Report of Government Members
March 2004
Summary of Government Members’ Position
The Government members of the Committee are pleased to
present their report on Ministerial Discretion in Migration Matters.
The Government members of the Committee note that despite
the defamatory, scurrilous, unfounded and unsubstantiated allegations aired by
the ALP in the Parliament and repeated in their report, they were unable to
gather or produce a single shred of evidence to indicate that the former
Minister for Immigration and Multicultural and Indigenous Affairs acted
inappropriately or unlawfully in the exercise of his discretion on any
occasion.
The Government members of the Committee therefore dismiss
unconditionally all allegations of impropriety against the former Minister for
Immigration and Multicultural and Indigenous Affairs, the Hon Philip
Ruddock MP.
These continued attacks by the ALP members are nothing more
than a desperate attempt to besmirch and impugn the character of Australia’s
most respected, successful and longest serving immigration Minister for their
perceived political gain. This approach strongly influenced the attitude of ALP
members to the Inquiry and the pursuit of witnesses. As a result they failed to
take advantage of the opportunity presented to make an intelligent and
dispassionate assessment of the exercise of ministerial discretion.
The Government members of the Committee note that despite
the ALP’s assertion that ministerial intervention powers are “open to real or
perceived distortion, political influence and corruption at the highest levels
of public office” because “the Minister’s discretionary powers are
non-compellable, non-reviewable and non-delegable”; the report of the ALP members of this committee make no recommendations
that address these perceived problems. However, if the full raft of
recommendations is implemented, the ALP will have introduced a further 3 or 4
levels of review, ensuring that the decision-making process will be extended by
several years and deny the government of the day a capacity to manage the
number of people entering and remaining in Australia.
Government members
also note that the ministerial powers were incorporated in legislation in their
current form by a Labor Government in 1989. ALP members of the Committee have
failed to observe that these powers were just as “open to real or perceived
distortion, political influence and corruption at the highest levels of public
office” under Labor immigration ministers as might be the case today.
The Government members on the Committee were concerned to
ensure that if shortcomings exist in the current processes, these were
identified and recommendations made to limit unintended consequences. The
Government members examined dispassionately the large number of submissions and
have made sensible recommendations to increase the efficiency of the use of
ministerial discretion under the Migration Act.
Structure of the report
Chapter 1
Reviews the political issues and controversy which preceded
the Inquiry and examines several independent aspects of the conduct of the
Inquiry.
Chapter 2
Sets out the policy context of the ministerial discretion
powers and deals with the unsubstantiated allegations aired in Parliament.
Chapter 3
Gives the statistical overview of the patterns of use of the
powers. This demonstrates clearly that there is no correlation whatsoever with
the number of positive decisions made and the relationship of the sponsor to
the visa applicant or the Minister.
Chapter 4
Looks at the operation of the powers over recent years with
a focus on the transparency of current procedures.
Chapter 1
Background to the inquiry
This Inquiry had its origins in unsubstantiated and
scurrilous allegations aired in parliament by the ALP about the use of the
ministerial discretion under the Migration
Act 1958. In the course of the parliamentary debate the ALP also aired
concerns about the transparency and accountability surrounding the use of such
powers. The Senate established this Select Committee to investigate these and
broader issues concerning the exercise of discretionary powers.
Conduct of the inquiry
The Committee advertised the Inquiry on 2 July 2003 in The Australian newspaper and on the
Senate website and wrote directly to a range of relevant organisations and
experts.
The Shadow Minister for Population and Immigration, Ms
Nicola Roxon MP, also wrote directly to relevant organisations and experts
exhorting them to contact her directly for “confidential” discussions.
Furthermore, the Shadow Minister for Citizenship and Multicultural
Affairs, Mr Laurie Ferguson MP, placed an advertisement in the Arabic
Newspaper, An-Nahar on 22 July 2003,
also exhorting individuals to contact him directly to pass on “confidential”
information.
The Government members of the Committee condemn this direct
intervention as contemptuous of the Committee process. If Ms Roxon
or Mr Ferguson
received any representations or response to their extraordinary interventions,
none were passed on to the Committee. A copy of Ms Roxon’s correspondence is
attached (Attachment 1), as is a translation of the advertisement placed by Mr
Ferguson (Attachment 2).
