Characters of Concern, or Concerning Character Tests? Regulating Risk through Visa Cancellation, Containment and Removal from Australia

Abstract

Exclusion and expulsion from Australia has, largely, been achieved via the application of s 501 Migration Act 1958 (Cth) (the ‘character test’) and, more recently, via application of s 116 (‘general visa cancellation’). Strengthened visa cancellation provisions and associated policies, coupled with stringent enforcement over felonious non-citizens and restricted forms of legal redress, are distinctive features of modern crimmigration law and practice in Australia. Courts cannot conduct an assessment of whether administrative decision-making outcomes are substantively just, overly harsh, or disproportionate to the risks posed by the non-citizen to community safety. Nor can the Courts assess the conformity of cancellation decisions with human rights norms and enforce those rights against the State. In light of this state of affairs we argue that there is a pressing need to revisit how human rights principles are enshrined in law and how the human rights implications of character decisions are properly accounted for and weighed in the decision-making balance. We also ventilate our concerns about the nature and scope of visa cancellation powers and their contemporary administration by the executive branch of government. We advocate for an overhaul of the character test and general visa cancellation powers, and caution against the trend towards personal ministerial administration of statutory powers.