DIMA Annual Report 1996-97

Supplementary statement 6 — Internal/external scrutiny

6a. Internal/external scrutiny

The Department has included details of internal and external scrutiny within part one of its Annual Report.

6b. Reports by the Auditor-General

The Auditor-General is required by the Audit Act 1901 and other legislation to audit and report on financial statements of Government entities.

The basic requirements, specified in the Audit Act 1901, are for the Auditor-General to form an opinion on whether the financial statements:

• agree with the underlying accounts and records of the body; and
• were prepared in accordance with financial statement guidelines issued by the Minister for Finance.

Portfolio outcome: The audit report of the Immigration and Multicultural Affairs financial statements, tabled in Parliament on 29/30 October 1997, was unqualified.

6c Inquiries by Parliamentary Committees which reported in 1996–97

The Department has included details of submissions to Parliamentary Committees within part one of its Annual Report.

House of Representatives Standing Committee on Legal and Constitutional Affairs – Inquiry into the provisions of the International Transfer of Prisoners Bill 1996

The above committee tabled its report on the International Transfer of Prisoners Bill 1996 on 3 March 1997.

The object of the Bill is to enable Australians imprisoned overseas and foreign nationals imprisoned in Australia to be returned to their home countries to complete their sentences.

The Department was consulted extensively by the Attorney-General's Department in the drafting and development of the Bill.

In drafting the Bill the Attorney-General's Department accepted that the Migration Act will be the dominant legislation. Therefore, any persons entering Australia under the scheme would be subject to the entry requirements of the Migration Act 1958.

The Department's submission to the committee on the operational effects of the Bill was submitted in January 1997 and departmental officers appeared before that committee on 6 February 1997.

The committee, in its report, raised the issue of whether or not persons who were removed from their parents and taken from Australia should also be eligible for transfer to Australia, as a separate class under the scheme proposed in the Bill (see Recommendation 3):

Recommendation 3

The committee recommends that the Minister for Immigration and Multicultural Affairs initiates an examination of the issues surrounding the eligibility of persons, who have been removed from Australia as children, to have a right of entry to Australia.

• The above issue was raised by the Human Rights Commissioner and was discussed in detail by the committee. Discussion focused on the possibility that indigenous children forcibly removed from their families and taken overseas by their foster or adoptive families and acquired the citizenship of that country might not meet the citizenship or Migration Act requirements proposed in clause 13 of the Bill.
• The committee acknowledged that it would be inappropriate for special conditions for entry into Australia to apply to such people. It would be incongruous if such a particular class of people were automatically entitled to return, if law abiding persons in the same class have no such right under migration legislation.
• The Minister considered that there was sufficient scope under current provisions for a person to be given a right of entry to Australia if they were taken from Australia as a child, and lost their citizenship. No further review of the matter was considered necessary and no amendments were sought to the Bill. These matters were addressed in the Minister's response of 15 May 1997 to the Attorney-General and Minister for Justice.
• An officer assisting the Committee on Legal and Constitutional Affairs advised on 23 September 1997 that the Federal Parliament had since passed the Bill. For transfers to be effected under the scheme, similar legislation must also be passed by parliaments at the State/Territory level and the committee expects to be advised shortly of the Queensland State Parliament passing such legislation. The New South Wales State Parliament is understood to be considering such legislation currently. Other States and Territories, with the possible exception of the Northern Territory and Western Australia, plan to propose such legislation at later times.

Senate Legal and Constitutional Legislation Committee – Inquiry into the provisions of the Migration Legislation Amendment Bill (No.3) 1996

The above committee tabled its report on the Migration Legislation Amendment Bill (No.3) 1996 on 5 December 1996.

The object of the Bill was to enable the government of the day to determine, if necessary, the number of people in every migration category able to enter Australia each year.

The committee made two recommendations which would have had significant relevance to Departmental operations.

Those recommendations suggested that the Minister monitor closely the effect that visa capping has on the administrative integrity of the Department's procedures, and that the Minister ensure that appropriate review mechanisms are in place to counter any possibility of fraud or corruption.

Subsequent Government-sponsored amendments to the Bill dealt with the Committee's recommendations by removing most of the proposed powers for the Minister to cap virtually any visa class.

The final form of the Bill (which is now Migration Legislation Amendment Act (No.1) 1997) largely resolved the committee's concerns over departmental operations.

