Getting Rid of Risky Foreigners: Promoting Community Protection at the Expense of Administrative Justice?

AuthorPeter Billings
DOI10.1177/0067205X19831818
Date01 June 2019
Publication Date01 June 2019
SubjectArticles
FLR831818 231..260 Article
Federal Law Review
2019, Vol. 47(2) 231–260
Getting Rid of Risky Foreigners:
ª The Author(s) 2019
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Promoting Community
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DOI: 10.1177/0067205X19831818
Protection at the Expense
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of Administrative Justice?
Peter Billings*
Abstract
This article offers a critical analysis of the norms, policy, procedures and outcomes associated with
contemporary decision-making under the ‘character test’ per Migration Act 1958 (Cth) s 501. Of
late there has been a steep increase in the number of visa refusals and cancellations on adverse
character grounds due to the convergence of a reformulated character test and single-minded,
authoritarian, administration by ministerial office-holders. This article teases out the significant
and, arguably, adverse consequences for the quality of administrative justice of ministerial control
over visa decisions absent independent administrative review. It is argued that the integrity of
ministerial decision-making and the legitimacy of outcomes are dubious. This is because the
process of identifying and balancing the important countervailing community interests and indi-
vidual (human) rights, in the course of reaching the preferable decision, does not appear to be
carried out in a detached, proper and genuine manner, pursuant to rational and intelligible rea-
soning processes. In conclusion, when viewed holistically, the judicial decisions analysed in this
article suggest that the unwavering pursuit of community protection has come at a significant
adverse cost to administrative justice and, necessarily, to individuals/families who bear the harsh
consequences.
Introduction
The Australian government exhibits a low tolerance for criminal, non-compliant or fraudulent
behaviour by non-citizens. Politicians have been categorical about their commitment to protecting
the Australian community from the harm that may result from criminal activity by non-citizens,
proclaiming that there ‘is no place in Australia for foreign criminals’.1 Prosecution of this policy
has been realised through the administration of the ‘character test’ under Migration Act 1958 (Cth)
s 501. The character test serves to prevent entry, or facilitate the removal, of criminal, risky and
*Associate Professor, TC Beirne School of Law, The University of Queensland. I thank Professor Simon Young and the peer
reviewers for their constructive comments on earlier drafts of this article and Kirra Uren for her excellent research
assistance. The author can be contacted at p.billings@law.uq.edu.au.

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Federal Law Review 47(2)
Table 1. Visa refusals and cancellations.5
Financial year
Cancellations
Refusals
2010/2011
137
104
2011/2012
160
88
2012/2013
142
65
2013/2014
84
81
2014/2015
584
136
2015/2016
982
423
2016/2017
1284
631
2017/2018
907
541
anti-social non-citizens from the community, enabling the government to exclude non-citizens by
reason of their criminal record, past activities, relationships or reputation.2
Reform of the character test, in 2014,3 strengthened the visa refusal/cancellation regime in order
that criminal non-citizens and those posing a risk to community safety could be considered for
exclusion. Contrary to official expectations,4 the ‘net-widening’ impact of these changes has been
dramatic, with the number of visa refusal and cancellations on character grounds increasing 1400
per cent over the past three to four years (see Table 1). This increase stems from the cumulative
effect of the introduction of mandatory visa cancellation provisions,6 the lowering of thresholds
and broadening of terms relating to the discretionary character provisions and personal ministerial
involvement in decision-making.
Prolonged and indefinite detention is one of the adverse consequences for non-citizens subject
to visa cancellation in circumstances where removal to a third country is unfeasible.7 Additionally,
‘oppressive’ delays have been a feature of administrative processes.8 This administrative drift is
both inefficient and damaging to non-citizens, and it has occurred in the context of a policy of
containment, a policy that aims to keep risky non-citizens in detention pending their removal or
resolution of immigration status as an outcome of administrative and judicial processes.9 Further-
more, high levels of ministerial decision-making are a pervasive feature of primary decision-
making vis-a-vis the character test and, consequently, non-citizens are denied access to customary
avenues of de novo ‘merits’ review before the Administrative Appeals Tribunal (‘AAT’). This
practice undermines administrative justice, a concept that ‘is concerned with the fairness of the
ways in which people are treated as well as the justice of what they receive’.10 Moreover, the
current administrative scheme has contributed to a torrent of judicial review applications. Non-
citizens have, typically, sought to use administrative law principles of legality, fairness and
rationality to challenge and avoid administrative injustice and the punitive consequences of
adverse visa decisions.11
This article adds to the existing literature on the legal development and regulation of the
character test12 and aims to deepen knowledge and critical understanding of character decision-
making. The article addresses the legal constraints on the contemporary exercise of s 501 powers,
especially cases where either the Home Affairs Minister (formerly Immigration Minister) or other
ministerial office-holders exercise those powers. The second part outlines and analyses the foun-
dations of the modern character test with a keen eye on the broad, and arguably exorbitant, nature
of executive powers. The article continues by examining the responsibilities of key stakeholders
administering the character test, the distribution of public powers and the pivotal role of the