Despite this direct appeal to interested parties and
widespread media reporting of the parliamentary debate, the Committee received no submissions or representations
from individuals that provided a shred of evidence to substantiate the
scurrilous allegations made by the Labor Party under Parliamentary
Privilege.
Provision of personal documents
The ALP members of the Committee were dismissive of concerns
expressed by the current Minister for Immigration and Multicultural and
Indigenous Affairs, Senator Vanstone, of privacy considerations in the
provision of certain information requested by the Committee, accusing her of
“hampering” the conduct of the Inquiry, being uncooperative, and of “executive
obstruction”. These are serious charges.
However, it is the view of the Government members that the
explanation provided by Senator Vanstone and her department regarding the
limits of what could be provided were entirely reasonable in the circumstances.
Senator Vanstone and her Department devoted considerable
resources to appearing at three public hearings of the Committee and providing
a very significant amount of statistical information and explanatory material,
including responses to more than 140 questions put to the Department.
In relation to both DLO notebooks and the files requested, Senator
Vanstone invited the Committee to indicate
any specific matters that could be clarified by reference to the information contained
within them. She made clear that if there were such specific matters she would
facilitate the checking of the files or notebooks for that purpose. No specific
matters were identified by the Committee.
The fact is that the Committee received no information that
indicated any issue that could be clarified by accessing the files of dozens of
individuals. The claim by ALP members of the Committee that lack of access to
information meant that the Committee was “unable to resolve the suspicion and
doubt” aroused by allegations is not supported by any indication of specific
facts that the Committee might have expected to check on the files.
The claim by ALP Committee members that Senator Vanstone was
reluctant “to expose the decision making process to close scrutiny” is an
unwarranted slur, made in contradiction of the Minister’s clear offer to assist
the Committee by facilitating the checking of notebooks or any information held
by DIMIA in relation to any specific matters.
The ALP members’ report notes that the Committee sought
specific information in relation to two individuals and records that DIMIA,
following legal advice on privacy issues, wrote to the individuals concerned
seeking their permission to accede to this request. There is no further explanation
of the significance of the information sought or why the ALP members of the
Committee did not consider it necessary to wait for a response from the
individuals before finalising their report.
The Government members of the Committee note, however, that
the ALP members conclude that “the evidence before the Committee was sufficient
to enable it to formulate conclusions on the exercise and administration of the
discretionary power. The conclusions are reflected in the recommendations”.
Chapter 2
Answering the allegations
This Inquiry was established following unsubstantiated and
scurrilous allegations aired in parliament concerning the exercise of
ministerial discretion powers by the then Minister for Immigration and
Multicultural and Indigenous Affairs, the Hon Philip
Ruddock MP.
One of the major motivating reasons for the establishment of
the Committee was the anticipation of evidence being presented to the Committee
to substantiate four specific allegations. The four specific allegations raised
were:
(a)
The ALP alleged that a Mr
Bedweny Hbeiche
was granted permanent residence as a result of the Minister’s intervention
after a $3,000 donation was made to the Liberal Party at a fund-raising dinner
by Mr Karim
Kisrwani acting on Mr
Hbeieche’s behalf.
The Committee
received no evidence whatsoever directly or inferentially to substantiate this
allegation.
(b)
The ALP raised a number of allegations about Mr
Kisrwani, including that he received money for migration advice although he was
not a registered migration agent; that he received $220,000 from Mr Dante Tan
to use his influence with the Minister to have his visa restored; that he
received $1,500 from Mr Roumanos Boutros Al Draibi to represent him in a
migration matter and that he received $2,000 a month from Mr Jim Foo for an “immigration consultancy”
The Committee
received no evidence whatsoever to substantiate these allegations, but notes
that investigations into some of these matters are continuing.
(c)
The ALP alleged that a donation of $100,000 made to the
Liberal Party resulted in the Minister approving visas for a large number of
religious workers to the donor.
The Committee notes
that Mr Ruddock was not involved in the decision making process of the visas granted,
nor did he use his ministerial discretion to grant visas. The Government
members of the Committee totally reject the unsubstantiated inference by the
ALP that the donation somehow influenced the decision by departmental officers
(who knew nothing of the donation) to grant the visas, or that somehow the
Minister (who knew nothing of the donation at the time) influenced the outcome
of the visa applications.
(d)
The ALP alleged in Parliament (under the cover of
parliamentary privilege) that Mr Tan
had his visa reinstated after he made a $10,000 donation to the Minister’s
re-election campaign at a fund-raising dinner organised by Mr
Kisrwani.
