There is no disputing that since becoming the ministerial head of that new 'super' federal government department, the Department of Home Affairs, Minister for Immigration and Border Protection Peter Craig Dutton has enjoyed a level of political power not shared by his ministerial colleagues.
However he is obviously not happy that this power does not intimidate Australian courts and tribunals.
Perhaps this is because his Migration and Refugee Division and Character Assessments and Cancellations Branch are not always winning Dutton's war against orphans, refugees and those under threat of torture.
Administrative Appeals Tribunal decisions1 in 2018:
The Department of
Immigration and Border Protection refused the applicant’s Protection visa. The
applicant claimed he could not return to Malaysia due to his homosexuality as
he would be subject to discrimination and abuse. The Tribunal set aside the decision.
An application made by a
family of three for Protection visas was refused by a delegate of the Minister
for Immigration and Border Protection. The applicant seeking protection claimed
he was at risk of torture if returned to Pakistan. The Tribunal remitted the
decision with the direction that the applicant satisfied section 36(2)(aa) of
the Migration Act 1958.
The review applicant
sought two Orphan Relative visas for his younger siblings on the basis that
their only existing carer, their mother, was incapacitated and could not care
for them. The applications were refused by a delegate under section 65 of
the Migration Act 1958 and the Tribunal remitted the applications for
reconsideration with the direction they met the criteria for the visas.
The Department
of Immigration and Border Protection refused the visa applicant's Student
visa. The visa applicant was a child residing in Somalia and both of his
parents were deceased. His maternal aunt, an Australian citizen, was his carer
and was attempting to return home to Australia to her family with the child. The
Tribunal set aside the decision.
Footnote:
1. "The
review of decisions to refuse or cancel a visa on character grounds is a small
component of the broad range of decisions about visas reviewed by the AAT, and
an even smaller component of the overall caseload managed by the AAT.
To put
these matters in context, in 2016–17, the Tribunal finalised 42,224 reviews, of
which 168 decisions (or less than 0.4 per cent), related to visa cancellations
and refusals on character grounds
In
considering and deciding these matters, Tribunal members are bound to apply Ministerial
Direction No. 65 which sets out three primary considerations which must be
taken into account. These include protection of the Australian community; the
best interests of minor children in Australia; and expectations of the
Australian Community. The Direction also sets out five ‘other
considerations’ which must also be taken into account, including: international
non-refoulement obligations; the strength, nature and duration of ties; impact
on Australian business interests; impact on victims; and the extent of
impediments if removed. These decisions are routinely published and
contain an explanation of the Members’ evaluation of each of these
considerations." [AAT
appearance at Senate Estimates, 25 May 2018]
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