Exercising discretion

Any migration agent who assists clients with the area of ministerial discretion will admit that this is an area of work that is both frustrating and highly rewarding. The tension arises because this area of migration law is shrouded in mystery. There is no definitive way to say why a submission is successful.

Ministerial discretion is known as “unconfined discretion” there is no equivalent power in any other Commonwealth legislation. The only check on this power is the Migration Act which provides that the Minister must table notice in both houses of parliament when he exercises his discretion.

The Minister for Immigration, Chris Evans, has indicated that he is uncomfortable with the power and it is now under review. When deciding how to proceed, he needs to ensure that the Senate Inquiry of 2004 is not overlooked.

The inquiry was contentious: despite difficult relations with both the department and the Ministers office, the committee received submissions from some of the most eminent stakeholders in this area. Overwhelmingly they recommended that ministerial discretion be retained with amendments.

The discretion power was a result of changes made to the Migration Act and regulations in 1989. Prior to this, discretionary powers were delegable to departmental decision makers.

The first bill proposing these changes was blocked in the Senate by the opposition and the Democrats who argued that it went too far in removing discretion from departmental officers.

Although the media focus is usually upon asylum seekers, the regime allows the Minister to exercise a variety of discretionary powers under section 351, 417, 345, 391, 454 and 501J. These powers are non reviewable, non delegable and non compellable.

Ministerial discretion involves three decisions: the decision to exercise discretion; to consider exercising discretion; and not to exercise discretion. In practice the third decision not to exercise discretion is often delegated to the Department. This is because the Ministerial Intervention Unit, which “vets” the requests and provides a recommendation to the Minister, handles administration of decision-making.

Several important issues where raised by the Senate Inquiry and remain unresolved to this day:

1. the restriction of discretion means that people can only access the Minister after they have applied unsuccessfully for a visa, and undergo review in the relevant tribunal;
2. only the original request is considered; and
3. it is the primary mechanism for complying with Australia’s international obligations under several international treaties.

People who do not fit into a visa category, but have a valid reason to remain in Australia, have no choice but to go through the entire process of application and review before a decision can be made regarding their case. This is not only costly, but time consuming, with the average case taking six months to a year before a decision is reached. During this process the majority of people are unable to work or receive benefits.

Unlike other areas of migration advice and assistance, one does not have to be a lawyer or migration agent to help someone seek ministerial discretion. Any one can write to the Minister and ask him to exercise this power.

Practitioners and stakeholders argue this in one of the most serious flaws in the system. Although guidelines have been prepared which inform departmental staff when to refer a case to the Minister and what considerations he may take into account when making a decision, there is no information available publicly to assist people approaching the Minister.

However the guidelines are not criteria and are not binding. The sole criterion is the public interest. This has been interpreted broadly to include humanitarian and compassionate circumstances. There is no scope to challenge the Minister’s view of what constitutes public interest.

One of the committee recommendations was that the government increase the advice to public on how to access ministerial discretion. This recommendation was ignored.

Concerns remain that decisions are made, not on the merits of the case, but on a combination of factors including access to the Minister and the quality of the submission.

As there is no formal process, applicants, their relatives, friends or concerned citizens may write to the Minister asking for his help. In many cases the applicant may not even know that their friends or supporters have written to the Minister.

This letter will be taken as a first submission. Once rejected by the Ministerial Intervention Unit no further submissions will be considered, unless they contain new information. Once the first letter is considered and rejected the applicant will loses their eligibility for a bridging visa. So an applicant who is unaware that a submission has been made on their behalf can find they are unlawful through no fault of their own.

During the inquiry submissions raised the issue of Australia’s international obligations. Australia has an obligation of non-refoulment under four International Conventions.

1. Convention Relating to the Status of Refugees (1951) and the 1967 Protocol relating to Status of Refugees.
2. Convention Against Torture.
3. Convention on the Rights of the Child.
4. International Convention on Civil and Political Rights.

Only the definition of a refugee in the UN Convention has been incorporated into domestic law. Therefore people who have a right to protection under the other conventions can and are excluded under the Migration Act.

This is why the guidelines identify obligations under these conventions. There is no compulsion to ensure that the Minister takes these into account. And, as there is no data collected on reasons for ministerial discretion, there is no method of assessing if Australia is meeting its obligations.

Information provided to the Senate Select Committee showed was a huge increase in requests for intervention. The committee found that this was due to the reluctance to create specific visa classes to address problems, increased knowledge of the avenues available for appeal and an increase in case loads of the MRT.

Whether the current problems are a combination of these or a direct result of a system where only the Minister can judge cases falling outside of the legislative framework, there is no doubt that review of this system it is long overdue.