Committees submitted to
1. The Australian Human Rights Commission makes this submission to the Joint Standing Committee on Migration in its inquiry into ‘review processes associated with visa cancellations made on criminal grounds’.
2. The Terms of Reference for the inquiry provide that the Committee shall have particular regard to:
- The efficiency of existing review processes as they relate to decisions made under section 501 of the Migration Act.
- Present levels of duplication associated with the merits review process.
- The scope of the Administrative Appeals Tribunal’s jurisdiction to review ministerial decisions.
3. The Commission welcomes the opportunity to make a submission to this inquiry. This submission responds to all three of the Committee’s Terms of Reference.
4. Australia has a highly complex system for assessing whether someone is eligible for a visa to enter or remain in the country. Under international law, the Australian Government is entitled to place conditions on the grant of visas – including that visa holders abide by Australia’s criminal laws. It is reasonable for the community to expect that people temporarily in Australia who commit serious crimes may lose the right to remain in Australia. Some visa cancellations on criminal grounds are proportionate to legitimate public objects and are consistent with Australia’s international human rights obligations.
5. The decision to refuse or cancel a visa can also have serious impacts on the visa applicant or visa holder and on members of that person’s family. This is especially true of people who have been present in Australia for a long period of time, perhaps their whole lives, but who are not citizens. Removal of such people from Australia will have very significant personal impacts. It may result in people being removed from the only country they have known. It may result in families being split up.
6. For people who have been recognised as refugees, the personal risks of having a protection visa cancelled are particularly heightened. If they are returned to their country of origin, they may face a real risk of persecution. If they cannot be returned because of those risks, they face the prospect of prolonged and indefinite detention in Australia.
7. Removal of an individual from Australia can also have broader consequences. Where, for example, the individual is the main breadwinner in a family, there can be a profound effect on the individual’s dependants – some or all of whom might be Australian citizens. This, in turn, can increase the financial and other burden on the state to provide for those dependants. Removal can also affect the broader community in other ways. Sometimes this effect will be overall positive; for example, in the removal of an individual who presents an intolerable risk to community safety. But sometimes, on balance, removal will have a negative effect on the community; for example, where the individual plays an important, positive role in community life.
8. Given the potential impact on individual rights, it is important that any decision to refuse or cancel a visa is properly made and takes into account all of the relevant circumstances. For the last 40 years, since the introduction of administrative law reforms including the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Australian legal system has typically ensured that administrative decisions by government that are likely to affect significant interests of individuals are subject to independent merits review. The aim of merits review is to ensure that administrative decision-making is principled and consistent, and results in decisions that are correct and preferable. In a system as complex as Australia’s migration system, merits review provides a vital safeguard in avoiding error.
9. The first two Terms of Reference require the Committee to have particular regard to the levels of inefficiency and duplication in the current merits review arrangements. There are a number of aspects of the current regime that involve inefficiencies and duplication.
10. First, the merits review process for decisions to refuse or cancel visas on character grounds is an ‘expedited’ process. This process provides fewer rights for applicants than the ordinary merits review process. For example, it involves: less detailed statements of reasons for decision; a short and inflexible period for review applications to be made; and a prohibition on review applicants raising relevant material during a hearing (whether orally or in writing) unless this has been provided to the Minister in writing two days in advance.
11. Under these circumstances, there is an increased risk of applicants being locked out of merits review or the wrong decision being made on review. The Commission considers that there are good reasons to dispense with the ‘expedited’ process and to provide the ordinary merits review rights to people subject to visa refusal or cancellation on character grounds. This is likely to lead to increased efficiencies including better decision-making at the merits review stage and lower rates of judicial review.
12. Secondly, there is currently a system for mandatory cancellation of visas in certain circumstances, with the onus put on applicants to request a revocation of the cancellation. This process leads to significant inefficiencies because up to 50% of all mandatory visas cancellations are ultimately revoked. Had decision-makers been able to exercise discretion in these cases, it is likely that a substantial number of visas may never have been cancelled, leading to a significant saving in administrative costs. The Commission recommends that the mandatory cancellation process be repealed.