The Committee notes
that Mr Ruddock had no occasion whatsoever to exercise ministerial discretion
in the re-instatement of Mr Tan’s visa.
The Committee was given no evidence to substantiate the ALP’s claim that
the donation had any bearing whatsoever on the outcome of his visa application.
The Government members of the Committee also note that no
submission or comment from persons before the Inquiry implied, suggested or
proved that the Minister acted in any way improperly in the use of his
discretion.
In fact many witnesses testified to the probity, honesty,
hard work and integrity of the former Minister.
For example, Mr George Lombard, a migration lawyer said:
In my personal view I have the highest regard for the
Minister. I believe he is a man of
probity. I believe that he tries very
hard to reach the correct decision....people take advantage of his probity by
holding themselves out. You could
imagine that a future Minister may not have the same degree of probity as the
current Minister.[484]
Ms Jennifer Burn, a senior lecturer at the University of
Technology in Sydney, said to the Committee:
I worked as a solicitor in the Immigration Advice and Rights
Centre for about seven years and I made submissions to the Minister in that
capacity. I did not have any experience
of corruption associated with that process.[485]
Dr Mary Crock had this to say about the former Minister, Mr
Ruddock:
He had an extraordinary capacity for work...I took up a submission
– it was 60 pages long – and went to see the Minister. He spoke to me for 45
minutes and took me to page 58 in the attachments to the submission. He had an extraordinary capacity for
attention to detail. I would never
accuse him of being slack in his ministry. He was extraordinary; just amazing.[486]
I would have to say that, over the years, Minister Ruddock has
struck me as a very upright man, a very principled man.[487]
Mr Grant Mitchell from the Hotham Mission of Uniting
Justice, Australia, had this to say:
I do not have any examples of misuse of the Minister’s
discretion. We have raised cases where we believe the Minister should have
intervened. We do not have any cases where we feel that the Minister has
misused his powers.[488]
Mr Michael Clothier, a persistent critic of the Minister,
said:
In 20 years I have not been aware of anyone paying money to a
Minister, or even any rumour that someone has paid money to a Minister.[489]
Ms Marion Le, a well-known refugee advocate and registered
migration agent who is also a consistent critic of government policy in this
area, said to the Committee:
I do not know whether it was cash for visas, but I found it
extraordinary that Philip Ruddock would face
that kind of accusation. I have never
seen any evidence of that in all the years I have known Philip.[490]
Mr David Manne, Board Member of the Refugee Council of
Australia and coordinator of the Refugee and Immigration Legal Centre,
emphasised:
I have no evidence whatsoever of the fact that that power has
been used corruptly or that it has been abused in any way.[491]
Dr Graham Thom, the Refugee Coordinator of Amnesty
International, Australia, replying to a question by the Chair asking his
opinion on whether there is a perception of bias or favouritism in the use of
the discretionary powers said:
We certainly have not experienced that.[492]
Chapter 3
Statistical overview of the use of discretionary powers
The ALP has also made much of the fact that the former
Minister Ruddock intervened more frequently that his predecessor ministers.
However, when the statistical evidence is examined, this assertion is not borne
out.
Over his seven years as Minister, Mr Ruddock intervened at
an average of 3.61% of the total cases presented to him each year. By comparison,
Minister Hand intervened in 5.8% of cases and Minister Bolkus in 3.53% of
cases.
However, this analysis ignores the actions of Ministers Hand
and Bolkus who decided to “intervene” in the creation of specific visa classes
to grant visas to large numbers of people, rather than exercise their public
interest powers.
The use of special onshore visa categories by previous
governments significantly reduced the numbers of requests for the exercise of
the Minister’s public interest powers. In 1990 Minister Hand introduced a special
visa category which allowed 6,900 people to remain in Australia.
In 1993 Minister Bolkus announced the creation of three special visa categories
to accommodate over 42,700 people from the People's Republic of China, the
former Yugoslavia, Sri Lanka and other places.
(In 1997 Minister Ruddock resolved the status of some 7,200
people who were led to believe they would receive permanent residence by the
previous Labor government. This group of people could not access ministerial
discretion, and without the creation of a specific visa, would have remained in
limbo.)
