Attorney-General Christian Porter has ordered another review of the AAT, citing issues of “public trust”. It’s the latest in a crusade to shift powers from the tribunal to Home Affairs. By Stephen Murray.

Home Affairs’ bid to avoid visa reviews

Attorney-General Christian Porter.
Attorney-General Christian Porter.
Credit: AAP Image / Richard Wainwright

Make no mistake: Adam Carey has a chequered past and a long charge sheet. He was convicted in 2002 on drug and dishonesty offences. He was convicted in 2005 for carnal knowledge of a 15-year-old girl, which again involved drug use. All up, he has recorded 39 convictions against his name – many of them drug-related. He has been judged and punished for these and other crimes, serving significant prison time in Australia. But in 2015, as Carey returned from his honeymoon in Bali, he was stopped at Townsville Airport and told the Australian government was moving to cancel his visa and deport him to New Zealand, where he was born in 1969 to an Australian mother.

Save for three months in infancy and four of his teenage years, Carey has spent all his life in Australia. He is married to an Australian citizen and has been a father to her children for nearly a decade. He applied for a spousal visa while in detention in 2015, but this was refused by Home Affairs Minister Peter Dutton in February 2018 on “character grounds”, even though the minister conceded there was low risk of him reoffending. In 2016, Carey sought Australian citizenship, which was refused in April 2017, again on character grounds – a decision he appealed to the Administrative Appeals Tribunal (AAT).

The AAT is a review body, which has oversight of everything from child support payments to veterans’ entitlements. However, most of its cases – 65 per cent from July 2017 to March 2018 – relate to migration and refugee matters. In Carey’s case, Peter Taylor, SC, a Sydney barrister and senior member of the AAT, first appointed by the Howard government in 2006, overturned Dutton’s rejection of Carey’s citizenship application. “I am satisfied that Mr Carey is, at the present time, a person of good character,” Taylor said.

According to The Courier-Mail, Dutton disavowed the ruling. “This is yet another example of the AAT making decisions that are not in line with community standards,’’ he said. “I have been fighting for changes to the Citizenship Act for over a year to prevent cases like this, but Labor won’t support it.’’

Carey’s is just one of a slate of cases that have been caught up in a test of wills between Dutton and the AAT. While Carey’s case involved an application for citizenship, much of Dutton’s frustration with the AAT has focused on its oversight of the Department of Home Affairs’ power to revoke visas on character grounds, which often, but not always, targets visa holders with criminal convictions. Although he has no responsibility for the AAT, Dutton has foreshadowed changes to its operation to reduce, or even remove, its scrutiny of how he and his department handles these matters.

In March, he asked the joint standing committee on migration to look at the AAT and the review processes associated with visa cancellations made on criminal grounds. The inquiry held its final public hearings in Melbourne last week. Its chair, Liberal MP Jason Wood, a former police officer, told witnesses appearing before the committee that he sides with the victims of crime. In hearings, he proposed allowing submissions to be made to the AAT by the victims of crimes committed by those seeking review.

However, only a handful of submissions to the inquiry called for the AAT’s powers to be curtailed. The remainder – from a range of legal practitioners, advocacy groups and academics – advocated for the AAT’s role to continue and zeroed in on Dutton’s sweeping powers to overturn or bypass AAT review entirely, which were brought in by amendments to the Migration Act in 2014. These changes saw a huge increase in visa cancellations from 84 in 2013 to 584 in 2014-15. In 2016–17, that jumped again to 1284.

Last week, Attorney-General Christian Porter announced a statutory review of the AAT, to be conducted by former High Court justice Ian Callinan. Announcing the review, Porter said it would – like the Senate inquiry – focus on the tribunal’s efficiency and effectiveness. It was a timely opportunity to determine if the AAT was “promoting public trust and confidence through its decisions and that decisions reflect community expectations”. Callinan is due to report by the end of October.

Of course, the AAT isn’t the only body the Home Affairs minister has clashed with. This week he was once again forced by the High Court to transfer a sick child from Nauru for medical treatment.

But a curious facet of Dutton’s frustration with the AAT is that the Department of Home Affairs prevails in the majority of matters subjected to review by the tribunal. Figures presented to the migration committee by the AAT show that since 2015 only 20 per cent of visa revocations on character grounds were set aside or varied over the department’s objections.

