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4 What are the human rights issues raised by refusal or cancellation of visas under section 501?

The Commission has a number of concerns about the impact on the human rights of people whose applications for visas are refused or whose visas are cancelled under section 501 of the Migration Act. The Commission is particularly concerned about the consequences for:

  • refugees who have their applications for protection visas refused on character grounds
  • long-term permanent residents of Australia who have their visas cancelled on character grounds.

The Commission’s major concerns, discussed in the following sections, relate to:

  • the risk that such persons may be subjected to arbitrary detention (including prolonged or indefinite detention), contrary to article 9(1) of the ICCPR
  • the risk of separation from children and other family members due to a person’s detention and/or removal from Australia, resulting in possible breaches of articles 17 and 23 of the ICCPR.

4.1 Impact of visa refusal on refugees

The Commission is concerned about the impact that the introduction of the new ‘immigration detention offences’ ground for visa refusal or cancellation in section 501[47] may have on asylum seekers who come to Australia seeking protection. This is because of the context in which this amendment was introduced (namely following the disturbances in the Christmas Island and Villawood Immigration Detention Centres),[48] and the fact that all asylum seekers who come to Australia without a visa are subject to mandatory detention. The new ground will allow the Minister or a delegate to refuse to grant a protection visa to an asylum seeker if he or she is convicted of any offence in relation to his or her detention, even if he or she is found to be a refugee, and therefore someone to whom Australia owes protection obligations. This is discussed further in section 4.3 below.

4.2 Impact of visa cancellation on long-term permanent residents

The Commission is also particularly concerned about the impact that visa cancellation under section 501 may have on a person who has been residing in Australia for a long period of time. Prior to the introduction of section 501 in 1998, the deportation of non-citizens who had committed criminal offences was covered by sections 200 and 201 of the Migration Act. Under these sections, the Minister could only deport a non-citizen who had been convicted of a crime (punishable by imprisonment for one year or more) if the non-citizen had been resident in Australia for less than ten years.[49] Since 1998, the powers in section 501 of the Migration Act have been used to cancel the visas of permanent residents who have lived in Australia for more than ten years (hereafter referred to as ‘long-term’ permanent residents).[50] For example, as at May 2008, 24 of the 25 people in immigration detention whose visas had been cancelled under section 501 had lived in Australia for more than 11 years; 17 of them had lived in Australia for more than 20 years. The majority of these people were 15 years old or younger when they first arrived in Australia.[51]

The Commonwealth Ombudsman has suggested that the use of section 501 to cancel the visas of long-term permanent residents goes beyond the original intention of the provision.[52] Nevertheless, in recent years section 501 has continued to be used to cancel the visas of long-term permanent residents.[53]

CASE STUDY 1: Cunliffe v Minister for Immigration and Citizenship [2012] FCA 79

Leslie Cunliffe was a citizen of the United Kingdom who migrated to Australia with his parents and siblings in 1967, when he was 19 years old. In 1999 he was convicted of eight offences arising out the one incident, including kidnapping, blackmail and rape. He served 12 years in prison. After he was released on parole in April 2011, he was notified that the Minister intended to consider exercising his personal power under section 501A of the Migration Act to cancel his visa. On 10 June 2011, the Minister made a decision to cancel the visa of Mr Cunliffe, despite noting that he had been living in Australia for over 43 years. The Federal Court upheld the Minister’s decision. Mr Cunliffe was removed from Australia in March 2012.

Long-term permanent residents who have their visas cancelled may be removed from Australia and sent to a country where they have spent little time (or never lived); where they do not speak the language; and where they have few or no social or family connections. They may also face separation from their children, family and friends in Australia (this is discussed further in section 4.4 below).

