2.1
The terms of reference for the inquiry instructed the Committee to analyse the efficiency of existing review processes as they relate to decisions made under section 501 of the Migration Act 1958 (the Act), as well as to consider if there is any duplication in the system.
2.2
This chapter presents evidence around the efficiency of existing review processes, including departmental reviews (applications for revocation of mandatory cancellation), merits review in the Administrative Appeals Tribunal (ATT), and judicial review. It looks at:
how visa cancellations may make Australia safer;
the efficiency of the AAT’s merits review process and the AAT’s approach to evidence;
the efficiency of mandatory cancellation and revocation reviews in the Department of Home Affairs (the Department);
timeframes for AAT reviews, and the ‘two-day evidence rule’; and
access to legal assistance for merits review.
2.3
The chapter then considers how mandatory detention and issues of non-refoulement impact the efficiency of the visa cancellations and merits review systems.
A safer Australia
2.4
The visa cancellation regime is designed to make Australia safer by removing serious criminals who are not Australian citizens.
2.5
The Department commented that the legislative changes brought in in 2014:
…have resulted in a stronger focus on community protection, a greater range of conduct and criminality being captured under the Act and more foreign nationals being referred for assessment of character issues.
2.6
The range of crimes that have resulted in non-citizens having their visas cancelled includes, in order of prevalence: assault, drug offences, other violent offences, other non-violent offences, child sex offences, armed robbery, and theft, robbery, break and enter.
2.7
Some witnesses suggested that the regime makes Australia safer because it removes persons who were likely to commit more crimes if they remained in Australia. For instance, the Police Federation of Australia presented evidence provided to it by the New Zealand Police that a significant number of offenders returned to New Zealand had ‘reoffended on their return to New Zealand’.
2.8
In its submission to the Committee’s previous inquiry into migrant settlement outcomes, the Police Federation asserted that, ‘of those deported to New Zealand under that section of the Act, 51% have reoffended within two years of returning’.
2.9
Some witnesses disputed the idea that the visa cancellations regime makes Australia safer. The Victorian Multicultural Commission said it did not believe the regime makes migrants more law-abiding, and reported that some communities in Victoria are experiencing significant fear around the regime, because it leads to family separations, which are traumatic for the whole community.
2.10
Mrs Shirin Whittaker (private capacity) argued that Australia had not become safer as a result of more criminal deportations, saying:
This is not borne out by crime statistics: according to the Bureau of Statistics, released on 08/02/2017 for recorded crime offences during 2015 –2016, offender numbers increased in almost all states and territories, from previous years, 2014 – 2015. The majority of these offences were drug related, committed by serial offenders.
Efficiency of existing review processes
Merits review in the AAT
2.11
As outlined in Chapter 1, a non-citizen whose visa cancellation, refusal, or non-revocation decision was made by a delegate has the right to appeal to the AAT. They have nine days to lodge the appeal, and the AAT has 84 days to hand down a decision. This is called an ‘expedited review’ process, and is designed to be as efficient as possible, while also being fair. During the inquiry, the Committee sought evidence as to the efficiency of this process.
2.12
Most witnesses described the AAT’s merits review process as efficient. The Immigration Advice and Rights Centre, which works directly with persons navigating the system, described it as ‘fair, economical and quick and [said that it] promotes public confidence in the determination of visa cancellation matters’.
2.13
The AAT explained that it is required to undertake its reviews with ‘as little formality and technicality and with as much expedition as possible’.
2.14
Further, because it is not bound by the same evidence rules as a court, the AAT can make decisions quicker and with less delay. The AAT’s decision-makers are, however, ‘guided by those rules in terms of the weight that they might give particular types of evidence’.
2.15
Migration and refugee law expert, Dr Anthea Vogl highlighted the extensive experience of the AAT’s decision-makers ‘in a very narrow field of law’, saying:
…as a general rule, they are very professional and they carefully apply not just the law but government policy in each of the decisions that they make.
2.16
Witnesses from the Home Affairs Department explained that the Attorney-General’s Department ‘liaises closely with the AAT on procedures, training and processes to ensure timely, consistent and lawful outcomes in relation to their obligations under the [Administrative Appeals Tribunal Act 1975]’.
2.17
However, two individuals, Mr Brian Woods (private capacity) and Ms Maria Kathryn Aylward (private capacity) thought the right of persons to appeal in the AAT represented a waste of tax-payer money.
2.18
The Department also suggested that some non-citizens may use merits review as a delaying tactic ‘to extend their stay where there is little or no prospect for a positive outcome’.
