Chapter 3 - The Minister's decision and Ministerial responses
Territorial asylum/subclass 800 Visa
3.1
In his initial request, Mr
Chen was seeking political asylum which DFAT
treated as a request for territorial asylum.
3.2
The Procedures Advice Manual 3 – Schedule 2 –
Territorial Asylum, states that:
...territorial asylum is commonly known as 'political asylum' and
is granted by instrument by a Minister (usually the Foreign Minister). It
should not be confused with refugee status. Persons who have been recognised as
refugees have not been granted territorial asylum. Most requests for asylum
have been found to be, more accurately, requests for refugee status. Therefore,
if a person enquires about 'asylum', officers should seek to establish whether
the enquiry is, in fact, about refugee status and, if so, explain the
procedures for applying for a Protection Visa. Anyone who insists on pursuing a
request for (territorial) asylum should be advised to contact the nearest
office of DFAT.[225]
3.3
The Manual further notes:
There is no approved application form for this visa. Rather,
Schedule 1 (item 1131(3) (a)) requires application for this visa to 'be made...in
a manner approved by the Minister'. Officers may expect further procedures to
be notified as need arises ie if a person is granted territorial asylum (by
DFAT). Any purported visa 800 application is incapable of being a valid
application for the purposes of s46 of the Act unless territorial asylum has
been granted. Schedule 1 item 1131 (3) (aa) requires that 'when the application
is made, there is lodged...documentation that ...evidences the grant...to the
applicant of territorial asylum.[226]
3.4
Regarding Subclass 800 – Territorial Asylum, the
Migration Regulations notes one of the criteria to be satisfied at the time of
application is that 'the applicant must have been granted territorial asylum in
Australia by
instrument of a Minister'.[227] Mr
Hughes from DIMIA clarified that under the
Migration Act 1958 'you cannot make an application for a territorial asylum
visa until you have an instrument of grant of asylum issued by the Minister for
Foreign Affairs. So there is a precondition for any application under the
Migration Act. If there is no instrument issued then you cannot get to the
stage of making an application'. He added that 'it is generally accepted that
the Minister for Foreign Affairs would be the minister exercising that power'.[228]
3.5
In Mr Chen's
case the Minister decided in the national interest not to issue the instrument
for territorial asylum which would have led to an application being
considered. However it should be
acknowledged that at no time was he declared an unlawful non-citizen, was
subsequently afforded a protection visa and will no doubt be eligible for
Australian citizenship in the future.
3.6
Mr Larsen,
Legal Adviser, DFAT, advised the committee that 'the decision as to whether or
not to grant territorial asylum is at the discretion, in our case of the
Minister for Foreign Affairs. It is an executive power and it is an executive
discretion' and is non-reviewable.[229]
Regarding guidelines, Mr Larsen
further advised there are no guidelines for the making of this decision, 'the
minister would have various considerations in mind when he makes such a
decision. No doubt, the national interest is a critical one of those, but there
are no express criteria which limit how the minister exercises that
discretion'.[230]
Concerns regarding refusal of territorial asylum visa
3.7
Dr Neumann
told the committee that traditionally, government have let their decisions
about asylum claims be influenced by a combination of four factors: national
interest; legal obligations; humanitarian considerations and public opinion.[231] He explained that when cabinet
agreed on Australia's first asylum seeker policy a few months before the
Melbourne Olympics, it decided three agencies would be involved in decisions
about requests for asylum: ASIO would advise the government whether the person
was a security risk; immigration would advise whether the person was a suitable
immigrant and external affairs was left to weigh up humanitarian considerations
and the national interest. He explained that 'Once Australia's response to
asylum seekers became guided in a large part by international refugee law and
its interpretation in Australian legislation, the immigration department became
the principle agency responsible for decisions about asylum requests. But
foreign affairs apparently retained the right to grant territorial asylum in
sensitive cases'.[232]
3.8
The following concerns regarding the response of the
Foreign Minister were voiced to the committee:
3.9
Mr Chen
told the committee that at the 31 May meeting, he asked why political asylum
had been denied and:
The reason I was given by the senior protocol officer was that
the decision had been made and the Australian government could deny my application
for political asylum for reasons of foreign affairs.[233]
3.10
Ms Morton told the committee 'The minister has said
that he believed that it would not be appropriate to give a territorial asylum
certificate in that case and that it was appropriate that, if Mr Chen wished to
stay in Australia, he apply for a visa and that it be considered under the
Migration Act in the normal way.'[234]
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