Terms of reference:

a) The use made by the Minister for Immigration of s.351 and s.417
b) The appropriateness of these powers within the broader migration decision making processes
c) The operation of these discretionary provisions, in particular the criteria applied
d) The appropriateness of these powers continuing in their current form

1. Introduction

George Lombard Consultancy is a small suburban migration firm based in Sydney. We specialize in skilled migration, family and humanitarian cases (including refugees and Ministerial discretion cases). We consider that our exposure to Ministerial discretion is by no means unique and therefore some consideration of the processes and outcomes as we have experienced them may assist the Committee.

At the outset, it should be noted that the Committee is considering only a proportion of the non-compellable Ministerial discretions which are currently exercised. In the last 12 months we have had 23 files under active consideration with respect to either s.351 or s.417, however another seven of our files involve Ministerial discretions. Our Ministerial caseload includes four cases considered under s.91L of the Migration Act (relating to lifting the bar on further applications from temporary safe haven visa holders) and three under s.501A of the Migration Act (relating to the Minister’s residual discretion to refuse a person successful in an appeal to the AAT on a character issue).

We are very much in favour of the continued availability of discretionary powers to overcome the straightjacket of strict regulation under the Migration Act. Given that the High Court has recently affirmed, in a unanimous Full Bench decision, that s.417 is not compellable (see Re Minister for Immigration and Respondents
Multicultural and Indigenous Affairs & Anor Ex Parte Applicants S134/2002 [2003] HCA 1 (unpublished decision of 4 February 2003), we accept that the role of this power is essentially as an act of grace, to be exercised where migration outcomes in any particular matter would be unfair, harsh, or contrary to Australia’s international obligations. In effect, the existence of this power acknowledges that there are imperfections within the Migration Act and Regulations and that instead of attempting to foresee and forestall each and every possible negative eventuality through legislation, it is more convenient to offer this failsafe mechanism for protecting the innocent.

With that in mind, it is helpful to recall the circumstances which gave birth to the discretions in s.351 and 417.

Fourteen years ago, the FitzGerald enquiry identified many weaknesses in Australia’s migration legislation, principally the many broad discretions which had accumulated under earlier administrations. Of particular significance was the broad discretion available under the former s.6A(1)(E) of the Act to allow individuals to remain in Australia on humanitarian grounds. As a response to FitzGerald, on 19 December 1989 a raft of amendments to the Migration Act made by the Migration Legislation Amendment Act 1989, Act No. 59 of 1989, removed many discretions from the Act. The rationale for these amendments was given in the second reading speech as follows (full speech attached):
Before I address the Bill in detail I would like to give honourable members a broad overview of it. There are three major features of this Bill. The first is a radically revised approach to immigration decision-making. Currently the Immigration, Local Government and Ethnic Affairs portfolio has decision-making discretions which are totally unfettered. That is, the migration legislative scheme is essentially machinery legislation. It gives the Minister power to determine who can enter Australia and who must leave. There is no provision in this scheme for parliamentary guidance of the exercise of the power. A Minister can make decisions on these matters virtually at his or her discretion. Thus, legally, a Minister has the power to determine and change policy in the immigration field as he or she wishes independent of the Parliament.
The wide discretionary powers conferred by the Migration Act have long been a source of public criticism. Decision-making guidelines are perceived to be obscure, arbitrarily changed and applied, and subject to day-to-day political intervention in individual cases. Accordingly this Bill proposes a decision-making system in which policies governing entry to and stay in Australia will, for the first time, be spelt out in the migration legislative scheme. Parliament, then through its powers of disallowance, will be able to monitor those policies.
The forerunner of s.351 was introduced by this legislation. Subsequently, section 417 was introduced by the Migration Reform Act 1992 as a mechanism of Ministerial intervention with respect to decisions of the Refugee Review Tribunal. However, it is clear that the current trend towards bringing the Minister into play again is largely a creature of the current Government. The sections of the Migration Act which create a discretion which the Minister may exercise personally are: ss. 46A, 46B, 48B, 72, 91F, 91L, 91Q, 137N, 261K, 351, 391, 417, 454, 500A(1) and (3), 501(3), 501A(2) and (3), 501B(2), 501C(4), 501J(1) and 502. Many of these are amendments to the Act made after the present government took power. In general, they are not reviewable and reasons for the Minister’s decision to take a particular action are never given, except in barest outline, in tabled statements. The volume of discretions exercised by the present government is of course at record levels, and to exercise these discretions in this secret way invites patronage, inconsistency and uncertainty. We do not suggest that there is corruption in the system at present, and have absolutely no evidence of corruption in the Ministerial decision-making process. However, in that there are no clear guidelines and the Minister must rely on the documentation put before him, it is clear that there is considerable scope for flexibility in the briefing put before the Minister, which must raise significant accountability concerns.

Another preliminary comment is that it is extraordinary that there is no widely disseminated source of information about access to the Minister’s discretionary powers and how the Minister might be assisted to consider a matter. In that a large number of Ministerial intervention requests are made each year, it would seem that a failure to advise of the existence of the discretion does not inhibit the use made of it, and instead makes potential applicants reliant on agents. It would clearly be better to formalize both the information available about the discretion and the public aspects of the processing. There is probably the need for an information form and an application form.

