The Human Rights Commission has lobbied against expanding the home affairs minister and department’s powers to make visa cancellation decisions without a merits review and even called for them to be wound back.
Parties including the Refugee Council and the Federation of Ethnic Communities’ Council have made submissions to a parliamentary inquiry reviewing cancellation of visas on character grounds, warning that Peter Dutton already has too much discretion.
Dutton is on a campaign to expand the powers of the Home Affairs Department to make decisions without review by the administrative appeals tribunal (AAT) on questions of merit, which allows the tribunal to exercise discretion to set aside or vary decisions.
In March the government initiated a review, asking the joint standing committee on migration to review visa cancellations made on character or criminal grounds including the “present levels of duplication associated with the merits review process”.
In a submission to that review, the Australian Human Rights Commission said that the merits review is “a vital safeguard in avoiding error”.
The commission noted that the minister was able to set aside decisions of the AAT in certain circumstances “contrary to the ordinary process of merits review”.
“Merits review is intended to provide a check on certain kinds of decisions by the executive to ensure robust decision-making,” it said. “The current process provides the opposite: an executive check on independent tribunal decisions.”
The commission noted that at present the AAT has powers to review decisions to refuse to grant or to revoke visas on character grounds where they are made by a delegate of the home affairs minister but not when made by the minister.
“However, there is no reason to think that the person occupying the office of the minister for home affairs from time to time is immune from making errors of fact.
“Given the significant impact on individual rights, decisions to refuse or cancel visas, even if made by a minister, should be subject to merits review.”
The Refugee Council of Australia submitted that the minister’s powers to overrule the AAT “do not exist in any other area of administrative law and would not be accepted if exercised over Australian citizens”.
It expressed concern at the rising number of people on protection and refugee visas that were cancelled on all grounds, warning that they then spend up to a year in detention and are returned to countries they fled in breach of non-refoulement obligations.
The council said that the reputation for independence of the AAT had been undermined by both Labor and Coalition governments through appointments of people with links to the governing party. This should be remedied by creation of an independent appointments body, it said.
The Federation of Ethnic Communities’ Council Australia complained that the minister has power to cancel visas on character grounds based on “reasonable suspicion” that an individual may be involved in future criminal activities rather than “proof of wrongdoing”.
It said it was particularly concerned about refugees and long-term residents being removed from Australia, causing “a devastating impact on the individual, their family and community”.
In a more neutral submission, the AAT set out its powers in merits reviews and noted statistics that showed in most cases it affirmed the original decision.
In the nine months to 31 March in 2017-18 it affirmed the home affairs department’s decision in 95 cases and varied or set it aside 38 times. In 2016-17 it affirmed 87 decisions and varied or set aside 29.
On 3 May, Dutton complained to 2GB that “more cases [are] going before the AAT because we’ve cancelled more visas of criminals in the last year than what Labor did in six years”.
“I believe that ... people at the AAT need to consider all of the facts and the community has an expectation in relation to the standards that are applied and if somebody has committed serious offences against Australian citizens, then they don’t expect that person to remain here onshore,” he said.
“We’re going to continue to cancel those visas and if we need to change the law we will.”
