LAWS 8651 Research Essay PDF

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Research Essay re "Ministerial Discretion"...

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LAWS8651 FUNDAMENTALS OF AUSTRALIAN MIGRATION LAW

ASSIGNMENT 1

QUESTION 1 – ‘MINISTERIAL DISCRETION’

I INTRODUCTION

‘The machinery legislation of the 1901 and 1958 Migration Acts conferred wide discretionary powers upon the Minister’1 responsible for immigration (Minister). In 1989, reforms to the Migration Act 1958 (Cth) (Act) ‘removed most of these discretionary powers by creating legally binding statutory rules for visa categories, but allowed the Minister a residual public interest power to grant a visa in individual circumstances. 2 As initially conceived, ‘these discretionary powers were meant to balance what is an otherwise inflexible set of regulations.’3

While there are a number of sections of the current Act that confer a discretionary power upon the Minister,4 this essay focus on those that are commonly referred to as the Minister’s ‘public interest’ powers 5 and discusses the role of the ministerial guidelines that instruct Department of Immigration and Border Protection

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Kerry Carrington, ‘Ministerial Discretion in Migration Matters: Contemporary Policy Issues in Historical Context’ (Current Issues Brief No 3, Parliamentary Library, Parliament of Australia, 2003) 1. 2 Ibid. 3 Ibid. 4 See, eg, Migration Act 1958 (Cth) ss 33, 37A, 46A, 46B, 48B, 72, 91F, 91L, 91Q, 137N, 261K, 351, 417, 495B, 501A, 501J. See Kerry Carrington, Brief to Senate Select Committee, Ministerial Discretion in Migration Matters, September 2003. 5 Migration Act 1958 (Cth) ss 351, 417, 501J.

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(Department) staff as to the circumstances in which the Minister will consider using those powers.

Part V of the essay argues that the current version of those ministerial guidelines, signed on 11 March 2016 6 (Current Guidelines), strengthen the Department’s ‘gatekeeper’ role and, as a consequence, increases the likelihood that less intervention requests will be referred to the Minister for consideration. If this is true it is likely that some requesters who might have accessed the intervention ‘safety-net’ prior to 11 March 2016 will now be denied that opportunity without the Minister ever knowing of their case.

II MINISTER’S ‘PUBLIC INTEREST’ OR ‘INTERVENTION’ POWERS

Under ss 351, 417 and 501J of the Act, the Minister may substitute a more favourable decision than the one handed down by the Administrative Appeals Tribunal (Tribunal), ‘if the Minister thinks it is in the public interest to do so.’7

‘Public interest’ is not defined in the legislation. The High Court has found the term to be one ‘which is difficult to give a precise content’8 and has described ‘public interest’ as ‘a discretionary value judgment to be made by reference to undefined factual matters…’9

Whilst the Minister’s ‘public interest’ powers relate to three different species of !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 6

Department of Immigration and Border Protection, Procedures Advice Manual 3: Act – Ministerial powers: Minister’s guidelines on ministerial powers (s351, s417 and s501J) signed 11 March 2016 and reissued on 29 March 2016 7 Migration Act 1958 (Cth) ss 351(1), 417(1), 501J(1). Section 351 of the Act relates to decisions of the Tribunal concerning the grant or cancellation of visas other than protection or temporary safe haven visas (see s336M). Sections 417 and 501J of the Act relate to decisions of the Tribunal concerning the grant or cancellation of protection visas (see ss 408, 501J(2)). 8 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 648 [30] (French CJ and Keiffel J) (Plaintiff S10) citing Osland v Secretary, Department of Justice (2008) 234 CLR 275, 300 [57] (Gleeson CJ, Gummow, Heydon and Kiefel JJ). 9 Plaintiff S10 (2012) 246 CLR 636, 648 [30] (French CJ and Keiffel J) (citations omitted).

