God-like powers: The character test and unfettered ministerial discretion

Abstract

The ability to deport or cancel the visas of non-citizens, regardless of the length of their residency in Australia, remains a controversial topic. Whilst it reflects long-standing Australian policy, the widening scope of s 501 of the <i>Migration Act 1958</i> (Cth) should provoke reflection and criticism. The legislative provision empowers the Minister for Immi-gration, Citizenship, Migrant Services and Multicultural Affairs with a non-delegable, non-reviewable and non-compellable discretion to expel from Australia those deemed not to be of good character. I explore the history of the character test in Australia, highlighting the relevant inter-national and domestic legal frameworks with a particular focus on visa holders to whom Australia owes non-refoulement obligations, followed by key issues arising from the current regime: the potential inconsistency of domestic legislation with international law; the inherent irrationality of assessing future risk; and the consequences of mandatory detention. I will then explore the current review process and its legal and practical barriers, before concluding with select solutions.