Chapter 5 - Operation of the powers – problems encountered by applicants
In this chapter the Committee discusses the operation
of ministerial discretion from the perspective of those who request that the
minister exercise the discretionary power in their favour. The chapter thus
addresses in part the third of the inquiry's terms of reference, on the
operation of the discretionary powers.
As discussed elsewhere in this report, it is widely
recognised that ministerial discretion can provide a safety net for those
non-citizens who cannot meet the strict requirements of the migration laws for
permission to remain in Australia.
DIMIA gave evidence that the ministerial discretion process allows cases that
do not fit neatly within the framework to 'be resolved at minimum cost and
inconvenience for the applicant'.
Nevertheless, the migration system in general and
ministerial discretion in particular is administered in ways that may result in
applicants being exploited and suffering hardship. Many of these difficulties
stem from a lack of readily available information about ministerial discretion
and its processes.
Availability of information
As discussed in Chapter 2, information relating to
ministerial discretion is publicly available, but it is not widely disseminated.
The lack of readily-available information and many applicants' poor English
language skills can lead to their exploitation by unscrupulous operators.
Exploitation of non-citizens is discussed later in this chapter.
The Legal and Constitutional Affairs References
Committee in its 2000 report identified a lack of readily available information
as an issue in the operation of ministerial discretion. In its report that
Committee recommended that an information sheet should be produced to explain
the provisions of section 417 and the accompanying Ministerial Guidelines. The Government's response to the
recommendation was that:
Ministerial Guidelines on s417 ... are publicly available. DIMIA
Fact Sheet 41 explains the Minister's discretionary powers and further publication
of such information is not considered necessary. The powers are non-compellable
and, in any event, every case where the RRT finds that a person does not
require refugee protection is considered by DIMIA against the intervention
guidelines as a matter of course. Cases meeting the guidelines are referred to
the Minister without any action being required by the applicant.
As noted in Chapter 2, the DIMIA fact sheet that
contains information about ministerial discretion (now Fact Sheet 61) includes only
two sentences on the subject and gives no advice on how to make a request or on
how requests are processed. DIMIA
clearly sees no need to make information more widely available. DIMIA submitted
The Minister's powers are non-compellable and therefore, there
is no obligation on the Department to make this information publicly available.
However, given the level of requests made to the Minister seeking the exercise
of his public interest intervention powers, the information is clearly well
Some witnesses have a different view from the
government about whether information should be more widely disseminated. A
migration agency, George Lombard Consultancy, for instance, submitted that:
... it is extraordinary that there is no widely disseminated source
of information about access to the Minister’s discretionary powers and how the
Minister might be assisted to consider a matter. In that a large number of Ministerial
intervention requests are made each year, it would seem that a failure to
advise of the existence of the discretion does not inhibit the use made of it,
and instead makes potential applicants reliant on agents. It would clearly be better to formalise both
the information available about the discretion and the public aspects of the
processing. There is probably the need
for an information form and an application form.
As noted in the quote above, applicants will tend to
rely on agents or others because they do not have sufficient information to
make a request themselves. People in the community who wish to make or support
a request should have reasonable access to the ministerial guidelines. DIMIA
and the minister would also benefit if all requests were to address the
guidelines. The Committee considers that in the interests of equity and
efficiency information should be more easily accessible than at present.
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.
As stated by George Lombard Consultancy, applicants are
encouraged to rely on agents because information is not widely disseminated.
Applicants are also disadvantaged by the unavailability of legal aid. Ms Balgi
informed the Committee that Legal Aid Commission of NSW (LAC) was unable to
take on many immigration cases either under the Immigration Application Advice
and Assistance (IAAAS) contract or otherwise and were generally not able to
help people with requests for ministerial intervention. She stated that:
This lack of legal aid availability for these kinds of
applications can create problems, especially for people who are financially
disadvantaged. They may try to put their case themselves, and they may not have
the knowledge of the Australian migration system or the personal language
skills to really put their case properly to the minister. As a result, they may
have a very significant outcome such as the cancellation of a visa; they may
fall through the safety net of the minister's substitution powers under the
act. Given the importance of these outcomes, we are of the opinion that legal
aid should be more generally available for people who are seeking to have the
minister exercise his discretion in their favour.
Applicants' dependence on others may, as mentioned
earlier, lead to exploitation. The LAC commented that the unavailability of
legal aid may exacerbate this possibility. The LAC stated that:
It must also be remembered that there is no assistance for
ministerial requests provided through the IAAAS Scheme or through community
workers at migrant resource centres. As
no general advice is available from credible legal information services,
vulnerable applicants are often driven to approach migration agents who give
them unrealistic expectations as well as charging large fees for applications
to the Minister.