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Tribunal decision, ss 351, 417 and 501J of the Act all have similar statutory characteristics. The power must be exercised by the Minister personally and cannot be delegated.10 Further, the power is non-compellable—the Minister does not have any duty to consider whether or not to exercise the power in a particular case irrespective of whether a request has been received or whether there are circumstances, which might be thought, in the public interest, to attract its application.11 There are only two preconditions for the exercise of the power, namely, the Minister having decided to consider whether to exercise the power and the Minister thinking that it is in the public interest to do so.12 As there is no statutory duty to consider any request, ‘no question of procedural fairness arises when the Minister declines to embark upon such a consideration’.13

Where the Minister decides to exercise his or her public interest power he or she must cause a statement to be tabled in both houses of Parliament setting out the decision of the relevant tribunal and the reasons for substituting a more favourable decision, in a manner that does not identify or name the individual.14 Statements must be tabled within fifteen sitting days of the end of the six-month period in which the decision is made.15

In making a decision under section 351, 417 (or section 501J), the Minister is not bound by Subdivisions AA and AC of Division 3 of Part 2 of the Act and the !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 10

See Migration Act 1985 (Cth) ss 351(3), 417(3) and 501J(4). However the power can be exercised by another Minister of the Crown responsible for the administration of the Act, for example, the Assistant Minister for Immigration and Border Protection. 11 Plaintiff S10 (2012) 246 CLR 636, 648 [30] (French CJ and Kiefel J), 667 [99(i)] (Gummow, Hayne, Crennan and Bell JJ) 12 Ibid 667 [99(iv)] (Gummow, Hayne, Crennan and Bell JJ). 13 Ibid 654 [50] (French CJ and Kiefel J). 14 Migration Act 1958 ss 351(4) and (5), 417(4) and (5), 501J(5) and (6). 15 Ibid ss 351(6), 417(6), 501J(7).

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Regulations that complement those Subdivisions. The Minister is, however, bound by all other provisions of the Act and Regulations.16 The practical effect of the Minister not being bound by these subdivisions of the Migration Act is that when considering exercising the discretionary powers, the Minister is not restricted as to the type of substantive visa that can be granted. The Minister does not have to be satisfied that criteria specified in the Migration Regulations have been met. Further, under the ministerial discretion, a person can be granted a visa that they have not applied for.17

III ORIGINAL INTENT OF THE MINISTER’S ‘PUBLIC INTEREST’ POWERS

As Dr Carrington notes:

Fundamentally, the discretionary power balances what is an otherwise inflexible set of regulations to allow the minister a public interest power to grant a visa in individual circumstances which the legislation had not anticipated and where there are compelling, compassionate and humanitarian considerations for doing so. In other words ministerial discretion acts as a safety net.18

This was particularly the case between 1989 and April 201219 as, during that period, the Act did not contain any provisions relating to complementary protection. A person found not to be a refugee, by the primary decision maker and then the Tribunal, had no option but to seek the Minister’s intervention if the case raised Australia’s non-

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Migration Act 1958 (Cth) ss 351(2), 417(2), 501J(3). Department of Immigration and Multicultural and Indigenous Affairs (DIMIA), Submission No 24 to Senate Select Committee, Ministerial Discretion in Migration Matters, August 2003, 15 [60] (DIMIA Submission). 18 Carrington, above n 4, 9. 19 Following the commencement of the Migration Amendment (Complimentary Protection) Act 2011 (Cth).

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refoulement obligations (and other obligations) under international treaties.20 This is particularly relevant with respect to the Current Guidelines, as discussed below.

In 2004 the Minister’s powers under ss351 and 417 were the subject of a Senate Select Committee (Committee) inquiry.21 In the Department’s submission to the Inquiry it was noted that

[t]he discretionary powers are integral features of the legal framework of the Act, providing a ‘safety net’ for the exercise of migration laws which are generally fair but may, in certain exceptional cases, lead to an unintended harsh result.22

The Committee found almost unanimous support for having some capacity for Ministerial discretion in the migration legislation. Among the 21 recommendations contained in its Report, the Committee recommended that ‘the ministerial intervention powers [be] retained as the ultimate safety net in the migration system, provided that steps are taken to improve the transparency and accountability of their operation …’23

