An interesting feature of Australia’s migration legislation is its references to the ‘public interest’ in affording a discretion to the Minister to grant, refuse to grant, or cancel a person’s visa.
But what is in the ‘public interest’, and how does it affect visa holders and applicants?
Helpfully, this is a question that has been partially explained by a Senate Committee that considered this issue in some detail. In its report, the Committee stated that:
the public interest or ‘safety net’ discretion that the minister may exercise is much broader than the strictures of the regulatory criteria.
In essence, this explains that the Minister’s ability to consider the ‘public interest’ in making a decision sits on top of all other decision making powers – including by the Department and in some cases, the Tribunals. The intended operation of this discretion is that it would protect the public from a decision that may not be legally incorrect, but nonetheless undesirable from a policy perspective.
The Character Test
Regulation 4001 outlines that one element of the public interest criteria is that a person should be of good character – a test is provided to assist decision makers to understand when a person will not meet the threshold. Depending on the criterion being considered, the delegate may or may not have discretion to consider whether the person meets the character test.
An example of this is the decision taken by Minister Dutton in January 2016 to cancel the visa of Jeff Allen, a controversial ‘Pickup Artist’ coach, in response to a public petition that gained over 66,000 signatures. The reason given was that Mr Allen was of poor character and his visit to Australia would therefore be against the public interest.
In some circumstances, such as where an individual has committed a criminal offense that resulted in more than 12 months’ imprisonment, the criteria for whether they are of good character are clear. But in Mr Allen’s situation, this amounted to Minister Dutton exercising his own judgment and reflecting what he viewed as the will of the Australian people.
Other Public Interest considerations
Less common, but no less important situations where a person’s entry to, or continued presence in, Australia may be considered against the public interest include:
- Where the person owes a debt to the Commonwealth;
Where the person poses a threat to Australia’s foreign policy, or
Where there are national security concerns or the person may be associated with the proliferation of weapons of mass destruction
The public interest factors – and particularly the character test – can be complicated. Your advisor should be able to provide you with an idea of how these provisions will apply in your circumstances.
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