External scrutiny
Judicial decisions and decisions of administrative tribunals
As in past years, significant numbers of decisions relating to refusal to grant visas and decisions to cancel visas were challenged in the courts. Most court proceedings occur in the Federal Magistrates Court. Appeals can be brought from the Federal Magistrates Court to the Federal Court and from the Federal Court to the High Court (but only with the ‘special leave’ of the High Court).
The overwhelming majority of the court proceedings relate to decisions of the Refugee Review Tribunal (RRT) or Migration Review Tribunal (MRT). These tribunals provide merits review of most visa decisions made in Australia. As a consequence, there is generally no occasion for the direct challenge, in a court, of a primary decision (that is, a decision made by a delegate of the minister). Primary decisions are not reviewable by the Federal Magistrates Court or Federal Court, but can be reviewed by the High Court.
Some decisions, made by the minister personally, on character grounds (under Part 9 of the Migration Act 1958), are not subject to merits review and can only be reviewed by the Federal Court or High Court. The majority of primary decisions made on character grounds are reviewable by the Administrative Appeals Tribunal (AAT). The AAT also has jurisdiction under the Migration Act 1958 to review a range of other decisions, such as certain business visa cancellation decisions (made under s134 of the Migration Act 1958) and decisions relating to the regulation of migration agents (under part 3 of the Migration Act 1958). The AAT also has jurisdiction to review decisions made under the Australian Citizenship Act 2007.
The Migration Act 1958 provides the framework for visa decision-making, merits review, and judicial review. The framework seeks to balance fairness with the need to ensure that cases are dealt with in a timely fashion. To this end, strict time limits apply to the making of applications to the tribunals and courts. The current time limits for applications to the courts, inserted by the Migration Litigation Reform Act 2005, have received close scrutiny in 2006-07. Of most significance, the High Court, in Bodrudazza v MIMA (18.4.07), ruled that the time limit for applying to the High Court (s486A of the Migration Act) was invalid. The court noted that the time limit (28 days from notification, with the possibility of a 56 day extension) did not allow for exceptional cases that were lodged outside that 84 day period. It was held that this restriction on the High Court was not permitted by the Constitution.
There were a number of significant court decisions in 2006-07 dealing with aspects of the detailed decision-making and notification requirements in the Migration Act 1958 and Migration Regulations 1994.
For example, the High Court held in Szbel v MIMIA (15.12.06) that the RRT must, in the course of an oral hearing conducted pursuant to s425 of the Migration Act 1958, ensure that the applicant has an opportunity to address all relevant issues. This may require the RRT to tell the applicant what issues need to be addressed.
Further, the obligation may require the RRT, in particular circumstances, to tell the applicant the reasons why his or her claims are not believed. This High Court decision also applies to the MRT which has a similar statutory obligation under s360. Compliance with these obligations involves questions of degree, having regard to the facts of the particular case.
The challenges presented by statutory codification of decision-making are apparent in the High Court decision in Szbyr v MIAC (13.6.07). The decision concerns s424A of the Migration Act 1958, a section which has been a major focus of litigation over recent years. The section codifies an important element of procedural fairness, by requiring the RRT to provide an opportunity for an applicant to respond to information which could be used to make an unfavourable decision.
The High Court noted that there have been conflicting judicial opinions about s424A (including differences of opinion within the High Court) and that some issues remain to be resolved. The High Court did, however, confirm that a failure to comply with s424A does not require the RRT decision to be set aside by a court if the RRT decision is based on reasoning which is not affected by the failure to comply with s424A.
Important reforms to s424A (and the equivalent provision applicable to the MRT – s359A) came into effect on 29 June 2007, pursuant to the Migration Amendment (Review Provisions) Act 2007.
Other notable High Court decisions during 2006-07 were:
- MIMIA v Nystrom (8 November 2006) – the High Court upheld the minister’s appeal. The Hight Court confirmed that a non-citizen’s lengthy residence in Australia as a permanent resident (over 30 years in this case) does not preclude cancellation of the non-citizen’s visa on character grounds (s501). The court also held that the minister had not failed to have regard to any relevant matter arising from that lengthy residence in Australia.
