5.1 Access to merits review
Depending on the circumstances, a person who has an application for a visa refused or a visa cancelled under section 501 may be able to apply to the Administrative Appeals Tribunal (AAT) for review of the merits of the decision, or they may only be able to challenge the legality of the decision through the courts. Whether the person can apply for merits review by the AAT depends on whether the decision was made by the Minister personally, or by a delegate of the Minister. A decision made by a delegate (e.g. a DIAC officer) to refuse to grant or to cancel a visa under section 501 is subject to merits review by the AAT, but a decision made by the Minister is not.
When conducting a merits review, the AAT reviews the original decision and determines if it is the correct or preferable decision. The AAT can affirm, vary or set aside the original decision. If it sets the decision aside, it can make a decision itself or remit the decision to the delegate, along with directions or recommendations, for the delegate to make again. However, if the AAT decides not to exercise the power to refuse to grant or to cancel a person’s visa, in certain circumstances the Minister may set the AAT’s decision aside and refuse or cancel the visa.
The Minister also has the power, in certain circumstances, to set aside an original decision made by a DIAC officer under section 501. The Minister can then substitute the original decision (whether that decision was favourable or unfavourable to the applicant or visa holder) with his or her own decision to refuse or cancel the visa. The Minister can do this even if the person has applied to the AAT for review of the delegate’s original decision to refuse or cancel their visa. As noted above, if the Minister personally decides to refuse or cancel a person’s visa, the Minister’s decision is not subject to review by the AAT.
5.2 Access to judicial review
All decisions to refuse to grant or to cancel a person’s visa under section 501, whether made by a DIAC officer or by the Minister personally, are subject to judicial review by the Federal Court or the High Court of Australia. Under judicial review, courts are restricted to reviewing the lawfulness of an administrative decision, rather than considering whether it was the correct decision.
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. For example, this might be the case if the decision-maker failed to take into account primary or other relevant considerations that it was bound to take into account or (to the extent that rules of natural justice apply) carried out its decision-making functions in a way that was unfair to the relevant person.
5.3 The Minister’s personal powers to refuse or cancel visas
Given the potentially serious interference with a person’s human rights which can follow from a decision to refuse to grant or to cancel a visa on character grounds, it is concerning that the Minister’s personal, discretionary powers to refuse or cancel a visa on the basis of the character test are very broad, and that the Minister’s decisions are subject to limited review.
As mentioned above, under sections 501, 501A and 501B of the Migration Act the Minister has the power, in certain circumstances to:
- make an initial decision to refuse or cancel a person’s visa
- set aside a decision by a DIAC officer or the AAT not to exercise the power to refuse or cancel a person’s visa, and substitute it with his or her own decision to refuse to grant or to cancel the visa
- set aside a decision by a DIAC officer to refuse or cancel a person’s visa, and substitute it with his or her own refusal or cancellation.
In making these decisions, the Minister is not bound by Direction No. 55. Further, a person cannot apply to the AAT for merits review of any of these Ministerial decisions; they can only challenge the legality of these decisions through judicial review (as explained in the section above). In some circumstances, the Act provides that the rules of natural justice do not apply to a decision by the Minister, further limiting the potential for review.
The Commission has raised concerns about the extent of the Minister’s discretionary powers under the Migration Act in parliamentary submissions. For example, in its 2008 submission to the Joint Standing Committee on Migration’s inquiry into immigration detention in Australia, the Commission recommended that the Minister’s powers under section 501 should be reduced, and measures should be put in place to provide for transparent and accountable decision-making processes which are subject to review.
Migration Act 1958 (Cth), s 500(1)(b).
Administrative Appeals Tribunal Act 1975 (Cth), s 43(1).
Migration Act 1958 (Cth), s 501A. The criteria for the exercise of this power essentially mirror those for the Minister’s power to make an initial refusal or cancellation decision under subsections 501(1), (2) and (3), except that under section 501A the Minister must in every case be satisfied that the refusal or cancellation is in the national interest.
Migration Act 1958 (Cth), ss 501A, 501B. For section 501A, see the note above. Under section 501B the Minister may set aside a DIAC decision to refuse or cancel a person’s visa under subsection 501(1) or (2) and substitute it with his or her own decision to refuse or cancel the person’s visa if: the Minister reasonably suspects that the person does not pass the section 501 character test; the person does not satisfy the Minister that they pass the character test; and the Minister is satisfied that the refusal or cancellation is in the national interest.
Migration Act 1958 (Cth), sub-s 501B(5).
 See Migration Act 1958 (Cth), sub-ss 501(5) and 501A(4).
Migration Act 1958 (Cth), s 501. See the discussion in section 2.2.
Migration Act 1958 (Cth) ,sub-ss 501(5) and 501A(4).
 Human Rights and Equal Opportunity Commission, note 58, paras 104-107.