consider relevant.
1.45
The Commonwealth Ombudsman published a report in 2016 into the administration of people who have had their bridging visa cancelled due to criminal charges and are in immigration detention. This report states that Ministerial Direction 63 is ‘under review as a result of court decisions which highlighted issues with its application’.
Merits review
1.46
According to the Attorney General’s Department, current Australian government policy stipulates that:
…an administrative decision that is likely to adversely affect the rights and interests of a person should be reviewable on its merits unless to do so would be inappropriate or there are other factors which justify the exclusion of a merits review.
1.47
Merits review of visa cancellation or refusal decisions made by delegates within the Department of Home Affairs is conducted in the AAT.
1.48
The AAT is an independent statutory body within the Attorney-General’s portfolio, and was established under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). It commenced operations on 1 July 1976.
1.49
The Migration Review Tribunal, Refugee Review Tribunal and the Social Security Appeals Tribunal were amalgamated with the AAT on 1 July 2015.
1.50
The AAT conducts merits review of administrative decisions made under certain Commonwealth laws. The decisions currently reviewable by the AAT are set out in its Reviewable Decisions List and include decisions relating to: Freedom of Information; migration and refugee issues; the National Disability Insurance Scheme; social services and child support; tax and commercial decisions; veterans’ appeals, and others.
1.51
Reviewing visa cancellations on character grounds makes up a small part of the AAT’s overall workload. For instance, the total number of reviews in any subject area finalised by the AAT in 2016-17 was 42,224. Of these, 168 were decisions relating to visa cancellation on character grounds. The AAT notes that this is 0.4 per cent of its caseload.
1.52
Merits review involves considering all evidence about the merits of a decision and deciding whether the ‘correct or preferable’ decision has been made. The AAT can:
affirm the decision under review;
vary the decision under review; or
set aside the decision under review and:
make a decision in substitution for the decision so set aside; or
remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
1.53
Decisions to cancel a person’s visa that are made personally by ministers cannot be referred to the AAT. Those made by delegates can be referred. Mandatory cancellations that the Minister’s delegate chooses not to revoke can also be referred. This is discussed in Chapter 3.
AAT processes and time limits
1.54
The Migration and AAT Acts and the Administrative Appeals Tribunal Regulation 2015 set out specific procedures for reviewing visa cancellation decisions. When initially applying for a review with the AAT, the application must:
be lodged with the AAT within 9 days after the day of receiving the Department’s decision—the AAT has no power to extend the time;
be in writing, state the reasons for the application and be accompanied by the document notifying the person of the decision;
include an application fee of $884, which can be reduced to $100 in certain circumstances (including where a person is in prison or otherwise detained).
1.55
After determining that the application received is valid, the ‘AAT notifies the Minister via the Department of Home Affairs that an application has been made.’ The Minister must then provide to the AAT ‘any further documents relevant to the decision that contain information that must not be disclosed to the applicant’ within 14 days.
1.56
Within approximately one to two weeks after lodging the application:
an AAT registry officer calls a self-represented applicant to explain the AAT’s procedures as well as to identify whether the applicant requires an interpreter or assistance because of a disability;
the AAT member allocated to hear and decide the application holds a directions hearing, usually by telephone, with the applicant or their representative and the Minister’s representative.
1.57
The applicant or the Minister may lodge additional information for the AAT to consider including ‘affidavits or witness statements, expert reports or letters of support.’
1.58
Any additional evidence to support an applicant’s case must be provided to the Minister’s representatives at least two business days before the hearing, otherwise the AAT ‘cannot have regard to the information in reaching the decision’ (the ‘two-day rule’).
1.59
The review process will generally include: a telephone directions hearing with all parties; a face to face hearing; and the issuing of the AAT’s decision, which must be completed within 84 days from the date the applicant was notified of the Department’s decision.
1.60
Unless the cancelled visa was a protection or protection-related bridging visa, the ‘AAT’s decisions with written reasons are generally published on AustLII and made available to other legal publishers in these types of cases’.
1.61
The AAT pointed out that time limits vary if the applicant resides outside Australia. In these circumstances, the applicant is given 28 days to lodge an application; the Minister must provide any further information within 28 days; and the AAT is not required to complete the review within the 84 days.
