DIMA Annual Report 1996-97
Secretary's Review -
onshore protection and review of decision-making and judicial review
In March 1997, the Minister announced major changes to onshore refugee processing and to merits and judicial review of immigration decisions. These will begin to impact in 1997–98 and flowed from reviews undertaken into the way the Department and the Immigration and Refugee Review Tribunals make decisions. There were a number of key elements:
- A privative clause [1] is to be inserted into the Migration Act 1958 to limit review by the courts, of immigration decisions. Its aim is to speed up, and where possible reduce, litigation thereby limiting the possibilities for people seeking to delay their departure from Australia through abuse of the court system.
- The Migration Internal Review Office (MIRO) is to be merged with the Immigration Review Tribunal (IRT) to form a new independent migration review body, from 1 July 1998.
- Processing efficiencies are to be introduced into onshore refugee processing and the Portfolio review bodies.
- A series of regulatory measures are to be directed at reducing abuse of the system by people lodging applications for protection visas or for review of departmental decisions, in the full knowledge that their claims are unfounded, simply to gain the benefit of extended stay in Australia or to gain access to work rights and Medicare, during the processing period.
The High Court's decision in a long standing case of two
People's Republic of China (PRC) persons (known as A and B)
seeking asylum in Australia was highly significant for the
treatment of applications for onshore protection.
The applicants
had sought refugee status on the basis that they were members of a
'particular social group', under the Refugee Convention,
because they feared 'persecution' in the form of forced
sterilisation at the hands of PRC authorities should they return to
China.
The court found that people who hold a fear of persecution
cannot claim membership of a 'particular social group'
where what is said to unite those persons into a particular social
group is their common fear of persecution.
The court considered
that there must be a common unifying element binding the members of
the claimed social group before there is a social group within the
meaning of the convention.
Increased productivity in processing onshore protection visa
applications, together with additional resources allocated in the
1996–97 Budget, resulted in a record number of individuals
having their cases decided — equal to the combined output of
the two previous years.
By the end of the year, the backlog of 10
000 applicants on hand at the beginning of the year had been
reduced to about half that number.
In order to manage escalating costs of Asylum Seeker Assistance
(ASA), the Government announced changes to the scheme in the
1996–97 Budget.
From 1 October 1996, ASA payments have been
restricted to eligible applicants in need at the primary stage of
the protection visa process. The Department and the appellate body,
the Refugee Review Tribunal, accords priority to applicants in
receipt of ASA.
[1] A privative clause is a legislative provision which has the effect of expanding the legal validity of acts and decisions of decision-makers. The result is that the grounds for judicial review, before any court, including the High Court, are narrowed.
[Previous] [Next] [Table of Contents ]