 

CASE STUDY 2: Nystrom et. al v Australia
(UN Human Rights Committee Communication No. 1557/2007, UN Doc CCPR/C/102/D/1557/2007 (2011))

On 12 August 2004 the Minister cancelled the visa of Stefan Nystrom on the basis that, due to his criminal history, he did not pass the character test. Although born in Sweden, Mr Nystrom had arrived in Australia with his mother when he was 27 days old (in January 1974), and had lived in Australia for all of his life. His ties to the Australian community were so strong that the Full Court of the Federal Court had described him as an ‘absorbed member of the Australian community’. His nuclear family lived in Australia, he had no ties to Sweden and he did not speak Swedish. Despite this, he was deported back to Sweden in December 2006. The UN Human Rights Committee considered that, in the circumstances, the deportation of Mr Nystrom from Australia constituted a breach of his right under article 12(4) of the ICCPR not to be arbitrarily deprived of the right to enter his ‘own country’.

As mentioned above, under Direction No. 55 the ‘strength, duration and nature of the person’s ties to Australia’ are primary considerations for DIAC officers when deciding whether to cancel a person’s visa under section 501.[54] Decision-makers therefore must have regard to the length of time the visa holder has resided in Australia, including whether the person arrived in Australia as a young child.[55] In addition, the Direction acknowledges that:

Australia may afford a higher level of tolerance of criminal or other serious conduct in in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.[56]

However, the terms of the Direction do not prevent delegates of the Minister from cancelling the visas of long-term permanent residents under section 501. While the ‘strength, duration and nature of the person’s ties to Australia’ are primary considerations which may support a decision not to cancel a visa, pursuant to the Direction they can be outweighed by other primary considerations, particularly the protection of the Australian community.[57] Further, as mentioned above, the Minister is not bound to follow the Direction when making visa cancellation decisions personally.

The Commission raised concerns about the visa cancellation and immigration detention of long-term permanent residents in its 2008 submission to the Joint Standing Committee on Migration’s inquiry into immigration detention in Australia.[58] In that submission, the Commission recommended that the Australian Government should review the operation of section 501 as a matter of priority, with the aim of excluding long-term permanent residents from the provision.[59]

4.3 Risk of arbitrary detention

(a) General risk of arbitrary detention

As outlined above, if a person has their visa application refused or their visa cancelled under section 501, unless they also hold a protection visa they must be taken into immigration detention and remain in detention unless and until they are granted a new visa or removed from Australia.[60]

Some people who have their applications for visas refused or their visas cancelled under section 501 can spend months or even years in immigration detention, for example while they seek review of the decision to refuse or cancel their visa, while travel documents are arranged, or while a claim for a protection visa is assessed. As at 23 May 2013, six of the 49 people in detention because of visa cancellation under section 501 had been detained for 2-3 years, and three of the seven people who had been detained following refusal of their visa applications under section 501 had been detained for 1-2 years.[61]

Often, a long-term permanent resident’s visa is cancelled under section 501 because they have been convicted of a criminal offence. In such cases, the person’s visa is usually cancelled when they are near the end of serving their prison sentence. On completion of their sentence they are placed in immigration detention, because they no longer hold a valid visa. In 2008 the Commonwealth Ombudsman observed that it was not uncommon for people who were detained following cancellation of their visa under section 501 to spend more time in immigration detention than they did in prison.[62]

Holding people in immigration detention for prolonged and indefinite periods can lead to breaches of Australia’s international obligations. Under article 9(1) of the ICCPR, the Australian Government has an obligation not to subject any person to arbitrary detention, including for immigration control purposes.[63] Detention can be arbitrary even though it is provided for by law; arbitrariness in this context includes concepts of ‘inappropriateness, injustice and lack of predictability’.[64] Detention will also be arbitrary if it is a disproportionate response to a legitimate aim,[65] and/or if it continues beyond a period for which the Australian Government can provide appropriate justification.[66]

For over a decade the Commission has consistently called for an end to Australia’s system of mandatory detention for ‘unlawful non-citizens’ because it leads to breaches of Australia’s international human rights obligations.[67] The Commission is concerned that a blanket policy of mandatory detention for all people who have their visa refused or cancelled under section 501 may result in the detention of some individuals who do not, in fact, pose a significant risk to the Australian community. The failure to impose a set time limit on their detention increases the risk that some individuals will be held in immigration detention for prolonged or indefinite periods, contrary to article 9(1) of the ICCPR.