1.62
When the AAT reviews decisions made under section 501 or 501CA of the Migration Act, they must apply:
the terms of the relevant provisions of the Migration Act, particularly the character test set out in section 501(6); and
any written direction given by the Minister under section 499 of the Migration Act. (The current direction is Ministerial Direction 65.)
1.63
The AAT will make a determination based on all the information it has available before it. A 1979 decision of the Federal Court of Australia dealing with deportation and judicial roles described the AAT’s role as decision maker:
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
Minister’s power to overrule AAT
1.64
There are a number of provisions in the Act that gives the Minister and other portfolio ministers the power to set aside a decision of the AAT and substitute it with an adverse (cancellation or refusal) decision or a decision that is more favourable to the applicant.
1.65
Section 501A of the Act allows the Minister to set aside a decision of the AAT not to cancel or refuse a visa where the Minister reasonably suspects that the person does not satisfy the character test and is satisfied that the refusal or cancellation is in the national interest.
1.66
Introduced in December 2014, section 501BA of the Act allows the Minister to set aside a decision of the AAT not to cancel or refuse a visa ‘if the Minister is satisfied that cancellation is in the national interest’.
1.67
The Minister and other portfolio ministers also have personal powers under section 133A and section 133C to set aside a decision of the AAT relating to cancellations made under section 116 of the Act ‘if they are satisfied that it would be in the public interest to do so’.
1.68
The Minister’s personal powers to set aside a decision cannot be delegated and while not reviewable by the AAT, may be subject to judicial review.
1.69
Between 1 July 2009 and 31 May 2018 the Minister exercised their personal power to cancel or refuse a visa under section 501A of the Act and overrule the AAT’s decision on 47 occasions (39 visas were cancelled and eight refused).
Table 1.1: Section 501A cancellations and refusals
|
|
|
|
|
|
2009/2010
|
0
|
0
|
0
|
|
2010/2011
|
<5
|
0
|
|
|
2011/2012
|
8
|
<5
|
9
|
|
2012/2013
|
7
|
0
|
7
|
|
2013/2014
|
<5
|
0
|
<5
|
|
2014/2015
|
7
|
<5
|
8
|
|
2015/2016
|
5
|
0
|
5
|
|
2016/2017
|
<5
|
<5
|
6
|
|
2017/2018
|
<5
|
<5
|
6
|
|
Total
|
39
|
8
|
47
|
Source: Department of Home Affairs, Supplementary Submission 29.1, p. 10.
Judicial review
1.70
All section 501 decisions may be subject to judicial review, with AAT decisions generally reviewed in the Federal Circuit Court and decisions personally made by the Minister subject to judicial review in the Federal Court. Appeals against the decision of the Federal Court are heard by the High Court.
1.71
In a background paper on visa refusal or cancellation under section 501 of the Act, the Australian Human Rights Commission (the Commission) noted the scope of the courts to review administrative decisions:
Under judicial review, courts are restricted to reviewing the lawfulness of an administrative decision, rather than considering whether it was the correct decision.
1.72
The Commission added that if ‘a court finds that a visa refusal or cancellation decision was affected by jurisdictional error, the court can set aside the original decision and return the case to the decision-maker to be reconsidered.’
1.73
The Department’s submissions contained statistics on the number of foreign nationals who sought judicial review and the average timeframe for the judicial hearings, stating:
Of the 124 delegate decisions affirmed by the AAT between 1 July 2017 and 31 March 2018, 37 foreign nationals went on to seek judicial review.
As at 31 March 2018, the timeframe for judicial reviews was 232 days for cases where the Department lost, and 235 days for cases where the Department won the case.
Visa cancellation and merits review statistics
Section 501
1.74
Over recent years, there has been a significant increase in the number of visa cancellations on character grounds following the introduction of the mandatory cancellation provision under section 501(3A). The Department submitted:
Between the 2013–14 and 2016–17 financial years, the number of visa cancellations on character grounds have increased by over 1,400 per cent due to December 2014 legislative amendments to the Migration Act 1958.