2.19
The Law Council of Australia cautioned against ‘any steps to further expedite the review function’, saying the expedited review process already raises some ‘procedural fairness concerns’, and any steps to further expedite the process ‘may in fact lead to greater inefficiencies’.
2.20
The Visa Cancellations Working Group is a group of migration experts and organisations from around Australia with specific interests in visa cancellations. The Working Group acknowledged that the workload of the AAT has increased in recent years and suggested ‘increased resourcing for the AAT’ could be warranted to ensure it continues to meet the demands of the expedited review process.
Mandatory cancellation and departmental timeframes
2.21
Mandatory cancellation significantly increased the number of cancellations and the number of people detained waiting for their cases to be assessed by the Department. The Department submitted that section 501 visa cancellation decisions increased by more than 660 per cent in FY2014/15 compared to the previous year, a further 69 per cent in FY2015/16, and a further 31 per cent in FY2016/17, as a direct result of mandatory cancellation.
2.22
While the cancellation is mandatory, it is not automatic. The Department was asked how mandatory cancellations are triggered, and it confirmed that it regularly receives lists of prisoners, goes through them and assesses liability for mandatory cancellation, then actions these cancellations.
2.23
The Department submitted that in 2016/17, 78 per cent of the 1,234 foreign nationals whose visas were subject to mandatory cancellation sought revocation of the decision and 338 were successful (approximately 35 per cent). A further 291 were unsuccessful in their application, and 316 decisions were still pending (as at 31 March 2018).
2.24
The Asylum Seeker Resource Centre asserted that the Department was not equipped to deal with the ‘massive spike in work’ arising from the introduction of mandatory cancellation:
…both in terms of numbers of people working on these matters, given how long and complex they are, and their level of skills and experience to do so.
2.25
Some witnesses suggested that mandatory cancellation has led to a backlog of pending revocation decisions in the Department, with decisions on revocation requests commonly taking from six to 12 months. The Human Rights Commission said the average is 10 months.
2.26
The Department’s own figures indicate that over 30 per cent of revocation applications lodged in FY2016/17 were still unresolved more than nine months later.
2.27
The Commonwealth Ombudsman conducted an investigation into the administration of section 501, reporting in December 2016. The report identified concerns with the timeframe for revocation reviews, and recommended the Department of Immigration and Border Protection ‘introduce a departmental standard for the timeframe to process cancellations and revocation requests’.
2.28
The Department’s response is included at the end of the Ombudsman’s report. The Department ‘noted’ the recommendation and offered the following response (summarised):
applications are generally processed in the order they are received, with some expedited for compassionate reasons;
the Department was working to increase the efficiency of processing these requests, having increased staffing and the efficiency of the process;
the number of undecided requests had fallen slightly from 2015 to 2016, despite greater numbers overall; and
the Department ‘continue[s] to consider strategies to reduce processing times’.
2.29
Legal Aid NSW contended that more delegates were required at the Department to expedite the decision-making process:
It’s clearly a resources issue and it clearly costs a lot of money to keep somebody in detention. Resources need to be directed towards making decisions quicker.
2.30
A number of witnesses proposed that mandatory cancellation is – by its nature – inefficient, and that the Department’s timeframes for making decisions regarding revocations are too long.
2.31
For instance, the Australian Human Rights Commission (the Commission) submitted that cancelling a visa based on an arbitrary figure of 12 months prison means:
You don’t take into account the risk to the community, you don’t take into account the expectations of the Australian community and you don’t take into account the best interests of the children—they are the primary considerations—and also you don’t take into account any of the secondary considerations. None of that is done until an actual person engages with this decision, and usually that’s five months down the track on average.
2.32
The Commission added that, in its view, mandatory cancellation is inefficient because around 50 per cent of all mandatory visas cancellations are ‘ultimately revoked’.
2.33
The Department confirmed that around 38 per cent of persons whose visa had been cancelled mandatorily in 2018 had the decision revoked by the Department.
2.34
Migration law academic, Professor Mary Crock, described mandatory cancellation as ‘a real mess’, saying a system that starts with a mandatory action, then requires an exercise of discretion is duplicative.
2.35
Victoria Legal Aid expressed a similar view, saying that the previous legislative regimes provided for the exercise of discretion from the outset, whereas the current regime means ‘the first tool used is the very blunt one’.
