Chapter 4 - Ministerial discretion

Chapter 4 - Ministerial discretion

4.1       This chapter explores the concept of ministerial discretion and its implementation, the nature of a non-compellable and non-reviewable decision and forced refoulement, when an applicant is unable to gain refugee status under the Refugee Convention. It outlines the statutory framework and application processes and canvasses the concerns raised in respect of that process to date.

Statutory framework

4.2       The Migration Act provides the Minister with various discretionary powers, including substitution powers and powers to vary processes, order release from detention and cancel visas on character grounds.

4.3       Key provisions include sections 351, 417 and 501J of the Migration Act which generally authorise the Minister to substitute a decision of the Migration Review Tribunal (MRT) the Refugee Review Tribunal (RRT) or the Administrative Appeals Tribunal (AAT) respectively with a decision that is more favourable to the applicant, where the Minister believes it is in the public interest to do so. Although the Act does not specify that the 'more favourable decision' must result in the grant of a visa to the applicant, it is understood that the discretionary power is most commonly used in that way.[390]

4.4       Another key provision is section 48B of the Migration Act which confers a personal non-compellable power on the Minister to allow a person refused a protection visa to lodge a valid fresh protection visa application.[391]

4.5       In June 2005, as part of a reform package to secure 'greater flexibility, fairness and timeliness' in immigration matters, the Government moved to amend the Migration Act to confer the following discretionary 'public interest' powers on the Minister:

4.6       Much of the evidence to this (and earlier) parliamentary inquiries has concerned the discretionary powers under sections 351 and 417 of the Act, which are therefore the focus for this chapter. Section 351 powers may be exercised following a decision of the MRT which considers all cases except protection visa cases, whereas section 417 powers may be exercised following a decision of the RRT which considers only protection visa cases.

4.7       The discretionary powers under sections 351 and 417 have the following features:

How the powers are exercised

4.8       Matters that may require the exercise of the above powers are brought to the Minister's attention in one of two ways:

Reliance on Ministerial Guidelines

4.9       Processing of requests and returned cases is undertaken by DIMIA officials in accordance with Ministerial Guidelines. The Minister has issued a set of Guidelines on the identification of 'unique or exceptional' circumstances where the Minister may consider it appropriate to use the discretionary powers. The Guidelines provide that unique or exceptional circumstances may be shown by:

4.10      The Guidelines and associated instructions also specifically list cases which would be 'inappropriate for the Minister to consider'. These include cases in which:

4.11      The Guidelines are intended to provide guidance to DIMIA officials involved in processing requests and returned cases. They are not criteria for intervention nor intended to be exhaustive. Nor are they binding on the Minister. Each case is to be considered in isolation and on its merits. Previous decisions of the Minister have no impact on the assessment of each case against the Guidelines.[396]

Processing and assessment by DIMIA

4.12      Requests for Ministerial intervention are allocated to one of four Ministerial Intervention Units (MIU) located in Sydney, Melbourne, Perth and Canberra for processing. Requests concerning persons in immigration detention are referred to DIMIA's national offices.

4.13      Requests for Ministerial intervention are not passed to the original departmental decision maker or case officer for review and comment. However, it is understood that the referred or return review authority decisions are usually sent back to the original DIMIA decision maker for analysis. This is to provide feedback to the decision-maker. The officers are tasked to automatically refer any case which they assess meets the Minister’s guidelines for referral to the relevant MIU.[397]

4.14      The role of the MIU includes conducting a check on whether the Minister is able to exercise his public interest powers. As mentioned above, the Minister’s public interest power is not available unless a review authority decision has been made. It is also not available if there is no longer a review authority decision in existence for which the Minister can substitute a more favourable decision.[398] That is, where:

4.15      If the request is within power and that does not fall within the 'inappropriate to consider' category, the MIU is then required to make an assessment against the Guidelines.[400]

4.16      In the event that a request or case is assessed as falling within the Guidelines, DIMIA will prepare a submission to the Minister to enable her to decide whether she wishes to consider the case. The submission will outline the reasons why DIMIA considers the matter falls within the Guidelines and provide a statement of the matter, its background and any relevant issues. It is understood that DIMIA refrains from making a recommendation in the submission to the Minister on whether or not the discretionary powers should be exercised. However, submissions may also set out a range of visa options available in the event that the Minister decides to use his or her discretionary power to grant a visa.

4.17      Requests for Ministerial intervention assessed by DIMIA as not falling within the Guidelines are sent to the Minister in the form of a schedule summarising each matter.[401] It remains for the Minister to decide whether or not to consider each matter.

4.18      The Committee understands that cases returned or referred from review authorities or the courts and assessed by DIMIA as not falling within the Guidelines are not referred to the Minister. Rather, a file note to that effect signed and dated by the assessing officer, is placed on file and no further action is taken.

