DIMA Annual Report 1999-2000
Management and accountability (continued)
External scrutiny
Auditor-General
The following performance audits were conducted in the Department by the ANAO and tabled during 1999-2000:
- Audit Report No 3 - Electronic Travel Authority (ETA), and
- Audit Report No 33 - Administration of Business Entry Program.
Audit Report No 3 concluded that the ETA was an innovative, Australian-developed system which had delivered efficiencies which made the issuing of visas more effective and was supported by the travel industry. The ANAO considered that DIMA could improve administration of the ETA in the areas of data security and integrity, training and support to travel agents, contract management practices and approval and accountability processes. DIMA accepted the recommendations and they have been implemented.
Audit Report No 33 focused on the administration of the permanent and long stay business entry programs. The ANAO found that both programs were well regarded by business and other stakeholders. The ANAO made seven recommendations based on their findings that validation and compliance strategies should be improved, staff should receive more specific training in decision-making processes and some business processes did not facilitate timely decision-making. DIMA supported the recommendations and they are being implemented progressively.
Parliamentary committees
The Joint Standing Committee on Migration tabled a report in September 1999 concerning the Government's immigration entry preparations for the Olympic and Paralympic Games. The report expressed overall satisfaction with the Government's preparations. DIMA tabled a Whole-of-Government response in May 2000.
The Joint Committee of Public Accounts and Audit Report on Migrant Settlement Services, which was tabled in March 2000, recommended that 'the Department of Immigration and Multicultural Affairs formulate guidelines that articulate precisely the accommodation entitlements of newly arrived migrants. Further, the Committee recommends that these guidelines be implemented consistently'. In consultation with other Government Departments, DIMA is developing a response to the Committee.
On 6 April 2000, the Senate Standing Committee for the Scrutiny of Bills tabled its fourth report of 1999, which reviewed entry and search provisions in Commonwealth legislation. The committee made a number of recommendations that focused on greater consistency between Commonwealth agencies in the execution of these powers.
The Department was, amongst a number of other Commonwealth agencies, subject to the Committee's review. DIMA recognises the importance of reviewing its practices and procedures concerning the use of powers conferred by section 251 of the Migration Act 1958, and is contributing to a Government response, addressing the issues raised in the Committee's report.
The Senate Legal and Constitutional References Committee report A sanctuary under review tabled 28 June 2000 contained a number of recommendations to improve refugee and humanitarian determination processes, particularly on onshore protection. DIMA is coordinating a Government response to the report, which is expected to be tabled in Parliament by the end of October 2000.
Judicial and administrative tribunal decisions
A new and unanticipated legal issue arose for the Department in MIMA v "A" (1999). The Full Court of the Federal Court held that a Protection Visa application is not valid unless completed in accordance with the directions in it because Regulation 2.07(3) states that 'An applicant must complete an approved form in accordance with any directions on it'. In particular, the Applicant must spell out his or her claims at questions 36 to 40 of Part C of the form. In MIMA v "A" the applicant had made no attempt to answer the questions. Therefore, the application was not valid, the delegate had no power to deal with it, the purported decision was a nullity and the applicant was not barred from making a further protection visa application.
The implication of this decision was that many protection visa applicants with primary and/or Refugee Review Tribunal (RRT) decisions may be able to argue that they can again apply for a Protection Visa, thereby considerably extending their stay in Australia. DIMA responded by amending forms and administrative procedures, eg ceasing to accept applications made without claims. The Department is also running a legal argument that MIMA v "A" can be distinguished in cases where the applicant subsequently provided written submissions in support of an application, either to the delegate or the RRT. A test case on that issue has been heard in the Full Court of the Federal Court, but judgement has not yet been delivered.
Regulation 5.03 provides for deemed delivery of mail sent by the Department, the Migration Review Tribunal (MRT) or the RRT, on the seventh day after the date on the letter, provided that the letter is mailed within seven days of its date. The regulation is a key provision in the legislative scheme for the review of migration decisions because it fixes the time of notification, so that the statutory periods for appealing to the MRT, the RRT and the Federal Court can be calculated with certainty.
In the cases MIMA v Harinder Pal Singh [2000] and Dharminder Singh v MIMA [2000], Regulation 5.03 was held to be invalid so far as time limits for applying to the RRT are concerned. The reason for the invalidity was that the regulation could produce an 'absurd' outcome, ie it is capable of operating to deem a letter to be delivered, anywhere in Australia, on the day that it is posted. The Court considered that this could significantly impact on the ability of applicants to take advantage of review rights, especially if they are held in immigration detention (in which case they have only seven days from the date of deemed notification to lodge an application for review with the RRT).
The potential impact of the decision is to require the Department and the tribunals to alter administrative procedures, pro forma letters, etc to reflect a requirement for actual notification. It also raised the possibility of deliberate abuse of the system by applicants who would claim that they did not actually receive the notification letter.
The Department is responding to this issue by amending the Regulations to remove the basis for the invalidity. The Regulation is expected to be amended with effect from 1 July 2000. DIMA has also made an application to the High Court for special leave to appeal against the Dharminder Singh decision.
Ombudsman
No significant reports on the operations of DIMA were issued during the year.