Apart from the 1997 initiative, the current Government has
chosen to operate within the framework of the migration legislation and to
utilise discretionary powers on a case by case basis. In this context, the
government is resolving the current East Timorese caseload, involving some 990
persons whose protection visa refusals have been affirmed by the RRT through
the use of the Minister’s public interest intervention powers.
Rate of intervention by nationality
The ALP has also suggested that the Minister intervened more
frequently in the case of Lebanese people than any other applicant group and
this was further evidence of improper conduct. Again, this is not borne out by
the evidence. The Minister intervened more often for persons from Fiji than any
other nationality. People from Lebanon were the second highest. Even so, the
Minister intervened on average around 400 times each year of the six years
where figures are available. Fijians and Lebanese accounted for around 15% of
the total.
Several witnesses testified to the fact that they saw no
evidence of certain ethnic groups being treated preferentially by the Minister
in the exercise of his discretion. When
asked by Senator Wong whether
some ethnic groups were treated more favourably by the Minister, Mr
Cosentino, a caseworker from the South
Brisbane Immigration and Community Legal Service said:
No...we do not have any experience of some being treated more
favourably than others.[493]
Rate of intervention by political parties
The ALP has also suggested that membership of the Liberal
Party is a route to a successful application for intervention. Again, however,
the data does not support that allegation.
For example, between November 1999 and August 2003, nine of
the top ten parliamentarians who approached the Minister to intervene on behalf
of their constituents and others, were members of the ALP and the Australian
Democrats. The average success rate of these Opposition parliamentarians was
25%, ranging from 15% to 33%.
Rate of intervention by relationship with Minister
The Committee could not find any evidence of a correlation
between the rate of success and whether or not the sponsor of a visa applicant,
or the visa applicant themselves, had access to the Minister, his office, other
parliamentarians, or community leaders. In fact, the data suggest very strongly
that it is the merit of the case that determines the outcome, not the
relationship between the sponsor or agent, or applicant, and the Minister.
Most of the agents and lawyers appearing before the
Committee claimed that they took cases strictly on their merits and attributed
their success to the strength of the cases they put forward. Many enjoy levels
of success of over 50 percent.
Mr David Mawson, Executive Officer of the Migration Agents
Registration Authority, made this observation:
Through the complaints process, we see a range of approaches,
which would be from a minimalist approach to a very thorough and full approach.
The more thorough the approaches and understanding of what clients’ needs are,
the more successful they tend to be.[494]
When asked by Senator Santoro if he was aware of any
evidence that substantiated allegations that some people enjoyed high rates of
success because of ministerial preference, Mr Mawson said:
No, not at all.[495]
Ms Biok, a legal officer from the NSW Legal Aid Commission
has at various times enjoyed success rates of 100%, but generally around 40%.
When asked by Senator Wong if she was one of those people who rang the Minister’s
office a couple of times a week, she replied:
We are certainly not.[496]
Ms Judith Burgess of the Immigration Advice and Rights
Centre has said, in relation to a question of favouritism to known communities
and bias towards some communities:
I think there is a perception that if you know the Minister, or
you know someone who knows the Minister, you will have a better chance. I do not know that that is necessarily the
case, because we do not know the Minister personally and we have a very high
success rate (around 90%).[497]
We do not have any experience of bias. In terms of the
applications we make, they proceed through the ministerial intervention unit,
with only a small amount of contact on occasion with the Minister’s office.[498]
In our experience in general the Minister acts fairly and
predictably...[499]
Mr David
Prince, an immigration law specialist with
the law firm Christopher
Levingston and Associates, was asked if he
thought that certain persons' relationship with the Minister and/or the
department gave them privileged access. He replied:
Once you are at the Minister’s desk, the influence of the third
parties, in my experience, is far more limited.[500]
Senator Santoro asked Mr Paul Fergus, an immigration lawyer
with a high success rate with the Minister, if he had ever met the former
Minister and received a reply in the negative. The following exchange ensued:
Senator Santoro: Therefore your high success rate
could in no way be claimed to have been influenced by a familiarity or personal
contact, or any other liaison, with the former Minister.
Mr Fergus: I do not
believe so. It is fairly obvious.[501]
Conclusion
As noted earlier in this report, the ALP failed to make any
recommendations that will substantially altered the exercise of ministerial
discretion. The only conclusion from this is that the power is operating as
Parliament intended it should and that the allegations against former Minister
Ruddock are completely unfounded and scurrilous.