From a migration law perspective, it may be arguable that the Minister’s personal, and unfettered, use of the discretions in s.351 and s.417 of the Migration Act are not only unaccountable but also irreversible. There are two broad powers for cancellation of visas, under s.109 where false information has been supplied, and under s.116 for a range of other reasons including fraud or breach of Commonwealth law. If it were ever proven that some benefit had been obtained by the Minister, a political party associated by the Minister, or a friend or colleague of the Minister, in return for the exercise of a relevant discretion, it does not seem possible to reverse the effect of the exercise of that discretion under the current law, unless there has been a breach of another Commonwealth law in obtaining the visa (s.116(1)(f) of the Migration Act) or “the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person” for the purposes of reg. 2.43(1)(o) of the Migration Regulations. While a Minister might be subject to political sanctions, the absence of criteria make it difficult to imagine that a relevant breach of Commonwealth law or fraudulent conduct could in fact be proven. Alternatively, should the Minister’s discretion be exercised on the basis of fraudulent or misleading information being provided to the Minister, the difficulty of knowing whether that information was germane to the decision would make it difficult to justify cancellation under s.109 of the Migration Act.

It follows from the foregoing that there does not seem to be any compelling need to excuse the exercise of this last resort visa consideration procedure from review or other transparency procedures. It may be that the Department and Minister, in seeking to operate independently of either scrutiny or review, are simply expressing a wish for sovereignty. However, in a modern administrative context where the availability of the efficiencies of automation and heightened awareness of proper administrative procedures can both be expected, the absence of review smacks of insecurity.

The present arrangements for waiver of the post-hearing fee for RRT cases subsequently accepted by the Minister under s.417 (see reg.4.31C of the Migration Regulations) effectively create a financial advantage in respect of the RRT as a route to the Minister’s discretion rather than using the more cost-effective MRT as the relevant route. It would be administratively expedient and procedurally fair to allow those approved by the Minister under s.351 to receive a refund of their MRT appeal fee; this would remove any incentive towards choosing to lodge a Protection Visa application where a humanitarian outcome is sought.

One final observation of relevance is that in many if not most cases where the Minister’s discretion is to be exercised, substantially the same results could be achieved by simply waiving one of the barriers to an appropriate application, be it s.48 of the Migration Act (prohibiting second visa applications while an applicant remains onshore) or Schedule 3 of the Migration Regulations (establishing time limits within which applications must be made) or Schedule 8 (conditions 8503 and 8534 limit the kinds of applications which can be made after arrival in Australia). It does not seem necessary for the Minister’s time to be tied up with what are effectively requests for waiver of such limitations. Using this approach would allow a more streamlined Ministerial consideration leading to mainstream visa applications being made and processed according to the general law.

Such an approach would allow the Minister’s discretionary to operate if, and only if, the criteria for a visa category would, in the circumstances, lead to an unjust result. This is precisely the point where the Minister’s intervention may operate to identify gaps and overlaps in the legislation and avoid unnecessarily harsh outcomes both in the case before the Minister and in the wider policy and legislative arena. Part 4 of the relevant MSI refers to “Unique or Exceptional Circumstances”; in our submission that is precisely what the Minister’s discretion should be directed towards.

2. Terms of Reference

a) The use made by the Minister for Immigration of s.351 and s.417

Apart from the Migration Series Instruction MSI 225: Ministerial Guidelines For The Identification Of Unique Or Exceptional Cases Where It May Be In The Public Interest To Substitute A More Favourable Decision Under S345, 351, 391, 417, 454 Of The Migration Act 1958 there is no public source of information concerning the operation of the Minister’s discretions under these sections. Whether an MSI may be regarded as a public document in the sense that it is not promulgated through any public mechanism (as distinct from legislation or Gazette notices, for example), is an open question. One other source of information about the process is available, the 2002 ANU Law School undergraduate research paper by Johanna Stratton titled “Humanitarian Intervention in the Public Interest? A Critique of the Recent Exercise of s.417 Migration Act 1958 (Cth)” (“Stratton”) and which appears to contain reliable statistical material as well as the results of interviews with DIMIA officers.

If the Ministerial discretions are a secret process, that secrecy starts with the failure to publicly disseminate information likely to be of assistance to clients. It is not the function of this committee to enquire into the service culture of the Department, however it is evident that in a process such as the exercise of the discretions under s.351 and s.417, which attracts such a wide range of community input, and is not restricted to migration agents, there is scope for improved delivery of information about the process, in relevant community languages.

Of the 23 s.351 and s.417 cases we have had in processing with the Ministerial Intervention Units during the past 12 months, two have been approved, seven have reached in-principle approval pending final processing of medical, penal, assurance of support and other matters, seven are pending and seven have been refused. During the period 1997 to the present we have had 19 successful cases with the Minister. One other client died prior to visa grant but after Ministerial in principle approval (and after payment of an Assurance of Support and second visa application charge). Looking at the cases approved or in the process of being approved it is clear that most of the cases we have dealt with involved a family connection to Australia. Although we have had five cases approved where the Minister effectively agreed that the RRT had not made the right decision, all of them involving further evidence which was not before the RRT or Department, the balance involved both the possibility of errors in processing and the application of general family migration principles (relating to spouses, children, remaining relatives and special needs relatives). In three cases we were able to provide clear evidence of the absence of appropriate migration advice leading to inappropriate visa application choices.

We are aware, through contact with Departmental officers, of general processing issues, however one central issue which has been raised with us requires consideration. It has been inferred that in cases involving an applicant who is the parent of one or more Australian citizen children, the current Minister will exercise his discretion more readily if the applicant (and possibly both parents) have not been previously married or in a relationship giving rise to children. From a consideration of our own caseload this may be correct, however it would be appropriate for the Committee to seek to confirm this by commissioning a survey of relevant cases. We hope that this suggestion can be discounted.