13. Thirdly, after a primary decision has been made by a delegate of the Minister and it is reviewed by the AAT, the Minister is able to set aside decisions of the AAT if certain conditions are met. This represents a duplication of executive decision-making — first by a delegate and then by the Minister — and is contrary to the ordinary process of merits review. Merits review is intended to provide a check on certain kinds of decisions by the executive to ensure robust decision-making. The current process provides the opposite: an executive check on independent tribunal decisions.
14. The last term of reference for this inquiry relates to the scope of the AAT’s jurisdiction to review ministerial decisions. At present, personal decisions of the Minister are exempt from merits review. However, there is no reason to think that the person occupying the office of the Minister for Home Affairs from time to time is immune from making errors of fact. Given the significant impact on individual rights, decisions to refuse or cancel visas, even if made by a Minister, should be subject to merits review. Decisions of the AAT would continue to be subject to judicial review in the courts.
15. The Commission makes the following recommendations.
Recommendation 1: The Commission recommends that the Minister for Home Affairs amend Direction No. 63 to require decision-makers to consider cancelling a bridging visa under reg 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) only when a person is charged with a serious offence.
Recommendation 2: The Commission recommends that the Minister for Home Affairs amend all Ministerial directions in relation to visa refusal or cancellation to include as a primary consideration whether Australia has international non-refoulement obligations to the person.
Recommendation 3: The Commission recommends that the Minister for Home Affairs amend Direction No. 65 to make clear that, in deciding whether to refuse or cancel a visa, considerations that must be taken into account are whether a person will be detained in immigration detention following refusal or cancellation, the likely length of any period of immigration detention, and whether the person faces the prospect of a prolonged and indefinite period in immigration detention.
Recommendation 4: The Commission recommends that the mandatory visa cancellation provisions in ss 501(3A) and 501CA of the Migration Act 1958 (Cth) be repealed.
Recommendation 5: The Commission recommends that the Committee consider the impacts of:
(a) the 12 week time limit for the expedited process in s 500(6L) of the Migration Act for review of decisions to refuse or cancel visas on character grounds; and
(b) the fact that if a decision is not made in 12 weeks, the refusal or cancellation will be deemed to be affirmed
- the ability of applicants to effectively prepare their case
- the ability of the AAT to deal properly with these cases
- the efficiency of the AAT’s review processes in other cases.
Recommendation 6: The Commission recommends that:
(a) the procedural requirements for the expedited merits review process set out in ss 500(6A) to (6K) of the Migration Act be repealed
(b) decisions made under ss 501 and 501CA of the Migration Act be subject to merits review by the AAT under its ordinary processes.
Recommendation 7: The Commission recommends that the time limit for applying to the AAT for review of decisions to cancel a visa under s 116 of the Migration Act be extended to 28 days.
Recommendation 8: The Commission recommends that, where a bridging visa has been cancelled under s 116 of the Migration Act on the basis of criminal charges, the withdrawal of these charges or a non-adverse judicial outcome should automatically trigger a review of the decision to cancel the visa.
Recommendation 9: The Commission recommends that the Ministerial powers in ss 133C(1), 501A and 501BA of the Migration Act to set aside decisions of the AAT be repealed.
Recommendation 10: The Commission recommends that personal decisions by the Minister to refuse or cancel visas on character grounds be subject to merits review in the AAT.
16. If recommendations 9 and 10 above are not accepted, the Commission makes the following recommendations:
Recommendation 11: The Commission recommends that, if the Minister exercises a personal power under s 501 of the Migration Act to refuse or cancel a visa, the Minister be required to table in Parliament a notice setting out the decision and the reasons for the decision. The notice should not include the name or other identifying information of the person affected by the decision.
Recommendation 12: The Commission recommends that, if the Minister exercises a personal power under ss 501A, 501B or 501BA of the Migration Act to set aside an original decision and either refuse or cancel a visa, the Minister be required to table in Parliament a notice that:
(a) sets out the original decision
(b) states that the Minister has set aside the original decision
(c) sets out the decision made by the Minister in connection with the decision to set aside the original decision
(d) sets out the reasons for the Minister’s decision to set aside the original decision.
The notice should not include the name or other identifying information of the person affected by the decision.
Recommendation 13: The Commission recommends that s 501CA(8) of the Migration Act be amended to require the Minister to set out the decision and the reasons for the decision in the notice to be tabled in Parliament when the Minister decides not to revoke a mandatory cancellation. The notice should not include the name or other identifying information of the person affected by the decision.