Exercising discretion

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.