Much of the ALP’s allegations rest on the assumption that Mr
Kisrwani had a disproportionately high rate
of success in his requests for the Minister to intervene. However, the evidence
shows this is not the case. Mr Kisrwani’s success rate is equivalent to that of
Senator Bartlett - 31% to Mr Kisrwani and 33% to Senator Bartlett. Indeed,
evidence was given where some community leaders and agents consistently had
success rates of well over 50%, with one claiming 90% and in another case a
100% success rate was claimed.
The Committee noted that high success rates did not
correlate with the closeness of the relationship with the Minister, with those
claiming particularly high rates not having access to the Minister or his
office.
Chapter 4
Operation of discretionary powers and accountability
The Commonwealth Ombudsman expressed the following view
about access to parliamentarians and the use of ministerial discretionary
powers.
One great strength of our political system is that members of
parliament – Minister included – are members of the community and move broadly
through the community. They listen to what people have to say and their
knowledge of the world – their sagacity and their wisdom – and of deserving
cases is triggered by what people have to say...It is a strength of the system
that a Minister, for example, can go to a particular ethnic community function
or to some other function and people can speak to him or her and attract his or
her attention. But that inevitably leads to the allegation that the Minister
has favoured the community that he or she has just visited as against a
community that did not issue an invitation to the Minister. One can see that
there is an element of partiality or favouritism but, as I said, on balance I
think we regard that as one of the strengths of our system. It is one of the
points of access to official and political power that, overall, we would prefer
to preserve.[502]
Most of the submissions to the Inquiry recognised the
importance of maintaining the capacity for the Minister to exercise discretion
as an instrument of last resort.
Mr Cosentino from the South Brisbane Immigration Service:
We certainly do not want to remove the discretion.... we are very
strong about not having the ministerial discretion removed.[503]
Mr Paul Fergus had this to say:
...the discretion should be kept as free as possible. Provisions
in the Act or the Regulations constraining the Minister would run the risk of
creating another source of rigidity and hardship for individuals.[504]
Mr Michel Gabaudan, Regional Representative, United Nations
High Commissioner for Refugees, said:
We note that the use of ministerial discretion can act, and has
in the past acted, as a safeguard for added levels of review to ensure that
Australia meets its non-refoulement obligations under the 1951 convention and,
in that light, ministerial discretion should be preserved and commended.[505]
Finally, Mr David Prince of the law firm, Christopher
Levingston and Associates, stated:
It is our staunch view that there is an incredible necessity to
maintain these types of discretions. In the absence of these types of discretions,
what you have is a system without any sort of compassion, decency or integrity
to deal with anything other than very simple cases. That is just a historical
consequence of our fairly rigid immigration system. The more inflexible the
system, the greater the import of these discretions.[506]
Some submissions expressed concerns about the operation of
ministerial discretion. The following three were the most common:
(a)
The discretionary power may only be exercised by the
Minister after merits review. Many witnesses believe that the Minister should
be able to intervene after a negative primary decision;
(b)
The powers are non-compellable, non-reviewable and
non-delegable. Some expressed the view that the power ought to be subject to an
external review mechanism; and
(c)
The tabling statement setting out the decision and the
decision substituted by the Minister does not set out sufficient detail about
why the Minister decided to intervene.
Many of the criticisms arise out of a failure to understand
the nature of ministerial discretion and the fact that ministerial discretion
is not part of the visa application process.
The discretionary powers that are available to the minister for
immigration have their genesis in the desire of successive governments to be
able to manage the humanitarian and migration programs. The discretionary
powers are an important tool in effectively managing these programs.
The key elements of the migration framework were put in
place in 1989 and arose, in part, from concern that external influences, such
as court decisions, were causing the government to lose control of its
migration programs. The Labor government of the day was concerned that
uncontrolled migration would lead to a loss of community support for migration
and cause tensions within the Australian community.
The view at the time, and one that is still held today, is
that it is the sovereign right of the elected government to decide who meets
the criteria to come to the country and remain.
The clear and comprehensive statutory criteria that are set
out in the Migration Regulations in relation to each visa class allow a
structured and transparent assessment process to be undertaken. Where an
applicant meets the criteria and comes within the visa cap, a visa is granted.