4.19      There is no limit on the number of times a person may request intervention by the Minister. However, once a request has been considered by the Minister, subsequent requests by the same applicant are not usually brought to the Minister's attention unless they are assessed by DIMIA as meeting the Guidelines for referral. This could occur, for example, where a subsequent request provides significant new information on the case, or where the department becomes aware of such significant new information through its own research or other avenues.[402]

4.20      It is understood that no automatic assessment of non-protection visa decisions by review bodies is undertaken by DIMIA. That is, the relevant instructions only provide that an assessment under the Guidelines may be undertaken by DIMIA if a review authority – such as the MRT – affirms a non-protection visa decision.[403]

Impact on removal of unlawful non-citizens

4.21      A request for Ministerial intervention of itself will have no effect on the removal provisions of the Migration Act. Section 198 of that Act requires the removal of unlawful non-citizens (whether or not they are also detainees) who are not either holding or applying for a visa. A request for the Minister to exercise one of the public interest powers such as section 351 or 417 is not regarded as an application for a visa and unless the request leads to the grant of a visa, such a request has no effect on the removal provisions.[404]

4.22      The Migration Regulations provide that the making of a request for the Minister to exercise his public interest powers under sections 351 and 417, among others, is a ground for the grant of a bridging visa. An applicant must meet the specified criteria for the grant of such a visa.[405]

Time taken to assess cases and requests

4.23      DIMIA advised that the automatic assessment by DIMIA of returned or referred review authority decisions is generally completed within 28 days of the case files being returned to the department.[406] However, the time taken to resolve requests for intervention made by individuals:

... can vary significantly depending on the complexity of the issues raised, the completeness of the information and argument provided in support of the intervention, and the number and spacing of submissions and correspondence being provided in support of the case. Where a case has been referred to the Minister, the issue of possible Ministerial intervention remains open until such time as the Minister considers whether or not to use her power in a particular case.[407]

4.24      The Committee notes that, during 2004-05, DIMIA acted to streamline the Ministerial intervention support arrangements and establish stronger management and coordination arrangements for community and detention caseloads. Management of the detention caseload was centralised in Canberra to strengthen liaison with detention management areas and the Minister's office.[408]

Caseload

4.25      The following tables provide an indication of the case load for the requests for Ministerial intervention.

Table 4.1: Use of Ministerial Discretion 1999 to 2005

Year   1999-00   2000-01   2001-02   2002-03   2003-04   2004-05  
Humanitarian*              
Requests   3709   3370   4472   4489   4138  2802 
Interventions   179   289   203   213   655  142 
Percent   4.8   8.6   4.5   4.7   15.8  5.1 
Non-humanitarian**              
Requests   888   850   1178   1471   1297  995 
Interventions   86   109   159   270   277  97 
Percent   9.7   12.8   13.5   18.4   21.3  9.7 
Totals              
Requests   4597   4220   5650   5969   5435  3797 
Interventions   265   398   362   483   932  239 
Percent   5.8   9.4   6.4   8.1   17.2  6.3 

*Interventions under s417, s454 and s501J, described as ‘Humanitarian’ by DIMIA
**Interventions under s345, s351 and s391, Described as 'Non-humanitarian’ by DIMIA

Table 4.2: Ministerial Interventions on RRT and MRT Decisions

Year   1999-00   2000-01   2001-02   2002-03   2003-04   2004-05  
Humanitarian              
RRT   5417   4858   4647   5391   5810  3033 
Interventions   179   289   203   213   655  142 
Percentage   3.3   6.0   4.4   4.0   11.3  4.7 
Non-humanitarian              
IRT/MRT   1625   2498   3360   4087   3925  3284 
Interventions   86   109   159   270   277  97 
Percentage   5.3   4.4   4.7   6.6   7.0  2.9 
Totals              
All Tribunals   7042   7356   8007   8946   9735  6317 
Interventions   265   398   362   483   932  239 
Percentage   3.8   5.4   4.5   5.4   9.6  3.8 

*Decisions affirmed by IRT

**Decisions affirmed by IRT and MRT

Source: Tables provided to the Committee by the Department of Immigration and Multicultural and Indigenous Affairs on 12 January 2006.

Concerns raised in earlier inquiries

4.26      The Minister's discretionary powers in migration matters were considered in two inquiries in recent years—in 2000 by a predecessor of this committee (see A Sanctuary under Review: An Examination of Australia's Refugee and Humanitarian Determination Processes, June 2000), and in 2004 by the Select Committee on Ministerial Discretion in Migration Matters, a specially-constituted Senate Select Committee which tabled its report in March 2004.[409]

The Senate Legal and Constitutional References Committee 2000 inquiry

4.27      This committee's report of 2000, A Sanctuary under Review, examined, among other things, the concept of Ministerial discretion, its implementation and administrative procedures, and the nature of a non-compellable and non-reviewable decision and forced refoulement when an applicant is unable to gain refugee status under the Refugee Convention.

4.28      The committee's report concluded that the Ministerial discretions, such as that provided under section 417 of the Migration Act, were valuable and should be retained.[410] However, in light of the evidence received during its inquiry, the committee recommended a number of procedural and administrative improvements to the way the discretionary powers are exercised. Issues covered by these recommendations included that:

4.29      The Government's response to the above was to maintain that existing administrative procedures and arrangements were adequate.[412]

The Select Committee's 2004 inquiry

4.30      As mentioned above, a Select Committee was established in June 2003 to inquire into the use and appropriateness of the Minister's discretionary powers under sections 351 and 417 of the Migration Act. It tabled its report in March 2004.[413]

4.31      The Select Committee found almost unanimous support for having some capacity for Ministerial discretion in the migration legislation. However, while the committee concluded that the Ministerial intervention powers should be retained as the ultimate safety net in the migration system, evidence to that inquiry highlighted a pressing need for reform of their operation.

4.32      The Select Committee's findings are summarised below. The full listing of its 21 recommendations is shown at Appendix 7.