Similarly, a broader Senate inquiry into the administration and operation of the Act two years later noted that ‘most submissions and witnesses agreed that there is a need for Ministerial discretion in relation to migration matters, as a “catch-all” or a final “safety net”’.24

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See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT); International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (CRC). 21 Senate Select Committee on Ministerial Discretion in Migration Matters (Inquiry). 22 DIMIA, above n 18, 14 [53]. 23 Senate Select Committee, Parliament of Australia, Ministerial Discretion in Migration Matters (2004) 163 [9.73]. (Recommendation 20) 24 Senate Legal and Constitutional References Committee, Parliament of Australia, Administration and Operation of the Migration Act 1958 (2006) 136 [4.71].

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IV MINISTERIAL GUIDELINES

While the Minister’s discretionary power under ss 351, 417 and 501J of the Act has to be exercised personally and is not allowed to be delegated, administrative routines are governed by a set of ministerial guidelines which explain the circumstances where the Minister may want to exercise his discretion.25 The ministerial guidelines

effectively delegate the vetting of a substantial volume of requests for Ministerial intervention to the [Department]. [Departmental officers] are delegated the role of deciding which cases to refer to the Minister’s unit for consideration, and which ones to cull.26

On this basis it can be argued that the Department plays a crucial ‘gatekeeper’ role in the intervention process.

Importantly, the issuance of ministerial guidelines is not a decision by the Minister to exercise the powers conferred by s 351 (and by analogy, ss 417 and 501J) and there is ‘no implied requirement that the guidelines be applied in such a way as to accord with the hearing rule aspect of procedural fairness’.27

V IMPACT OF THE CURRENT GUIDELINES

The Current Guidelines are a substantial re-write of the previous version of the Ministerial Guidelines that were released by the Department on 10 October 201528 (Previous Guidelines).

With the exception of only minor content changes, the

Previous Guidelines are virtually identical to those signed by Minister Ruddock over !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 25

Carrington, above n 4, 5. Ibid 27 Plaintiff S10 (2012) 246 CLR 636, 655 [52] (French CJ and Kiefel J). 28 DIBP, Procedures Advice Manual 3: Act – Ministerial powers: Minister’s guidelines on ministerial powers (s345, s351, s417 and s501J) reissued on 10 October 2015. 26

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17 years ago,29 thus the Previous Guidelines are an excellent proxy for all previous iterations stretching back to at least 31 March 1999.

It is argued that there are three aspects of the Current Guidelines that lead to the conclusion that fewer cases will be referred to the Minister than would have been the case under the Previous Guidelines. These are: the tangible change in the ‘tone’ of the Current Guidelines; secondly, the manner in which the Department deals with Tribunal decisions and specific referrals from the Tribunal and thirdly, the removal of three specific ‘unique or exceptional circumstances’ from the list contained in the Previous Guidelines.

A The ‘tone’ of the Current Guidelines

In the Second Reading Speech for the Migration Legislation Amendment Act (No. 2) Bill 1989 Senator Ray, the then Minister, said the following about the public interest powers that were to be inserted into the Act: Consideration of the public interest could involve consideration of the circumstances of the particular case having regard to unusual, unforeseen or other features that are deserving of a favourable response against the background of Australia being a compassionate and humane society.30

In 2003 Dr Carrington opined that the rationale for retaining a residual discretionary power to be exercised by the Minister in immigration matters had been succinctly expressed by Minister Ruddock in the 31 March 1999 version of the ministerial

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Signed 31 March 1999 and set out in Migration Series Instruction 225: Ministerial Guidelines for the identification of unique or exceptional cases where it may be in the public interest to substitute a more favourable decision under ss 345, 351, 391, 417 and 454 of the Migration Act 1958 (MSI 225). 30 Commonwealth, Parliamentary Debates, Senate, (Robert Ray, Minister for Immigration, Local Government and Ethnic Affairs) cited in DIMIA, above n 18, [111] (emphasis added).

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guidelines: The public interest may be served through the Australian Government responding with care and compassion to the plight of certain individuals in particular circumstances. My public interest powers provide me with a means of doing so.31

That first sentence remained unchanged through successive iterations of the ministerial guidelines since 31 March 1999 (including the Previous Guidelines) and therefore it is of considerable note that it has been excised from the Current Guidelines.