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
Reasons not given to unsuccessful applicants
Many witnesses were concerned that the minister does
not give reasons for a refusal to exercise the discretionary powers. Summaries of cases prepared by the
MIUs in which the minister chose not to intervene may be accessed by applicants
under the Freedom of Information laws, but, as was noted by the Immigration
Advice and Rights Centre (IARC), most applicants are not able to do this
because they have been required to leave Australia. The IARC submitted that
this information should be provided to applicants at the time when the minister
does not exercise the public interest power in their favour. Uniting Justice Australia
submitted that the section 417 power should:
Require that the applicant be informed, in writing, of the
decision made and the reason for intervening, or not intervening, with
reference to the relevant sections of the guidelines.
The LAC also suggested that in some cases it may be
appropriate for the minister to provide someone for whom the minister has
refused to exercise the discretionary powers with a copy of the statement of
the reasons as to why that is the case.
Migration agents and solicitors naturally want to know
the reasons why cases they have prepared have not attracted the minister’s discretionary
powers so that in the future they may advise their clients appropriately and prepare
cases that are more likely to succeed. Some witnesses stated that they were
concerned that unsuccessful applicants may be distressed because they are not
given reasons why they have failed, or may feel that they have not had a fair
hearing. Because they do not know the reasons why the minister has not
intervened on their behalf, some applicants are prepared to risk staying in Australia
illegally in order to appeal again to the minister. A corollary to this argument was
stated as follows:
It is important that asylum seekers have all the information as
to why they have been refused. Allowing asylum seekers to feel that their
entire case has been heard and that a definitive decision looking at all our [Australia's]
obligations has been made will assist and facilitate a more humane process of
The Commonwealth Ombudsman suggested a procedure that
would provide applicants with a much better indication of why their cases may
have been unsuccessful and would make the entire process much more transparent.
He submitted that:
As a matter of principle it would be desirable that each
applicant be shown a draft of any submission to be placed before the Minister,
to enable the applicant to comment on the comprehensiveness of the submission
and to obviate later disputation. There is admittedly a risk that this could
prolong the process of consideration in some cases unless a tight time frame
was established, but equally there is a greater risk of delay arising
subsequent to an ill-prepared submission.
The Committee considers that the minister should give
applicants the reasons for not exercising the discretionary power at the time
they are informed that the minister will not intervene on their first request.
This would be fair to the applicants and may satisfy them that their cases have
been properly considered. If any significant claim had been overlooked, the
giving of reasons would allow the applicant to draw attention to that in any
subsequent request. Giving reasons for not intervening would also enable the
parliament and the community to ascertain how the powers were being used.
The Committee recommends:
DIMIA inform persons when a representation for the exercise of ministerial
discretion is made on their behalf by a third party;
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
applicant be given a copy of reasons for an unfavourable decision on a first
request for ministerial intervention.
Exploitation of applicants
As mentioned earlier in this Chapter the secretiveness
surrounding the exercise of ministerial discretion may result in the
exploitation of applicants. Asylum seekers are particularly vulnerable to the
predations of unscrupulous operators. Mr
Mitchell of the Hotham Mission, a church
agency that provides services to asylum seekers, said their research revealed
Asylum seekers who approach the minister or indeed the RRT are
in a very vulnerable situation. They are very vulnerable to unscrupulous
migration agents who promise all kinds of things, including having connections
with the minister, give the impression that they can get them work rights or a
visa, charge them a lot and are of course unable to wield any influence. It is
a common scenario. 
a legal officer with the Legal Aid Commission of NSW, informed the Committee
that some non-citizens in Australia
have paid exorbitant amounts of money to agents for visa applications such as the
‘woman at risk’ visa that cannot succeed because they are offshore
Biok stated that she had heard of an agent
asking for $45,000 in cash, and that asking $5,000 to $10,000 is not unheard
of. Another migration lawyer, Mr
Prince, said that ‘figures of $20,000 are regularly bandied around by my
clients’. Although some of these
amounts represent the total bill for work spanning initial visa applications
through review appeals and requests for intervention, all witnesses agreed that
fees of this magnitude appear excessive and unreasonable. It is, however,
likely that the danger of exploitation is greater at the earlier stages of the
migration process than at the level of ministerial discretion. Mr
Bitel, a migration lawyer, stated that:
I think that probably the level of abuse at the ministerial
discretion stage is a lot lower than in the other stages because, of course, no
work permits are given. Frequently amongst applicants whose sole aim is to
extend their stay and obtain permission to work and obtain some money, the
ministerial discretion stage is not that significant. 