Lack of transparency and accountability

4.33      The Select Committee found that a lack of transparency and accountability of the Minister's decision making process was a serious deficiency in need of urgent attention. The sole accountability mechanism in cases where the discretionary power is used to grant a visa is a requirement that the Minister table statements in parliament on a six-monthly basis. According to the legislation, these statements must set out the Minister's reasons for thinking intervention is in the public interest. However, in recent years, tabling statements had outlined only in the broadest terms cases where the Minister has intervened. The Select Committee noted its concern that:

... vesting a non-delegable, non-reviewable and non-compellable discretion with the immigration minister without an adequate accountability mechanism creates both the possibility and perception of corruption. At a minimum, the Committee wants to see external scrutiny of decision making made an integral part of the ministerial discretion system. This should bring a greater degree of transparency into the decision making process and reduce the scope for corruption of the system.[414]

4.34      The Select Committee made several recommendations to address the perceived shortcomings in the accountability of the Minister's discretionary powers. To ensure parliamentary scrutiny of the use of discretionary powers, the Select Committee recommended that the Minister's tabling statements provide reasons why a decision to intervene is in the public interest and indicate 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. [415]

4.35      It was also recommended that the Government establish an independent committee as part of the Ministerial intervention process to improve the equity and transparency of the process and restore public confidence in the system. The purpose of the committee would be to review DIMIA's submissions and schedules and recommend to the Minister cases which it believes warranted Ministerial intervention.[416]

4.36      The Select Committee was concerned by evidence that the Minister's discretionary powers were being used on average several hundred times each year instead of for the few exceptional cases they were originally designed to deal with.[417]

4.37      DIMIA had advised that there were three main reasons for the increase in the use of Ministerial discretion since 1996-97. First, the Government has chosen to deal with onshore applications for visas on a case-by-case basis rather than by establishing special visa categories. Second, there have been more requests as the workload and decisions made by the tribunals have increased significantly. Third, there is greater public awareness of the existence and the processes of the exercise of discretion. DIMIA also suggested that judicial review has influenced the number and timing of requests.

4.38      The Select Committee was unable to test these claims, as it could not draw firm conclusions about the use of Ministerial discretion from the available data, which it described as being limited in respect of its reliability and detail. It therefore recommended that DIMIA establish procedures for collecting and publishing statistical data on the operation and use of the Ministerial discretion powers to improve the accountability of the system.[418]

DIMIA involvement in vetting applications

4.39      The Select Committee noted that the Minister's capacity to formulate an independent view on a particular case depended almost entirely on the information provided by DIMIA. The processing and decision making process within DIMIA, especially whether to prepare for the Minister a submission or a schedule, was critical to the success or otherwise of individual cases. However, evidence to that inquiry – including evidence from the Commonwealth Ombudsman – revealed 'serious and fundamental administrative' weaknesses in DIMIA's decision making processes.

4.40      The Select Committee therefore recommended that:

4.41      The Select Committee also recommended that the role of the RRT and MRT in the Ministerial discretion process be reconsidered.[420] The Committee accepted that the Tribunals' core task is the review of DIMIA decisions to refuse or cancel protection and other visas. However, the Tribunals were seen as being well placed to assess the entirety of an applicant's circumstances, especially when new information is presented that was not previously available to the department. The Select Committee recommended that the MRT and the RRT:

Limited advice, assistance and information for applicants

4.42      The Select Committee found a lack of available information for applicants about Ministerial discretion and its processes. To address these deficiencies, the Select Committee recommended that:

4.43      The Select Committee considered that provision of a statement of reasons would ensure fairness and allow applicants to identify in any subsequent request matters that may have been overlooked. It would also enable Parliament and the community to ascertain how the powers were being used.[425]

4.44      The Committee also recommended that 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.[426]

The need for a tribunal decision as a prerequisite for intervention

4.45      The Select Committee recommended that DIMIA consider legislative changes to enable Ministerial intervention to be available in certain circumstances where there is a compelling reason why a merits review tribunal decision was not obtained. Witnesses and submitters to that inquiry – including the Commonwealth Ombudsman – pointed to the problems of denying access to Ministerial intervention in cases in which applicants, through no fault of their own, were not able to appeal to a tribunal (ie, because an invalid application for review had been lodged). The need to appeal to a tribunal in cases where there is no chance of success before the tribunal, but where there is a reasonable chance that the Minister might intervene, was also queried.[427]

Financial hardship and delays in obtaining bridging visas

4.46      The Select Committee identified a range of difficulties being experienced by applicants. A particular concern was the evidence that many applicants for Ministerial intervention faced considerable financial hardship due to the constraints of bridging visas, particularly restrictions on work rights (and therefore access to Medicare).

4.47      The committee recommended 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.[428]

4.48      The committee noted that applicants for Ministerial intervention become eligible for a bridging visa while their request is being considered. It therefore recommended that DIMIA formalise the application process for Ministerial intervention to overcome delays and other problems in the process for granting bridging visas, namely:

4.49      This committee understands that the Government has yet to respond to the Select Committee's report and recommendations.

The need for 'complementary protection'

4.50      An issue that arose in both of the above inquiries was whether the Migration Act should be amended to provide expressly for complementary protection.