Billings
233
Minister. It teases out the significant and, arguably, adverse consequences for the quality of
administrative justice (primarily, from an invidualised perspective) stemming from ministerial
control over visa decisions, coupled with an absence of external administrative review. Specifi-
cally, it is argued that the human rights and interests of individual non-citizens are not properly
safeguarded under contemporary forms of administration of the character test.13
The third part offers a clear explanation and analysis of cases that have guided and, formally,
constrained the executive in respect of the lawful and reasonable exercise of broad statutory
powers relating to community protection. This part reveals numerous occasions on which the
executive has failed to comply with implied statutory requirements conditioning the exercise of
the character test and points to several instances of judicial dissatisfaction with the administrative
practices and reasoning processes adopted by ministerial office-holders. The fourth part critically
examines questions relating to procedural fairness; specifically, the apprehended bias standard
applicable to ministerial decision-making and attenuated fair hearing requirements that character-
ise s 501 administration.
Viewed holistically, the judicial decisions analysed in this article suggest that the unwavering
pursuit of community protection has come at a cost to administrative justice and, necessarily, to
individuals (and often innocent relations) who bear the serious and extensive consequences.
Arguably, the integrity of ministerial decision-making and the legitimacy of outcomes are dubious.
This is because, in reaching the preferable decision, the process of identifying and balancing the
important countervailing community interests and individual rights does not always appear to be
carried out in a detached, proper and genuine manner, pursuant to rational and intelligible reason-
ing processes. Bereft of these qualities the ‘acceptability’ of visa decisions, produced by the current
administrative system, is weakened.14
The Character Test — Threshold Criteria, Discretionary
and Mandatory Powers
The genesis of s 501 is in a cancellation power introduced in 1992 that became extensively
applicable to visas and correlated to mandatory detention provisions for unlawful non-citizens.15
The foundation of the current character test came into effect in June 1999 with the introduction of a
more absolute form of the test that included automatic grounds for failure.16 Subsequent legislative
changes to the character test have broadened its application considerably.
Threshold Criteria — What Are the Statutory Preconditions for Visa
Refusal/Cancellation Powers?
Section 501(1) provides a discretionary power to refuse a visa where the applicant does not satisfy
the Minister or delegate that they pass the character test. Where the non-citizen ‘fails’ the test, the
decision-maker has a residual discretion to exercise — they may refuse a visa grant. In respect of s
501(2), there are two preconditions on the discretionary visa cancellation power, exercisable by
either the Minister or the delegate. The first proviso sets a low threshold — the decision-maker
must form a reasonable suspicion that the visa-holder does not pass the character test. The second
stipulation requires the decision-maker to form a considered view about whether they are satisfied
a person passes the character test, referable to all relevant material.17 Where the preconditions are
met, decision-makers may then exercise their residual discretion vis-a-vis visa cancellation.

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Federal Law Review 47(2)
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