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Why minister?

By Marianne Dickie - posted Tuesday, 15 March 2011

The Australian this week carried an opinion piece by the opposition spokesperson for Immigration. Scott Morrison condemned the move to introduce complementary protection for those who do not meet Refugee Convention grounds for protection but need to remain in Australia permanently.

Morrison correctly points out that Australia has protection obligations under various treaties other than the Refugee Convention. He insists however that the status quo remain as any alternative will open floodgates, clog courts and increase the number of people in detention.

He is incorrectly under the impression that the solution for those that fall outside the Refugee Convention is to seek the protection of the Immigration Minister who will grant a visa keeping them safe. For those outside Australia, Morrison says they need only rely on a sponsorship to Australia by a family member or community group and they too will be safe.


What he has failed to notice is the inability of both the offshore regime and the ministerial discretion powers to adequately meet Australia's obligations, and in particular for anyone to know if these two mechanisms are ever used for this purpose.

The reliance of Scott Morrison on the powers held by the Minister for Immigration under the Act would be funny if it did not present such a danger for those affected.

A 2004 Senate Select Committee on Ministerial Discretion in Migration Matters made 21 recommendations including the adoption of complementary protection to prevent reliance on the Minister's discretionary powers to meet obligations under the Convention Against Torture, The International Convention on Civil and Political Rights and the Convention on the Rights of the Child.

This recommendation arose because reliance on the Minister arguably leaves Australia open to non compliance of its convention obligations. Ministerial discretion powers are non compellable, non reviewable and non delegable. The result is that no one can scrutinise the criteria on how or why life and death decisions are made by a Minister or even compel the Minister to make them at all.

In addition ministerial intervention is a lengthy process sometimes taking up to one year. Thousands of requests are sifted through by the Department who make recommendations to the minister who may or may not take them into account. There is no way of knowing the detail of the claims or the reasons for grant. The mystery surrounding the decision making process remains shrouded despite the Select Committee which was held following allegations of corruption and favouritism in grants of visas by the former Minister for Immigration Hon Philip Ruddock.

Ruddock used his ministerial powers more than any previous minister, intervening between 1996 and 2003 in 2503 cases. Only 17% of those were protection visas. He issued guidelines for applicants which have been strengthened under Labor, however Ministers, including Ruddock frequently approve cases outside the guidelines leaving the Department, applicants and those who work on their behalf devastated or delighted at the final decision, but no wiser as to why it has been made.


The opposition leader's throwaway line for those offshore who do not meet convention grounds is akin to throwing a deflated life jacket to a drowning man. If applicants are left feeling that Ministerial discretion is a lottery draw bearing no relation to the danger they face, then those applying for offshore protection under the Global humanitarian or split family category must despair at the treatment they receive.

Families members living in Australia are faced with years of repeat applications trying desperately to prove their father, mother, wife, sibling or child are in as much danger as they were when granted asylum. In addition they must lodge their sponsorship within five years, doing so whilst struggling to learn the language, find work and recover from the torture and trauma they have suffered. Applications are frequently rejected with no right of review and no valid reason other than a broad statement that the applicants do not meet the visa criteria. For those lucky ones who may get noticed under the split family provisions the costs are high. Family members must under take costly DNA testing, medicals, travel to interviews across international borders and finally the payment of the flight to Australia.

A complementary protection visa will not replace the humanitarian visa system and is not designed to replace Ministerial discretion. It will however provide a system of relief for the minister and for those seeking protection. In the past this has been dealt with by the use of special visa categories that grant permanence to large groups of people we owe protection obligations to.

In 1990 approximately 6,900 people with illegal status were granted visas, in 1993 three special visa categories were created to deal with 42,700 people from countries such as Peoples Republic of China, the former Yugoslavia and Sri Lanka. In 1997 Ruddock established a special visa category for more than 7,200 people.

Australia is one of the few countries in the world without complementary protection. The successful passage of this legislation will remove the load on the Minister and present transparency in decision making. It is not only a welcome solution for vulnerable people seeking safety it will protect the government and ensure Australia plays its role on the world stage appropriately.

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About the Author

Marianne van Galen Dickie began working with refugees in 1994 when she was employed as a Project Officer and Management Committee member of The Rehabilitation Unit for Survivors of Torture and Trauma (TRUSTT) in Queensland. Marianne worked as the immigration advisor for the Australian Democrats from 1997 and until 2004. During her time as an advisor Marianne worked through some of the most politically contentious periods and changes to Migration law. She has authored amendments to Commonwealth legislation, prepared Senate Submissions, and contributed to the Qld & Victorian Lawyers Practice Manuals. Since moving to the ACT in 2007 Marianne has worked for the ANU as the Assistant Convenor and Program Co-ordinator of the Graduate Certificate in Migration Law. Marianne continues to give pro bono migration advice through her work with the Migrant Resource Centre of Canberra and Queanbeyan.

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