Overview of Ministerial Intervention and Guidelines
Discuss about the Australian Immigration Law for Intervention and Ministerial Guidelines.
The provision of “safety net” is a discretion that is conferred on the Minister by “section 351 and section 417 of the Migration Act, 1958” to make favourable decisions on a visa application in the “public interest.” The decision that is to be taken by the Minister should be for the benefit of the public and the Minister has the responsibility of determining the feature and the statutory requirements being met or not for the entry of any given migrant[1]. Earlier, the Tribunal determined the precondition of the Migrant’s entry however, with the emergence of more problematic situations taking place, the Minister was endowed with the responsibility of making decisions with regard to entry of migrants. This is called Ministerial Discretion or the safety net discretion. This essay includes the statutory requirements that provide for Ministerial Discretion to be used as safety net and the changes that were included in the year 2016 with regard to Ministerial discretion and the impact on the original intent of the legislation.
With the introduction of the changes in the Migration Act, 1958, there were significant changes in the statutory framework regarding immigration issues. The minister no longer has the “general discretion” to grant visa or reject visa to the applicants, but the applications should meet the statutory requirements and regulations that are stated by the “Migration Act” and its regulations[2]. The Minister exercises his “discretionary power” and if, according to the Minister the requirements match with the Migration Act, the Minister may grant the visa. However, if the Minister is of the view that the requirements do not match with the statutory regulations then the Minister may reject the visa. Thus, it may be said that the optional power of the Minister allows him to determine the provisions of the Act that are either applicable or not applicable depending on the situation or circumstance of any given migrant[3]. The Minister has wide-ranging “discretionary powers” relating to entry, deportation and stay from Australia were integrated into the Migration Act, 1958. The Migration Act gives the Minister significant power to apply his discretion to grant or reject visa to a non-citizen. According to the DIMIA, the migration regulations that were in force in the year 1989 placed no heed on the use of ministerial discretion[4]. Since the time the discretionary powers are inserted in the Migration Act, the department of immigration has formulated detailed procedure for dealing with intervention related issues, assessing cases where ministerial discretion may be likelihood[5].
Discretion conferred on the Minister
As per the Migration Act, a minister can use “discretionary powers” such as substitution powers, powers to vary processes, order for release and detention and cancellation of visas on the grounds of character[6]. Thus, these are the types of discretion that a minister can use at the time when he is supposed to use his safety net. The question that arises following the types of discretion is the circumstances in which the minister may use his ministerial discretion[7]. As per sections 351 and 417 of the Act, the Minister has the power to use his discretion if, in the opinion of the Minister, there is an urgency of using his discretion for public interest. The public interest or the “safety net” discretion that the Minister exercises is much broader than the statutory requirements in the Act. In cases, where the legislation fails to give a more favourable decision in the grant or rejection of visa, the Minister uses his discretionary power in such case[8].
A minister may use the safety net discretion where the application of visa is assessed at both the primary and merit stage of review and the application has not met the criteria for grant of visa. The discretionary powers of the Minister are non-reviewable, non-delegable and non-compellable[9]. According to section 476, subsection 2 of the Migration Act, 1958, the Federal Court does not have the power to re consider the decision of the Minister that the Minister has utilised under section 351 and 417 of the Act. While the Minister is making decisions under section 351 and 417 of the Act, he is not bound by subdivisions AA or AC of the Migration Act. This means that the Minister, while using his safety net discretion is not bound to be satisfied with the criterion that is stated in the Migration Regulations[10]. The discretionary powers of the Minster cannot be delegated. According to the Department of Immigration, Australia, the Minister can exercise his discretion wherein, the applicant of visa has made a visa application and has delegated the power of determination of visa to a departmental officer. The Minister has to review the visa applicant and grant or reject the visa depending on the merits of the case. In the primary review stage, the Tribunal determines the visa application and the Tribunal takes the relevant decision[11]. However, if the Minister is of the opinion that it may make a more positive decision than the Tribunal, then in such circumstances he may use his discretion[12].