4.51      The term 'complementary protection' refers to a widening of the categories of persons who may be granted temporary or permanent residence beyond only those who are owed refugee protection. The Refugees Convention does not provide for protection of people who do not meet the Convention definition of a refugee. However, a range of other international instruments impose obligations not to return (or refoul) persons who do not satisfy the Refugee Convention's definition of a 'refugee', but who face a risk of a violation of their fundamental human rights. Examples include the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; and the International Covenant on Civil and Political Rights.

4.52      It is understood that there is no consistent international approach on this issue, with the nature and application of complementary protection provided under domestic law differing between countries. The protection offered by countries can include permanent or temporary residence on various grounds based on humanitarian concerns, obligations under international human rights treaties, or judgement by a State as to whether it is unsafe, inappropriate or not practicable to return to the country of origin. International practice also varies markedly on the rights to be afforded under complementary protections, ranging from nothing more than protection against refoulement to enjoyment of all rights normally afforded to persons found to be a 'refugee'. Differences also exist in the procedures followed to accord complementary protection.[430]

4.53      The committee notes that there are moves to harmonise the various approaches to complementary protection, particularly within the European Union.[431]

4.54      Australia's practice has been to rely on the Ministerial discretionary powers to grant a visa to meet the needs of those people in Australia whose circumstances do not fit the criteria of the Refugees Convention. Another mechanism has been the occasional creation of special categories of visas to provide temporary haven for certain prescribed groups or to allow people in Australia illegally to regularise their status.[432]

4.55      This practice was examined in both the above-mentioned inquiries.

Concerns raised with the Committee in 2000

4.56      A key issue in the committee's 2000 inquiry was the fact that Australia's treaty commitments – such as those under the CAT and the ICCPR – had not been incorporated into Australian domestic law. Rather, as noted above these obligations were met through the provision of the non-reviewable and non-compellable Ministerial discretion in section 417 of the Migration Act. This led to committee consideration of whether Australia was complying with its obligation of non-refoulement under the CAT and the ICCPR, and whether it was appropriate to rely on Ministerial discretion to give effect to international obligations.

4.57      The report identified four specific areas of concern regarding the use of Ministerial discretion powers to fulfil non-refoulement obligations:

4.58      A person seeking protection on humanitarian grounds must make an application to the department for ‘refugee status’ based on the criteria of the Refugee Convention, have that rejected and then seek to have that negative decision reviewed by the RRT. This is required even though the applicant and their advisor may consider such a claim for refugee status on Convention grounds to be without merit. It is only after the Tribunal had affirmed the department's decision that the applicant may apply to the Minister.[434]

4.59      The above, it was argued, had a number of unintended adverse consequences:

4.60      Notwithstanding the above, the committee's report concluded that discretionary Ministerial powers – such as those provided by section 417 of the Act – were an appropriate means through which Australia can meet its international obligations under the CAT, CROC and the ICCPR.[436]

4.61      However, it is clear that the Select Committee also considered that discretionary Ministerial powers alone were an insufficient safety net to ensure compliance with the above international obligations.[437] Further, the 2000 report noted that:

A revision of the process whereby a person seeking asylum on humanitarian grounds is required to be processed through an administrative decision-making system focussing on refugee related grounds would remove the sometimes lengthy delays incurred in a number of genuine cases. It should also lead to what would be considerable saving in time and resources associated with unsuccessful RRT processing.[438]

4.62      Concerns that reliance on Ministerial discretions and guidelines meant that applicants lacked enforceable rights and obligations led the committee to recommend that the Government examine incorporation of the non-refoulement obligations of the CAT and ICCPR into domestic law.[439]

4.63      This recommendation was generally rejected by the Government.[440]

Concerns raised with the Select Committee

4.64      The same arguments and concerns arose during the Select Committee's 2004 inquiry. The Select Committee received evidence expressing the view that protection from refoulement should not be left solely to Ministerial discretion powers which are non-compellable, non-reviewable and non-delegable because:

4.65      In light of the above, it was put to the Select Committee that providing alternative administrative arrangements to enable Australia to fulfil its non-refoulement would ease the burden on the current (over) use of Ministerial discretion. Introduction of complementary protection under the Migration Act, it was suggested, had the potential to enable Australia's migration and humanitarian programs to be delivered with certainty and transparency, and to assist non-Refugee Convention asylum seekers who are in genuine need of humanitarian protection.[444]

4.66      The Select Committee – in its majority report – accepted these arguments. It was concerned that Australia is one of the few countries in the developed world that does not have a system of complementary protection. The Select Committee was in no doubt that the current Australian practice of relying solely on Ministerial discretion places it at odds with emerging international trends. In its view, the concept has not received the attention from Government it now clearly deserves.[445]

4.67      However, as complementary protection was at that time a relatively undeveloped concept in Australian domestic law, the Committee considered that further examination of how complementary protection might work in the Australia context was warranted. It therefore recommended that the Government consider adoption of 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.[446]

4.68      In making this recommendation, the Select Committee dismissed concerns raised by DIMIA that introduction of complementary protection would encourage litigation and create the potential for misuse of the process by those wishing to prolong their stay and frustrate their removal from Australia.

4.69      The Government has yet to respond formally to the Select Committee's report. However, it is apparent from the evidence given to this inquiry that it does not accept the Select Committee's findings and maintains that the existing arrangements are appropriate.

Concerns raised during this inquiry

4.70      The same concerns and criticisms that were levelled at the operation of the discretionary Ministerial powers and at the lack of a system of complementary protection were put to the Committee during this inquiry.