Relevance of Australia’s non-refoulement obligations to risk of arbitrary detention

In some cases, people who have their visa application refused or visa cancelled on character grounds cannot be returned to their country of origin because of Australia’s international obligations. The will be the situation of all people who are denied a protection visa on character grounds, but are recognised as refugees under the Refugee Convention. As a party to that Convention, Australia has a legal obligation not to refoule (that is, expel or return) a refugee to a country where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.[68] However, this non-refoulement obligation under the Refugee Convention does not apply to a refugee if there are reasonable grounds for regarding that person as a danger to Australia’s security, or if that person, having been convicted by final judgment of a particularly serious crime, constitutes a danger to the Australian community.[69]

In some cases, the grounds under which a person may be excluded from the non-refoulement obligation under the Refugee Convention may overlap with the grounds upon which a person will fail the section 501 character test under the Migration Act (for example, because they have a ‘substantial criminal record’[70]).

However, some of the grounds upon which a person will fail the section 501 character test are much broader than the grounds upon which a person can be excluded from the non-refoulement obligation under the Refugee Convention. The exclusion grounds in the Refugee Convention require that a person be a danger to Australia’s security or to the Australian community – whereas a person can fail the section 501 character test on grounds as general as being ‘not of good character’ having regard to their ‘past or present general conduct’.[71]

Further, Australia may owe non-refoulement obligations to a person even if they are not a recognised refugee. In addition to its obligations under the Refugee Convention, Australia also has non-refoulement obligations under the ICCPR,[72] the CAT,[73] and the Convention on the Rights of the Child (CRC).[74] These non-refoulement obligations mean that Australia must not return any person who is in Australia to a country where there are substantial grounds for believing that they face a real risk of death, torture or cruel, inhuman or degrading treatment or punishment. Unlike the non-refoulement obligation under the Refugee Convention, these non-refoulement obligations are absolute. That is, there are no situations in which the person’s expulsion or removal can be justified if there are substantial grounds for believing that there is a real risk of these types of harms occurring.

In practical terms, the narrow exceptions to the non-refoulement protection under the Refugee Convention, and the absolute nature of the non-refoulement obligations under the ICCPR, the CAT and the CRC, may result in refugees and other people:

  • being refused a visa (including a protection visa) or having their visa cancelled under section 501 because they fail the character test, but
  • being found to engage Australia’s non-refoulement obligations (whether under the Refugee Convention or the other international treaties).

The Commission is concerned about the fate of those people who fall into this legal limbo. Under the Migration Act they must remain in immigration detention until they are either granted a visa or removed from Australia, but under international law they cannot be returned to a country where there is a real risk they would face persecution or significant harm. Unless they can meet the requirements for grant of a protection visa (which itself includes satisfying the character test),[75] or there is a third country where they can be resettled in which they do not face a real risk of persecution or significant harm, they face the prospect of indefinite detention.

CASE STUDY 3: Mr NK v Commonwealth of Australia (Department of Immigration and Citizenship

(Report into arbitrary detention, the right of people in detention to protection of the family and freedom from arbitrary interference with the family [2011] AusHRC 43)

Mr NK, who had left the People’s Republic of China and entered Australia on a student visa in 1989, was convicted in Australia on two counts of murder and spent 15 years in prison. When he was released from prison in October 2006 his bridging visa was cancelled, and he was placed in immigration detention as an unlawful non-citizen. His application for a further bridging visa was refused, on character grounds. His application for a protection visa was also refused. However, Mr NK could not be removed from Australia back to the PRC, because there was a real risk that he would ‘face the death penalty or torture as a necessary and foreseeable consequence of his removal’, and therefore his removal would place Australia in breach of its non-refoulement obligations. As DIAC refused to grant him a visa to allow him to live in the community due to his criminal record, Mr NK had, at the date of the report, been held in immigration detention for over 4 years.