The Current Guidelines include, for the first time, a set of ‘Ministerial Intervention Principles’ which ‘apply to the intervention powers covered by [the Current] Guidelines’. 32 The first two (of nine) principles read:

[I]t is my general expectation that a person who has not been granted a visa through the statutory visa process will leave Australia; and [C]onsideration of a case for intervention is at my discretion and is not an extension of the visa process.

It is argued that the excision from the Current Guidelines of any reference to ‘care and compassion’ combined with the new Ministerial Intervention Principles set a much harsher tone for the Departmental assessment of requests for ministerial intervention than that that existed under the Previous Guidelines. This tougher tone may influence the way in which individual Departmental assessors now vet intervention requests.

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MSI 225, n 29 above, Section 4.1 cited in Carrington, above n 4, 3. See also the Previous Guidelines 7 at section 10. 32 PAM3: n 5 above, 3, section 3

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B Tribunal decisions

1

Voluntary assessment of Tribunal decisions by the Department

Under the Previous Guidelines the Minister permitted Departmental officers to voluntarily bring to the Minister’s attention Tribunal decisions that were considered by the officer to present one or more ‘unique or exceptional circumstances’ as set out in those guidelines.

Importantly, this could occur even if the Tribunal had not

specifically referred the decision to the Department.

Under the Current Guidelines no such mechanism for voluntary Departmental assessment of a tribunal decision against the guidelines exists – a case must now be specifically referred by the Tribunal for the Minister’s attention before it will be assessed by the Department.

2 Specific referrals from the Tribunal

In his submission to the 2003 Senate Select Committee Inquiry on Ministerial Intervention the Commonwealth Ombudsman commented:

MSI 225 anticipates also that the trigger for a matter being placed before the Minister can be a recommendation to that effect made by a Tribunal.

That is a valuable

mechanism for integrating external review and executive practice in the operation of the migration legislation. 33

Indeed, under the Previous Guidelines it was the Minister’s expectation that matters referred from the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) would be brought to his attention: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 33

Commonwealth Ombudsman, Submission No 28 to Senate Select Committee, Ministerial Discretion in Migration Matters, August 2003, 7 [3.9].

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‘I will generally only consider the exercise of my public interest powers in cases which are referred to the department for my consideration by a review tribunal or which exhibit one or more unique or exceptional circumstances.’34

Section 11 of the Previous Guidelines (specifically titled ‘Referral by a review tribunal’) provided: ‘When a review tribunal member considers a case should be brought to my attention, they may refer the case to my department and their views will generally be brought to my attention using the specified process set out in the guidelines.’

Thus irrespective of whether a case presented ‘unique or exceptional circumstances’ a referral from either the MRT or RRT would nevertheless be brought to the Minister’s attention under the Previous Guidelines.35

By comparison, the Current Guidelines provide:

A review tribunal may refer a case to the Department if the [Tribunal] member believes the issues involved fall within the unique or exceptional circumstances described in ... these guidelines. The Department will [then] assess the circumstances of the case and may refer the case to me where it meets my guidelines for referral. If the Department assesses that the case does not meet my guidelines for referral, the Department will finalise the case… without referral to me.36

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DIPB, above n 29, 7 (emphasis added). It should possibly be noted that in its submission to the Senate Select Committee inquiry into Ministerial Intervention, the Department stated that ‘there is no automatic post review assessment of tribunal affirmed decisions in the non-humanitarian caseload [that is, requests for ministerial intervention under s351]’. However it is further noted that this instruction is not found in MSI225, its successor guidelines MSI386 or in the Previous Guidelines – all of which refer to the referral of ‘a decision by a review tribunal’. 36 PAM3 n5 above, 9, sections 8 and 10.1 (emphasis added)

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Hence a recommendation from a Tribunal is now no longer a ‘trigger for a matter being placed before the Minister’37 as it was under the Previous Guidelines.

Arguably these changes mean ...