IMMIGRATION REVIEW BULLETIN2009NO 39&40 APRIL 2009

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Immigration Review - Bulletin/2009/No 39&40 -- April 2009 -- pp 16-22

[566] Ministerial Discretion in the Migration Act: Policy, legislation and politics

By Andrew Bartlett¹

On 9 July 2008, the Minister for Immigration and Citizenship, Senator Chris Evans, issued a media release where he stated that:

Ministerial intervention powers were originally intended to provide an outcome for unique and exceptional cases but there is now an industry in people appealing to the minister... There has been a substantial growth in the use of intervention powers over the last decade to the point where thousands of applications for Ministerial intervention are now made every year.²

The minister's comments were made as he was making public a report by businesswoman Elizabeth Proust which had been provided to him over 5 months earlier, at the conclusion of a brief review she had conducted at the minister's request.³

At the time of his comments, Senator Evans had been the minister for just over 7 months, but he was already signalling that he was not very keen on the very wide ranging nature of his interventions powers and the large number of cases to which he was required to give personal consideration. As he said in his statement, "Ministers should deal with issues of broad public policy. It is not the job of a minister to decide thousands of individual visa cases".⁴

In theory, the minister could avoid giving consideration to any cases where his intervention was sought by simply refusing to do so, as he is not compelled under the MA to use these powers or to even have to give consideration to using them. But as many advocates, migration agents and parliamentarians would attest, such an approach would leave many injustices unaddressed.

However much the minister may want to reform or curtail the use of ministerial discretion, he has in the meantime still clearly been willing to consider many requests for him to use those powers. He stated that in the first quarter of 2008, he had personally seen and finalised 472 individual intervention cases, which had resulted in the granting of 187 visas.⁵ Figures in the Proust report stated that, as at 25 January 2008, there had been a total of 2524 cases, involving 3598 people, either being processed or awaiting the decision of the minister under ss 48B, 351, 417 and 501J of the MA.⁶

Issues relating to and problems inherent in the ministerial discretion powers of the MA have been raised and examined many times before. Perhaps the most notable public examination to date has been the Senate Select Committee inquiry into Ministerial Discretion in Migration Matters, which was established in June 2003 and reported in March 2004.⁷

In some ways it is ironic that the Senate Select Committee report provided an unprecedented detailing of the history and use of the ministerial discretion powers and such a thorough consideration of possible policy reforms. The genesis of this committee and its inquiry was not really due to a deep-seated concern among parliamentarians about general inadequacies in the law relating to ministerial discretion powers. Rather, it was predominantly initiated as a mechanism to increase political pressure on the government of the day in the light of a media scandal regarding so-called "cash-for-visas" allegations against the former Immigration Minister, Philip Ruddock.

This controversy related to "cases where ministerial discretion appears to have been granted to people who had made donations to the Liberal party or their associates".⁸ Nonetheless, while the inquiry didn't unearth any "smoking gun" regarding the allegations towards Minister Ruddock (or, in my view, even a damp water pistol), it did end up conducting a thorough examination of the history and evolution of practices regarding the ministerial discretion powers -- despite some unfortunate reluctance on the part of the government to allow the Immigration Department to provide all the documentation requested by the Senate Committee.

The report's 21 recommendations were not implemented, and were never even formally responded to by the previous government in the three and a half years between when the report was tabled and when the Coalition eventually lost office. However, the report was drawn on by Elizabeth Proust in developing her own report and recommendations,⁹ going so far as to include all of its 21 recommendations in an Appendix to her own report and explicitly including some of those Senate Committee recommendations in some of the six recommendations in her own report. She also stated that "it is surprising that so little use has been made of the (Senate Committee) Report because many of the recommendations are common sense ones which would alleviate the current workload issues."¹⁰

The lack of transparency inherent in the ministerial discretion process leaves a lot of scope for speculation about what factors influence the success or otherwise of requests for intervention, so it is no surprise that this speculation might sometimes lead to allegations of the "cash-for-visas" type. History is currently repeating itself, with allegations being made that another former Immigration Minister, Senator Amanda Vanstone, may have been influenced by political donations made to her political party in deciding to use her discretion to grant a spouse visa to a person with alleged mafia links.¹¹ I don't suggest there's any poetic justice involved as a result of the former government's refusal to reform ministerial discretion, but it is reasonable to suggest that any current or future minister leaves himself or herself open to the prospect of these sorts of allegations -- no matter how spurious -- again being made while the powers continue to be so broad and the process so opaque.

