Peter Dutton is not a fan of independent judicial scrutiny of his decisions. He notoriously overturned a decision of the High Court last year within hours of a judgment being handed down which found he had exceeded his powers in cancelling the visa of a New Zealand citizen. But it is the Administrative Appeals Tribunal (AAT) that Mr Dutton wants to neuter because on a number of occasions in the past few years it has dared to revoke decisions by Mr Dutton’s department to expel non-citizens who have criminal records. Now it seems Mr Dutton is preparing the way for legislation to remove the right of individuals to appeal to the AAT when their visa is revoked by bureaucrats.

Mr Dutton has for months now been using friendly news outlets like Herald Sun, The Daily Telegraph and The Australian as a key weapon in building a case against the AAT. And Mr Dutton has asked the Joint Parliamentary Committee on Migration, chaired by a colleague, Liberal MP Jason Wood, “to inquire into and report on the review processes associated with visa cancellations made on criminal grounds”. That committee is about to hold hearings into the issue.

The AAT, which began its life under the Fraser government, is the quasi judicial tribunal which enables citizens and non-citizens to review decisions made by government officials. It deals with a broad range of matters from taxation to military compensation. One of the tribunal’s roles is to review cases where the Department of Immigration cancels the visa of a non-citizen who fails the so called “character test” in the Migration Act because they have committed offences in Australia which have resulted in them being jailed for 12 months or more (and this includes suspended sentences). 

This is a power Mr Dutton and his department have used with some relish. It has impacted disproportionately on New Zealanders and now the attention is being turned to young men from South Sudan and Somalia. The decision to revoke a visa is life changing. Many of those who find themselves facing expulsion from Australia have never lived in the country from which their parents came, or if they did they migrated to Australia at a very young age. Families are torn apart, jobs lost and mental and physical health are in jeopardy when the decision is taken to revoke a visa.

Many of those who are subject to revocation decisions appeal to the AAT which conducts what is called a merits review. In other words, it looks at all the evidence and makes its own decision about the circumstances of revocation. In some cases — but certainly less than 50% — the AAT overturns the department’s decision and this is what enrages Mr Dutton and his media allies.

The Herald Sun on April 26 published a story with the sensational headline “Killers, sex offenders and drug dealers among those the AAT has saved from deportation”. That story has a link to another attack on the AAT entitled “See full list of criminals the AAT has saved from deportation”. The next day the Daily Telegraph’s editorial fulminated that the “Administrative Appeals Tribunal is now overruling more visa decisions made by delegates for Immigration Minister Peter Dutton than it is supporting”.

Last year The Australian on May 30 last year had columnist Nick Cater run a similar line of attack. The AAT “has been busily undermining itself with a series of soft-headed judgments that defy common sense,” said Mr Cater, who had obviously not bothered to read in detail the judgments of the AAT that he besmirched.

This is a consistent theme in the News Corp campaign and it is designed to boost the case for legislation diminishing the AAT’s jurisdiction. Mr Wood’s committee will no doubt recommend to Mr Dutton that the Migration Act be amended to ensure bureaucrats have the last word in cases where a non citizen has a criminal record.

Such legislation will present a dilemma for the ALP which has a notoriously poor track record when it comes to protecting the rights of individuals in the migration area. Mr Dutton is surely hoping that any legislation wedges the ALP, splitting those few in the party who actually care about the rule of law and fairness, and the majority which are expedient and do not want to be labelled by the Turnbull government and News Corp as being “soft on criminals”.

I subscribe to Crikey because I believe in a free, open and independent media where news and opinions can be published that I can both agree with and be challenged by.

As a Crikey subscriber I always feel more informed and able to think more critically about issues and current affairs – even when they don’t always reflect my own political viewpoint or lived experience.

Jess
Singapore

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