Two individual cases which were refused in the last 12 months involved applicants who are the parents of Australian citizen children.

In one case, the father, a Chinese national, had applied for refugee status on the basis of a deep and abiding subjective fear, which had been consistently and credibly documented, not only through his own actions and evidence to the Department and RRT, but also through the report of a torture and trauma specialist. During his period in Australia he had formed a relationship with an Australian citizen, whom he had married, and with whom he had a child. The Australian citizen wife had a 13 year old child from a previous relationship, and this child was subject to custody arrangements which would have made it impossible for the wife to travel overseas with her husband. The Minister’s decision to refuse this case despite its unique features was unanticipated and possibly unfair towards the two children whose welfare was compromised.

In the other relevant case, the mother, a Tongan national, had four children from an earlier relationship where the father had died. Three remained in Tonga and one was in Australia with her. During her stay in Australia she had married an Australian citizen of Serbian origins. She has had two Australian citizen children with her current husband, both still under 5 years old. This request for Ministerial intervention attracted strong support from the applicant’s church and community in a regional centre in Victoria. The difficult outcome of the Minister’s refusal was that the applicant and her husband could not go to Tonga or Serbia and maintain their livelihood; indeed, any such arrangement would prejudice the circumstances of the two Australian citizen children.
b) The appropriateness of these powers within the broader migration decision making processes

There is clearly a need for a failsafe device to avoid unnecessarily harsh outcomes from what is, after all, beneficient legislation. Where and how discretionary powers should be exercised is a complex issue, however the social cost of maintaining an ultimately arbitrary visa regime without such safeguards is unjustifiable. Some of our clients comment that an old Russian saying, “Moscow does not believe in tears” which we understand to mean “no amount of crying will sway the mind of an entrenched official”, is applicable here. As the migration legislation, instructions and manual become increasingly complex, there is an understandable and perhaps commendable tendency for migration officers to apply these laws rigidly. We do not suggest that this is a bad thing, indeed, it is helpful when case officers are predictable and uniform in their approach. However the rigid application of complex laws requires a counteracting flexibility in circumstances of demonstrable human cost due to those laws.

While we are strongly supportive of these discretions, we also acknowledge that the existence of these discretions may tend to undermine the integrity of the Migration regulatory regime. The Minister’s powers, if taken to one extreme, would result in the avoidance of the entire regulatory process of the Migration Act and Regulations. However the preservation of the architecture of the Migration Act and Regulations is not sufficient justification for going without these discretions. Instead, it is incumbent on the architects of the regulatory regime to create visa categories for particular classes of persons currently the subject of the Minister’s discretion, for example, onshore parents of minor children currently barred by s.48 or Schedule 3 from making onshore applications. Until 1997 it was possible for such parents to go overseas and make offshore parent applications, but with the introduction of the lower numbers for such applications the waiting period in such cases made this prohibitive. Sadly, the rhetoric used to justify the reduction in parent visa grants at that time and subsequently has overlooked this issue and has instead concentrated on the costs to the community of older parents.

Equally, we regard it as inappropriate for the Minister to be effectively making decisions on waiver with respect to s.48, Schedule 3, or Schedule 8 conditions. Where a waiver can be exercised with the result that a matter goes into the normal processing stream, that appears to be far more cost-effective in terms of revenue and the expenditure of time. There is currently one provision allowing for waiver of s.48 bars, s.48B which allows protection visa applications to be re-lodged at the Minister’s discretion. We would submit that this power and any other waiver power introduced with respect to new applications should be conferred on the Department, the RRT, the MRT or some other suitably qualified body.

Finally, we consider that these powers need to be exercised by someone, whether the Minister, or a Commission, analogous to the Repatriation Commission established under the Veterans’ Entitlement Act 1986, or divisions of the three Tribunals responsible for reviews under the Migration Act, the MRT, RRT or AAT. We are not persuaded, despite current controversy, that the Minister should not retain the relevant power.
c) The operation of these discretionary provisions, in particular the criteria applied

The criteria applied as described in the Minister’s guidelines are not helpful, because of their generality, in most cases. It is clear that the closer a case can be related to the criteria for a visa category in circumstances where the interests of an Australian citizen, particularly a child or special need relative are concerned, the easier it will be for the visa to be granted. However, there is such untrammeled flexibility that it is impossible to know exactly what the criteria might be in a particular case. To that extent, we are unable to comment on the criteria applied.

One issue which does arise repeatedly in this area is the need to have a decision of a Tribunal before the Minister can be approached. We would submit that this is unnecessarily wasteful of resources, given that in a number of cases it obliges an applicant to lodge an application without merit in order to obtain access to the Minister. Were the Tribunals prepared to make meaningful recommendations with respect to humanitarian issues it might in fact be helpful to pursue such a procedure, however we would submit that it is far more sensible to allow an approach to the Minister at any time (noting the severe restrictions on bridging visas which apply to such approaches, we doubt that there would be any floodgates effect if such an approach were permitted). One rationale for insisting on Tribunal review is that it is possible for Tribunal members to make recommendations to the Minister for humanitarian intervention. Although we do not have any documentation of Tribunal members recommending intervention, it is clear from the consideration of this issue in Stratton that there are conflicting signals from the Minister (p.13, fn 61) and the RRT Members’ Guide (page 14, fn 62) about how and when such recommendations should be made, to the point where Stratton concludes that

The fact is the current system of discretionary, indirect referrals from RRT members is unreliable and inadequate. Not only are the value, frequency and efficacy of the recommendation ill-defined and uncertain, the procedure is open to inconsistent application. (page 15)