The Senate Select Committee report itself drew on parts of a report from an earlier inquiry by the Senate's Legal and Constitutional Affairs Committee. This report was tabled in June 2000. Titled A Sanctuary Under Review: An Examination of Australia's Refugee and Humanitarian Determination Processes,¹² it examined Australia's refugee and humanitarian determination process. It was also in part generated by a public controversy, namely that of a Chinese woman, named "Ms Z" in the report. She was an asylum seeker who arrived in Australia by boat in 1994 and was forcibly removed back to China in 1997 while in the very late stages of pregnancy with what would have been her second child, had she not been subjected to a forced abortion upon her return.¹³

This non-use of the ministerial discretion power raised obvious concerns about both the appropriateness of this individual decision (or non-decision) and the overall adequacy of the ministerial discretion power as a mechanism to ensure Australia's obligations under human rights treaties other than the Refugees Convention -- such as the Convention Against Torture (CAT), the Convention on the Rights of the Child (CROC) and the International Convention on Civil and Political Rights (ICCPR).

One of the terms of reference of that inquiry, which was initiated nearly 10 years ago in May 1999, was "the adequacy of a non-compellable, non-reviewable Ministerial discretion to ensure that no person is forcibly returned to a country where they face torture or death". The committee stated that "the main reason for considering these aspects of the Ministerial discretion (powers) is the implicit concern in the term of reference that the existing administrative procedure is inadequate. The perceived inadequacy relates to the lack of integration of CAT, CROC and the ICCPR within the refugee determination process, prior to the triggering of Ministerial discretion under s 417.".¹⁴

While Ch 8 of that report contains some discussion of the particular problems associated with the use of ministerial discretion under s 417 of the MA, the Committee did not recommend a specific alternative approach. However, there was a unanimous recommendation that "the Attorney-General's Department, in conjunction with DIMA, examine the most appropriate means by which Australia's laws could be amended so as to explicitly incorporate the non-refoulement obligation of the CAT and ICCPR into domestic law".¹⁵

The formal response by the then Coalition government in early 2001 rejected this recommendation, baldly stating that "the current provisions of Section 417 of the Migration Act, allowing for Ministerial discretion on humanitarian grounds, are adequate to ensure compliance with CAT and ICCPR".¹⁶

The ministerial discretion issue was also revisited by the Senate Legal and Constitutional Affairs Committee in their Report on the Administration and Operation of the Migration Act 1958, which was tabled in March 2006.¹⁷ Unlike the report from 2000, the recommendations did not have the support of the Coalition members of the committee. The government by this stage had control of the Senate, and their formal response rejected all of the Report's recommendations relating to ministerial discretion.

However, as the majority report was supported by Labor and Democrat Senators, and the Labor Party is now in government, the recommendations do retain some currency, particularly as they largely reflect and build on the recommendations from the Senate Select Committee.¹⁸

Of particular note are Recommendation 31 (which is a verbatim copy of Recommendation 10 from the report of the Senate Select Committee):

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.

And Recommendation 33:

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.¹⁹

These two recommendations touch on two ongoing issues of debate which are under consideration by the current government -- the possible adoption of a system of complementary protection, and the work rights and support entitlements for people in the community awaiting determination of their protection claim. While they are somewhat separate matters, both these issues also link to the scope and operation of the ministerial determination powers.

All of the above inquiries dealt with ministerial discretion in the context of whether or not a minister might exercise his or her powers to grant a visa. A less examined but equally important aspect of the minister's powers relates to the ability to cancel visas or refuse to allow the granting of a visa. This is particularly relevant when it comes to the character provisions in the MA. The public spotlight was put on these provisions in the case of Dr Mohamed Haneef, a medical doctor working at the Gold Coast in Queensland, who had his subclass 457 visa cancelled by the former minister, Kevin Andrews, under s 501(3) of the MA.