2.36
Refugee Legal argued that because the departmental process does not include hearing oral testimony from the non-citizen, it puts up ‘a whole range of barriers’ which can prevent the right decision being made the first time. It proposed ‘better procedural safeguards’, including that the Department hear oral testimony.
2.37
Other witnesses proposed similar changes, with the Commission suggesting departmental officers should be ‘able to take into account all relevant factors at that early stage’. This may include hearing oral testimony from the applicant.
2.38
Additional suggestions for increasing the efficiency of the revocation process included Mrs Shirin Whittaker’s proposal that:
The revocation process should be started approximately a year before the release of a prisoner. At least the individual will know, before his/her release, the outcome of his/her revocation request. This will save on the frivolous use of tax-payers money (transport costs, wages of accompanying officers, the cost of detention) when people are transferred to the various detention centres by two or more officers at any given time.
2.39
Mandatory cancellation also generally means mandatory detention. The Law Council of Australia (the Law Council) highlighted that non-citizens who meets the criteria for criminal cancellation have their visa cancelled and are detained in immigration detention upon release from prison.
2.40
The Commission claimed that this detention lasted for an average of 10 months, while non-citizens awaited the result of their revocation application.
2.41
The Law Council stated that Departmental revocation reviews can take a year:
There’s no discretion; it’s absolute. We must hold you in detention for that year. I agree it’s common that it will be successful, revocation be granted and the visa will be returned after an extra nine, 10 or 12 months of detention. That is the harsh reality of the mandatory cancellation. It really is a very draconian system.
2.42
Barrister and academic, Mr Jason Donnelly, also cited long delays in processing revocation requests through the Department of Home Affairs. He said ‘a time period of at least six months to two years’ was common.
2.43
Mr Donnelly submitted that Ministerial Direction 65 declares that decisions with respect to a revocation application should be decided in a ‘timely manner’, which he defines as within three to six months.
2.44
The Commission recommended that mandatory cancellation be repealed, and the Law Council of Australia suggested that removing mandatory cancellation would result in a significant cost saving to the Commonwealth.
2.45
Mr Jason Donnelly also proposed that persons detained while waiting for the outcome of their application for revocation through the Department of Home Affairs should not be able to be detained longer than six months.
AAT timeframes and evidence rules
Nine-day application limit
2.46
Witnesses working in the legal sector commented on the timeframe for lodging an application for review at the AAT, which is nine days. Many thought this were too short. Some also believed the 84 day timeframe for the AAT to make a decision could also be too short in some cases.
2.47
Professor Crock argued that the limited timeframes ‘confine’ the tribunal and stop it ‘doing the job that it’s supposed to do’. She suggested a 28 day limit on lodging applications.
2.48
NSW Legal Aid explained the issues it perceives with the nine day time limit to lodge an application at the AAT:
If somebody is in custody, they have no ability to access the internet and download a form. They cannot fax it to the AAT. They’re completely reliant on welfare workers to do that for them. They may not be able to see a welfare worker within that time, or they may but the welfare worker, through their own pressures of other work, may not fax it to the AAT in time. We have had experience where the form has reached the AAT after the nine-day limit. The AAT then has no jurisdiction to hear the matter.
2.49
Mr Donnelly appealed to the Committee to consider recommending an extension to the nine day limit because this limitation:
…appears to ignore that there may be compassionate and/or compelling reasons why a non-citizen failed to lodge an appeal with the AAT within the prescribed mandatory nine-day appeal period.
2.50
The Commission commented on the 84 day time limit, saying:
…the current process may not give applicants sufficient time to prepare their case. Secondly, if the number of these cases continues to increase, the AAT may be unable to deal with them as fully as required in the time allocated. Some meritorious applications for review may therefore be unsuccessful because they cannot be decided within 12 weeks.
2.51
However, a number of other witnesses proposed that the 84 day timeframe for a decision by the AAT ensures an efficient process, and did not recommend changing this time limit. Legal Aid NSW said:
Our concern isn’t with the AAT making decisions within 84 days so much. That seems to work quite well. There are some concerns around the AAT—for example, the short time limit given to appeal to the AAT.
2.52
The AAT stated that, while it was sometimes challenging, it always meets this timeframe.
2.53
Persons whose visa is cancelled under section 116 have even less time to apply to the AAT for a review – 48 hours. Witnesses including retired solicitor, Mr Michael Chalmers (private capacity) expressed the view that this is insufficient time, especially as these persons are taken into detention, which is often offshore.
