Appendix 7 - Recommendations of the Senate Select Committee on Ministerial Discretion in migration matters
[This report was tabled in March 2004.[1222]
No Government response to date.]
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,
including (but not limited to):
- the number of cases referred to the minister for consideration in
schedule and submission format respectively;
- reasons for the exercise of the discretion, as required by the
legislation;
- numbers of cases on humanitarian grounds (for example, those
meeting Australia's international obligations) and on
non-humanitarian grounds (for example, close ties);
- the nationality of those granted intervention;
- numbers of requests received; and
- the number of cases referred by the merits review tribunals and
the outcome of these referrals. (para 3.54)
Recommendation 2
The Committee recommends that
DIMIA establish a procedure of routine auditing of its internal submission
process. The audits should address areas previously identified by the
Commonwealth Ombudsman, namely identifying ways to improve departmental
processes for handling cases, and ensuring that claims are processed in a
timely way and case officers consider all of the available material relevant to
each case. (para 4.67)
Recommendation 3
The Committee recommends that the
Commonwealth Ombudsman carry out an annual audit of the consistency of DIMIA's
application of the ministerial and administrative guidelines on the operation
of the minister's discretionary powers. The audit should include a sample of
cases to determine whether the criteria set out in the guidelines are being
applied, and to identify any inconsistency in the approach of different case
officers. (para 4.70)
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. (para
4.84)
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. (para 4.85)
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. (para 5.9)
Recommendation 7
The Committee recommends that
coverage of the Immigration Application Advice and Assistance (IAAAS) scheme 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. (para. 5.12)
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. (para. 5.18)
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 (para 5.35)
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. (para 5.44)
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. (para 5.53)
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. (para 6.71)
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 risk. (para 6.74)
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. (para 6.75)
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. (para 7.53)
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. (para 7.54)
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 exceptional or unforseen cases. (para 7.71)
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. (para 8.29)
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 ICCPR. (para 8.82)
Recommendation 20
The Committee recommends that the
ministerial intervention powers are retained as the ultimate safety net in the
migration system, provided that steps are taken to improve the transparency and
accountability of their operation in line with the findings and other
recommendations of this report. (para 9.73)
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. (para 9.77)
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