According to Mr Bitel
most of these operators are not registered migration agents. They are people
who operate outside the system and prey on the vulnerability, ignorance and
desperation of non-citizens.
Applicants with limited English skills and little
knowledge of their rights are generally disadvantaged in the complex field of
migration and vulnerable to exploitation. However, people from communities or
countries where dealing with bureaucracies and politicians involves middlemen
and money changing hands are particularly susceptible to operators boasting of
close ties to, or influence with, departmental officials or the minister. Ms
Balgi of the Legal Aid Commission of NSW
...some people, because they come from cultures where personal
links speak for all, are particularly vulnerable to advocates who put out that
they have personal links to the minister.
The risk of exploitation that non-citizens face is not
only symptomatic of their general vulnerability but also reveals some of the
problems peculiar to the area of ministerial discretion. The opaque nature of
the ministerial discretionary system itself compounds this disadvantage and
leaves people open to operators peddling misleading information, whether this
is about the chances of success or their supposed personal connections with the
minister. Mr Lombard
stated that it is ‘largely the absence of any explanatory material and any
openness in the system that means that clients are very much prey to people who
are not honest agents’.
The Committee returns to this problem in the next
chapter which discusses the role of advocates and in particular the behaviour
of non-registered agents towards groups that are vulnerable.
Visas and work rights
Persons who have had their application for a visa
refused by DIMIA cannot legitimately request that the minister exercise the
discretionary powers unless the DIMIA decision has been upheld by an appeals
tribunal. On making a first request of the Minister the applicant becomes
eligible for a bridging visa while the request is being considered. Persons
making second or third requests (there is no limit to the number of requests a
person may make) are only eligible for a bridging visa where the request is
referred by DIMIA to the minister. 
Witnesses informed the Committee that on occasion
persons lose their eligibility for a bridging visa because a letter is written
to the minister, sometimes without their knowledge, which is treated as a
request, or because an inadequate case is presented by an advocate. Christopher
Levingston and Associates (CLA) submitted
In our experience it is often the case that well-intentioned
members of the public often write to the minister seeking assistance in
relation to a non-citizen. It is our experience that these ‘requests’ commonly
consist of a short letter containing only general information about the
applicant and rarely represent a fulsome [sic] presentation of the
compassionate features of the non-citizen’s case.
According to CLA, the result for the applicants is that
they become eligible for a bridging visa when the ‘request’ is received, but
these at best sketchy requests are almost bound to fail to attract the minister’s
intervention. If an unsolicited letter is written or an inadequate case is
made, when a more thorough case is later presented to the minister by a
competent advocate, it is treated as a second request. The applicant is
therefore not eligible for a visa during the time that this request is being
processed, unless and until it is considered by the minister personally. During
the processing period the applicant will be illegally at large in the community
or will be detained.
CLA submitted that this undesirable situation could be
addressed as follows:
Non-citizens should not be considered to have made a request to
the Minister until the Minister has received a signed conformation from the
non-citizen indicating that:
They wish to make the appeal to the Minister;
They understand that subsequent appeals
to the Minister will not necessarily result in the grant of bridging
Only registered migration agents are permitted by law to receive
any money or benefit from them for the preparation or assistance of appeals to
The Committee considers that the above suggestions have
merit. If implemented, they would not only address an unfortunate and no doubt
unintended consequence of the current regulations, but would also assist in
ensuring that people are not exploited for financial gain.
Delays in obtaining bridging visas
Another associated issue was raised by CLA to the
effect that a bridging visa may only be granted once a request is forwarded to
a Ministerial Intervention Unit (MIU) and is being assessed by one of its
officers against the guidelines. CLA informed the Committee that:
There are two significant problems with this process. First, it
is our experience that this process can take several weeks, during which time
the non-citizen remains in a form of unlawful limbo and is unable to legalise
their status in Australia,
even though they have an appeal with the Minister. Second, the non-citizen has
no way of knowing when their case is actually being considered by the MIU and
consequentially does not know exactly when they should apply for a
This situation is especially difficult for non-citizens in
detention where any application for a bridging visa must be refused unless at
the time their application is lodged the MIU is assessing the request against
the Minister’s Guidelines. Consequently, the non-citizen potentially has to
remain in detention for a further 30 days before being able to make a fresh
application for a bridging visa and release from detention. 