1.75
In FY2016-17, 1,839 non-citizens had their visa cancelled or refused under section 501. Of those, 1,232 were mandatory cancellations, 606 were refused a visa and one had their visa cancelled by a delegate.
1.76
A total of 3,432 non-citizens have had their visas mandatorily cancelled since the provisions under section 501(3A) came into effect on 11 December 2014. Of those:
2,644 (or 77 per cent) sought revocation of the mandatory cancellation decision; and
of the 2,644 revocation applications, 834 decisions were made to revoke the original cancellation decision.
1.77
In that same period, ministers (including other portfolio ministers) cancelled 35 visas and refused 12 visa applications under section 501 of the Act (Table 1.2).
Table 1.2: Ministers (includes other portfolio Ministers) section 501 primary cancellation and refusal decisions
|
|
|
|
|
|
2009/2010
|
<5
|
0
|
<5
|
|
2010/2011
|
<5
|
<5
|
<5
|
|
2011/2012
|
14
|
<5
|
16
|
|
2012/2013
|
<5
|
12
|
15
|
|
2013/2014
|
32
|
14
|
46
|
|
2014/2015
|
79
|
28
|
107
|
|
2015/2016
|
47
|
36
|
83
|
|
2016/2017
|
35
|
12
|
47
|
|
2017/2018
|
47
|
10
|
57
|
|
Total
|
260
|
115
|
375
|
Source: Department of Home Affairs, Supplementary Submission 29.1, p. 8.
1.78
New Zealand citizens have had their visa cancelled significantly more than any other nationality. Between 1 January 2017 to 31 December 2017, 620 New Zealanders had their visas cancelled on character grounds. The next four nationalities featured in character cancellations over that period were the United Kingdom (124); Vietnam (55); Sudan (31); and Fiji (25).
1.79
Non-citizens had their visas cancelled under character grounds for a variety of reasons including criminal offences. The top five primary offence types for character cancellations over that period in the Department’s statistics were assault, drug offences, other violent and non-violent offences, and armed robbery.
1.80
In 2017, 794 visas were cancelled due to the mandatory cancellation provisions. A non-citizen whose visa is mandatorily cancelled can seek to have the cancellation decision revoked. Of those visa cancellation review requests, 320 were revoked, 457 were not revoked and 17 were withdrawn or invalid. A number of the refused applicants subsequently applied to the AAT for administrative review of the Department’s decision.
Merits review of section 501 decisions
1.81
Applications for review of character-related visa decisions are assessed in the AAT’s General Division. These applications have risen in line with the increase in the number of primary decisions made in the Department of Home Affairs following the introduction of mandatory cancellation.
1.82
Applications received by the AAT rose from 77 in 2015–16 to 183 in 2016–17. As of 31 March 2018, the AAT had already received 166 applications. These were applications relating to decisions:
to refuse or cancel a visa under section 501 of the Act;
under section 501CA of the Act not to revoke a mandatory visa cancellation under section 501; and
to refuse or cancel a protection visa under sections 5H(2), 36(1C) or 36(2C)(a) or (b) of the Act.
1.83
Table 1.3 below shows that the AAT finalised 166 of the 183 applications it received in FY2016–17. Of those:
the AAT affirmed (upheld) the decision of the Department in 87 cases;
set aside the decision in 29 cases;
twenty four were withdrawn by the applicant;
six were dismissed by the AAT for either non-appearance at a case event, failure to proceed with an application or to comply with a direction of the AAT or the application is frivolous, vexatious, misconceived, lacking in substance, has no reasonable prospect of success or is an abuse of the process of the AAT;
eighteen applications were finalised on the basis that either the decision is not subject to review by the AAT, the applicant does not have standing to apply for a review, the application has not been made within a prescribed time limit, the AAT has refused to extend the time for applying for a review or the application fee had not been paid; and
an agreement between the parties was reached with two applicants.