4.71      Most submissions and witnesses agreed that there is a need for Ministerial discretion in relation to migration matters, as a 'catch-all' or a final 'safety net'. However, several expressed concern in the manner it which it operates. These concerns included:

4.72      Submissions and witnesses also argued that, rather than relying on Ministerial discretion to cover cases where an asylum seeker does not fall within the definition of refugee in the Refugee Convention, but may be eligible for protection under other conventions such as CAT, ICCPR and CROC, a fairer and more efficient process would be to consider such claims under some form of complementary protection, such as a humanitarian visa.[447]

4.73      These concerns and criticisms are examined below.

The non-compellable, non-delegable and non-reviewable nature of the power

4.74      Most submissions and witnesses did not agree with the Committee's finding in 2000 that the continued reliance on the current system of Ministerial discretion was appropriate.[448]

4.75      The Law Society of South Australia (LSSA), for example, considered the present reliance on Ministerial discretion is 'inherently unsuitable' in dealing with Australia's obligation on non-refoulement, which 'is not discretionary'. It pointed to:

... an inherent conflict in attempting to meet the non-refoulement obligation through reliance on a non-compellable, non-reviewable, non-delegable decision made on the sole basis of intervention where it is “in the public interest”. There should be a clear legislative structure to guide the decision-making process to ensure factors relevant to Australia’s obligations under the ICCPR, CROC and CAT are considered and that outcomes are fair and consistent. The current system does not provide an 'effective remedy' sufficient to satisfy the requirements of international law.[449]

4.76      The LSSA also argued that with any administrative decision there is a risk of errors occurring, whether it is as a result of 'incorrect information, a lack of relevant information, or a misinterpretation of the facts or the law.'[450] It stressed that:

This risk is heightened where applications are made to the Minister without legal advice as to what information is in fact relevant, where there is no opportunity to respond to adverse material which may be before the Minister, where applications are made on the basis of documentary evidence alone and/or where the Minister is burdened by such a large volume of applications that insufficient time is available to consider each individual application thoroughly.[451]

4.77      Yet, notwithstanding these risks, the LSSA noted that:

... the decision as to whether or not to exercise Ministerial discretion ...[which is] in effect a primary decision where an applicant is seeking complementary protection ... is not subject to any form of review and provides no safeguard against potential harm flowing from an error in the decision.[452]

4.78      The National Council of Churches Australia (NCCA) shared this concern. It argued that:

There is no reason in principle why a person applying under ICCPR/CRC/CAT grounds should be entitled to a lesser form of support (income support, work rights and Medicare coverage) than an asylum seeker applying under the Refugee Convention. Each invokes Australia’s obligations under the various treaties and Australia’s non-refoulement obligations under the ICCPR, CRC and CAT are no less important than those under the Refugees’ Convention. The potential harm resulting from a flawed decision is equally severe, if not fatal.[453]

Lack of transparency and accountability in decision making

4.79      Witnesses and submitters pointed to a lack of accountability and transparency in how the Ministerial discretion was being exercised.

4.80      Representatives of the LSSA commented that:

By its very nature, the exercise of Ministerial discretion lacks transparency and accountability. It may result in inconsistent outcomes because of the vagueness of the criteria which must be established in order for the Minister to intervene. It is open to allegations of actual or apprehended bias and corruption.[454]

4.81      Amnesty International echoed the Law Society's concerns. Its representative, Dr Graham Thom, advised the Committee that:

There are issues regarding transparency and guidelines. For those people who have to try to navigate the guidelines in terms of getting 417 applications or 48B applications to the Minister, at times it just does not seem to make sense. You may tick off every box on those guidelines and you get a letter back saying that you have not met the guidelines. You do not understand. The inability to challenge the decision is increasingly frustrating for practitioners, let alone for asylum seekers.[455]

4.82      The LSSA suggested that such shortcomings could be overcome if reasons for decisions were tabled in Parliament (as they were previously) and if written reasons were provided to the applicant where the Minister declines to exercise his or her discretion.[456] As noted above, earlier Senate inquiries have made a similar recommendation.

4.83      Uniting Justice Australia (UJA) and Asylum Seeker Project Hotham Mission (ASPHM) also stressed the importance of ensuring that asylum seekers understand why their application has been refused :

... 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 obligations has been made will assist and facilitate a more humane process of return. All persons requesting or referred for Ministerial intervention on their visa application should receive notice, in writing, of the decision made by the Minister and the reason for the decision.[457]

4.84      Reverend Poulos of Uniting Justice Australia advised the Committee that 'we never know why people are accepted or refused'. She also highlighted the problems facing those trying to advise applicants:

Without any understanding of how 417 decisions are made, it leaves people with absolutely no grounds to assess things and think: ‘Of the conditions surrounding this particular case, what is the most relevant? What is the Minister going to consider in particular? What would be helpful for the Minister in this case? What is irrelevant?’ It is a bit of lottery for people.[458]

4.85      Ms Lucy Bowring of the ASPHM expressed the same concern over the lack of transparency:

We cannot say why decisions are being made or not being made. It is very hard to determine if a certain issue is being picked up on. I know there have been a few occasions when we have had two very similar cases before the Minister and one family received the visa and the other did not. It is very difficult to determine why that might be when you do not know what has actually been looked at and considered.[459]

4.86      When asked how they dealt with such a situation and what avenues are open to them to resolve such a situation, Ms Bowring responded:

We do not have an avenue, apart from trying to talk to the department about putting up the case again, stressing our original concerns and perhaps our concerns around other cases that received a positive decision in a similar situation. With that level of advocacy, sometimes the case will get up again and the Minister will decide to consider it. Whether the Minister ends up making a decision or not is unclear, but that is pretty much the role that we take. It is very arbitrary and it is very unclear.[460]

4.87      The Migration Institute of Australia (MIA) advised the Committee that, despite the 'recent and comprehensive Senate inquiry in 2004', the use of the Minister's discretionary powers 'remained a process shrouded in mystery and controversy':

Recent decisions relating to Ministerial Discretion (in particular decisions which have separated parents from their natural children), have left MIA perplexed, given the public interest foundations behind these powers. It appears to MIA members that they can no longer rely on MSI guidelines written under the provisions of these sections of the Act as reliable for properly and professionally advising and acting for applicants in these circumstances.[461]

4.88      The MIA agreed that Ministerial discretion in migration matters should be retained as a necessary and basic Ministerial power. However, it also considered that:

... the very seriousness of the situation facing the majority of people seeking the Minister’s intervention to grant visas in the public interest ..., requires absolute trust in the government of the day that such a power is at the very least not politicised or even suggested as so.[462]

4.89      In light of the above, the MIA queried why the above-mentioned recommendations made by the Select Committee had not been decided on or acted upon by the Government. The MIA also recommended that the Migration Act be amended to allow the power to be delegated by the Minister to decision makers at State Director level, as is the case with other powers under the Act. In its view, this would go some way in de-politicising the intervention powers and providing more consistency overall.[463]

Delays prolong detention and hardship

4.90      A major concern raised in evidence to the Committee was the length of time involved in seeking the exercise of Ministerial discretion. Submissions pointed out that applications for Ministerial intervention are lodged late in the assessment process, after an applicant has already gone through and had to await the outcome of the initial assessment by DIMIA and then review by the RRT. The Asylum Seekers Centre advised that, while the Centre had been given the opportunity through the Ministerial unit in DIMIA to request that a particular case be expedited on the basis of mental health concerns, they had:

... several clients at the moment who have lodged a section 417 (application) and been waiting for over two years – in some cases, close to three years – without word. During that time, they are living in complete limbo. They have absolutely no way of knowing whether their claims are even going to be considered.[464]

4.91      Criticism was directed at the Migration Act's failure to provide for requests for protection on humanitarian grounds to be undertaken at the primary stage of application. As NCCA representatives noted:

... protection visa applicants with grounds for complementary protection must apply as a refugee to DIMIA and appeal to the RRT and receive negative decisions from both before they can appeal to the Minister on complementary protection grounds. In the case of protection visa applicants in detention, this effectively prolongs the detention as they must first be considered under irrelevant criteria by DIMIA and the RRT before being able appeal under relevant criteria to the Minister.[465]

4.92      Witnesses also pointed to the impact on applicants living in the community. Applicants for protection on humanitarian grounds living in the community may face financial and other hardships pending Ministerial consideration of their application. Different levels of support are available apply depending on the basis of their release (such as release into the community under a temporary protection visa, a bridging visa E, removal pending bridging visa, or under community detention arrangements). This has prompted church representatives to describe the plight of some applicants in the following terms:

The absence of complementary protection also affects asylum seekers living in the community. These are people who entered Australia with a visa and then claimed asylum so they are not detained. Some have work rights and income support and others have neither and are totally dependent on charities. Again, they have to wait and get knocked back by both the Department of Immigration and the Refugee Review Tribunal before they can apply to the Minister under the appropriate grounds. For those who are not permitted to work or receive income support, this obviously greatly extends the period in which they are impoverished, idle and forced to depend on charity. For those with income support who are forced to apply as a refugee to the Department of Immigration, get knocked back, and appeal to the Refugee Review Tribunal, and get knocked back, it is a waste of government-funded income support and processing costs, as they’re not being assessed under the right criteria until they apply to the Minister. And when they do apply to the Minister under the right criteria, their income support is cut off and often their work rights, leaving them without income, work or Medicare. [466]

4.93      The committee also notes evidence cited in Chapter 8 of this report of the adverse impacts that prolonged uncertainty can have on the mental and emotional well being of some applicants.

4.94      The Regugee Advocacy Service of South Australia (RASSA) provided the Committee with an example of the delay and hardship caused by the Minister’s policy of not considering section 417 requests while court proceedings are current. As mentioned above, the Guidelines provide that such cases are 'inappropriate for consideration'. The example concerned a group of Sabean Mandeans who had claimed protection from persecution in Iran and Iraq:

On 20 June 2004, all Sabean Mandeans that we know of were granted protection visas except for those who had court proceedings on foot. ... The remaining Sabean Mandeans were required to put their lives on hold while they waited for years for the court process to be completed, despite the logical outcome being a guaranteed visa. These asylum seekers were faced with the cruel choice of giving up their only available legal fight for asylum to rely on a non-compellable, discretionary decision from a Ministry that is known for being inconsistent or waiting out a lengthy court process in order to obtain the asylum that we all knew they deserved. It is now two years since the RRT clearly acknowledged that Sabean Mandeans are persecuted in Iran and Iraq and we know of one Sabean Mandean who still has not received a protection visa due to court proceedings continuing well into 2005. This is not only an appalling way to treat genuine asylum seekers but also an extraordinary waste of administrative and judicial resources. DIMIA cannot dismiss this criticism merely by pretending to defer to the authority of the courts because the Minister has intervened with the granting of a section 417 visa or a section 48B opportunity while court proceedings were on foot; just not at RASSA’s request.[467]

4.95      RASSA argued that, rather than delaying matters, the Minister and her Department should take action to grant a visa as soon as they are satisfied that an asylum seeker is deserving of protection.