Although the Committee received information from DIMIA
about the time taken to process requests, that information did not specifically
cover the time taken from receipt of a request by the Minister’s office till
initial assessment by a MIU. In view of the list of priorities set down in
DIMIA’s departmental administrative guidelines (MSI 387), it seems likely that
in many cases a period of weeks may indeed elapse. The Guidelines assign a high
priority to the processing of certain categories of requests, by minors and
people in detention, for example, but the ‘remainder of cases’ are dealt with
‘in order of receipt’. DIMIA
informed the Committee that cases with lower priority have longer processing
times. It is reasonable to
conclude that non-citizens in the community may have to wait for some time for
their request to receive attention in a MIU.
CLA suggested that the problem could be overcome if a
bridging visa were granted automatically upon the minister receiving written
confirmation from the non-citizen that he or she wished to seek the minister’s
personal intervention, as discussed in the preceding section.
The Committee has reservations about this suggestion.
First, a ‘request’ may be made where the minister cannot exercise the
discretionary power, for example, where a visa application is being assessed by
DIMIA or is before a tribunal. Second, a request may be received that the minister
may consider is ‘inappropriate to consider’, because, for example, migration-related
litigation has not been finalised. Requests need to be first assessed to
determine that they are both within the legislative power and that they are
appropriate before being further assessed against the Guidelines. There would
therefore be potential for abuse of the system if the making of a ‘request’
brought with it automatic eligibility for a bridging visa.
The Committee notes, however, that the instructions to
departmental staff for applying the guidelines accords a high level of priority
to requests where the minister has no power to exercise discretion and to
requests which are 'inappropriate to consider'. The Committee considers therefore
that there would be limited potential for abuse of a system of automatically
granting a bridging visa.
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
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.
There may be work rights attached to the Bridging E
Visas where there is financial hardship, but only where the case has been
referred to the minister for consideration.
In effect, however, persons on bridging visas usually do not have work rights,
or any income at all. A study of 111 cases involving 203 asylum seekers that
was undertaken by the Asylum Seekers Project (ASP) of the Hotham Mission from
February 2001 to February 2003 found that:
Almost 95% of all interviewed asylum seekers currently have no
right to work. This includes all asylum seekers who failed to lodge their
Protection Visa (PV) Application within 45 days (60% of all plane arrivals) and
those who have appealed after receiving a negative decision from the RRT or
Courts. No asylum seeker interviewed has access to ASAS benefits.
Without work rights and concomitant tax file numbers,
asylum seekers do not have access to Medicare.
The ASP study found that ineligible asylum seekers live
in abject poverty, with virtually no mainstream supports available to them, and
The impact of these issues, coupled with the long waiting period
and the prolonged passivity of this group, included high levels of
homelessness, anxiety, depression, mental health issues and a general reduction
in overall health and nutrition. High levels of family breakdown, including
separation and divorce, were also noted. The impact of the Bridging Visa
category was felt particularly by single mothers and young asylum seekers.
Of the 111 cases studied, 37 had had a final outcome.
Of the remainder still in the determination stage, 14 had made a request for ministerial
intervention and an additional 4 had not been successful in attracting the
discretionary power. Other cases were before the RRT or the courts.
charitable institutions are apparently having difficulty meeting the needs of these
ineligible asylum seekers. The ASP alone was spending $30,000 a month on
emergency relief and housing in early 2003. One witness stated that the
‘welfare sector’ would be hit by large numbers of people who were on temporary
protection visas, who had been refused permanent visas, and who were appealing
to the minister.
That bridging visas do not come with work rights is not
an oversight or an unintended consequence of the Migration Regulations. When
explaining why changes had been made to the Regulations, DIMIA stated that the
government had been concerned about the ‘attractiveness of using repeat
requests to obtain, for example, work rights and prolonged stay ... There are
very narrow provisions of work rights and extension of lawful stay’.
The Committee is concerned about the plight of people,
particularly families and minors, who are suffering because of the lack of any
income. It notes the recommendations made by the ASP that:
Asylum seeker children should have access to the
Asylum Seeker Assistance Scheme (ASAS) throughout the Protection Visa and 417
stages; from lodging to final outcome and including asylum seekers released
from detention on bridging visas.
Asylum seekers should have Medicare coverage
throughout Protection Visa and 417 stages; from lodging to final outcome and
including asylum seekers released from detention on bridging visas.
At least one family member should have access to
work rights and including asylum seekers released from detention on bridging
visas, with the 45 day rule being abandoned.
The Committee sees merit in these suggestions. It
considers that visas with work rights should be available for applicants during
the appeal periods, up to the time of an outcome of a first request for
ministerial intervention. Applicants making subsequent requests should not be
eligible for the grant of a bridging visa that attracts work rights. Children
who are seeking asylum should have access to ASAS or some other social security
support throughout the period of any requests for ministerial intervention, and
all asylum seekers should have access to health care up to the time of an
outcome of a first request.
