the blog of Sentry Law

Power and discretion: understanding administrative decisions in the migration law context

Joel McComber
joel@sentrylaw.com.au
3 February 2020

Just because the Minister responsible for administering the Migration Act 1958 has the power to cancel a non-citizen’s visa doesn’t mean that the Minister (or their delegate) will cancel that person’s visa.

One of the common misconceptions about visa cancellation law in Australia is that the Minister will always cancel a visa if they have the power to do so. This is generally not the case.

Discretionary and mandatory powers

As we have previously discussed, Ministers, as officers of the Executive Government, only have the power to do things that they have been authorised to do by Parliament.

Some powers conferred by Parliament are mandatory—they must be exercised. For example, the Australian Tax Office only has the power to collect taxes because Parliament has passed legislation authorising it to do so. Further, the ATO cannot just collect as much or as little tax as it wants – it must collect the amounts payable under the relevant taxation laws passed by Parliament.

However, other powers are discretionary—it is up to the person who is given the power to decide whether to exercise it or not. For example, s 501(2) of the Migration Act 1958 confers on the Minister responsible for administering the Act the power to cancel a visa if a person does not pass the character test prescribed by s 501(6) of the Act. However, it is up to the Minister to decide whether they will exercise that power — the Minister may cancel the visa if the

If a mandatory power is enlivened, it must be exercised. If a discretionary power is exercised, a decision-maker can choose to either exercise the power or not exercise the power.

What are the benefits of discretionary powers?

For many people (including lawyers), discretionary powers are painful. They involve something more than a pure question of law—whether a power has been enlivened—and required consideration (and argument) as to whether the power, if enlivened, should be exercised. There are very few legal constraints on the exercise of a discretionary power. The decision-maker must consider all relevant material (however, in the absence of specific matter prescribed by Parliament, it is up to the decision-maker to decide what is preferable) and their reasons must disclose at least some degree of logic and reasoning. However, the law will rarely, if ever, determine whether a discretionary power should be determined. Further, in many (if not most) cases, reasonable minds can (and will) come to different conclusions about whether a discretionary power should be exercised, especially in visa cancellation matters.

But with all that being said, what is the benefit of having discretionary powers? The simple answer is mandatory powers, while easier to follow and determine, are insensitive to individual differences in circumstances and can often result in harsh or unjust consequences. In giving a person a discretionary power, Parliament is, in a sense, attempting to minimise the risk of harsh or inequitable outcomes by allowing the actual personal circumstances of the person facing detriment (i.e. visa cancellation) to be considered by a decision maker before

What are the downsides of discretionary powers?

While discretionary powers might be intended to minimise harsh or inequitable outcomes, the nature of the discretion itself often leads to inconsistent or even comparably ‘unjust’ outcomes. This is especially so in circumstances where there are a wide range of persons who have been delegated the same discretionary power. In the context of visa cancellations, what one delegate might consider to be an extremely serious offence, another might only consider a serious offence. Further, while one delegate might afford great weight to a mitigating factor, another delegate may place very limited weight on the same factor (e.g. one decision maker might give more weight to the best interest of minor children in Australia in determining whether a person should be allowed to remain in Australia). It also means that a person who is better able to state their case to a delegate (by providing evidence and arguments about why a decision should be made in their favour) has a better chance of getting a favourable decision.

Where the decision-maker is known before a decision is made, it also leads to a situation where experienced advocates adjust their approach depending on the tendencies of the person making the decision.

And of course, discretionary powers are exercised by people, and the one consistent thing about people is their fallibility. Though decision makers may try their best to exercise their powers in the most balanced and objective way possible, their decisions will inevitably be influenced by their prejudices and how readily they can identify with the circumstances of the person in question (or their family members).

What visa cancellation decisions are mandatory?

While most visa cancellation decisions are discretionary, some are mandatory.

While the most well known mandatory visa cancellations are those under s 501(3A) of the Act, there are some limited circumstances in which the Minister must cancel a visa under s 116 of the Act (although, these grounds are very specific and not of broad application).

We have previously written extensively on mandatory cancellations under s 501(3A) of the Act, but in summary it provides that the Minister must cancel the visa of any non-citizen who:

  1. has been sentenced to a single term of imprisonment of 12 months or more; and

  2. is currently serving a sentence of imprisonment on a full time basis (regardless of the lenght of the sentence that is currently being served).

However, a person whose visa has been mandatorily cancelled under s 501(3A) of the Act has the right to request that the Minister revoke (i.e. set aside) that mandatory cancellation. It is at the stage of considering the revocation of the cancellation decision that the Minister (and the Minister’s delegates) have a broad discretion to set aside the cancellation decision and allow the non-citizen to continue to live in the Australian community.

In that way, while a cancellation under s 501(3A) is automatic there are mechanisms put in place by the Act that give the Minister the discretionary power to revoke that cancellation.

What does all this mean?

Ultimately, the fact that most visa cancellation processes involve some level of discretion means that no single non-citizen is inevitably going to receive an unfavourable decision by the Minister (or the Minister’s delegate). That is because, even if the Minister has the power to cancel a visa they still have to turn their mind to whether the visa should be cancelled (or, in the case of revocation, whether the cancellation decision should be revoked).

All that is to say that, even if a person fails the character test (or might be a risk to the health, safety or good order of the Australian community), there should not be an expectation that, as a matter of course, the person will be excluded from Australia through visa cancellation.

Any exercise of a discretionary power is often complex and involves a number of competing considerations. Often, reasonable people may disagree on whether a discretionary power should be exercised or not exercised. If you or someone you know is facing the prospect of visa cancellation or refusal, contact Sentry Law for advice in relation to how best to present your case to maximise your chances of receiving a favourable decision from a decision-maker.

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