- MIMIA v QAAH (15 November 2006) – the High Court upheld the minister’s appeal. This case resolved a dispute about whether a person who is recognised as a refugee in Australia, by the grant of a temporary protection visa, must continue to have a “well-founded fear of persecution” (the formulation in the Refugee Convention) in order to be granted a further protection visa. The court accepted the minister’s submission that this is the required approach under the Migration Act 1958, and that the approach is consistent with the proper interpretation of the Refugee Convention.
The department is currently involved in the Queensland Coronial inquest into the loss of the immigration response vessel Malu Sara. The vessel disappeared, resulting in the death of five persons, on 15 October 2005. The inquest is ongoing.
Reports by the Auditor-General
The ANAO conducted a number of performance audits in the department during 2006.
Audit Report No 7 2006-2007: Visa Management: Working Holiday Makers (WHM)
The objective of the audit was to assess whether the WHM programme is administered effectively and in accordance with relevant laws and policies. In particular, the ANAO focused on four key areas:
- the implementation of the WHM visa
- authority for the WHM programme
- decision-making for the WHM visas
- programme performance information.
Overall the ANAO considered that the department had developed a sound framework for the effective administration of the WHM visa programme in accordance with relevant laws and policies. The eWHM mechanism provides a robust, effective mechanism for handling WHM visas in an environment where the number of applications continues to rise. The implementation of the eWHM project has been largely in accordance with sound administrative practice for Internet delivery.
The ANAO found that the eWHM decision-making processes are generally accurate, reliable and in accordance with the rules set out in law and policy.
Audit analysis also highlighted several areas where programme administration needed to be improved, including the processing of paper applications at some overseas posts and the authorisation of computer-based decision-making. The department has advised the ANAO that it has taken action to address these issues. The ANAO also considered there are opportunities for the department to improve its programme performance information.
Audit Report No 35 2006-2007: Preparations for the re-tendering of the department’s Detention and Health Services Contracts
The audit objective was to assess whether the early stages of our preparations for the re-tendering of the detention and health services contracts were consistent with sound practice. The audit focused on governance arrangements, in particular the record keeping arrangements, roles and responsibilities of personnel, expert advisers and the probity auditor – matters raised in the previous audit report. The audit did not examine the Request for Tender, which was not due to be issued until April 2007.
Overall, the ANAO concluded that the early stages of our preparations for the re-tendering project were sound, demonstrating a significant improvement in the practices identified by the earlier audit. Detailed record keeping policies and systems had been established for the re-tendering project, but implementation of policies in respect of recording and timely reporting of some decisions and security classification of documents was not consistent.
In addition, during the early stages of the project, the department developed an adequate project management framework. However, the department is yet to develop a whole-of-life budget for the project that would assist in strengthening management assurance about the cost-effectiveness of the re-tendering project.
The department welcomed the ANAO audit and agrees with the recommendations. The department is taking steps to ensure that the recommendations are addressed by:
- considering the budget for 2007-08
- conducting ‘lessons learned’ workshops at the end of key phases of the project for the purposes of collecting information to inform the project and for the project report
- undertaking further recordkeeping training to ensure project staff understand the functionality of TRIM
- documenting key decisions to act upon them in a timely manner.
Audit Report No 37 2006-2007: Administration of the Health Requirement of the Migration Act 1958
The audit objective was to assess the effectiveness of the department’s administration of the health requirement of the Migration Act 1958. To achieve this objective, the ANAO examined whether the department was setting and implementing the health requirement in accordance with the Migration Act, the Migration Regulations 1994, and the department’s own guidelines.
The audit report found that:
- there were several limitations and gaps in the department’s administrative processes underpinning its implementation of the Public Interest Criteria (PIC)
- the department could strengthen its arrangements to reduce the health risks associated with tuberculosis, in particular, the health risk matrix
- the department could improve the effectiveness of health undertakings by establishing arrangements with the states and territories to enable better monitoring and reporting of compliance
- the department should follow a systematic process for incorporating new or emerging health risks into its guidelines and risk management framework
- stronger cross-agency arrangements between the department and the Department of Health and Ageing (DoHA) would be beneficial in helping us to implement the PIC
- data management for the purposes of the internal management of the health requirement and external reporting are areas that require strengthening in terms of IT system capability and use of data. (Under the department’s Systems for People initiative, the department has outlined preliminary costings and proprieties for the redesign of its IT systems for health processing)
- the department performance framework provides little scope for performance monitoring and reporting of the health requirement.
