Monday, October 17, 2005

More Bad Characters

What do David Djalic, Gavin George and Stefan Nystrom all have in common? Each of them has failed the character test specified in Section 501 of the Migration Act, that's what. Officially, they're none of them the sort of people we want in Australia. So what if they arrived here as minors? They went to the bad as adults and, according to DIMIA, Phil Ruddock (in the cases of Djalic and George) and Amanda Vanstone (in the Nystrom case) that ought to be good enough reason to want shot of them. Naturally, Djalic, George and Nystrom disagreed, hence the various Federal Court judgements linked to above.

Alright, so I haven't exactly researched this topic in depth yet; all I've done is crank up a quick Austlii search for cases involving s501 of the Migration Act and gone through the judgements looking for commonalities with the Nystrom case. All I can say at this stage is that the cases of Djalic and George were a little too easy to find.

To finish, here's a curious case involving the question of whether the Minister for Deportation of Undesirables has the power to revoke a visa cancellation under s501:

2 The only question argued on appeal was whether or not the appellant (the "Minister") had power to revoke the decision to cancel the respondent’s visa pursuant to s 501(2) Migration Act 1958 (Cth) (the "Act"). There is no express power so to do. Therefore the only source of such power can be s 33(1) of the Acts Interpretation Act 1901 (Cth) (the "AIA"). The pervasive effect of that provision upon the legislative grant of administrative powers should not be underestimated ...

7 ... The existence of an unlimited power to revisit a decision to cancel a visa would not sit comfortably with the stringent provisions regulating the grant of visas imposed by Division 3 of Part II. After all, the effect of such a decision may be, in effect, to grant a new visa. Similarly, if a decision to refrain from cancelling a visa could be revisited, the visa-holder would, notwithstanding such favourable determination, remain at risk of future cancellation upon the same factual basis as grounded the original decision. That would be an unsatisfactory basis for continued residence in this country. Neither outcome is consistent with the strict regulatory regime established by the Act. If it were possible to limit the time within which, or the circumstances in which, a decision might be revisited, the position might be otherwise. However, as far as I can see, there is no way of doing so.
[Dowsett J]

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