For more than twenty (20) years AR LAW SERVICES: Master Migration Lawyers has been helping people win back their cancelled visas. With the events of last week we think now is a good time to assess the Cancellation system rather than mere speak to the Djokovic case in isolation, because the fault lies with the System. As noted by RACS et al the cancellation of Novak Djokovic’s visa, and his subsequent transfer to immigration detention at Park Hotel in Melbourne, has rightly drawn attention to Australia’s indefinite detention of asylum seekers, many of whom have been found to be refugees, at the same location. But the case also sheds light on three other areas of concern: Australia’s visa cancellation regime, Australia’s immigration detention regime, and the breadth of personal powers available to the Minister for HomeAffairs.
In 2014, the Federal government vastly expanded the visa cancellation powers available under the Act, including under ss 116 (general powers) and 501 (character powers) of the Migration Act. Since then, there has been a huge increase in visa cancellations, including in immigration clearance’ at the airport. The system is now cumbersome, opaque, and alarmingly prone to error and injustice. As just one example, the lowering of the risk threshold in s 116(1)(e), so that it captures people who ‘may’ or ‘might be’ a risk, significantly expands the scope of the cancellation power: there have been hundreds of visas cancelled on this specific basis since 2014. Visa cancellation decisions made in ‘immigration clearance’ at the airport cannot be reviewed on their merits. The only way to challenge such decisions is in the Federal Circuit and Family Court of Australia on narrow legal grounds. This raises highly technical, legal questions that require both knowledge of administrative law and of court procedure. Such proceedings must be commenced urgently, while the visa holder is in detention or perhaps even at the airport, before they are removed from the country. Djokovic was able to obtain legal advice, commence Court proceedings, and prevent his removal from Australia. But few people have access to the same resources. At the airport, people are given as little as 10 minutes to respond if their visa is being considered for cancellation, often after a long flight or at irregular hours. They are not given access to legal advice or other support. As a result, visa cancellations made under a veil of secrecy remain unchallenged, and visa holders are summarily removed from the country and barred from re-entry. The significant defects in the process to which Djokovic was subjected highlight the dysfunction of the current cancellation regime.
Despite Djokovic’s success in Court, as noted by the Working Group, lawyers for the Minister for Home Affairs have indicated that Alex Hawke, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, decided to use his personal powers under s 133C of the Act to cancel’s Djokovic’s visa again (though other powers also exist). Under that provision, the Minister may personally cancel a visa if a ground for cancellation exists under s 116 and he considers cancellation is in the ‘public interest.’ The Minister has no less than 47 personal powers under the Act – more than any other Commonwealth Minister. Since 2014, there has been a significant increase in decisions made personally by the Minister under the Act: the Minister has personally made hundreds of negative s 501 cancellation decisions since 2014.Such decisions are immune from merits review. It is not appropriate that such significant powers to override the decisions of Tribunals and Courts are vested in the Minister.