Adequacy of risk assessment in the Exercise of the Character Cancellation Power under the Migration Act 1958 (Cth)

Australian public law seeks to distinguish between the legality and the merits of executive decision-making. Australian judges have in the past been reluctant to interfere with the decisions by the Minister for Immigration to cancel or refuse visas on “character” grounds. This deference has been tested in the context of judicial review of cancellation and refusal decisions, as judges have become concerned about the use of the “character cancellation” power and increasingly aware of developing social science in relation to the prediction of future behaviour. This article considers the developments in a number of recent judgments in challenges to visa cancellation decisions, with a focus on Tanielu, Moana and Cotterill. These cases grapple with the question of when a decision-maker will fall into jurisdictional error by way of failing to conduct an adequate assessment of risk of reoffending. They also demonstrate the overlap between categories of jurisdictional error, and the continuing development of “legal unreasonableness” arguments in judicial review proceedings.