According to Stratton, it is not possible for RRT Members to make comments outside of the written decision (page 15, note 69). If so, this is at variance with practice in, for example, the Social Security Appeals Tribunal (where members do write to Centrelink on occasion with respect to ex gratia payments) and effectively denies the Minister access to the highest point of forensic evaluation an applicant is likely to have undergone in reaching the exercise of the Minister’s discretionary power.
d) The appropriateness of these powers continuing in their current form

For the foregoing reasons, we would argue that the following changes should take place:

i) Dissemination of client material about the Ministerial intervention procedure in relevant languages (a copy of the material we supply to clients in English is attached at Attachment II);
ii) Preparation of an application form to be lodged with Ministerial intervention requests;
iii) Creation of particular categories relevant to family related visas currently normally dealt with through Ministerial intervention;
iv) Removal of the requirement for a prior decision of a Tribunal;
v) If the prior Tribunal decision requirement is retained, allowing MRT fees to be refunded in successful cases of Ministerial intervention;
vi) Creation of appropriate waiver provisions with respect to s.48, Schedule 3 and Schedule 8;
vii) Appropriate accountability structures being established for the exercise of the Minister’s discretion;
viii) Appropriate transparency structures being established for the exercise of the Minister’s discretion;
ix) Appropriate cancellation structures being established for revoking visas granted under the Minister’s discretion, where fraud, false documentation or breach of Commonwealth law can be established.
Given the secrecy surrounding this area of practice, it may be appropriate for the Department to provide a briefing paper addressing these and other issues, in order for an informed debate to take place. Without proper reporting on Ministerial intervention, including authoritative description of the processes and statistical outcomes, it is difficult to pursue this topic in further detail. Issues which may well require further consideration include the treatment of detainees and persons who are the victims of torture and trauma, differential treatment of particular nationalities, appropriate forensic procedures, safeguards for refugee applicants maintaining their refugee claims, and so on.

Attachment I

Second Reading Speech, Migration Legislation Amendment Bill 1989

Date 01 June, 1989
Database House Hansard

Speaker Holding The Hon A.C. (MELBOURNE PORTS, ARTS AND TERRITORIES, ALP, Government)
Page 3447