The entire case regarding Dr Haneef, which revolved around unsubstantiated accusations of links to a terrorist bombing in the UK, was the subject of a government initiated inquiry conducted by MJ Clarke QC. However, this inquiry focused on the terrorism related provisions of the Crimes Act 1914, not the appropriateness or otherwise of the powers under the MA.²⁰

The character provisions of the MA, and the breadth of the minister's personal powers to cancel a person's visa under s 501 of the MA have been the subject of parliamentary examination in the past. The Haneef case highlights clearly the potential for injustice under these provisions, combined with the explicit exclusion of any requirement for natural justice to be applied and the very limited scope for review or appeal of such a decision. While the Haneef case ended up attracting negative publicity for the former government, in most cases such decisions are made with little public scrutiny or awareness, and even when there is publicity it usually presents a politically positive opportunity for the minister to appear to be taking a tough stand by deporting people convicted of significant crimes.

However, the character provisions should be part of any changes if we are to ensure the ministerial discretion powers apply only "for unique and exceptional cases", which is what Senator Evans indicated was the desirable outcome when releasing the Proust report.²¹ There has been much less parliamentary scrutiny of the use of the minister's powers under the character provisions, presumably because the people subjected to it are usually characters who the public are less likely to feel sympathetic towards. Individual cases have received some public attention, such as Stefan Nystrom,²² Robert Jovicic²³ and Scott Parkin,²⁴ but there has been little push for reform to the legislative powers in this area.

Concerns about the potential for unjust use of the expanded ministerial powers in the character area were expressed by a number of Senators when the Senate's Legal and Constitutional Affairs Committee examined proposed amendments in the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1997, which provided these extra powers. However, despite some misgivings expressed by then Opposition Senators in the committee's report,²⁵ the legislation was passed by both major parties in the Senate.²⁶ Recommendation 3 of the Proust review proposes that "all delegable powers currently exercised by the Minister be delegated, either to the (Immigration) Department or the relevant Tribunal".²⁷ This includes provisions relating to character. However, unless the MA itself is amended, (as Proust proposes in Recommendation 5), then there is nothing to stop a future minister from deciding to once again personally exercise these powers.

Another individual case recently brought attention to the minister's ability to use discretionary powers to set aside the health requirements of the MA, when the minister granted permanent visas to Dr Bernhard Moeller and his family, after their application had been initially rejected due to his son having Down Syndrome. In that case, the minister acted to grant the visas as soon as he was legally able, but it is not surprising that many people assume that both the favourable outcome and the speed with which it occurred may have been due at least in part to the significant levels of media coverage and public expressions of support for Dr Moeller.²⁸

Generating favourable publicity is a poor way to ensure consistently fair and just migration outcomes. The potential for the ministerial discretion power to act as a "last port of call" also presents dilemmas for migration agents and others who work with people who are caught up in drawn out unresolved migration cases.

Migration agents are something of a whipping boy for both media and politicians alike. A common charge levelled against migration agents is that they try to earn money by encouraging people to submit unmeritorious visa applications. Yet under the law, before ministerial discretion can even be requested, it first requires an application to be submitted, refused by the department, appealed again to a Tribunal and again refused. Thus, a migration agent can be forced to submit an application he or she knows will not succeed, simply so he or she can then make a case direct to the minister. This does not just apply to humanitarian cases which might fall outside the relatively narrow criteria of the Refugees Convention, but also to many more "run-of-the-mill" applications for permanent visas, as Dr Moeller's case demonstrates.

This dilemma was highlighted in evidence provided to a Senate Committee in 2003 when it was examining proposed legislative amendments purporting to improve the integrity of migration agents. The inquiry into the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003²⁹ provoked sufficient concerns from all members of the committee that it recommended against a key part of the Bill "on the basis that the measures are insufficiently targeted to vexatious agents and that the Bill grants complete discretion to the Minister, without detailing the basis on which such discretion will be exercised".³⁰

This was one occasion where the Senate decided against further expanding powers of ministerial discretion under the MA, but it also highlighted the impossible dilemma migration agents and advisors can find themselves in as a direct result of the lack of transparency or certainty around the use of ministerial discretion.

The massive inefficiency, cost and delay of a system which requires people to submit an application which they know will be unsuccessful and then go through two decision-making processes before they can access a separate avenue of decision making is obvious. The disruption and uncertainty to the applicants is equally clear.

Such a system also undermines the frequent claims that Australia values and encourages new migrants and is keen for them to contribute to our society and economy. Our immigration system welcomes migrants on the one hand, while on the other hand often placing innumerable, ever changing and inconsistently applied hurdles in front of them. The ministerial discretion powers are far from the only manifestation of that, but they are one of the most obvious.