2.54
Mr Chalmers said that these persons are taken straight to immigration detention after being charged in a court and granted bail, and ‘given a whole lot of papers’, including instructions on how to appeal to AAT, which they only have 48 hours to do. In these circumstances, he said, these persons cannot prepare an adequate application.
2.55
The Immigration Advice and Rights Centre argued that the AAT should have the right to extend these time limits to allow it to hear cases it otherwise cannot.
Two-day rule
2.56
The Immigration Advice and Rights Centre highlighted the ‘two-day rule’, which is incorporated into the Migration Act. The rule stipulates that ‘the applicant is prevented from producing any new information or evidence unless it’s given to the tribunal and to the … minister two days before the hearing’. This rule does not apply to the minister or department.
2.57
According to the Immigration Advice and Rights Centre, this rule means that:
…the minister produces evidence either on the day of the hearing or the day before the hearing, then unless the tribunal decides to adjourn the matter then the applicant can’t produce evidence in response to it. Because of the very tight 84-day limit, sometimes you’ve just got to suck it up.
2.58
Mr Donnelly suggested this rule is unfair and frustrates the review process, especially in cases where an applicant does not have any legal assistance to prepare their case. These persons, he submitted are more likely to ‘adduce oral evidence (in the examination-in-chief process) that is not in their written statement’.
2.59
The Australian Human Rights Commission submitted that, while the rule is supposed to ensure the process is efficient, and prevent applicants from wilfully delaying proceedings, it ‘may paradoxically have the effect of prolonging the review process’ by preventing a ‘full and thorough consideration’ of the case at the AAT, leading to more judicial reviews.
2.60
Mr Donnelly recommended that the legislation be changed to allow for new oral evidence to be presented by applicants in cases where the applicant has no legal assistance and where consideration of this evidence ‘is otherwise in the interests of justice’.
2.61
The Asylum Seeker Resource Centre suggested that the Department should also be required to provide the applicant with information about evidence it intends to present against them, as failing to do so means the applicant ‘can’t narrow the issues’.
Duplication associated with merits review
2.62
The AAT addressed the inquiry’s term of reference regarding whether merits review duplicates the decision-making process undertaken by the Department, saying:
Merits review undertaken by the AAT is different from the process undertaken by delegates of the minister within the Department of Home Affairs. Both play an important role in the system of executive decision-making that exists under Australian law.
2.63
In addition, the AAT provided this view on the difference between merits review and judicial review:
Critically, and in contrast to judicial review, the AAT is not looking to see if the original decision-maker made an error based on the information before them; it is making a new decision with the benefit of all the information and evidence, using a different process from that of the original decision-maker.
2.64
The Attorney General’s Department argued that merits review is important, and plays a different role to judicial review:
The AAT is really a quick and effective means of merits review, which looks at … the content of the original decision, how it was arrived at and, indeed, any updated information that is relevant to the decision at the time the review was undertaken. Alternative forms of review are judicial review. … It’s a very different form of review. It’s a question about the legalities, whether or not something is correct in terms of the rule of law. It doesn’t go to the merits of the particular decision; it goes to the rule of law and the legalities of the decision that was made.
2.65
Academic, Dr Anthea Vogl (private capacity) took exception to the idea that merits review could constitute a duplication of Department’s decision-making. She said:
We want to stress to the committee that describing any form of merits review as duplication is a mischaracterisation of the role and objectives of the merits review process.
2.66
Dr Vogl proposed that merits review is accessible and cost-efficient, and ‘enhances the openness and accountability of government decisions’ by bringing into the process ‘a degree of independence that a politically accountable department of government simply cannot’.
2.67
Mr Donnelly argued that merits review is not a duplication of the Department’s processes for a number of reasons, including that:
it is a de novo process, where the decision-maker starts fresh and reviews all available evidence; and
the AAT hears oral evidence from the applicant and other witnesses.
2.68
There are also differences between the decision-makers in the Department and the AAT, with the Department’s delegate not necessarily a person with a legal background or a qualified lawyer, as they are in the AAT. The Department said:
They need to be someone who obviously has a lot of experience and understanding of our legislation, policy and processes. I understand that in the past there have been different models of what the delegate personally had in terms of their qualifications. We don’t require the person to have legal qualifications per se, but they need to be au fait with all the complexity of the legislation and policies. Good judgement is obviously a very important aspect of that role, and good judgement balanced with a good understanding of the government’s expectations.
