Visas can be cancelled on the basis that the holder is not of good character under section 501 of the Migration Act. This usually means that the person has a “substantial criminal record”. The decision to cancel is discretionary and subject to review in the AAT (usually). So what happens when:

  • a permanent visa is cancelled after the visa holder is convicted on several sexual assault charges and sentenced to imprisonment;
  • he successfully seeks merit review in the AAT (so that the cancellation is set aside);
  • then a few years later, he had a drink driving offence which again brought him to the Minister’s attention and resulted in the second cancellation of his visa. The drink driving offence by itself was not enough to trigger “bad character” but was taken into consideration with his previous offending.

He again seeks review of the decision and ultimately, the High Court (in Minister for Immigration and Border Protection v Makasa [2021] HCA 1) frames the question as (at [44]):

The determinative question therefore becomes whether, and if so when, the power conferred by s 501(2) of the Act, having once been exercised by the Minister or a delegate in the first instance or re-exercised by the AAT on review not to cancel a visa, can be re‑exercised by the Minister or a delegate to cancel the visa.

and the answer is (at [56]):

The result, in short, is that a decision of a delegate or the AAT not to cancel a visa made in the exercise of the power conferred by s 501(2) of the Act on the basis of facts giving rise to a reasonable suspicion that a visa holder does not pass the character test is final, subject only to ministerial override in the exercise of the specific power conferred by s 501A.

This basically means the power can only be used once. I will leave you to read the decision for all the analysis that led to that conclusion (which is more complicated than it first appears).

Creative commons acknowledgment for the photograph.

Share Button