Types of discretionary powers
The process of triggering ministerial discretion in immigration matters is informal. In absence of a formal process, there are three main possibilities for seeking suitable intervention of the minister in relation to immigration matters[13]. The Tribunal or some other Tribunal may informally refer the cases to minister to their review. The minister has stated that such requests should not be made as formal recommendations. Secondly, applicants may make the request in writing to the Minister[14]. There is again, no formal way of making an application for seeking minister intervention. The applicants may make request for their own or may make an application for others seeking ministerial intervention. Third parties such as lobby group or refuges may make an application to the minister seeking his intervention. Thirdly, minister intervention may be sought by way of DIMIA officers, who may make an application in writing for the visa applicants. Thus, the above-mentioned ways are the informal ways of ministerial intervention[15].
However, there are ministerial guidelines that explain the situations in which ministerial interventions may be utilised. A minister may provide his ministerial intervention of there is significant threat to the use of the person’s security and human dignity, where persons are refugees at the time of leaving their country and fear return to their county as they may have to face persecution in that country[16]. As per the Convention Against Torture (CAT) and Other Cruel Inhuman and Degrading Treatment or Punishment, Australia has the responsibility of keeping the person safe in their lands in fear of being tortured, in such cases minister may use his safety net discretion and grant visa to applicants[17]. As per the Convention on the Rights of the Child (CROC) it may against the interests of the child to return them to their home country, as such ministerial intervention becomes a mandate. Moreover, if there are existences of unanticipated, unintended and unfair situations, minister may use his discretion. If there are existence of circumstances that are compassionate and compelling in nature to an extent ministerial intervention becomes mandatory. Other factors in which length of time, age and society justify the existence of compelling circumstances may also invoke safety net intervention[18].
The processes that are laid in the level of department to manage requests for ministerial discretion have developed under successive ministers since the powers were formulated as part of this Act. Senator Ray was the immigration minister at the time when the relevant provisions were established as part of the Migration Act. The submissions that are made by the Department provide a background for the development of ministerial guidelines for the staff on the use of the procedures and powers for managing the system. While Senator Ray was the immigration minister, he did not use his ministerial intervention power. However, he made the following examination on the concept of “public interest”[19]. The term “public interest” is not only limited with issues pertaining to public concerns. Paying proper consideration to the public interest could mean paying proper consideration to the circumstances of a given issue. The circumstances may be unusual and unforeseen. This broader explanation of public interest is relevant even in today’s application of public interest involving ministerial intervention. Minister Gerry Hand made a statement in the year 1990 with regard to the power of using discretion by ministers. In his statement, he held that he would not use the discretionary powers or the safety net powers unless there is a serious reason. Moreover, he also stated that he should use his discretion power, if in his opinion; there is a gap in policy for providing sufficient recourse. In the year 1990, the department issued guidelines for control in the policy that should be given to the minister in submissions and making statements.
Circumstances for ministerial discretion
As per the recent changes that have been made with regard to the policy of ministerial discretion, it may be held that the original intent of the legislature is affected. The judiciary considers the intention of the legislature, when the judiciary has the responsibility of interpreting the rules. The judiciary attempts to understand the intention of the legislature where the legislature seems unclear. However, where a statute is clear and ambiguous, there is no need for the Courts to probe into the intention of the legislature.
The guidelines of the Minister provides for the types of cases that might be referred for consideration of the minister. The department shall asses the request against the guidelines that are available for minister intervention. If the Department is of the opinion that the request is not genuine then it may not address the matter to the Minister for his discretion. However, many requests do not meet the guidelines of the Department and are not referred to the Minister. As already stated above, the minister has already specified the circumstances in which a case may be referred to the minister for his consideration[20].