2.69
Most witnesses saw merits review as a crucial component of the visa cancellations regime. The Human Rights Commission argued:
Australian courts correct errors of law, and since the 1970s Australian independent tribunals have been crucial in fixing problems that go to the merits of decisions. Merits review is central to good decision-making.
2.70
Victoria Legal Aid pointed out that similar federal schemes with ‘a heavy impact on people’s lives’, incorporate ‘several tiers of internal and external review to help ensure that those decisions are right’.
2.71
Assistant Professor Narelle Bedford argued that merits review improves primary decision-making by providing ‘guidance to decision-makers on interpretation of statutes and the application of policies to facts’. This, they argued, leads to better decisions being made at the departmental level.
2.72
The Department of Home Affairs itself suggested that merits review plays a role in making the system function more efficiently:
Without merits review, it’s likely the department would see an increase in the number of matters being taken to judicial review, along with the associated litigation costs and increased time to resolve cases.
2.73
Witnesses argued that putting any further limitations on merits review would lead to more judicial reviews, which are more expensive and inefficient.
2.74
Victoria Legal Aid said removing visa cancellation from the merits review system in the AAT ‘would not increase overall efficiency’, saying:
From our direct practice experience, we know that it would result in much higher numbers of judicial review matters in a sector which is already stretched. This would be acutely felt in overworked federal courts, where already some matters take two years to be listed for final hearing.
2.75
The Attorney-General’s Department supported this assertion, saying: ‘In the absence of the AAT redress would be through the courts. You would see a rather major upswing in the caseload of the courts.’
2.76
Some witnesses suggested that the Minister’s right to review and set aside decisions made by the AAT constitutes a duplication.
2.77
The Visa Cancellations Working Group recommended:
…that steps be taken to avoid duplication within the cancellation process, including:
Removal of the Minister’s explicit power to overrule the Tribunal;
Review of potential overlap between ss.501 and 116 of the Act, and
Review of the overlap between the criminal and administrative jurisdictions.
Committee comment
Merits review in the AAT
2.78
The Australian Government has a responsibility to provide protection for Australian citizens and all those who visit and reside in Australia. Migrants make a significant positive contribution to Australian society and are overwhelmingly law abiding. However, some choose to engage in criminal activity, possibly forfeiting their right to remain here.
2.79
The Committee supports the sovereign right of the Australian government to remove non-citizens who commit serious crimes in Australia, especially those who pose a danger to others.
2.80
Overall, the Committee believes that sections 501 and 116 of the Migration Act operate well and are achieving the aim of protecting the Australian community from harms caused by non-citizens who do not meet the character test.
2.81
The introduction of mandatory cancellation in 2014 greatly increased the number of persons whose visas were cancelled, and, as a consequence, the number of persons seeking merits review at both the Departmental level and in the AAT.
2.82
The Committee acknowledges that this may have put some pressure on the Department and the AAT. However, strengthening the regime has also created a more effective system, where serious criminals are less likely to slip through the cracks and be allowed to remain in Australia where they may commit further crimes.
2.83
There is no doubt that merits review in the AAT involves a reconsideration of cases already decided by the Department, requires human resources and costs the tax payer. However, the Committee understands that merits review is different to both the original decision-making process in the Department, and to judicial review.
2.84
One key difference between the Department’s process, and merits review, is that merits review provides an opportunity for the applicant to state his or her case orally.
2.85
Some witnesses suggested that the opportunity to provide oral testimony at the Departmental stage may decrease the instance of non-citizens seeking merits review. However, this is arguably impractical, as many applicants are imprisoned at the time.
2.86
The Committee accepts that differences between judicial review and merits review are significant, and that most witnesses, including the relevant Departments, believe merits review is more efficient and affordable than judicial review.
2.87
While, in the view of some submitters merits review may constitute a duplication of Departmental decision-making, merits review also works to reduce the incidence of judicial review, which is more costly and time-consuming.
2.88
The Committee is persuaded that the AAT generally hears its reviews quickly and efficiently. The legislated maximum time of 84 days for the AAT to complete a review is appropriate and should be retained.
2.89
The Committee has some sympathy for arguments about the strictness of the nine day timeframe for lodging an application for review in the AAT, noting that some persons in prison may struggle to meet this deadline through no fault of their own.
2.90
The Committee is not making any formal recommendations around these timeframes but suggests that if the legislation is reviewed in future, consideration may be given to providing the AAT with the ability to extend the application deadline in exceptional situations. However, the timeframe should never be allowed to exceed 28 days.