Proof No
Source House

Stage Second Reading
Type Speech

Context Bill
Main Committee No

Size 29Kb

Mr HOLDING (Melbourne Ports-Minister for the Arts, Tourism and Territories and Minister Assisting the Minister for Immigration, Local Government and Ethnic Affairs)(4.47) —I move:
That the Bill be now read a second time.
The Bill gives legislative effect to a number of the major policy changes which were announced by the Government in the Senate on 8 December last year. These changes flow from the review of immigration undertaken last year by the Committee to Advise on Australia’s Immigration Policies (CAAIP) under the chairmanship of Dr Stephen FitzGerald, the intensive analysis of policy options which followed the tabling of the Committee’s report on 3 June, and the wide-ranging community consultations which also took place.
Before I address the Bill in detail I would like to give honourable members a broad overview of it. There are three major features of this Bill. The first is a radically revised approach to immigration decision-making. Currently the Immigration, Local Government and Ethnic Affairs portfolio has decision-making discretions which are totally unfettered. That is, the migration legislative scheme is essentially machinery legislation. It gives the Minister power to determine who can enter Australia and who must leave. There is no provision in this scheme for parliamentary guidance of the exercise of the power. A Minister can make decisions on these matters virtually at his or her discretion. Thus, legally, a Minister has the power to determine and change policy in the immigration field as he or she wishes independent of the Parliament.
The wide discretionary powers conferred by the Migration Act have long been a source of public criticism. Decision-making guidelines are perceived to be obscure, arbitrarily changed and applied, and subject to day-to-day political intervention in individual cases. Accordingly this Bill proposes a decision-making system in which policies governing entry to and stay in Australia will, for the first time, be spelt out in the migration legislative scheme. Parliament, then through its powers of disallowance, will be able to monitor those policies.
A major feature of the Bill is the introduction of a new two-tier review system. There has been dissatisfaction with the former review system, with the end result that in some instances, a number of applicants have considered that the only way they can gain an independent review of their case is to pursue judicial review. A new two-tier review system is therefore proposed in the Bill. The first tier will be a review by specialist officers of the Department, specifically authorised and guaranteed independent by legislation to undertake this task. Applicants dissatisfied with a decision by that tier will be able to appeal to a second tier of review. This tier will be a statutorily based independent review body: the Immigration Review Tribunal (IRT). I am confident that this proposal will not only ensure independent review, but also be fair, economical, informal and quick. Thus, applicants will be the main beneficiaries of this new system.
The second major feature of the Bill is that it spells out mechanisms for ensuring that planned immigration program intakes are not exceeded. Honourable members will understand that though the rights and entitlements of the individual must be protected, it is equally important that the restrictions which have to be imposed on the overall numbers and categories of people entering Australia in the public interest, also be spelt out in the regulations. In this way the Government will be able to balance the entry requirements against the overall planned intake levels and quickly correct any unforeseen fluctuations. Other significant features of the Bill include provisions for shifting the cost of detention and deportation onto the offender, and for making commercial immigration advisers accountable to their clients.
Let me now address the main features of the new decision making regime in more detail. Under current legislation, the issue of visas and entry permits is governed by a wide discretionary power. Guidelines governing the exercise of this power are set out in policy and are scattered through departmental instructions. As these guidelines are policy rules they are not binding in law upon the decision-maker. This uncertainty can be both unsettling for the applicant and disruptive of the efficient management of the immigration program.
The approach to resolving these problems consists of two basic steps. First, provision has been made in the Bill for listing in regulation the various classes of visas and entry permits used in controlling the flow of people into Australia. For the information of honourable members, I am tabling a provisional list of the visa classes to be included in the regulations. A corresponding list of classes of entry permits will also be included in the regulations. I should emphasise that the list of visa classes is simply a list of the various categories of visas which are currently in use by the Department. Honourable members will see from the list that it simply describes the various categories of people coming to Australia, for example, aged parents, skilled workers, entertainers and so on.
The second step is to spell out in regulation the decision making criteria which apply to each of these classes of visas and entry permits. For example, the regulations will say who may enter Australia as an aged parent, who may enter as a brother, as a skilled worker, and so on. This means that both the rights and entitlements of the individual, and the necessary public interest restrictions on entry will be clearly stated in the legislative scheme. It is true that the regulations determining who can enter and stay in Australia for each visa and entry permit class have not been drawn up. It is planned, however, that the regulations governing many of the major classes will be drawn up by the time this Bill is proclaimed. Honourable members will see from the provisional list of visa classes tabled, the order of priority which has been decided upon.
I should emphasise that in drawing up these regulations it is intended that they will reflect only current Government policy, which in turn reflects the Government’s public response to the CAAIP report, and the extensive community consultations which took place. In presenting this Bill the Government is not, therefore, asking for a blank cheque to place new policies into regulations but a legislative base on which to order and rationalise existing policies.
Honourable members will be aware that given the scope, the complexity and the interrelationships of immigration rules, translating them into regulation will be an extremely lengthy process: in part this will reflect the fact that the approach is a completely novel one, and will involve the development of new skills and processes. Accordingly, it will take up to 18 months to complete regulations for all classes of decisions. It was decided, therefore, that in order to accelerate the process, the Bill would be put forward at this stage to obtain legislative backing to what is a fundamental rethinking of the administration of the Migration Act. The intention is, given that legislative backing, to draw up regulations for the major classes of decision as a matter of urgency, so that these can be implemented and have the force of law as soon as possible, rather than wait for every minor issue to be resolved.
Accordingly, when the Bill is proclaimed, there will still be some gaps in the policy criteria as set out in the regulations. These areas will continue to be discretionary until policy criteria for these areas can be incorporated into regulation. It is also the Government’s intention that should there be a need to make a change in policy direction, that there be public debate on that matter before it is mirrored in legislation. The Government will, of course, continue to hold its wide ranging discussions each year prior to determining the size and the composition of the annual intake.
It has been suggested that the criteria for decision making should be built into this Bill, I make two points. First, as I have already pointed out, we would have to wait a very long time before legislation could be introduced. Second, the important difference is not whether decision making criteria are in the Bill or in regulations. It is that legislation will replace the current system of ad hoc policy making. This will, as I said earlier, give Parliament the involvement hitherto denied it.
The Government has also heard many arguments that ministerial discretion should be retained in all cases. In the final analysis, these arguments are little more than a plea for special treatment. Hundreds of thousands of decisions are taken within the immigration jurisdiction each year. Of these, the Minister can only decide a tiny fraction personally. The concern is to ensure equity and consistency in decision making. The belief was held that this was best done where a Minister concentrates on determining overall policy directions, and limits decision making to those classes impacting most on national well-being. However, consistent with the bipartisan approach of the Government it has been agreed that the Minister should remain the principal decision maker.