6d Comments by the Ombudsman

In 1996–97, the Ombudsman submitted one section 15 report to the Department. The report, Revocation of Visas on Entry to Australia, commented on a number of issues surrounding the cancellation of Mr B's tourist visa on his arrival at Perth airport, including the manner in which Mr B's interview and search was conducted and recorded, the grounds for cancellation of Mr B's visa, and the failure to notify the sponsor, Ms A, prior to the cancellation.

The report recommended that Ms A be compensated; that any future visa application by Mr B should be assessed on its merits; that border officers be fully trained in the Department's new policies and procedures regarding searches and interviews; and, that instructions relating to the cancellation of visas be clarified.

In response, the Department has:

• clarified the guidelines for immigration inspectors, focusing on the assistance of bona fide passengers in the immigration clearance process;
• improved interview and search procedures, including a mandatory record of interview which will include details of any searches carried out;
• implemented new procedures for airport managers to contact the friends, relatives or sponsors of persons delayed in immigration clearance;
• introduced measures to ensure that cancellations or proposed cancellations in immigration clearance are fully documented and are the subject of consultation at a high level with the Department's State offices; and
• made a payment of $1 521.00 to the sponsor under the scheme for Compensation for Detriment caused by Defective Administration.

6e Decisions of Courts and Tribunals

The Department has also included details of court and tribunal decisions within part one of its Annual Report.

In 1996–97, the following decisions were handed down:

JONG Kim Koe
The Full Federal Court considered the issue of the application of Australian law, Portuguese law and the Refugees Convention to the nationality of East Timorese asylum seekers in Jong Kim Koe v The Minister for Immigration and Ethnic Affairs.

While the court was satisfied that the Refugee Review Tribunal (RRT) was correct in finding Mr Jong to have both Indonesian and Portuguese nationality, the Refugees Convention required the RRT to consider not only formal nationality but nationality which is effective for the purposes of the Convention.

The court held the tribunal had failed to recognise the necessity, in applying the definition of "refugee" in circumstances of dual nationality, of considering the effectiveness of his Portuguese nationality as a distinct issue.

Ozmanian
Mr Ozmanian challenged the administration of the Minister's non-compellable powers under s417 of the Migration Act 1948 to grant a refused refugee applicant a protection visa on humanitarian grounds.

The Full Federal Court ultimately dismissed Mr Ozmanian's claims. The court concluded that the only power to judicially review a Migration Act decision is under Part 8 of the Migration Act 1948 or under the High Court's original jurisdiction.

As Mr Ozmanian's challenge did not address any grounds of review under Part 8 of the Migration Act 1948, the court had no power to grant him any relief. The High Court refused Mr Ozmanian special leave to appeal.

A and B
This case involved a couple who claimed that they were refugees as a result of China's one-child policy.

A refugee is a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

A majority of the High Court found that the couple were not members of a 'particular social group' within the meaning of the Refugees Convention. That is, persons who had one child and who opposed the 'one child policy' were a disparate collection of persons without common social attributes or characteristics linking them together for the purposes of the description 'particular social group'.

There was no external characteristic which would allow them to be viewed as part of a 'particular social group'.

Importantly the judgement makes it clear that the characteristic or element that unites the group cannot be a common fear of persecution.

This judgement provides clarification about the approach to be taken in determining what constitutes a 'particular social group' under the Refugee Convention for the purposes of Australian refugee law.

Thiyagarajah
This matter involved consideration of when a person will be taken to have the rights and obligations of a national of another country for the purposes of exclusion under Article 1E of the Refugees Convention.

The Federal Court held that a person must have all of the rights and obligations of a national, other than quasi political rights, before Article 1E will operate.

In overturning the RRT decision that Article 1E applied to the applicant and his family, a national of Sri Lanka granted refugee status in France, the court held that if a person suffered more than 'negligible' disadvantages compared to a national, Article 1E would not apply.

In overturning the RRT decision the court found that because the applicant faced employment restrictions which were significant, Article 1E did not apply. An appeal has been lodged to the Full Federal Court.

This decision has implications for the onshore protection sub-program as persons who were considered to have effective prior protection in another country could now be eligible for a Protection Visa.

6f Privacy

No Privacy Commissioner investigations of an act or practice relating to the Department took place in 1996–97.

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