Departmental (revocation) reviews
2.91
The Committee notes that according to the Department’s submission, in March 2018 a significant proportion of applications for revocation of mandatory cancellation lodged in 2016/17 remained unresolved by the Department of Home Affairs at that time. This suggests that more than
30 per cent of applications had been ongoing for over nine months.
2.92
Many of these persons were residing in immigration detention, which comes at a significant cost to the tax payer; around $346,660 a year, according to the Refugee Council of Australia. The Committee would prefer to see revocation decisions made more expeditiously, and suggests that three months to a maximum of six months may be a more appropriate timeframe.
2.93
Faster decisions on revocation applications would benefit applicants and their families, as well as reducing costs associated with detention.
2.94
The Department of Home Affairs may need to devote more resources to the task of reviewing mandatory cancellations, including appointing more delegates, to reduce these delays and make the system more efficient.
2.95
The Committee stops short of recommending a legislated timeframe for making these decisions, but is recommending the Department of Home Affairs review its workforce structure and processes associated with delegate decisions on criminal cancellations and revocations.
2.96
A review should focus on reforms that reduce the time taken to process revocation applications, ideally so that a majority are processed within three to six months. None should take longer than a year.
2.97
The Committee recommends that the Department of Home Affairs conduct a review into the resourcing and processes applied to delegate decision-making on revocation of mandatory cancellations with a focus on:
ensuring that the time taken to make these decisions is reduced to three months, with six months seen as the acceptable maximum; and
assessing if there is a need for increased staffing to meet these timeframes.
AAT’s approach to evidence
2.98
The Committee reviewed evidence which criticised the AAT’s approach to collecting and considering evidence in visa cancellation cases. The Police Federation was concerned that the AAT are failing to take into account the full range of information available about an offender when making a decision. Mr Mark Burgess said:
So one would have thought that at least somebody might have said to the department of corrections, to the police department, and, potentially, to the victims: ‘This matter is being appealed; it is going to the AAT. Is there information that you think would help in this process in the AAT making an informed decision?’
2.99
Mr Burgess argued that the AAT should seek input to its reviews from relevant state government agencies, corrections facilities, etc, which may be able to offer insight into the character of the offender.
2.100
Victorian Victims of Crime Commissioner, Mr Greg Davies, expressed a similar view, saying:
What I’m suggesting is that, if a person is making the type of application we’re dealing with, there should be an absolutely complete list of prior convictions of that person.
2.101
The AAT, however, stated that it considers evidence brought to it by the applicant and the Department and doesn’t seek evidence ‘on its own motion’. Further, the AAT confirmed that it does not have ‘a resourced investigative capacity’.
2.102
The Police Federation submitted that one way to ensure ‘closer alignment of communication between state authorities’ and the AAT would be through the proposed National Criminal Intelligence System.
Committee comment
2.103
The Committee understands the frustration of witnesses who expressed concerns about the AAT’s failure to collect additional evidence regarding the history and criminality of review applicants.
2.104
Decision-makers in the AAT must take responsibility for ensuring they are informed about the character of these non-citizens, and ideally should consider a wide variety of evidence, including information from parole boards, state police and corrections facilities.
2.105
However, the Committee also understands that the AAT does not receive funding or resources to conduct investigations and is generally relying on the Department to produce this evidence.
2.106
That said, the Committee believes there could be some merit in the idea of bodies such as state police and corrections being informed that a review is occurring, providing the opportunity to submit relevant evidence. Chapter 3 explores this issue further and makes recommendations.
Access to legal assistance
2.107
The AAT’s review process is designed to be straightforward, allowing applicants to proceed without legal representation. The AAT confirmed that in criminal cancellation cases, about 50 per cent of applicants are represented by either a lawyer or a migration agent, and around 40 per cent are self-represented.
2.108
Asked if it makes a difference to the case, the AAT remarked:
Obviously for the member who is conducting the hearing it can sometimes be of great assistance if the person has a legal representative, but it is not an unusual situation in the tribunal for people to be self-represented. Members, generally, are very accustomed to managing those sorts of processes.
2.109
However, Legal Aid NSW was concerned that an applicant representing themselves often ‘prepares their case inadequately’, fails to focus on ‘the most relevant factors’, and fails to obtain relevant reports from experts that would help their case.
2.110
Oz Kiwi was also concerned about access to legal assistance, saying it is contacted regularly by families seeking help with their cases:
Having gone through court cases and legal appeal processes, they are financially strapped and they are unable to navigate the legal quagmire they now find themselves in. After expensive court cases and legal appeals, they can’t afford lawyers, and New Zealanders don’t qualify for legal aid generally.