(c) Guidance given in the Direction regarding non-refoulement

As mentioned above, under Direction No. 55 Australia’s non-refoulement obligations under the Refugee Convention, the CAT and the ICCPR are primary considerations for DIAC officers when deciding whether to refuse or cancel a person’s visa under section 501.[76]

Direction No. 55 points decision-makers to the interpretation of Australia’s international non-refoulement obligations contained in section 36 of the Migration Act (which sets out the criteria for the grant of a protection visa). In addition to referring to the protection obligations under the Refugee Convention (including its exclusions), section 36 of the Migration Act provides that Australia owes protection (including non-refoulement) obligations towards a non-citizen where there are:

substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

A non-citizen will suffer significant harm if:

(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.[77]

However, the Direction expressly states that the fact that Australia may owe a non-refoulement obligation to a person does not preclude a decision-maker refusing or cancelling that person’s visa under section 501.[78] Rather, the instruction given in the Direction is that:

any non-refoulement obligation should be weighed carefully against the seriousness of the person’s criminal offending or other serious conduct in deciding whether or not the person’s visa application should be refused [or the person should continue to hold a visa].

The question is then what will happen when a person meets the test in section 36 of the Migration Act as someone to whom Australia owes non-refoulement obligations, but their visa application is refused or their visa cancelled on character grounds. This scenario is increasingly likely given that, as mentioned above in section 2.3(c), the amendments to the character test in 2011 have effectively lowered the ‘criminality’ threshold for failure of the character test for those who are convicted of committing an offence while in immigration detention.

In its submission to the Senate Legal and Constitutional Affairs Committee which considered the 2011 amendments to the character test, DIAC confirmed that ‘the Government will not return people to whom it owes non-refoulement obligations to a place where there is a real risk of these significant types of harm’.[79] DIAC stated that:

In circumstances where it is not possible to remove refugees, or other persons who engage these obligations, whose permanent visa has been refused or cancelled on character grounds ... such persons will also not be detained indefinitely. The Government ... will consider the grant of existing temporary visas under the Act to manage persons who are owed non-refoulement [obligations], but whose permanent visa has been refused or cancelled on character grounds. In such cases, the Minister may consider the exercise of his personal power under section 195A of the Act to grant a visa placing these persons in the community with appropriate support arrangements until such time that their removal from Australia is possible. Other obligations relating to the presence of refugees in Australia will also continue to be met.[80]

The Commission is concerned that the Minister’s personal power under section 195A may not be a sufficient safeguard against indefinite detention. The Minister’s power under section 195A is discretionary. The Minister is not under any duty to consider whether to exercise his power in section 195A to grant a visa, even if he or she is requested to do so.[81] A person therefore cannot challenge the Minister’s decision not to exercise this power. The Commission is also concerned that, even if the Minister grants a ‘removal pending’ bridging visa under section 195A, such a visa is a temporary solution which only permits the holder to remain in the Australian community until he or she can safely be removed - it does not offer the holder any certainty about their future in cases where removal is not currently practicable.[82]

4.4 Risk of separation from children and other family members

(a) Obligation to consider the best interests of the child

Visa refusal or cancellation under section 501 may result in the separation of a parent and their child or children. If the parent’s visa is refused or cancelled, they will be taken into immigration detention, and may be removed from Australia. The CRC requires that in all actions concerning children, the best interests of the child must be a primary consideration.[83]

The Commission welcomes that under Direction No. 55 ‘the best interests of minor children in Australia’ is one of the primary considerations DIAC officers must take into account when deciding whether to refuse to grant or to cancel a person’s visa under section 501.[84] If there are minor children who will be affected by the decision to refuse or cancel a visa, under the Direction the relevant decision-maker must make a determination about whether refusal or cancellation is or is not in the best interests of the child.[85]

(b) Obligations in relation to avoiding arbitrary interference with, and protecting, the family

Under article 17 of the ICCPR, all people have the right to be free from ‘arbitrary or unlawful interference’ with their family.[86] Also, article 23(1) of the ICCPR provides that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’. In some circumstances, the refusal or cancellation of a person’s visa leading to their subsequent detention and/or removal from Australia could result in Australia being in breach of its obligations under those articles.[87]

As explained above, people whose visas are cancelled under section 501 are often long-term permanent residents who moved to Australia as a child and have lived here for many years prior to their visa cancellation.[88] Many of them have family members in Australia, some of whom may be long-term permanent residents themselves, or even Australian citizens.

