Tipping the (Im)balance: Risk, Rehabilitation and Membership in Administrative Appeals Tribunal Decision Making for Convicted New Zealander Long Term Residents of Australia

Abstract

New Zealanders are currently the largest nationality group of people deported from Australia. When a non-citizen has their visa cancelled on character grounds under Section 501 of the Migration Act (Cth) by a delegate of the Immigration Minister, they have the opportunity to appeal at the Administrative Appeals Tribunal (AAT). AAT Members (decision makers) decide the fate of the applicant by weighing up the perceived risk of the individual to community safety against a series of mitigating factors that relate to the life the applicant has established in Australia. As a site of investigation into s501 visa cancellation decision making practice, this paper quantitatively and qualitatively examines a set of AAT visa cancellation decisions from 2015–2018 under Ministerial Direction No. 65, for 97 New Zealander long term residents. It focuses on how AAT decision makers considered and valued mitigating factors in a decision making process that is inherently imbalanced toward constructing non-citizens as a risk. Our analysis reveals that of all mitigating factors considered, evidence of rehabilitation and legal representation at the AAT hearing are associated with reduced perceptions of risk. When comparing two AAT decisions that are matched on all relevant factors but have different decision outcomes, we find that even where mitigating factors for reducing perceptions of risk are present, potential for inconsistencies in AAT decision making remains.