Tag Archives: character

Representations in character cancellations are matters which must be considered

The proposition that representations in relation to a s 501 cancellation attempt are not ‘mandatory relevant considerations’ is highly doubtful if not at least reductionist. See the discussion in Viane v Minister [2018] FCAFC 116 per Rangiah J [23]-[30] and Colvin J at [67]-[77].  What matters is whether the relevant aspect which was not considered could amount to a ‘representation’, in which case it must be considered.

See also Hay v Minister [2018] FCAFC 149 per Colvin J.

Consideration by Tribunal of indefinite detention

It is not enough for a Tribunal to conclude, in a s 501 character review, that the applicant has a prospect of release from indefinite detention through the exercise of Ministerial discretion. The legal consequences of a character refusal will often be indefinite detention (for example, if the person engages Australia’s protection obligations), and that, and only that, is certain. It therefore must be considered by the Tribunal. Anything about what might happen (other than indefinite detention) to the applicant is speculative. See eg NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1; BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; DEY16 [2016] FCA 1261.