The prolonged detention and/or removal of a person from Australia after their visa cancellation could result in that person being separated from their family members who reside in Australia. Depending on the reason they failed the character test, a person who is removed may then effectively be permanently excluded from Australia, and consequently prevented from returning to visit family members who remain in the country.[89]

Cancelling a person’s visa and holding them in detention for a long period of time and/or removing them from Australia can therefore impact that person’s (and their family members’) right to respect for family life. Under article 17 of the ICCPR, such interference with the right to family life is only permissible if it is not arbitrary, which means it must be ‘reasonable in the particular circumstances’.[90]

CASE STUDY 4: Brown v Commonwealth of Australia (Department of Immigration & Citizenship)

(Report into arbitrary detention, the right to be treated with humanity and with respect for the inherent dignity of the human person and the right to be free from arbitrary interference with and to protection of the family [2012] AusHRC 51)

Mrs Brown, a New Zealand citizen, had her visa cancelled on character grounds pursuant to section 501 on 3 November 2008, and on 14 November 2008 she was placed in immigration detention. Her placement in immigration detention separated her from her fiancé, four children, eight siblings and five grandchildren, all of whom were living in the Australian community. After a series of unsuccessful applications to have the decision to cancel her visa overturned, and her request to be placed in community detention was refused, she ultimately voluntarily returned to New Zealand on 23 May 2011. Accordingly, for the 30 months Mrs Brown was detained she was separated from her family. Former Commission President Catherine Branson found that the decision to detain Mrs Brown in closed detention rather than community detention was not a reasonable or proportionate response to any risk she presented to the community if released. Accordingly, the interference with her family was arbitrary, in breach of articles 17 and 23 of the ICCPR.

(c) Consideration of the effect on family members under the Direction

When deciding whether to cancel a person’s visa under section 501, Direction No. 55 requires that, as part of the primary consideration of a person’s ties to Australia, decision-makers must consider:

the strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.[91]

Further, as mentioned above in section 2.4(c), under Direction No. 55 the decision-maker is required to consider the impact that refusal or cancellation would have on the applicant’s or holder’s immediate family members before making a decision to refuse an application or cancel a visa.[92]

The Commission welcomes these requirements. However, the Commission is concerned that, as the above case study illustrates, the terms of the Migration Act and Direction No. 55 may not adequately protect against breaches of Australia’s obligations under articles 17 and 23(1) of the ICCPR. Even if a decision-maker determines that a decision to refuse or cancel a visa would severely limit the person’s ability to maintain a relationship with family members who reside in Australia, the decision-maker is still able to refuse or cancel the visa.[93] Under the terms of Direction No. 55, a person with strong family ties in Australia (including dependent children) could have his or her visa cancelled, be detained, be removed, and even possibly be excluded from Australia, due to conflicting or overriding considerations.[94]


[47] See the discussion in section 2.3(c) above.

[48] Commonwealth, Parliamentary Debates, House of Representatives, 11 May 2011, p 3509 (The Hon Chris Bowen MP, Minister for Immigration and Citizenship).

[49] See Migration Act 1958 (Cth), s 201.

[50] See, for example, Commonwealth Ombudsman, Administration of section 501 of the Migration Act 1958 as it applies to long-term residents, Report No. 01/2006 (2006), para 2.10. At http://www.ombudsman.gov.au/files/investigation_2006_01.pdf (viewed 24 June 2013).