Since coming into office, the new government, with Senator Evans as minister, has announced some important changes to migration policy and practice; most notably further winding back the severity of mandatory detention, the scrapping of Temporary Protection Visas, the closure of the offshore processing facility at Nauru and a concerted effort to address many of the long standing unresolved cases.

In addition to the quick review by Elizabeth Proust, there has been a review of the subclass 457 visa program by Barbara Deegan along with some related legislation and draft Regulations, a review into detention policies and practices by the Joint Standing Committee on Migration³¹ and a further inquiry by the same committee into the health requirements of the MA and its impact on people with disability, which has been flagged by the minister but yet to commence.³²

The minister has also released new guidelines on the exercise of his discretion³³ and indicated he wants to have less involvement in decision-making on individual visa applications. He has also flagged the possibility of adopting a clearly defined system of complementary protection,³⁴ as recommended a number of times in Senate Committee reports and by a range of non-government organisations, and referred to approvingly in the Proust report.³⁵

However, more than 8 months have now passed since the minister made the Proust report public. At the time he stated he was "consulting relevant stakeholders to discuss the recommendations made in Ms Proust's report".³⁶ Given that any meaningful changes in the areas of ministerial discretion and complementary protection will require legislative amendment -- no doubt preceded by consideration of proposed changes via a Senate Committee inquiry -- it is now time that things moved beyond the general principles involved to specific suggested changes being put forward.

The Proust report explicitly recommends amendments be made to the Migration and Citizenship Acts. Ms Proust acknowledges the widespread view -- expressed in evidence provided to and by many Senate Committee Inquiries, as well as via her own consultations -- that most people support some retention of ministerial discretion in the MA, but in a much more limited way which would need to be used far less frequently.³⁷ This is consistent with Recommendation 17 of the Senate Select Committee report, which seeks to "ensure that ministerial intervention is used (mainly) as a last resort for exceptional or unforseen cases".

Good public policy, reducing waste, unfairness and arbitrariness, and providing more certainty for applicants, migration agents and decision makers are just a few of the benefits that will be gained if this long overdue reform is finally made.

1 Andrew Bartlett is a research fellow in the Migration Law Program at ANU. (Opinions expressed here reflect his own view, not that of the University.) He served as a Senator for Queensland and as the immigration spokesperson for the Australian Democrat party from 1997-2008. He was a member of all of the Senate Committee Inquiries referred to in this article.

2 C Evans, "Ministerial intervention powers under review", media release, 9 July 2008, accessed 13 March 2009, www.minister.immi.gov.au.

3 E Proust, Report to the Minister for Immigration and Citizenship on the Appropriate Use of Ministerial Powers under the Migration and Citizenship Acts and Migration Regulations, Commonwealth of Australia, Canberra, 2008, accessed 13 March 2009, www.minister.immi.gov.au (the Proust report).

4 Above, note 2.

5 Above, note 2.

6 Above, note 3, p 8.

7 See www.aph.gov.au/Senate/committee/minmig_ctte/index.htm for terms of reference, submissions, public hearing transcripts and final report. Accessed 25 February 2009.

8 Senate Select Committee on Ministerial Discretion in Migration Matters, Report, Commonwealth of Australia, Canberra, 2004, p xxix. See also C Banham and M Riley, "Inquiry to target Ruddock on cash-for-visas claims", The Sydney Morning Herald, 20 June 2003, accessed 25 March 2009, www.smh.com.au/articles/2003/06/19/1055828435583.html.

9 The Proust report indicated that in conducting the review, she read the 2004 Senate Select Committee Report, together with the relevant Acts and Regulations. It also indicates that she spoke to "Two former Ministers for Immigration, various stakeholders, Departmental officers and staff in [the minister's] office" (at p 2). Appendix B of the Proust report lists the people who were interviewed.

10 Above, note 3, p 4.

11 N McKenzie and R Baker, "Mafia Cash for Visa Scandal", The Age, 23 February 2009, accessed 25 March 2009, www.theage.com.au/national/mafia-cashforvisa-scandal-20090222-8eoz.html?page=-1; "Vanstone granted visa to mafia man", The Australian, 23 February 2009, accessed 25 March 2009, www.theaustralian.news.com.au/story/0,25197,24388758-12377,00.html.