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.
Tribunal determination as prerequisite for intervention
As described earlier, the minister may exercise the discretionary
powers only after a review tribunal has affirmed the department's decision to
refuse a visa. Some witnesses commented on problems that relate to the need to
appeal to a tribunal, particularly in cases where there is no chance of success
before the tribunal, but where there is a reasonable chance that the minister
These cases usually involve persons who narrowly fail to
be recognised as refugees, those who can invoke discrimination under the CAT or
ICCPR, or those with close family ties. Mr Fergus, a solicitor and migration
agent, provided information about two cases in which the Minister had
intervened which suggest that the ministerial discretions are too rigidly tied
to the pre-condition of a review decision by the relevant tribunal. In both cases, the MRT and the RRT
had no choice other than to uphold DIMIA’s decision to refuse visas, although
such was the nature of the cases that there was a strong likelihood that the
Minister would intervene. Mr Fergus
concluded that the Minister should have been able to act at an earlier stage of
the process and suggested that:
In other instances, the Minister has discretions to allow
certain actions in ‘compassionate and compelling circumstances’. I submit that
these two cases and others like them show that a similar discretion ought to be
available to the Minister under sections 351 and 417 of the Act. I do not
envisage that a ‘compassionate and compelling circumstances’ discretion would
be exercised often but it would be available to save the unnecessary costs and
waste of resources caused by cases such as these.
Another migration lawyer submitted that the requirement
for a prior ruling by a review authority could lead to otherwise deserving
cases being denied the opportunity to request ministerial intervention. He
described the case of a visa applicant who had not received the letter of
refusal of his application for a visa from DIMIA and was therefore not able to
lodge an appeal with the RRT within the statutory time. Not being able to appeal
to the RRT, the non-citizen could not request the Minister to exercise the
discretionary power. The Legal Aid
Commission of NSW described the case of a Korean woman who was forced to leave Australia
with her Australian citizen child because of the inflexible time limits for appeals
and the requirement that the Minister can only grant a visa where a case has
been decided by a tribunal.
The Commonwealth Ombudsman informed the Committee that
from the perspective of his office the main difficulty with sections 351 and
417 lies in the fact that the power cannot be exercised unless there was an
earlier and less-favourable decision of a tribunal. According to the
Ombudsman's office the main problem arising from this provision is that a
person who through mistake, mishap, experience or impecuniosity has not lodged
an effective appeal to a tribunal within the appeal period also loses the
opportunity to benefit from ministerial intervention. Another problem that
arises from the government's interpretation of sections 351 and 417 is that
persons who have successfully appealed to the courts must pursue proceedings to
finality in a tribunal before they can make a request of the minister.
The Ombudsman stated that consideration should be given
to defining some additional or alternative mechanism for activating the
minister's powers. He suggested that:
An alternative mechanism, which would preserve the intent of ss
351 and 417, would be to confer a discretion upon the Department to refer a
case to the Minister if, notwithstanding that the person did not lodge an
appeal with a tribunal, there were "exceptional circumstances" that
warranted the referral. Another alternative would be to provide that a matter
could be referred to the Minister upon the recommendation of the Ombudsman.
The Ombudsman noted that the suggestion that he could
recommend matters to the minister would have significant resource implications
for his office.
DIMIA considers that there could be undesirable
consequences if the discretionary power could be exercised in the absence of a
review tribunal decision. The department submitted that:
The creation of an intervention power from the primary decision
point may create potentially duplicating and delaying processes and could
create potential for misuse of the process by those wishing to prolong their
stay in Australia and frustrate their removal from Australia.
The Committee considers that non-citizens should be
given every chance to make their case at the primary decision-maker and review
stages. It appreciates that the system is designed to ensure that only the most
difficult cases should be available for the exercise of ministerial discretion.
The cases described in the evidence show, however, that the system can fail to
deliver a reasonable outcome in every case. The Committee will recommend
therefore that the exercise of ministerial discretion be extended to cover
those cases in which applicants through no fault of their own are not able to appeal
to a tribunal
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 Committee is concerned that the current processes
involved in the exercise of the ministerial intervention powers may result in
hardship for the very people they are supposed to assist. The lack of readily
available information about the intervention powers and opaque process allow
unscrupulous people to exploit applicants who desperately desire to stay in Australia.
While appreciating that the system needs to have safeguards to prevent abuse of
process to prolong unlawful stay in Australia,
the Committee notes the hardship caused by lack of work rights for people with
strong humanitarian or compassionate claims that could not be considered in the
primary visa application or review processes.