The second major element in the new decision-making regime is the introduction of an independent two-tier system of review of decisions. Although there has been a formal mechanism for the review of immigration decisions since 1982, its basis has been administrative, not legislative and its powers only recommendatory. The doubts recently raised about the authority to collect fees for such review have demonstrated the frailties of an administratively based system. Further, the absence of a demonstrably independent system of review, drawing its powers from statute, has led as stated initially, to dissatisfied applicants pursuing the costly and lengthy route of judicial review.
The system of review developed in the Bill is designed to provide a mechanism that is fair, economical, informal and quick. First tier review will be by specially appointed review officers within the Department. The Bill provides that they should operate as a discrete and independent unit and not be subject to direction on individual decisions. Review officers will not be limited to an examination of cases on the papers, and communication of the basis of unfavourable decisions to clients will be an important aspect of their role. Second tier review will be by a statutory body within the immigration portfolio, to be known as the Immigration Review Tribunal. Its members will be appointed by the Governor-General and it will have its own administrative infrastructure, unlike the current immigration review panels.
Informality and the absence of legalism will be the key to the Tribunal’s operations. It is designed to permit claimants to put the merits of their case in a factual and straightforward way, without the need for formal representation. The means of achieving this is the non-adversarial structure for case determination. The Department will not be represented at the hearing of the case, unless called as a witness by the Tribunal. The matter to be resolved is between the claimant and the Tribunal as decision-maker, bound by legislation and guided by policy.
The Immigration Review Tribunal will work broadly as follows: First it will examine the papers relating to a case, namely the material put forward by the applicant and the material prepared in the course of the primary decision and the first tier review processes. If the Tribunal can make a decision favourable to the applicant on that material, it will do so, and that will be an end to the matter. If, however, the Tribunal cannot make such a decision on the papers, then it will invite the applicant to give oral evidence before it makes a final decision on the appeal. In these circumstances applicants may be accompanied by an adviser, for example a friend or their solicitor. It is intended however, that this adviser will not orally address the Tribunal on behalf of the applicant.
The jurisdiction of the new two tier system will extend to certain classes of decision prescribed in regulations and will be phased in as regulations setting out detailed decision making criteria are introduced. Broadly speaking the people who will be able to appeal under the new two tier system will be the same categories of people who could have appealed to the Immigration Review Panel. There is provision in the Bill for the regulations to specify whether the Tribunal should have determinative or recommendatory powers in relation to a particular class of decision. Review will, however, normally be determinative, and there is no intention at this stage of prescribing any categories of decisions for which the Tribunal will only have recommendatory powers. The recommendatory powers have been introduced only to allow for the possibility that in the future, criminal deportation decisions which are recommendatory may be transferred from the Administrative Appeals Tribunal to the Immigration Review Tribunal.
The Bill also provides for the Minister to declare a decision non-reviewable if a change in the decision would prejudice the security, defence or international relations of Australia, or if reviewing it would require consideration of deliberations or decisions of the Cabinet or a committee of Cabinet. The Minister may also override a decision of the Tribunal. This power may be exercised, however, only in cases where the Minister wishes to substitute a more favourable decision. Further, where the power is exercised, the Minister must provide a detailed statement to Parliament.
The Bill includes a specific provision for the early setting up of the Immigration Review Tribunal. It is intended that these particular provisions will come into effect around the beginning of September, ahead of the rest of the Bill. Accordingly members of the Tribunal can be appointed, procedures developed, training of members in immigration policies and procedures undertaken, and so on, well in advance of the rest of the Bill being proclaimed. This means that as soon as the Bill is proclaimed the new review system can come into operation immediately.
I propose that the fee for application for review by the second tier, the Immigration Review Tribunal, shall be no more than that levied by the Administrative Appeals Tribunal, while the fee for the first tier, the statutory independent units in the Department of Immigration, Local Government and Ethnic Affairs, will be less than that.
Immigration is an unusual jurisdiction in that delay in decision-making can work to the advantage of the applicant, at least where the applicant is already in Australia. Delay is compounded where the same matter is repeatedly reopened through fresh applications, reviews and appeals. The new review system proposed in the Bill aims to ensure the cases are resolved fairly and speedily. It provides that once a decision is taken, and where relevant reviewed, the applicant should leave Australia within a set period. After the case is determined, a further application may be made only where the circumstances of the person have changed significantly. A decision on any such further application will not be reviewable. If the person fails to leave within the period provided, the Minister would be required to issue a deportation order.
The Bill provides for mandatory deportation for the following reason. The central issue in relation to a person is whether he has any claim to remain in Australia. This issue will have already been tested in the decision-making and review processes. No fresh decision on any claims to remain in Australia is therefore required. All that is at issue is the simple question of fact: Has the decision process been completed and has the statutory period for voluntary departure expired?
The second major feature of the Bill is its mechanisms for ensuring that immigration objectives are achieved in an orderly manner. Individual immigration decisions must be taken in a fair, consistent and accountable manner. At the same time, we should not lose sight of the fact that these decisions are simply the component elements of an overall program designed to serve national objectives.
International law recognises the sovereign right of nations to determine who may enter and remain within their territory. Australia cannot simply open its doors to all those who wish to enter, either temporarily or permanently. The Government has an obligation to the Australian people to have regard to the domestic labour market, public health and safety, and the capacity of the economy to provide adequately for the needs of the population. While Australia has a vigorous immigration program, annual intakes must be kept within planning figures, and the profile of those selected as immigrants and temporary entrants should conform with program objectives.
Demand within the immigration program far exceeds the number of available places. There are well in excess of one million inquiries annually whereas this year’s program for permanent entry provides only 140,000 places. The case in relation to temporary entry is rather different. Here, demand is normally actively encouraged. Australia’s vigorous marketing of tourism and of education and health services, are examples. However, even in this area demand in certain categories may become problematic where numbers are out of step with other national objectives.
Effective management of intake levels is essential to ensure planned program outcomes are not exceeded. Governments have traditionally relied on their ability to turn the tap on and off. The alternative is an immigration program out of control. The Bill also addresses this management issue. It includes a provision to suspend receipt and processing of applications in certain classes until a nominated date.
The Bill also provides for the application of a competitive points test in the selection of some classes of permanent entrants. To contain demand for entry in each class subject to the points test, a floating passmark will be used to select only those applicants scoring the highest points related to the number of available places.