International humanitarian obligations – Complementary Protection

4.96      Most submissions and witnesses did not agree with the committee's finding in 2000 that Australia is able to meet its international obligations under CAT, ICCPR and CROC by relying on discretionary Ministerial powers. They considered that these obligations could only be met appropriately by the creation of a complementary protection visa to cover the particular circumstances of asylum seekers whose claim for protection is based on these conventions.

4.97      Some highlighted the lack of accountability and transparency in the current system to argue that it was an unacceptable mechanism for determining the fate of persons claiming protection under international obligations. The UJA and ASPHM, for example, advised:

For those seeking Ministerial intervention for humanitarian reasons, there is no formal decision made on a person’s humanitarian status. The question of whether claims with humanitarian merit are adequately assessed is crucial. The current process does not give any assurance that this occurs, in part due to the non-compellable nature of the power, combined with a lack of binding criteria in relation to international obligations against which Ministerial decisions can be measured and held accountable. If Ministerial intervention continues to be used to assess cases that may invoke our obligations under international treaties, there is a need for mechanisms to ensure a consistent application of the guidelines, and the guidelines themselves must be expanded to clearly and adequately detail Australia’s humanitarian, protection, and non-refoulement obligations under these treaties. Applicants also need to be enabled to explicitly outline their case for humanitarian protection against these guidelines as the claim made against criteria for refugee protection may not be adequate and can not be assumed to contain sufficient relevant information to assess a non-refugee convention claim.[468]

4.98      Others pointed to the inefficiencies inherent in the current system, which requires asylum seekers to first seek protection under the Refugee Convention and then exhaust all avenues of appeal.[469] The LSSA, for example, considered the existing procedures involved in requesting the exercise of Ministerial discretion to be an illogical and inefficient use of resources. It said:

The burden of the large number of applications to the Minister in recent years is unacceptable and unsustainable, yet the discretionary power will continue to be relied upon whilst there remains no effective structure provided for in the Migration Act for the consideration of applications for complementary protection. As applicants must have exhausted all avenues of appeal before seeking the Minister’s intervention, frivolous applications for review by the RRT and Federal Court are implicitly encouraged. This is a ridiculous and costly waste of time and resources.[470]

4.99      The LSSA stressed that:

[t]he current system is flawed as ... neither the primary decision maker within DIMIA nor any of the review bodies are entitled to consider factors relevant to complementary protection due to the legislative constraints of the Migration Act. [471]

4.100         Others emphasised the impact on those who seek Australia's protection on humanitarian grounds. Amnesty International's representatives, for example, advised the Committee that:

... we have seen a number of cases where we believe individuals should have been picked up much earlier in the system. In some cases those individuals have had to go through years of very traumatic circumstances in trying to prove who they are and that they would suffer persecution. .... where there are issues of human rights, there needs to be a system that operates before it gets to the Minister. Again, this is where we raise the issue of complementary protection, because if assessments are able to be made before they get to the Minister then you will cut back on a great deal of suffering.[472]

4.101         The Refugee Council of Australia recently summed up the situation as follows:

By leaving any consideration of non-Convention [that is, Refugee Convention] related protection claims to the very end of the process and by consigning the decision to Ministerial discretion, it can be argued that Australia's current practice is inefficient, unnecessarily expensive, places an unrealistic burden on the Minister for Immigration, lacks transparency and accountability, does not contain sufficient safeguards and is detrimental to both Convention refugees (by clogging up the system) and to those with non-Convention needs.[473]

Calls for reform

4.102         In order to address the deficiencies identified above and to ensure that Australian practice is consistent with both Australia's international obligations and with international best practice, witness and submitters argued that changes had to be made to the manner in which Australia considers protection applications.

4.103         Most argued for a system of complementary protection based on a single administrative procedure in which consideration of both Refugee Convention and non-Convention related protection claims was undertaken by primary decision-makers.

4.104         The committee notes in particular the model of complementary protection detailed in the paper prepared by the Refugee Council, Amnesty International and the National Council of Churches in Australia entitled Complementary Protection: The Way Ahead. The aim of the model – which has also been endorsed by most Australian churches, the ICJ and other legal organisations as well as refugee organisations – is to ensure that Australian practice is 'fair, transparent, timely, efficient and legally defensible'.[474]

4.105         The proposed model would allow 'an applicant's eligibility for complementary protection to be assessed at each stage of the determination process, thereby ensuring that those entitled to protection receive it at the earliest possible time. Complementary protection would be offered to people who would face 'a substantial violation of their human rights if returned to their country of origin'. This could include people who:

4.106         The introduction of this model would require an amendment to paragraph 36(2)(b) of the Migration Act to include a new section which would set out the criteria for the grant of a visa, introduce a new visa subclass, set out any necessary limitations, and stipulate that nothing in this section removes or otherwise affects the exercise of the Minister's discretion. It would also require a new regulation to set out the framework for the grant of a visa on the grounds of the need for complementary protection and the rights and entitlements afforded to successful applicants.[476]