[51] Question 423, Commonwealth Senate Hansard (17 June 2008), pp 2625-2626. At http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansards/2008-06-17/0159/hansard_frag.pdf;fileType=application%2Fpdf (viewed 24 June 2013).

[52] Commonwealth Ombudsman, note 50, para 2.10.

[53] See M Grewcock, ‘Punishment, deportation and parole: The detention and removal of former prisoners under section 501 Migration Act 1958’ (2011) 44(1) Australian and New Zealand Journal of Criminology 56, particularly the cases mentioned on pp 56-61.

[54] Ministerial Direction No 55, note 3, Part A, para 9(1)(b).

[55] Ministerial Direction No 55, note 3, Part A, para 9.2(1)(a).

[56] Ministerial Direction No 55, note 3, Section 1, para 6.3(4).

[57] Ministerial Direction No 55, note 3, Section 2, paras 8(5) and 9(1)(a).

[58] Human Rights and Equal Opportunity Commission, Submission to the Joint Standing Committee on Migration Inquiry into immigration detention in Australia (2008), paras 60-68. At http://humanrights.gov.au/legal/submissions/2008/20080829_immigration_detention.html (viewed 24 June 2013).

[59] Human Rights and Equal Opportunity Commission , above, para 68 (recommendation 5).

[60]Migration Act 1958 (Cth), ss 13, 14, 189(1), 196(1), 501F(3).

[61] Department of Immigration and Citizenship, note 43.

[62] Commonwealth and Immigration Ombudsman, Submission to the Joint Standing Committee on Migration’s Inquiry into Immigration Detention in Australia (2008), p 11. At http://www.ombudsman.gov.au/files/Joint_Standing_Committee_on_Migration_Inquiry_to_immigration_detention_in_Australia.pdf (viewed 24 June 2013).

[63] Human Rights Committee, General Comment No 8: Right to liberty and security of persons (Art. 9) UN Doc A/37/40, Annex V (1982), para 1. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument (viewed 24 June 2013). See also Human Rights Committee, A v Australia, Communication No. 560/1993, UN Doc CCPR/C/59/D/560/1993 (1997), at http://www.unhcr.org/refworld/docid/3ae6b71a0.html (viewed 24 June 2013); Human Rights Committee, C v Australia, Communication No. 900/1999, UN Doc CCPR/C/76/D/900/1999 (2002), at http://www.unhcr.org/refworld/docid/3f588ef00.html (viewed 24 June 2013); Human Rights Committee, Baban v Australia, Communication No. 1014/2001, UN Doc CCPR/C/78/D/1014/2001 (2003). At http://www.unhcr.org/refworld/docid/404887ee3.html (viewed 24 June 2013).

[64] Human Rights Committee, Van Alphen v Netherlands, Communication No. 305/1988, UN Doc A/45/40 Vol. II (1990), Annex IX sect. M (1990), para 5.8. At http://www.bayefsky.com/docs.php/area/jurisprudence/node/4/filename/117_netherlands305vws (viewed 24 June 2013).

[65]Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, 92 [152]. See also Human Rights Committee, A v Australia, note 63, para 9.2; M Nowak, UN Covenant on Civil and Political Rights - CCPR Commentary (1993) p 172.

[66] Human Rights Committee, C v Australia, note 63, para 8.2.

[67] See, for example, Human Rights and Equal Opportunity Commission, Those who’ve come across the seas: Detention of unauthorised arrivals (1998), at http://humanrights.gov.au/human_rights/immigration/seas.html (viewed 24 June 2013); Human Rights and Equal Opportunity Commission, A last resort? National Inquiry into Children in Immigration Detention (2004), at http://humanrights.gov.au/human_rights/children_detention_report/index.html (viewed 24 June 2013). For more recent submissions and reports by the Commission which recommend an end to mandatory detention, see the Commission’s ‘Immigration detention, asylum seekers and refugees’ page at http://www.humanrights.gov.au/immigration-detention-asylum-seekers-and-refugees.

[68] Refugee Convention, note 32, art 33(1).

[69] Refugee Convention, note 32, art 33(2).