And due to Dutton’s extensive powers, the AAT has no say over many decisions made by Home Affairs. Visa revocations decided personally by the minister cannot be reviewed by the AAT. Dutton can also override the tribunal’s decisions and substitute his own. In its submission to the migration committee inquiry, the Law Council of Australia argued there were instances of ministerial decisions being made without considering all the evidence available to the original merits review.

Justine Jones, assistant secretary of the Character Assessment and Cancellations Branch in Dutton’s department, told the parliamentary inquiry in June that the Home Affairs minister usually deals with cases related to national security or sexual offences, while the junior ministers in the portfolio – Alan Tudge and Alex Hawke – deal with the “more severe end of criminality, such as murders, significant drug charges and things of that nature”. Jones told the committee that, between them, the portfolio ministers themselves have handled about 5 per cent of the total citizenship revocations in the past year.

Other submissions pointed to the “pre-crime” nature of some visa revocations, where mere suspected association with a person or organisation involved in criminal conduct is enough to fail the character test. The case of former New Zealand soldier Ko Haapu, recently featured on ABC’s Foreign Correspondent, highlighted this aspect. Haapu’s visa was reportedly revoked because of his association with the Rebels motorcycle club while he was living in Western Australia, even though the club is not outlawed in that state. Shane Martin, father of AFL footballer Dustin Martin, was another deported to New Zealand in 2016 over links to an outlaw bikie gang.

In fact, the bulk of Australian visa revocations in recent years have been New Zealanders. This has flared tensions in the relationship between the two countries. The prospect of reducing AAT’s oversight of visa revocations alarms New Zealand’s justice minister, Andrew Little, who told The New Zealand Herald: “I would be concerned if … there aren’t those avenues of appeal that allow for multiple levels of review of a decision that has such far-reaching consequences.”

But the AAT remains a frequent topic of on-air conversation between the Home Affairs minister and Sydney radio presenter, Ray Hadley. In mid July, he told Hadley “... you can’t go anywhere in the country without people stopping you saying sort out the AAT”. While one might be sceptical that the niceties of administrative review are stopping the nation’s barbecues, the AAT has also increasingly become the target of the News Corp tabloids and Daily Mail Australia. In April, Herald Sun reporter Keith Moor published details of the 165 cases the tribunal has overturned in the past eight years under the headline “Full list of criminals spared since 2010”.

These outlets all seized on the Carey decision, with such headlines as “Kiwi sex crim gets to stay”. On radio, Hadley raised the case with Dutton. “This guy is a creep and he should be kicked out of the country,” Dutton replied.

As for the broader question of the AAT’s role in scrutinising citizenship and visa decisions, Dutton told Hadley: “Well the AAT, believe me, there’s change coming in this space, Ray.” Praising Christian Porter, Dutton said: “We’re doing some work with him at the moment to look at ways we can sort this out … As I say, people should have their day in court, but at the moment the way in which the AAT is operating in many of these cases is completely unacceptable for the community.”

But the AAT is not a court and, accordingly, it has none of the safeguards of an independent judiciary, such as security of tenure for tribunal members. Over the years since it was established in 1976, governments of both persuasions have made patronage appointments to the well-paid positions. Indeed, approaching five years in office, the government has made ample use of its opportunity to reshape the AAT by declining to renew appointments of longstanding members and appointing candidates with Coalition links. Appointments have included defeated MPs, including Andrew Nikolic and Russell Matheson, as well as unsuccessful candidates and former staffers. The impact of these new appointments has flowed on to internal assignments inside the AAT, with many of the Coalition appointees being given responsibility for migration matters.

In his valedictory speech to the Senate in February, which was seen as a shot across the bows of Dutton’s long-term ambitions, George Brandis said: “In recent years, powerful elements of right-wing politics have abandoned both liberalism’s concern for the rights of the individual and conservatism’s respect for institutions, in favour of a belligerent, intolerant populism which shows no respect for either the rights of individual citizens or the traditional institutions which protect them.”

Brandis might well have had Dutton’s disdain for the AAT, and the protections it affords, front and foremost in his mind.

This article was first published in the print edition of The Saturday Paper on August 4, 2018 as "Growing Home".

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Stephen Murray is a legal journalist and commentator. He writes for Justinian and the Gazette of Law and Journalism.

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