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Law overboard in pythonesque Section 501 application

  • 25 July 2007

The Rule of Law is one of the most important elements of a liberal democracy. It should not be thrown overboard to promote a populist, jingoistic line. One of the great ironies of Australia is that it is a country whose first European settlers were convicts — and it now makes good character a prerequisite for new settlers. What if in 1788, the Eora nation had used a character test?

Section 501 of the Migration Act is one of the most powerful provisions in our migration law. It gives the Immigration Minister the power to refuse or cancel a visa on the basis of a person's character. This decision can be made personally by the Minister or by the Minister's delegate. A decision by the Minister means no right of merits review, only the limited grounds of judicial review.

Dr Mohammed Haneef has experienced the worst case scenario — a visa personally cancelled by the Minister, without the provision for natural justice, on the basis of non-disclosable information. Such power should be restricted to the worst cases, not used to overcome the decision of a magistrate to release on bail someone accused of serious offences.

If a person is sentenced to 12 months or more in prison, then they fail the test and must rely on the discretionary powers of the minister or his delegate not to have their visa refused or cancelled. 'Character' is not limited to criminal convictions, but can include any conduct, even when only alleged.

The three primary discretionary factors are the protection of the Australian community, the expectations of the Australian community, and the best interests of any children. There are a number of secondary factors but unless an individual can convince the decision maker on at least one of these factors,  their visa is likely gone.

One of the strongest powers available in this area is to make a decision without providing 'natural justice'. This is usually understood to mean that a person has the opportunity to know the accusations against them and to comment on the accusations. Section 503A of the Migration Act provides the power to refuse to disclose accusations, or even the source of the hidden information. This means an individual can face the threat of cancellation or refusal of a visa, be given the opportunity to comment on this, but not be told what is the information against them. This has resulted in a number of 'pythonesque' cases where people are told, essentially, "You fail the character