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The Hon. Justice Duncan Kerr Chev LH

Migration Institute of Australia National Conference 2012, Sydney
15 September 2012

Merits review of decisions made under the Migration Act 1958 relating to visas is shared between the AAT, the MRT and the RRT. The only decisions relating to visas that the AAT can review are as follows:

  • to refuse to grant, or to cancel, a visa under the character provisions in section 501
  • to refuse to grant, or to cancel, a protection visa relying on:
  • one or more of Articles 1F, 32 or 33(2) of the Refugees Convention, or
  • section 36(2C) of the Migration Act which sets out exceptions to Australia's other non-refoulement obligations
  • to cancel a business visa under section 134.

The AAT also has jurisdiction to review decisions made in relation to the registration of migration agents and decisions relating to Australian citizenship.

In carrying out its functions, the tribunal's objective is to provide a mechanism of review that is fair, just, economical, informal and quick. Reconciling those precepts is not always a simple task, particularly if the tribunal must take into account evidence when it is claimed that the disclosure of the information or of matters contained in a document would be contrary to national security interests.

In such instances the tribunal seeks to provide a fair hearing, accommodating to the greatest possible degree the normal rules of procedural fairness while recognising that there are legitimate reasons why certain information may require non-disclosure.

To assist practitioners understand the AAT's practices and procedures, copies are available of the AAT's General Practice Direction as well as a fact sheet relating to the particular procedures that operate for the expedited review of visa cancellations under section 501 of the Migration Act where the former visa holder is in Australia.

The recent balance of the Tribunal's workload, including provisional figures for 2011-12, can be seen from the following table:

Applications lodged - by case type

Case Type 2009-10 2010-11 2011-12
Business visa cancellation 26 2 1
Citizenship 236 217 131
Migration agent registration 3 6 11
Protection visa cancellation or refusal 1 3 1
Visa cancellation or refusal on character grounds 49 69 98
Total 305 297 242

Recent developments

On 28 July 2012, the Minister for Immigration and Citizenship, the Hon Chris Bowen MP, signed a new ministerial direction under section 499 of the Migration Act (MD 55), replacing ministerial direction 41 (MD 41). MD 55 applies to all decisions made under s 501 of the Migration Act by the Department of Immigration and Citizenship and the Administrative Appeals Tribunal on or after 1 September 2012.

The structure of MD 55 varies significantly from MD 41. In terms of content, the key difference is the introduction of a set of overarching principles that the Government considers to be of critical importance in reflecting community values and standards. These principles are intended to provide a framework for decision-makers when considering whether to cancel or refuse a non-citizen's visa under section 501. In summary, these principles are as follows:

  • Coming to or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
  • Non-citizens who commit serious crimes, including of a violent or sexual nature, and particularly against vulnerable members of the community, should generally expect to be denied the privilege of coming to or remaining in Australia.
  • Some criminal offending or other conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk of similar conduct in the future is unacceptable. Other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.
  • Australia has a low tolerance of any criminal conduct by visa applicants, those who hold a limited stay visa, or by people who have only been participating in and contributing to the Australian community for a short period of time. Australia may afford a higher level of tolerance to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
  • The length of time a non-citizen has been making a position contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia should be considered.