DIMA Annual Report 2000-01

Management and accountability - continued

External scrutiny

Reports by Auditor-General

The Australian National Audit Office (ANAO) conducted one performance audit in the department during the year. Audit Report No 40 - Management of Adult Migrant English Program (AMEP) Contracts was tabled in May 2001.

The audit report concluded that DIMA's management of the AMEP through contracted-out arrangements continues to deliver benefits to the Commonwealth and eligible migrants who take up their entitlements to English language tuition.

The program is widely regarded as a major contributor to DIMA's settlement aim of enabling migrants to participate equitably in society.

The ANAO made six recommendations aimed at improving program performance management and reporting, strategic management and coordination, management of financial risks and monitoring of contractor performance.

The department accepted the recommendations which are being implemented progressively.

The findings and recommendations, in conjunction with the recently published ANAO Better Practice Guide on Contract Management, will provide valuable guidance to DIMA in developing tender specifications, funding arrangements, contracts and contract management strategies for the next tender round.

Judicial and administrative tribunal decisions

Further judicial scrutiny of the validity of Protection Visa applications was undertaken by the Full Federal Court. As noted in the 1999-2000 Annual Report, the Court in MIMA v 'A' (1999) held that a Protection Visa application which did not set out the applicant's refugee claims was invalid.

Despite the fact that the department's interpretation had benefited applicants, the consequence of the Court's ruling was that some applicants who had been through the system (primary decision and then merits review by the RRT) could start again by making a further application for a Protection Visa.

In Yilmaz v MIMA (2000) the Full Court of the Federal Court held that an invalid application could become a valid application if the refugee claims were provided to the department prior to a primary decision being made.

The benefits of this decision were restricted in two later cases, MIMA v Li Wen Han and MIMA v Kundu (2000). In those cases the Full Court of the Federal Court held that a primary decision, made on an invalid application, could not be reviewed on the merits by the RRT. The result was that many applicants who had obtained full merits review by the RRT were able to start over by making a further protection visa application.

The department has responded administratively to the challenges presented by these Federal Court decisions. Protection visa applications without claims are no longer accepted by the department, and applicants who have previously had their claims dealt with by the RRT and who seek to take advantage of the issue are given priority for processing.

In Miah v MIMA (2001) the High Court held that decision-makers (delegates of the Minister) must comply with the rules of natural justice when deciding visa applications.

The department had assumed that the codified procedures in the Migration Act (Subdivision AB - Code of procedure for dealing fairly, efficiently and quickly with visa applications) displaced the common law rules of natural justice. The High Court held that the Act did not go that far, and that the flexible rules of natural justice continued to apply.

In this case, the consequence was that the delegate was obliged to seek comment from the visa applicant in relation to the impact on his refugee claim of a subsequent change of government in Bangladesh.

The department has responded to this decision by taking steps to ensure that all decision-makers are aware of, and comply with, the requirements of natural justice.

The additional workload which may be created is of concern, given that almost all visa applicants are entitled to full merits review by the Migration Review Tribunal or Refugee Review Tribunal.

At year's end, options for legislative amendment to restrict natural justice obligations to the codified procedures in the Migration Act (in accordance with the original intention of the Migration Reform Act 1992) were being considered.

Ombudsman

The Commonwealth Ombudsman conducted four Own Motion inquiries into detention matters covering immigration detainees in state correctional facilities, IDCs, Australasian Correctional Management (ACM) incident reporting and removal/deportation of detainees prior to exhaustion of appeal rights/civil action. All matters raised have been dealt with by the department.

Ombudsman-referred matters recorded as received for the year totalled 19 formal and 496 informal, with 14 formal and 455 informal matters finalised.

Human Rights and Equal Opportunity Commission

Two reports were tabled in Parliament by the Human Rights and Equal Opportunity Commission (HREOC): the Report of an inquiry into a complaint of acts or practices inconsistent with or contrary to human rights in an Immigration Detention Centre - no. 12; and the Report of an inquiry into a complaint of acts or practices inconsistent with or contrary to human rights - no. 13. All matters raised have been addressed by the department.

HREOC-referred matters received for the year totalled 45 formal and 33 informal, with 39 formal and 27 informal matters finalised.

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