[70]Migration Act 1958 (Cth), s 501(6)(a).

[71]Migration Act 1958 (Cth), s 501(6)(c).

[72] ICCPR, note 34, arts 6(1), 7; Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty (1989), at http://www.austlii.edu.au/au/other/dfat/treaties/ATS/1991/19.html (viewed 24 June 2013).

[73] CAT, note 33, art 3(1).

[74] Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (CRC), arts 6(1), 37. At http://www.austlii.edu.au/au/other/dfat/treaties/1991/4.html (viewed 24 June 2013).

[75]Migration Regulations 1994 (Cth), Schedule 2, clause 866.225, and Schedule 4, reg 1.03, Part 1.

[76] Ministerial Direction No. 55, note 3, Part A, para 9.4 and Part B, para 11.3.

[77] See Migration Act 1958 (Cth), sub-ss 36(2)(aa) and (2A) and Ministerial Direction No. 55, note 3, Part A, para 9.4(3) and Part B, para 11.3(3). Note that s 36(2B) of the Act sets out circumstances in which there will be taken not to be a real risk of significant harm.

[78] Ministerial Direction No. 55, note 3, Part A, para 9.4(2) and Part B, para 11.3(2).

[79] Department of Immigration and Citizenship, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry into the Migration Amendment (Strengthening the Character Test and other Provisions) Bill 2011) (May 2011), p 8. At https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=9b894535-53fa-42c7-a9b0-1e909ea76160 (viewed 24 June 2013).

[80] Department of Immigration and Citizenship, above, p 8.

[81]Migration Act 1958 (Cth), s 195A(4).

[82] See Migration Regulations 1994 (Cth), Schedule 2, clause 070.511.

[83] Article 3(1) of the CRC states that ‘[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.

[84] Ministerial Direction No. 55, note 3, Part A, para 9(1)(c), Part B, para 11(1)(b). Note that this only applies to a child who is under 18 years of age at the time of the decision to refuse or cancel a person’s visa. The best interests of a child who is 18 years or older is not a primary consideration, but is one of the ‘other considerations’ to be taken into account.

[85] Ministerial Direction No. 55, note 3, Part A, para 9.3(1), Part B, para 11.2(1).

[86] ICCPR, note 34, art 17(1).

[87] See Human Rights Committee, Nystrom et. al v Australia, Communication No. 1557/2007, UN Doc CCPR/C/102/D/1557/2007 (2011), paras 7.7 to 7.11. At http://www.bayefsky.com/docs.php/area/jurisprudence/node/4/filename/australia_t5_ccpr_1557_2007 (viewed 24 June 2013). For a relevant international example, see also the judgment of the Grand Chamber of the European Court of Human Rights in Maslov v Austria [2008] ECHR 1638/03 (23 June 2008). There, the Court held that the deportation of a youth who had spent the majority of his childhood in Austria constituted a violation of his right to respect for his private and family life.

[88] See section 4.2 of this paper.

[89] See the explanation of Migration Regulations 1994 (Cth), Schedule 5, clause 5001(c) in note 46.

[90] Human Rights Committee, General Comment No.16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17), UN Doc CCPR/C/21/Rev.1, 19 (1988), para 4. At http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?docid=453883f922 (viewed 24 June 2013).

[91] Ministerial Direction No. 55, note 3, Part A, para 9.2(1)(b).

[92] Ministerial Direction No. 55, note 3, Part A, para 10(1)(a), and Part B, para 12(1)(a).

[93] See, for example, the recent case of Durani v Minister for Immigration and Citizenship [2013] AATA 273 (6 May 2013), in which a delegate of the Minister had made a decision to cancel the applicant’s visa under subsection 501(2), but upon review this decision was overturned because the Administrative Appeals Tribunal determined that cancellation was not in the best interests of the applicant’s four-year-old child.

[94] See Ministerial Direction No. 55, note 3, Section 2, para 8 for detail as to how decision-makers should weigh up the primary and other considerations.