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Abstract
Under s 501 of the Migration Act 1958, a delegate of the Minister for Immigration may cancel or refuse to grant the visa of a non-citizen on the ground of "bad" character, a decision which can lead to the permanent exclusion of non-citizens from Australia. In its review of these decisions, the Administrative Appeals Tribunal (“the Tribunal”) is frequently perceived as being too independent. I explore the role of the Tribunal, examining aspects of its performance having regard to the wider context and consider what the Tribunal’s role should be when reviewing these types of cases. My historical overview reveals an area of decision-making, marked by an underlying tension between law and politics. In order to provide a framework in which to assess the Tribunal’s performance, I provide an overview of the law and fact-finding processes.
After briefly setting out some usages of “character” in philosophy and psychology, I explore its use in different legal contexts and show how it serves particular goals and is influenced by the various interests at play.
I proceed to explore the two limbs of section 501, namely the grounds upon which a person is deemed to have failed the character test and the exercise of the discretion to refuse or cancel the visa. I show how the government employs various devices to shape Tribunal decision-making. I explore its independence, the fairness of its processes and the quality of its decision-making and conclude that although Tribunal members ultimately enjoy independence of thought, their ability to accord applicants procedural fairness is compromised.
I argue that as members of the legal and, at times, the social community, the difference in treatment of non-citizens cannot always be justified. In accordance with this view of justice, I suggest legal reform, designed to better balance the values and interests involved. The bulk of my thesis relates to the law prior to the coming into force of recent amendments, although I discuss the impact of these changes.