2.111
The Refugee Council of Australia revealed that some organisations do provide limited free visa cancellation advice, but no legal aid commission is funded to offer this assistance, the work is complicated and time-consuming, and it feels the sector is ‘in a critical demand situation’.
2.112
Victoria Legal Aid provided some data around the demand for assistance and advice in relation to visa cancellation, saying the demand has increased exponentially since the 2014 changes to the regime. In the 2017-18 financial year, Victoria Legal Aid provided:
Legal advice on character cancellation matters to 258 people.
Legal information on character cancellation matters to 165 people.
Issues around visa cancellation or refusal on character grounds make up around 35% of all ‘one off’ advice services provided by VLA.
The Prisoner Legal Help line has received 105 calls regarding visa cancellation.
[The] general Legal Help telephone service took 218 calls in relation to visa cancellation.
2.113
Victoria Legal Aid confirmed that it does not receive funding to provide any ongoing assistance to people seeking revocation of visa cancellations or merits review in the AAT. Legal Aid NSW presented similar evidence.
2.114
A number of witnesses working in the legal sector recommended the provision of legal representation at the early departmental review stage. The Kingsford Legal Centre said this could save significant resources by ensuring the ‘preferable’ decision is made by the Department in the first instance, minimising appeals to the AAT and making the system more efficient.
2.115
Ms Er-kai Wang went as far as to say that without any legal advice or representation, applicants are not able to receive a fair hearing at the AAT, making ‘merits review a meaningless and wasteful exercise’ for unrepresented persons.
Committee comment
2.116
The Committee appreciates that legal representation assists non-citizens who are dealing with character cancellations to navigate the system in a more effective and efficient way.
2.117
The Committee also appreciates the frustrations of legal assistance organisations who may be providing help to people in section 501 and 116 cases without receiving government funding for this work.
2.118
However, it is the Committee’s view that the merits review process in the AAT is designed to be accessible and navigable for unrepresented applicants.
2.119
Evidence that 40 per cent of applicants currently represent themselves and that AAT members are accustomed to dealing with self-represented applicants suggests the current arrangements are not causing significant problems or inefficiencies in the system.
2.120
Considering the strain already placed on legal aid budgets, the Committee does not support the suggestion that non-citizens affected by character cancellations should have guaranteed access to publically-funded legal assistance.
Detention and non-refoulement
2.121
A large number of submissions focussed on consequences of the visa cancellations regime on the human rights of asylum seekers and individuals on protection visas, looking at mandatory detention and the issue of non-refoulement. This report addresses these issues primarily within the terms of reference; specifically in terms of how they relate to the efficiency of the visa cancellation and review system.
Immigration detention
2.122
Witnesses argued that keeping people in immigration detention for the duration of the revocation process is inefficient and expensive. The Refugee Council’s Dr Joyce Chia submitted that it costs $346,660 per year to detain someone in Australia’s immigration detention system, and that many of those detained could be safely housed in the community at much lower cost.
2.123
Dr Chia was also concerned about the increasing numbers of refugees and asylum seekers detained as a result of visa cancellations, saying:
Prior to the introduction of mandatory cancellation, fewer than five refugees a year had their visas cancelled under section 501. Since then, those numbers have skyrocketed. In the last full financial year that I have figures for, 2016-17, 126 people on protection or refugee visas had them cancelled under section 501. On 28 February 2018, this year, there were 166 refugees—all people seeking asylum—in detention because their visas had been cancelled.
2.124
A person whose visa is cancelled ‘must be detained’, explained Dr Chia, until they can either be deported, or have their visa reinstated:
So, when we talk of visa cancellations, what we are really talking about is indefinite detention. For refugees, detention is not only indefinite but extremely prolonged. The 124 refugees whose visas had been cancelled in detention on 28 February this year had, on average, spent an extraordinary 416 days in detention.
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It was Dr Chia’s view that Australia’s policy of mandatory detention means Australia detains people for longer than ‘other countries’, where:
…what would happen is you would cancel a visa, but you would only detain them when you were ready to deport them, whereas we do it for the whole time.
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The Refugee Council argued that refugees should not be subject to visa cancellation because they ‘cannot be returned to their home country without breaching Australia’s international legal obligations’. It recommended the Migration Act be amended ‘to prohibit the cancellation of visas of those owed non-refoulement obligations’.
