Determining character: The importance of merits review hearings in ensuring the right to be heard

Arran N Gerrard

This thesis examines the scope and operation of s 501 of the Migration Act 1958 (Cth) which gives the Minister for Immigration, Citizenship and Multicultural Affairs 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. Whilst the character power has been the subject of criticism, much of that criticism has been directed at whether such a power is justified at all. Given this general antipathy to the very existence of the power, there is little if any consideration given to how persons affected by the power are able to respond when brought within its ambit. This thesis accepts that the character power will remain in place and instead focuses attention on the way in which it operates and the adequacy of the safeguards which are in place to ensure procedural fairness to those affected. The thesis charts the legislative development of the power, the rationale behind its inception, the broadening of its ambit and the birth of the extraordinary “God-like” powers. The thesis also reviews the rise and expansion of the binding Ministerial directions which shape how the character power is to be exercised. The Migration Act provides for two separate regimes in respect of the character power. If a decision is made by a delegate of the Minister, the person has the right to apply for a review of the merits in the Administrative Appeals Tribunal (the AAT). If a decision is made personally by the Minister, there is no such right of review. This thesis examines how integral an opportunity for AAT review is for persons who otherwise have significant difficulties in representing themselves, particularly in relation to decisions which have potentially extreme consequences. In considering the fundamental role played by the AAT, a doctrinal review was conducted of all published AAT decisions published between the power’s inception in 1994 and 2019. This review found that the AAT takes a nuanced and sophisticated approach to its task and argues it is the pre-eminent body to assess important matters such as credibility and remorse. The review also considered the practical ways in which the AAT ensures that applicants, and in particular, self-represented applicants, receive a fair hearing. The case law demonstrates that the AAT takes special care with self-represented applicants and ensures that the Minister does not take advantage of the inherent power imbalance. The review also considered how the AAT practically operates within such restrictive legislative provisions and how it has stretched those provisions where it can. In addition to the doctrinal review, anonymous interviews were conducted with former AAT members with a view to gaining an insight into the human factors that underlie these important decisions.

Determining character: The importance of merits review hearings in ensuring the right to be heard

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