Table 1.3: Outcomes of applications for review of decisions made under section 501 and 501CA of the Migration Act – 2015-16 to 2017-18
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By decision under section 43 of the AAT Act
|
|
Decision affirmed
|
7
|
3
|
10
|
31
|
56
|
87
|
32
|
63
|
95
|
|
Decision varied or set aside
|
4
|
1
|
5
|
17
|
12
|
29
|
22
|
16
|
38
|
|
By consent
|
|
Decision affirmed
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
|
Decision varied or set aside
|
0
|
0
|
0
|
2
|
0
|
2
|
3
|
0
|
3
|
|
Dismissed by consent
|
0
|
0
|
0
|
0
|
0
|
0
|
0
|
2
|
2
|
|
Other
|
|
Withdrawn by applicant
|
2
|
1
|
3
|
7
|
17
|
24
|
4
|
4
|
8
|
|
Dismissed by Tribunal
|
0
|
0
|
0
|
0
|
6
|
6
|
1
|
1
|
2
|
|
No jurisdiction to review
|
4
|
4
|
8
|
7
|
11
|
18
|
8
|
14
|
22
|
|
Total
|
17
|
9
|
26
|
64
|
102
|
166
|
70
|
100
|
170
|
Source: Administrative Appeals Tribunal, Submission 22, Appendix A.
Section 116
1.84
Statistics provided by the Department show that 39,450 visas were cancelled under section 116 of the Act in the past five years (Table 1.4).
1.85
The Committee notes that concerns about a visa holder’s character are only one of the criteria for cancelling a visa under section 116. Other criteria include a change in circumstances or failure to abide by the conditions of the visa.
Table 1.4: Section 116 cancellations by financial year
|
|
|
|
|
|
|
|
6356
|
7204
|
7002
|
10375
|
8513
|
39450
|
Source: Department of Home Affairs, Supplementary submission 29.3, p. 26.
1.86
In the 2017-18 financial year, the top five countries whose citizens had visas cancelled under section 116 of the Act were China (2,217), Malaysia (1,532), India (717), Vietnam (396) and the United Kingdom (275). Table 1.5 below provides details on the top ten countries where non-citizens have had their visas cancelled under section 116 of the Act.
Table 1.5: Section 116 cancellations by financial year and citizenship
|
|
|
|
|
|
|
|
China
|
836
|
697
|
792
|
1464
|
2217
|
|
Malaysia
|
1059
|
1282
|
1082
|
2227
|
1532
|
|
India
|
363
|
799
|
597
|
1177
|
717
|
|
Vietnam
|
505
|
603
|
730
|
1029
|
396
|
|
United Kingdom
|
314
|
383
|
396
|
342
|
275
|
|
Thailand
|
230
|
183
|
228
|
424
|
263
|
|
New Zealand
|
14
|
12
|
64
|
126
|
254
|
|
South Korea
|
325
|
311
|
203
|
236
|
201
|
|
Pakistan
|
136
|
127
|
172
|
307
|
194
|
|
Taiwan
|
206
|
318
|
390
|
206
|
159
|
Source: Department of Home Affairs, Supplementary submission 29.3, p. 27.
Merits review of section 116 decisions
1.87
The AAT’s role is limited to reviewing applications made by non-citizens who are onshore. These applications are reviewed in the Migrant and Refugee Division.
1.88
Approximately 130 applications for review of section 116 cancellations made on criminal or character grounds were finalised by the AAT in 2016-17.
1.89
While the terms of reference for this inquiry focus on section 501 cancellations, evidence was also received about character cancellations under section 116. As such, these are discussed at various stages of the report.
Committee comment
1.90
The timeframes associated visa cancellation and merits review are further discussed in Chapter 2. However, that discussion is mainly focussed on revocation requests and AAT appeals made in relation to Section 501.
1.91
The Committee notes the timeframe prescribed in the regulations to respond to a notice of intention to cancel made under Section 116 of the Act is five working days.
1.92
Evidence received by the Committee indicated that this timeframe is unusually tight. The time given in which to respond to a notice of intention to cancel a visa under similar provisions in the Act is anywhere between 14 and 35 days, depending on how the notice was transmitted to the individual.
1.93
The Committee believes that the timeframe in which to respond to a notice of intention to cancel a visa should provide procedural fairness. The Committee has therefore formed the view that there would be merit in extending the timeframe to 14 days.
1.94
The Committee recommends the Australian Government extend the prescribed timeframe for visa holders in Australia to respond to a notice of intention to cancel issued under Section 116 of the Migration Act 1958 to 14 days.