The system will operate as follows. Applicants in the points tested visa classes will be scored against set criteria. Depending on the mark achieved, applicants will be treated in one of four ways. If they achieve a sufficiently high score, referred to as the priority mark, they will move on to the next stage of processing. If they achieve a lower mark, referred to as the pool entry mark, they will be placed in a pool for further consideration against a variable passmark, determined on the basis of the number of available places and the marks of applicants in the pool. If they fail to reach this passmark, their applications may be rolled over for reconsideration when the mark is next varied. Applicants who fail to meet the pool entry mark will be rejected immediately. The various marks may be altered from time to time by gazettal and must be tabled in Parliament.
The Bill also provides for the operation of this selection system to applicants for prescribed classes of entry permits. Where the system is used for applicants in Australia, there will be no pooling system and no rolling over of applicants within the pool. Rather, an applicant who fails to achieve the priority mark will be rejected outright. This approach is necessary in order to avoid delays in processing within Australia and the manipulation of the system by persons simply seeking to engineer a protracted stay.
I should now like to provide honourable members with some explanatory background for the other provisions of the Bill which I mentioned at the beginning of this speech. A feature of the Bill which I mentioned at the outset was the provisions in relation to compliance with the requirements of immigration legislation. The detention and deportation of prohibited non-citizens, renamed in the Bill as illegal entrants, is at considerable cost to the taxpayer. Often detainees and deportees have been working illegally in Australia, and have accumulated considerable assets. The Bill provides for freezing the assets of a deportee, within a framework of adequate protection to the individual. Provision is made, naturally, for people to retain sufficient funds for basic living costs and legal expenses.
Where a person is deported, the Commonwealth can recoup the costs of detention and deportation from the person’s assets. This will improve debt recovery and help defray the cost of detention by producing revenue estimated at $200,000 in a full year. The Bill also prohibits the subsequent issue of a visa at any stage to a person deported unless that person has met or has made satisfactory arrangements to meet any outstanding debt to the Commonwealth.
Another important provision of the Bill relates to persons providing immigration advice for a fee. This is a burgeoning enterprise, where clients are susceptible to inflated charges and false claims of influence. The current legislation simply requires the notification of an intention to act as a migration agent. These provisions are outdated and the Bill provides for their repeal. The Bill substitutes provisions whereby the operation of persons providing advice for a fee will be governed by sanctions aimed to ensure a responsible commercial relationship. Advisers will be committing an offence where they claim they can influence or have influenced the making of a certain decision, either in their own right or through a third person. The Bill also requires advisers to provide a detailed statement of account. Where the adviser has made false claims, or failed to furnish an account, no fee is due.
The Bill also addresses other initiatives announced on 8 December last year in response to the report of the Committee to Advise on Australia’s Immigration Policies. Among those are the balance of family test which applies to some parents; tighter provisions for the assurance of support; and the release of illegal entrants on bonds which would be forfeited in the event of non-compliance with their conditions. The existing provisions for the grant of resident status to people temporarily in Australia are to be strengthened by requiring applicants on the basis of marriage, being the dependent child or aged parent of a citizen a resident, to be holders of a valid temporary entry permit.
Other provisions of the Bill will allow for the search of persons at entry about whom there is a reasonable suspicion that they will, on or after entry become an illegal entrant or will breach a condition of entry, or otherwise where a person has been arrested or taken into custody pursuant to the Act. The purpose of the search is to ascertain if the person is carrying a concealed weapon or documents material to their status. Section 16 of the Act will be amended to remove existing doubt as to whether the intention of persons deceiving officers must be proven.
The Bill also contains a general provision for the charging of fees. The Government has accepted the user pay principle where it is more fitting that the user, rather than the taxpayer, bear the cost of a particular service. Fees are set according to the cost of the service, and often are well below the true cost. Fees would be charged only in relation to specific services and processing activities, such as application, sponsorship, assurance of support and each tier of review.
The Government will not be amending Section 36a of the Act, which allows for undocumented arrivals to be deemed not to have entered Australia. Removing this provision, which halts refugee claimants at Australia’s frontier, would, on the experience of other countries such as Canada, the Federal Republic of Germany and Switzerland, attract to Australia tens of thousands of frontier claimants, many of them dubious. It would thereby effectively shift our major refugee effort from overseas to onshore. Since introduction into the Senate the Government has, however, decided to amend Section 36 of the Act to deal more properly with the situation of illegal fishermen, et cetera brought to Australia for the purposes of prosecution and/or repatriation.
Again in the spirit of bipartisan cooperation, several amendments to the original Bill were moved by the Government in the Senate. These amendments were made in response to the separate concerns of the Senate Standing Committee for the Scrutiny of Bills, the Opposition and the Federation of Ethnic Communities of Australia. The most important of these amendments were as follows:
(a) as noted already, retaining the Minister as the principal decision maker;
(b) providing for interpreters to be used in the IRT and for decisions where the IRT is constituted by two members to be made according to the view of the presiding member:
(c) increasing the possible period to apply for review where the subject of the application is outside Australia to a total of 70 days;
(d) provision for the regulations concerning decision making criteria to lapse after two years after commencement unless the regulations themselves otherwise provide;
(e) provision for renumbering of the Act.
The Bill contains many other detailed provisions which I do not have sufficient time to outline. These are set out in the explanatory memorandum which has been prepared to accompany the Bill. The Bill represents, as I have already said, a fundamental change to the administration of the Migration Act. This change, in turn, represents the most significant review of immigration policy and procedures taken over the past decade.
It is clear that the approach to the determination and expression of policy, to the reviewing of decisions, and to the overall determination and control of the size and composition of the entry of people into Australia, particularly the migrant intake, which flows from the present migration legislative scheme, is no longer appropriate. The current legislative scheme reflects an era when the overall numbers of people entering Australia were far smaller than they are today, when the rights of individuals were not protected by administrative law, and the general administration of the Migration Act and the formulation of policy reflected the unfettered nature of the decision making powers conferred by the Act. Developments in administrative law and the need to control the flow of people into Australia in accordance with overall economic and social policies have led to costly tensions between these objectives and the current legislative scheme. This Bill resolves these tensions and, further, gives Parliament power to monitor the changes in policy direction which inevitably emerge from the day to day administration of the Migration Act.
The Bill is a package and its constituent elements are closely integrated. If this total package were not adopted, the Government would be faced with the piecemeal introduction of some of its provisions. The end result would be that the current situation would simply continue. This is unsatisfactory from the point of view of those affected directly by the operation of the Act and from the point of view of determining policy and protecting the wider public interest. I commend the Bill to the House and present the explanatory memorandum.
Debate (on motion by Mr Ruddock) adjourned.