4.107         It was argued that adoption of this model would have the following benefits:

4.108         This view was shared by other witness and submitters, such as the LSSA. It considered that such:

... reform would have numerous benefits including ensuring Australia meets the full extent of its human rights obligations, reducing the burden on the Minister, DIMIA and review bodies through the use of a more efficient determination process, reducing the length of time asylum seekers spend in detention, and affording applicants a more acceptable level of due process and the safety net of a reviewable decision.[481]

3.1       The committee was advised that the Uniting Church also supported the move to a system of complementary protection:

... which would cover the assessment of cases which might trigger our obligations to protect under international treaties other than the refugee convention. These are predictable claims, not obscure and exceptional claims as would be appropriate for consideration under the powers of Ministerial discretion.[482]

4.109         The LSSA recommended the retention of Ministerial discretion 'as a mechanism for use in exceptional cases'. However, the LSSA considered that, unlike the present process which requires all avenues of appeal be completed before a request can be made, a request for Ministerial discretion should be permitted at any time during the assessment and determination process.[483]

4.110         It was put to the Committee that adoption of the above-mentioned complementary protection model would not prompt a flood of applications as it is merely a transfer of existing decision making power from the Minister to officials. Moreover, vexatious or frivolous applications can be prevented by codification of the relevant criteria and by incorporating appropriate safeguards.[484]

4.111         The committee notes that successive Governments have not supported the introduction of a system of complementary protection. DIMIA, maintains that current Australian arrangements are adequate. It said:

... provide a range of mechanisms to provide continued lawful stay in Australia on general humanitarian grounds with considerable flexibility to respond appropriately to individual circumstances. It is not possible to anticipate and codify all human circumstances. Accordingly, the Ministerial intervention power plays a significant additional role in providing the capacity to flexibly and compassionately respond to other exceptional individual circumstances where there are public interest grounds in providing some form of continued stay in Australia. At the same time the migration framework allows the Government to develop regulations as necessary tailored to the particular circumstances of new groups as the need arises.[485]

4.112         DIMIA also highlighted the potential cost of moving towards a complementary protection regime:

It is not clear why it is expected that the introduction of some form of complementary protection in Australia would deliver cost savings. A parallel visa system for complementary protection with full merits and judicial review available and with broad eligibility criteria, is likely to attract a wider class of applicant and therefore larger numbers of applicants, most of whom may not be eligible, with corresponding increased costs.[486]

4.113         DIMIA advised that it has not conducted any studies into the feasibility of introducing a system of complementary protection. Nor has it done any assessment of whether the introduction of a complementary protection process would reduce the amount of immigration litigation that DIMIA was involved in.[487]

4.114         The lack of evidence that there are significant numbers of persons entitled to CAT, ICCPR or CROC protection who do not also meet the Refugee Convention definition of a refugee has also been cited as reason for maintaining the status quo.[488]

4.115         DIMIA's response to concerns over the nature of the Ministerial powers and the lack of accountability and transparency was to note the exceptional nature of the powers:

The section 417 intervention power enables the Minister to act in exceptional circumstances to grant a visa, in the public interest, to a person who does not meet the normal legislative requirements for a visa grant, including after testing the initial decision at review. Migration legislation sets out the requirements for the Minister to report to Parliament on the use of her power.[489]

4.116         In response to concerns over the delays and uncertainties experienced by applicants, DIMIA maintained that, given the exceptional nature of the power, it was unreasonable for applicants to expect that the Minister will necessarily use her intervention power in their case.[490]

Committee view

4.117         The committee notes that the issues in relation to the Minister's discretion have been identified in a number of inquiries as deserving of serious review. The most comprehensive of these inquiries was conducted by the Senate Select Committee on Ministerial Discretion in Migration Matters, which tabled its report in March 2004. The committee generally supports the recommendations made in that report.[491]

4.118         However, to date the Government has chosen to ignore the recommendations made by these inquiries.

4.119         If at the end of the day the Government intends to honour Australia's obligations under international treaties and conventions such as CAT, CROC, and ICCPR, then it would make sense to provide for it upfront, rather than giving that responsibility to the Minister involved. Having said that, the committee understands that a minimum level of ministerial discretion is necessary to give the system a required degree of flexibility.

4.120         The committee considers that in a system based on the rule of law, in general, it is inappropriate that rights are discretionary, although it acknowledges that a sensible balance is required. In recent years that balance has swung too far towards Ministerial discretion. It believes that the recommendations made below will go a long way to achieving that better balance.

4.121         The Committee makes the following five specific recommendations:[492]

Recommendation 29

4.122         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.

Recommendation 30

4.123         The committee recommends 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.

Recommendation 31

4.124         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.

Recommendation 32

4.125         The committee recommends that the Minister ensure all statements tabled in Parliament under sections 351 and 417 (which grant the Minister the discretionary power to substitute more favourable decisions from that of the Tribunals) 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.

Recommendation 33

4.126         The committee recommends that the Migration Act be amended to introduce a system of 'complementary protection' for future asylum seekers who do not meet the definition of refugee under the Refugee Convention but otherwise need protection for humanitarian reasons and cannot be returned. Consideration of claims under the Refugee Convention and Australia's other international human rights obligations should take place at the same time. A separate humanitarian stream should be established to process applicants whose claims are in this category, including a review process.

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