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The Council also pointed out that refugees are at a high risk of automatic visa cancellation because ‘any offence committed while in immigration detention, no matter how trivial, results in mandatory cancellation of their visa’.
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Dr Louise Boon-Kuo expressed concern that, under the section 116 provisions, persons who have been charged with a crime but not convicted, can have their visa cancelled and be detained even if a court has seen fit to bail them, assessing that they are not a risk to the community. She said:
I would argue that the predictive risk-assessment exercise has been developed and refined in the criminal jurisdiction over the years, and that's the appropriate arena for that decision as to whether a person should be at liberty while awaiting a decision on a criminal charge.
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Mr Michael Chalmers was also concerned that persons detained after section 116 cancellations are not being released quickly if they are found not guilty. He said: ‘It typically takes three to eight months before that person is released after being found not guilty or no conviction entered.’
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The Human Rights Commission recommended that:
…where a bridging visa has been cancelled under s 116 of the Migration Act on the basis of criminal charges, the withdrawal of these charges or a non-adverse judicial outcome should automatically trigger a review of the decision to cancel the visa.
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The Visa Cancellations Working Group recommended that the law be amended to prevent cancellation of visas ‘on the basis of charges alone’ to prevent people being kept in detention long after their charges are dropped or they have been found not-guilty.
Non-refoulement
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Witnesses were concerned about impact of cancellations on refugees and asylum seekers on protection visas. The Commission said:
If that protection visa is taken away, the Migration Act requires them to go into immigration detention. If they can’t be taken out of immigration detention because they don’t have a visa, and they can’t be sent back to their home country because they’ve got a real risk of persecution there, then the only outcome really is indefinite detention. That’s the cohort of people we’re particularly concerned about.
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The Department of Home Affairs was asked if its delegates take Australia’s non-refoulement obligations into consideration when making decisions under section 501. Its representatives confirmed that the Department takes non-refoulement into account under Ministerial Direction 65. However, it does cancel the visas of people who are holding refugee and humanitarian visas, ‘where there are grounds of risk to the community’.
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The Department then considers non-refoulement again if it reaches ‘the point of potential removal’, because: ‘We certainly can’t breach our non-refoulement obligations in our removal actions’.
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Witnesses argued that this has led to indefinite detention for a number of refugees, especially in the context of a marked increase in the cancellation of protection and refugee visas in recent years, with less than five a year from 2010 to 2013, growing to 126 in 2016-17.
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Mr Donnelly argued that it was inefficient to cancel the visas of persons who cannot be deported, because ‘it just delays the inevitable. They continue to be in detention, and more money is spent whilst they’re in detention, considering at a later stage a protection visa application’.
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Non-refoulement obligations were once a primary consideration of visa cancellation. A number of witnesses wanted to see non-refoulement obligations elevated to being a primary consideration in the future.
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The Visa Cancellations Working Group submitted:
There is no question in the working group’s view that non-refoulement must be a primary consideration and cannot be dealt with, as it often is now, by a reference to the opportunity to apply for protection at a later stage.
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The Asylum Seeker Resource Centre urged the Committee to entirely exclude people to whom Australia owes protection obligations from the visa cancellations regime.
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Non-refoulement is also a secondary consideration in Ministerial Direction 63 which relates to the cancellation of bridging visas under section 116.
Committee comment
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The Committee understands that detaining non-citizens who have had their visas cancelled on character grounds is expensive to tax payers and places stress on individuals and families.
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However, the protection of the Australian community is paramount, so until a decision can be made that a person does not pose a threat to the community, it is right that the person remain in detention.
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Time periods in detention should be minimised for the sake of persons detained, as well as to keep costs down. The Committee’s first recommendation aims to reduce time spent in detention waiting for departmental decisions on revocation.
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The issue of non-refoulement is a complex one. The Committee has some sympathy for the plight of those whose visas have been cancelled who cannot be returned to their home country because of a genuine fear of persecution.
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However, refugees cannot be immune from the consequences of any criminal conduct. Those seeking Australia’s protection must abide by Australia’s laws. If they choose to engage in criminal activity, the consequence may be the loss of their visa.
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Ministerial Direction 65 already lists the issue of non-refoulement as a consideration, and the Committee is satisfied that decision-makers at the Department and at the AAT take the issue into account and grasp the serious implications of cancelling a humanitarian or protection visa.
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The Committee does not support the suggestion that non-refoulement should be a primary consideration. The right to safety of one individual does not outweigh the right of the Australian community to be protected from individuals who pose an ongoing risk.