Merit Review, Mandatory Cancellation and Revocation of Cancellation
TABLE OF CONTENTS
Involved in a Group Involved in Criminal Conduct
Further General Grounds to Fail the Character Test
Sexually Based Offences Involving a Child
ASIO Adverse Assessment or an Interpol Notice
Additional Definitions of Substantial Criminal Record
The Minister’s Personal Power
Administrative Appeals Tribunal Review
Judicial Review of AAT Decisions
Time Limits for AAT Review
Can’t Go Behind the Conviction
Forensic Psychiatric Report
Those Convicted of Fraud
The Minister’s personal decisions including those in the national interest
Notes from Lorenzo
Important to analyse at this point is what is the role of the Administrative Appeals Tribunal (AAT)?
Broadly speaking, if the Minister makes a decision personally there is no merit review although there is always judicial review. The Federal Circuit Court has no jurisdiction over decision made by the Minister personally, applications for judicial review have to be made to the Federal Court.
If a decision is made by a delegate then there is a right of review to the AAT (s 500(1)(b). But even then the minister retains a residual power to overturn a decision of the AAT in favour of a former visa holder (see 501BA] (2) where the minister can revoke an AAT decision ‘in the national interest’! Again there are still rights of judicial review against any personal decisions by the Minister.
The merit review power of the AAT against a decision of a delegate not to revoke the mandatory decision to cancel is found in s 500(1)(ba) which identifies, “decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa” as within the set of decisions the AAT can review.
But there is no merit review against the mandatory cancellation decision (see s 500 4A(c) which takes away the jurisdiction of the AAT in relation to mandatory cancellation decisions including –
(c) a decision of a delegate of the Minister under subsection 501(3A) to cancel a visa.)
Merit review will be dealt with in more detail later.