Where an applicant fails to meet the criteria, they are provided with reasons
for the decision. This enables the person to determine whether they may not
have provided sufficient evidence to support their application, and to assess
the prospects of being successful in the merits review process.
Merits review includes a primary review by the Department. If
a negative finding is made, an applicant may seek review at the Migration
Review Tribunal or the Refugee Review Tribunal. If the applicant is still
unsuccessful, there is the possibility of further review by the Magistrates
Court, the Federal Court, the full bench of the Federal Court, the High Court
and the full bench of the High Court.
The process as described above constitutes the extent of the
formal visa application process.
However, in recognition of the rigidity of the regulations
and criteria, successive governments have supported the inclusion of a capacity
for the Minister for immigration to exercise his or her personal discretion to
make a more favourable decision, but only after the application has been
through a review process.
The point is, of course, that as the discretion is supposed
to account for unforseen circumstances, there is no point in the Minister
reviewing the merits of the original application against rigid and published
criteria. As Mr Prince, of the law firm Christopher
Levingston and Associates, has argued, that when a request for intervention
comes before the Minister:
The Minister forms the view, perhaps not unreasonably, that
these issues have been ventilated before the appropriate authorities and why should
he waste his time on it.[507]
The decision to intervene, or not, is a matter for the
Minister and his judgement against what he considers to be the public interest.
As such, not only can the decision not be reviewable, but it is not intended to
be. The non-compellable nature of the power was carefully framed to ensure
that, in addition, an unsuccessful applicant cannot use requests for
intervention merely to prolong their stay or disrupt their removal from
Australia; nor can a court order that the Minister embark on a consideration of
the applicant’s case under these discretionary powers.
Calls for the Minister to table fuller reasons for his
decision and for that decision to be reviewable, fail to recognise the
essential quality of the discretionary power. This power is not a continuation
of the application process; it is not the so-called “end of the line”. The end
of the line was at the final review process – either the tribunal or the court.
All applicants have had ample opportunity to put their case in at least three
administrative and judicial review authorities.
If critics are so concerned about these aspects of
ministerial discretion, they must logically call for the total abolition of the
Minister’s discretionary powers. However, most critics that hold these views
are also those who believe ministerial discretion should not be abolished, but
indeed, in some cases, should be expanded.
Other critics infer that there is something out of the ordinary
if the Minister exercises his discretion to grant particular types of visas,
for example, family class visas. Again, this criticism fails to recognise that
the schema enables the Minister (and the government) to provide responsive visa
solutions in exceptional circumstances. The discretionary powers do not
stipulate that the Minister must provide a particular type of visa.
Conclusion
Australia’s rigorous approach to the selection of migrants
harnesses the positive effects of human mobility while undercutting the illegal
trade in people. The continuing success
of our immigration programs depends on the support of the Australian public.
This support in turn depends on the fairness, integrity and rigour of our migration
programs. If the distinction between a well-managed and generous Migration
Program and informal and unregulated movements breaks down, public confidence
in the Migration Program, as well as our very successful policy of
multiculturalism, would be undermined.
The Minister’s discretionary powers must be seen in this
context. They allow the Minister to exercise his or her judgement as to whether
to overturn an outcome flowing from the Migration Act which may have lead to an
unintended harsh result.
Without ministerial discretionary powers, considerable
pressure would be placed on the rigorous migration selection criteria we have
in place and we could be forced to take a less rigorous approach by lowering Australia’s
standards in the selection of migrants.
Chapter 5
The Committee’s Recommendations
The Position of Government Members
Recommendation 1
The Committee recommends that the Minister require DIMIA to
establish procedures for collecting and publishing statistical data on the use
and operation of the ministerial discretion powers.
The Government members
support recommendation one in the above formulation. The Government members do
not support prescribing to the Department what data is collected. The
collection of specific data must be balanced against demands on resources and
the capacity of data systems and the usefulness of that data.
Recommendation 2
The Committee recommends that DIMIA establish a procedure of
routine auditing of its internal submission process.
The Government members
support recommendation two in the above formulation.
Recommendation 3
The Committee recommends that the Commonwealth Ombudsman
carry out periodic audits of the consistency of DIMIA’s application of the
ministerial and administrative guidelines on the operation of discretionary
powers.
The Government members
support recommendation three in the above formulation.
Recommendation 4
The Committee recommends that the MRT and the RRT
standardise their procedures for identifying and notifying DIMIA of cases
raising humanitarian and compassionate considerations.