Attachment II

Client Information About Ministerial Discretions

The Minister’s Discretion

Every year, thousands of cases are refused by the three Tribunals responsible for reviewing immigration decisions, the RRT, MRT and AAT. At the stage of refusal, most applicants have the right to seek the humanitarian intervention of the Minister for Immigration and Multicultural Affairs. Because of perceived weaknesses in the humanitarian entry system in the 1980s, there was a reaction in the 1990s to minimalist intervention, and this trend continues. The result is that today, very few humanitarian cases are granted, and only with the approval of the Minister, personally.

Every time the Minister approves a humanitarian case, he or she has to table a statement before both Houses of Federal Parliament. Under the Migration Act, this applies to all the discretions the Minister may exercise personally.

Historically, only 50-100 visas are granted this way every year, although there is anecdotal evidence that the number of grants increases at the end of each electoral term; some individual groups have been assisted by way of Ministerial intervention, however apart from those, Ministerial intervention is used sparingly.

How do you get a visa in this way? It isn’t easy, as there are thousands of requests every year. Most are “scheduled”, that is, an area of the Department screens out most of them and the Minister simply signs off on a schedule to say he isn’t interested.

To initiate Ministerial intervention, there must be a decision of a migration Tribunal. There is no form or set procedure for requesting Ministerial intervention. We recommend a letter addressed to the Minister, making clear reference to the previous decision and explicitly requesting his intervention.

The important points to consider in preparing a submission are:

  1. Address the Minister’s guidelines for this visa category, which are very narrow and focus predominantly on human rights. A copy of these guidelines can be obtained from the Minister’s Office, most responsible migration agents, or IARC.
  2. The human rights principles which are to be observed are not easily accessible to members of the public who do not work in the field of human rights. In particular, it is often necessary to look at the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CROC), and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), for example. The text of these conventions and useful links for understanding them can be found at www.hreoc.gov.au . For the seriously dedicated human rights investigator, there are many links at www.unhchr.ch and www.un.org . We find www.derechos.org is also a particularly good site, as is www.amnesty.org , for finding good objective source information.
  3. A decision by the Minister is as much a political decision as a legal decision. He or she will be influenced by evidence of widespread or passionate community support, particularly community opinion leaders. He or she will also be influenced by clear evidence of a breakdown in Departmental or Tribunal systems which might have given rise to an unfair result.
  4. A decision by the Minister is also an administrative decision, involving a review of a decision previously made by a Departmental staff member. Many advocates carefully solicit the support of the original case officer to ensure that they have no objection to the fresh light which new evidence or interpretations may shed on a case. This is not an approach which we adopt, however we quite commonly communicate with staff in the Ministerial Interventions Unit, or their managers, on points of evidence and interpretation.
  5. No-one gets Ministerial intervention based on a single short letter or submission without substantial supporting documentation. The Department and Tribunal files are always quite bulky by the time the case reaches the Minister, and there is normally a great deal of evidence to work through.
  6. The Minister’s discretion is total. It resembles the power to enforce or commute a death sentence in its finality and lack of transparency. Therefore the process has to be initiated carefully and with substantial support. The case should be proposed to the Minister with due respect and regard for the office he or she holds. Some agents and solicitors tend to use overly aggressive language in their submissions. It may be appropriate to point out errors or systemic problems, but it is never appropriate to criticise at the personal level.
  7. Many members of parliament, both State and Federal, and even local government councillors, are able to provide support for a deserving case. While it is sometimes claimed that opposition members cannot help, we regard this as a myth. We have obtained crucial support from both sides of politics, as well as cross-benchers of all political colours except One Nation.
  8. The present Minister will agree to meet with high-level delegations in appropriate cases. In such cases he is prepared to defend the Tribunal view personally and listen to reasonable arguments from the proposers.
  9. Currently, situations where an Australian child or spouse is adversely affected by a Tribunal decision which has the potential to force one family member offshore are considered sympathetically. In some ways, this reflects a major gap in the legislation, but a positive response should not be anticipated without careful documentation of the adverse consequences to the child or spouse.
  10. The present Minister’s personal crusades against certain character issues, including credibility, should not be underestimated. We routinely recommend to clients that they should announce to the relevant Tribunal hearing their case that they understand they do not meet the criteria for the visa applied for and are simply seeking humanitarian recognition. The support of the Tribunal for a humanitarian finding can be very helpful for your case. Conversely, we regard a Tribunal finding of poor credibility as disastrous for a humanitarian submission; on occasion, we will prepare detailed submissions demonstrating why the credibility finding is not justified.
  11. Currently, we understand that policy is not to require the person submitting a case to the Minister to be a registered migration agent. To some extent, this is appropriate where many members of the general community are only too willing to help a friend, colleague, relative etc; we have also seen cases of abuse in this field, and people seeking help from an unregistered agent should be aware that it may not be possible to make a complaint afterwards. In particular, no-one should believe the claim that a particular person has influence with the present Minister in this field. We understand that he disappoints both friends and enemies equally and instead concentrates on the objective basis of each case
  12. It is possible to make second and third requests to the Minister if a first one has been refused. However, it is essential in such cases to present new evidence or interpretation in some detail.
  13. The process of obtaining Ministerial intervention is just that, a process. It is possible to take advantage of the delays in decision-making by continually seeking new evidence and submitting it. In some cases it may be appropriate to create and disseminate a petition, although you should be careful in so doing not to be seen as establishing a case through publicising it.
  14. Apart from the guidelines, which are general and routinely bypassed in deserving cases, there is no special formula for requesting the Minister’s intervention. Each case turns on its own facts. Good luck!