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Overplaying the Immigration Minister's trump card

  • 29 October 2014

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