The Government members
support recommendation four.
Recommendation 5
The Committee recommends that the MRT and the RRT keep
statistical records of cases referred to DIMIA, the grounds for referral and
the outcome of such referrals.
The Government members
do not support recommendation five. This requirement would expand the statutory
role of the MRT and RRT to examine the merits of failed applications against
published criteria. It is not the role of the MRT or the RRT to examine
applications against any other criteria and make recommendations to the
Minister on the basis of that examination. Additionally, this would duplicate
other recommendations and involves significant resources to implement for no
particular outcome.
Recommendation 6
The Committee recommends that DIMIA create an information
sheet in appropriate languages that clearly explains the ministerial guidelines
and the application process for ministerial intervention. The Committee
recommends that the new information sheet be accompanied by an application
form, also to be created by the department.
Both the information sheet and application form are to be readily and
publicly accessible on the department’s website and in hard copy.
The Government members
do not support this recommendation. This recommendation would effectively end
the capacity of the Minister to intervene at all. Ministerial intervention is
not part of the visa application process, however by codifying and formalising
what is a “request” to intervene, the ALP would bring the powers into the
application process and hence into the ambit of the courts, rendering it
inoperable as intended.
Recommendation 7
The Committee recommends that coverage of the Immigration
Application Advice and Assistance Scheme (IAAAS) be extended to enable applicants
for ministerial intervention to obtain an appropriate level of professional
legal assistance. Extending the coverage of IAAAS should assist in reducing the
level of risk of exploitation of applicants by unscrupulous migration agents.
The Government members
do not support this recommendation. Providing legal assistance to failed
applicants has been limited to assistance with their first appeal only. This
ensures that failed applicants are not encouraged to abuse the process by
accessing all appeal avenues with the intention of delaying their removal from
Australia.
Recommendation 8
The Committee recommends:
-
That DIMIA inform persons when a representation
for the exercise of ministerial discretion is made on their behalf by a third
party;
-
That each applicant for ministerial intervention
be shown a draft of any submission to be placed before the Minister to enable
the applicant to comment on the information contained in the submission. This
consultative process should be carried out within a tight but reasonable time
frame to avoid any unnecessary delay; and
-
That each applicant be given a copy of reasons
for an unfavourable decision on a first request for ministerial intervention.
The Government members
do not support this recommendation as it again brings ministerial discretion
into the formal visa application process where all applicants already have an
opportunity to ventilate their arguments.
It would also bring the process into an appellable process further delaying
removal from Australia. It would also require the introduction of statutory
timeframes, again extending the entire process and introducing a further level
of judicial or administrative (or both) review.
Recommendation 9
The Committee recommends that DIMIA take steps to formalise
the application process for ministerial intervention to overcome problems
surrounding the current process for granting bridging visas, namely:
-
Processing times that can take up to several
weeks;
-
Applicants not knowing when they should apply
for a bridging visa; and
-
Applicants being ineligible for a bridging visa
because an unsolicited letter or inadequate case was presented to the Minister,
often without the applicant’s knowledge.
The Government members
do not support this recommendation.
Recommendation 10
The Committee recommends that all applicants for the
exercise of ministerial discretion should be eligible for visas that attract
work rights, up to the time of the outcome of their first application. Children
who are seeking asylum should have access to social security and health care
throughout the processing period of any applications for ministerial discretion
and all asylum seekers should have access to health care at least until the
outcome of a first application for ministerial discretion.
The Government members
of the committee do not support this recommendation as it would provide an
incentive for failed asylum seekers to further access the system in order to delay their removal from Australia.
Recommendation 11
The Committee recommends that DIMIA consider legislative
changes that would enable ministerial intervention to be available in certain
circumstances where there is a compelling reason why a merits review tribunal
decision was not obtained.
The Government members
do not support this recommendation.
Recommendation 12
The Committee recommends that the Migration Act be amended
so that, except in cases under Section 417 that raise concerns about personal
safety of applicants and their families, all statements tabled in Parliament
under sections 351 and 417 identify any representatives and organisations that
made a request on behalf of an applicant in a given case.
The Government members
do not support this recommendation.
Recommendation 13
The Committee recommends that DIMIA and MARA disseminate
information sheets aimed at vulnerable communities that explain the regulations
on charging fees for migration advice, the restrictions that apply to
non-registered agents and the complaints process. The information should also explain that the
complaints process does not expose the complainant to the risk that their
applications will be adversely considered as a result of that complaint.
