Rethinking the character power as it relates to refugees and asylum seekers in Australia

Under a web of provisions in the Migration Act 1958 (Cth) (‘Migration Act’), both the Minister for Home Affairs and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs have significant legal power to either cancel or refuse a visa to refugees and asylum seekers on character grounds. In making character decisions, although not bound by ministerial policy, the relevant Minister often applies considerations reflected in the New Ministerial Direction No 79 (‘Direction 79’). This paper argues that Direction 79 requires significant changes to better advance the fundamental rights of both refugees and asylum seekers in Australia. Presently, relevant considerations reflected in Direction 79 give far too much weight to the protection of the Australian community at the expense of safeguarding and promoting the human rights of non-citizens in Australia. This paper further argues that a number of considerations, as currently reflected in Direction 79, are likely to reflect policy principles that do not accord with the Migration Act. Therefore, such policy principles need to be urgently removed from Direction 79.