Between the years 1996 until 2002, the minister has used his intervention for more than 1916 times. On the 1046th time, the minister used this power under section 417 of the Migration Act, 1958. On the 516th time, the minister used his intervention under section 351 of the Migration Act, 1958. Under Mr. Gerry Hand, the power was used more than 81 times and under Mr. Nick Bolkus, the power used about 311 times. The growing ministerial intervention can be equated with the number of requests that is made by the applicants to the minister. The minister is not bound by statutory requirements to make use of his discretionary powers. The minister is not restrained by the applicability of his discretion. The lack of statutory obligations on the minister may be one of the reasons why the number of requests for ministerial intervention is increasing. Hence, the original intent of the legislature is seen to be shifting its focus on a more practical approach than theoretical approach[21].
Other than the increase in the requests for minister intervention, there are two other reasons for increasing the use of ministerial discretion under the existing government. The guidelines that were issued in the year 1999 placed a systematic process according to which a negative decision of the tribunal has to be examined by the department as against the criteria laid in the guidelines[22]. A person might be able to make a request for ministerial intervention if the person has received a result by merits of review tribunal. This means that the Administrative Appeals Tribunal (AAT) for review decisions made before July 1, 2015. However, in the following circumstances the powers of the Minister are not available such as, there is no review decision by a merits review tribunal, a minister has already interfered before for grant of visa. If in the opinion of the tribunal it does not have the jurisdiction to review a decision, the tribunal has discovered that the review application was made beyond the limits and a tribunal has returned your case for further consideration.
Informal processes for ministerial intervention
The guidelines of the minister indicate that there are certain cases that do not meet the specifications for referral. The minister has stated the guidelines in which referral for minister intervention shall not be considered. As per migration legislation the Minister for the Department of Immigration and Border Protection, has powers to interfere in the case of any applicant that has not been successful in the Administrative Appeal Tribunal, and to change the decision with a more suitable one the minister may change the decision of the Tribunal. Generally, when the Minister interferes with the application of visa on the grounds of public interest, the visa is mostly granted. However, the minister is not obliged in a legal way to interfere in a case and the decision of what is in the public interest is entirely in the hands of the Minister. There are policy guidelines available to help the minister in determining what is in the interest of the public and when to intervene. For instance, as per the latest policy, for the Minister to consider a request there must be unique or exceptional circumstances present. The policy also states the inappropriateness to consider ministerial intervention[23]. Recently, there have been changes in the policy that have widened the scope of matters in which it would be inappropriate for the Minister to consider an application for safety net discretion. Among the other grounds, ministerial discretion is no longer available if the person’s visa is cancelled or refused as they breached the visa conditions, been found not satisfying other grounds of public interest criteria and an ongoing application for substantive visa is pending. The recent changes in the Ministerial intervention policy have meant that now it is even more difficult to make a successful application for minister’s discretion.
In the year 1990, Mr. Hand made a statement in the press to regularise the status of illegal migrants and he specified the type of cases that may be referred to him. Those include cases in which it was difficult to identify the intent of the legislator, cases in which of not recognising the intent of the legislator the consequences were vital and cases that have the involvement of compassionate and compelling circumstances. Thus, in the above-mentioned scenarios cases can be easily referred to a Minister. Additionally, the most important question that needs to be answered in this regard is about the original intention of the legislature. Ministerial intervention becomes important when the original intention of the Minister is not understood or is not clear. Thus, it may be said in this regard that the intention of the legislature was influenced and gor deviated from the original intention of the legislature.
Ministerial guidelines
When the Migration Act, 1958 was established one of the aim of this Act was to provide visa to non citizens of Australia to enter and remain in Australia and the intention of the Parliament was that this Act shall be considered as the only source of the right to the non citizens to enter and remain in Australia. However, at the time of ministerial intervention, if the Minister considers it fit he may deviate from the normal statutory requirements and may grant or reject the visa of the person based on his discretion. Thus, it may be held that the original intention of the legislature was influenced by the changes made in the year 2016 in the migration rules and regulation.
Conclusively, it may be stated, that the essay included the statutory requirements that provide for ministerial discretion to be used as safety net. Additionally, the essay also stated the change in the intention of the legislature with regard to the changes recently included in the year 2016 for migration rules and policies.
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