The Government members
support this recommendation.
Recommendation 14
The Committee recommends that the Migration Agents Taskforce
should expand its operations to target unscrupulous operators that are
exploiting clients through charging exorbitant fees, giving misleading advice
and other forms of misconduct.
The Government members
support this recommendation.
Recommendation 15
The Committee recommends that the Minister ensure all
statements tabled in parliament under sections 351 and 417 provide sufficient
information to allow Parliament to scrutinise the use of the powers. This
should include the Minister’s reasons for believing intervention in a given
case to be in the public interest as required by the legislation. Statements should also include an indication
of how the case was brought to the Minister’s attention – by an approach from
the visa applicant, by a representative on behalf of the visa applicant, on the
suggestion of a tribunal, at the initiative of an officer of the department or
in some other way.
The Government members
do not support this recommendation. The current process is adequate for
parliamentary scrutiny. It is not always clear if a particular reason or
approach by an individual is in itself a reason for intervention. Providing
such a detailed reasoning lends itself to being abused by subsequent
applicants.
Recommendation 16
The Committee recommends that the Migration Act be amended
so that the Minister is required to include the name of persons granted
ministerial intervention under section 351 in the statement tabled in
parliament unless there is a compelling reason to protect the identity of that
person.
The Government members
do not support this recommendation for privacy considerations. It establishes
an unsustainable precedent which would require all Ministers to publish the
names of all people and organisations who have approached or lobbied them for a
particular outcome.
Recommendation 17
The Committee recommends that the Minister should make
changes to the migration regulations where possible to enable circumstances
commonly dealt with using the ministerial intervention power to be dealt with
using the normal migration application and decision making process. This would
ensure that ministerial intervention is used (mainly) as a last resort for
exception or unforseen cases.
The Government members
do not support this recommendation. Ministerial intervention powers as
currently formulated are designed to do just as the recommendation proposes. To
amend the regulations to accommodate the cases that are currently dealt with
would lead to a blow out in the migration numbers.
Recommendation 18
The Committee recommends that DIMIA establish a process for
recording the reasons for the Immigration Minister’s use of the section 417
intervention powers. This process should be consistent with Recommendation 15
about the level of information to be provided in the Minister’s tabling
statements to parliament. This new method of recording should enable the
department to identify cases where Australia’s international obligations under
the CAT, CROC and ICCPR were the grounds for the Minister exercising the
discretionary power.
Government members do
not support this recommendation. The existing mechanisms are sufficient for the
purposes for which ministerial intervention was originally designed. Again,
such a formalising of the process renders it appellable and places an onerous administrative
function on the department.
Recommendation 19
The Committee recommends that the Government give
consideration to adopting a system of complementary protection to ensure that Australia
no longer relies solely on the Minister’s discretionary powers to meet its
non-refoulement obligations under the CAT, CROC and ICCPAR.
Government members do
not support this recommendation. Australia already makes a substantial
contribution to providing resettlement to 12,000 people annually through its
refugee and humanitarian program.
Australia does not, nor has it ever, refouled a refugee. The current
process meets Australia’s international obligations and establishing a form of complementary
protection would again blow-out Australia’s migration program and give less
discretion to help genuine refugees languishing in camps around the world.
Recommendation 20
The Committee recommends that the ministerial intervention
powers are retained as the ultimate safety net in the migration system,
providing that steps are taken to improve the transparency and accountability
of their operation in line with the findings and other recommendations of this
report.
The Government members
support the first clause of this recommendation but do not accept that the
existing transparency and accountability of the system are inadequate.
Recommendation 21
The Committee recommends that the government consider
establishing an independent committee to make recommendations to the Minister
on all cases where ministerial intervention is considered. This recommendation
should be non-binding, but a Minister should indicate in the statement tabled
in parliament whether a decision by the committee is in line with the
committee’s recommendation.
The Government members
do not support this recommendation. Any decision of the proposed committee
would introduce another level of appeal into an already lengthy appeals process
and would add another cumbersome bureaucratic layer with all the perceived
concerns about accountability and transparency identified by the committee in
the existing intervention process.
Senator Santo Santoro (Deputy Chair)
Senator David Johnston
Senator Gary
Humphries