12 Senate Legal and Constitutional References Committee, A Sanctuary Under Review: An Examination of Australia's Refugee and Humanitarian Determination Processes, Commonwealth of Australia, Canberra, 2000, accessed 25 March 2009, www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/1999-02/refugees/report/contents.htm.

13 Above, note 12, Ch 9.

14 Above, note 12, para 8.2, p 237.

15 Above, note 12, Recommendation 2.2, p 60.

16 Commonwealth Hansard, Senate, 8 February 2001, p 21,747.

17 The Committee report, plus submissions, transcripts of public hearings and the government's response can be found at www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2004-07/migration/index.htm, accessed 25 March 2009.

18 Labor members of the committee were Senators Trish Crossin (currently Chair of the same Senate Legal and Constitutional Affairs Committee), Joe Ludwig (now Minister for Human Services) and Linda Kirk (no longer in the Senate).

19 Senate Legal and Constitutional References Committee, Report of Inquiry into Administration and operation of the Migration Act 1958, Commonwealth of Australia, Canberra, 2006, paras 4.124 and 4.126, p 150.

20 M Clarke, Report of the Inquiry into the Case of Dr Mohamed Haneef, Commonwealth of Australia, Canberra, 2008, accessed 25 March 2009, www.haneefcaseinquiry.gov.au. The report considered but rejected the idea of amending the MA to require the minister to seek advice from ASIO before acting to cancel a visa on the suspicion the person was involved in or associated with another person suspected of being involved in a terrorist act. See Section 6.2.3, p 276.

21 Above, note 2.

22 K Roberts, "Man raised in Australia to be deported to Sweden", transcript, The World Today, ABC Radio, 9 November 2006, accessed 25 March 2009, www.abc.net.au/worldtoday/content/2006/s1784816.htm.

23 "Plea for stateless brother", The Sydney Morning Herald, 24 November 2005, accessed 25 March 2009, www.smh.com.au/articles/2005/11/24/1132703280426.html.

24 "Activist's expensive exit goes to appeal", The Sydney Morning Herald, 17 September 2005, accessed 25 March 2009, www.smh.com.au/news/world/activists-expensive-exit-goes-to-appeal/2005/09/16/1126750129158.html.

25 Senate Legal and Constitutional Legislation Committee, Report of Inquiry into the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1997. Commonwealth of Australia, Canberra, 1998, accessed 25 March 2009, www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/1996-99.htm. See additional comments by Senator B Cooney and minority report by Senators N Bolkus and J McKiernan.

26 See also the report of the Parliamentary Joint Standing Committee on Migration titled Deportation of Non-Citizen Criminals, 1998, accessed 25 March 2009, www.aph.gov.au/house/committee/mig/report/criminal_deportation/index.htm.

27 Above, note 6.

28 C Evans, "Statement by Senator Evans on Dr Bernhard Moeller", media release, 26 November 2008, accessed 13 March 2009, www.minister.immi.gov.au.

29 Senate Legal and Constitutional Legislation Committee, Report of Inquiry into the Migration Amendment (Agents Integrity Measures) Bill 2003 and Migration Agents Registration Application Charge Bill 2003. Commonwealth of Australia, Canberra, 2003.

30 Above, note 29, Recommendation 3, p vii.

31 The Joint Standing Committee on Migration decided in May 2008 to inquire into immigration detention in Australia. An initial report was tabled in December 2008, with further reports due to follow in the first half of 2009. Details of the inquiry are at www.aph.gov.au/house/committee/mig/detention/index.htm, accessed 25 March 2009.

32 C Evans, "Parliamentary Committee to investigate migration and disability", media release, 26 November 2008.

33 See in PAM3: Act -- Ministerial powers -- Minister's guidelines on ministerial powers (ss 345, 351, 391, 417, 454 and 501J), which applies to requests received after 5 December 2008 and replaces MSI 386.

34 "Refugee law to embrace more", The Sydney Morning Herald, 24 February 2008, accessed 25 March 2009, www.smh.com.au/national/refugee-law-to-embrace-more-20090223-8fts.html.

35 Above, note 3, pp 10-11.

36 Above, note 2.

37 In her report, Ms Proust states that while her initial view was that she "could not see the case for any discretion to remain with the Minister", "no-one (she) spoke to was of this view", though "many thought that the number and use of discretions could be reduced". Above, note 3, p 10.

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