Former Immigration Minister Senator Chris Evans once commented that he was concerned about how much personal power was vested in his position when making decisions about particular cases. He wanted to reduce that power and make the process more accountable and transparent.
In the Migration Act, there are a number of personal non-reviewable powers of the Minister to intervene in a case. Some relate to the ability to make any application at all, while others have to do with the overturning an adverse decision of a Tribunal.
A common criticism of these powers is that they are arbitrary and opaque in operation. The Minister can do whatever he or she likes, without legal reasoning, or even logic, safe in the knowledge that their decision cannot be reviewed in the Courts. Whilst it is good to have a form of safety valve for the difficult and complex cases, there is reason to be concerned about the lack of transparency in such processes.
The current Minister, on the other hand, is trying to increase the number of such powers, and is more likely to use the ministerial trump card to avoid judicial scrutiny. In a parliamentary system that relies on the checks and balances between the Parliament, Executive and Judiciary, it is not good for a liberal democracy when one arm of government is able to successively trump the others.
The case of a Pakistani Shia Hazara known as S297, currently before the High Court, is ONE example. Mr S297 arrived by boat in May 2012, claiming persecution as a Hazara because of his race and religion (Shia) from the Pakistani Taliban. He was found to meet the refugee definition by the Refugee Review Tribunal because he was a Hazara Shia, but the change in Government meant he was not granted a permanent visa and, in March 2014, the Minister ‘capped’ or limited the number of permanent visas to be granted under s85 until the TPV was reintroduced. This meant that Mr S2976 had to wait in detention until his case was reached. A very long wait was likely.
He successfully challenged the ‘capping’ power of the Minister in the High Court, which decided in June 2014 that the Minister could not limit the number of permanent protection visas under s85 because the Howard introduced s65A required protection visas to be decided within 90 days. The High Court ordered that the man who was found to meet the refugee definition was entitled to a decision on his visa application.
The Minister’s response was to make a decision under the rarely used power that a refugee will only get a permanent protection visa if the case meets the undefined national interest test. The Minister refused the case because the refugee did not meet the national interest. Then the Minister made a decision under another rarely used power to issue a ‘conclusive certificate’ that this refusal was not reviewable in the Refugee Review Tribunal.’ The reasons for that decision are being challenged in the High Court and will be heard on the eve of Human Rights Day in December.
Non-compellable and non-reviewable powers are very strong, and should not be exercised against someone, especially a person who has already been found to be a refugee, unless there are exceptionally strong reasons for doing so. The reason given so far is that it is Government policy not to give permanent residence to refugees who arrive by boat. They will only get the flawed and mentally damaging TPV.
The separation of powers and rule of law that is achieved by the balance between the three arms of government, should not lightly be allowed to be tipped strongly in favour of one arm simply to achieve a flawed political end – namely to punish refugees who arrive by boat.
There are three Migration Amendment Bills before Parliament, and some of the proposed amendments include retrograde changes that will increase the unreviewable powers of the Minister. The Howard Government-introduced 90 day period of processing will be abolished and the Minister will be able to limit the number of permanent visas granted in a year. This will create a serious backlog that will take years to finalise.
There is another change in the introduction of a trump card provision for the Minister personally to overturn review decisions of cancellation cases. This power has long existed for character cases, and was introduced by Minister Philip Ruddock back in 1999. However other cancellations on non-character grounds are reassessed by a merit review tribunal and the discretion to cancel is reconsidered. Some cancellations are for minor technical matters, while others are more serious and can be because of false documents.
Given the seriousness of visa cancellation, it is critical there is a separate review that is subject to judicial oversight only on the law. However the Minister wants to bypass the supervision of the Courts and be able personally to overturn the tribunal decisions he does not like, rather than challenging the legal basis of the decisions in the court. These can include a tribunal decision to overturn a cancellation of a bridging visa because of a breach of the puritanical behaviour protocols.
The widening of non-reviewable powers of a Minister should always be a concern, regardless of political colour. Centralising these decisions personally with the Minister and making proper review not available is a dangerous path in a liberal democracy where the independence of the rule of law is prized.
What will happen to Mr S297 depends not just on the High Court but also the hundreds of pages of changes to Migration Law currently before the parliament, and probably further adverse decisions by the Minister. Meanwhile, just last week a bus load of Hazara Shias was stopped in Quetta and the Hazara men were executed by an extremist group because of their race and religion – just as Mr S297 fears. This again proves that the fears of refugees like Mr S297 are genuine, and his refugee solution is not a circle of temporary visas, but a permanent solution.
Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the boards of the IARC and JRS.
Trump card image by Shutterstock.