Overall the ANAO concluded that the department was able to provide only minimal information on the performance of the health requirement and had little capacity to gauge its own achievements. Essentially, the extent to which public health and safety is protected through immigration screening was not fully measured or reported.
The department noted and accepted the ANAO suggestions for reviewing the current health policies and planning for emerging issues.
The department made substantial progress in addressing some of the findings of the report.
Contractual arrangements have been finalised for the completion of notes for guidance papers and the health services project has started work on implementing an IT solution to address the processing and reporting issues identified by the ANAO.
DoHA acknowledges the need for cross agency cooperation and supports the ANAO’s recommendation to formalise consultative arrangements and roles and responsibilities between the two departments.
DoHA understands that under the Administrative Arrangements Order (AAO), the department is responsible for administering the health requirements under the Migration Act 1958, with a range of agencies contributing technical advice in accordance with their expertise.
DoHA also understands that its role in relation to the health requirement is to provide broad public health advice and help to the department to access appropriate technical input to their development of policy on administering the health requirement under the Migration Act.
Audits in progress
Introduction of Biometric Technologies (Design and Planning)
The ANAO started an audit into the department’s Introduction of Biometric Technologies (Design and Planning) in April 2007. The objective of the audit is to determine whether the department’s planning for the introduction of biometric technologies was sound, in particular the business review and business case processes, governance arrangements, legislative and policy framework and planning for IT and data security and the quality and privacy of biometric information. The ANAO started fieldwork in June 2007 and expects to table the report in parliament around March-April 2008.
Electronic Travel Authority (ETA)
The objective of this audit was to examine the department’s implementation of the nine recommendations made in an earlier 1999 audit report. The audit has had regard to issues underlying the recommendations. It has also taken into account changed circumstances and administrative arrangements since the original audit.
New considerations include a heightened security environment after 11 September 2001 and the findings and recommendations of other ANAO audit and financial statement work relevant to the administration of the ETA. The department commented on a related series of issues papers provided during the audit. The ANAO found that all nine earlier recommendations had been implemented and made two new recommendations to which the department agreed on 14 June 2007. The report is expected to be tabled by the Auditor-General in July 2007.
Other ANAO audit activity
The department participated in the following ANAO cross-agency audits during the year:
- Interim Phase of the Audit of Financial Statements of the General Government Sector Agencies for the year ending 30 June 2007
- Audits of Financial Statements of Australian Government Entities for the period ended 30 June 2006.
These reports are available through the ANAO Website: www.anao.gov.au/director/publication/auditreports.cfm
Joint Committee of Public Accounts and Audit (JCPAA)
The JCPAA is required by the Public Accounts and Audit Act 1951 to examine all reports of the Auditor-General tabled in parliament. The JCPAA’s review procedures are built around a series of public hearings held each quarter. During 2006-07, no JCPAA reports related to the department’s operations.
Commonwealth Ombudsman
The department received a total of 516 complaints from the Commonwealth Ombudsman in 2006-07. This is an increase of 6.6 per cent from the previous year.
Of the 516 new complaints investigated by the ombudsman in 2006-07, 396 were resolved. Of all new complaints, administrative deficiency was identified in 2.7 per cent of complaints (14 cases).
A total of 37 complaints were brought to resolution and reported as administratively deficient, of which 23 had been carried over from previous years and 14 from this financial year.
Human Rights and Equal Opportunity Commission (HREOC)
A total of 16 new complaints were received by the department in 2006-07. This is a reduction of 33 per cent over the previous year.
Of the nine complaints closed in 2006-07, one report, Breach of Ms CD’s Human Rights at the Curtin Immigration Reception and Processing Centre (August 2006), in which the department was a respondent was tabled in parliament by HREOC.
Reports by external bodies - referred immigration cases
In 2005, the Palmer and Comrie reports were released detailing the circumstances surrounding the detention of Ms Cornelia Rau and the removal of Ms Vivian Alvarez Solon. The government subsequently referred the cases of 247 people who had been released from immigration detention as ‘not unlawful’ to the Commonwealth Ombudsman for investigation.
In 2006 and 2007, the ombudsman published eight reports on his investigation of these cases. The first two reports related to two individuals - Mr T (published in March 2006), and Mr G (published in December 2006). Both reinforced the importance of responding appropriately to people with mental illness.
The ombudsman categorised the remaining cases into thematic groups, publishing reports on two of these groups in December 2006 (Mental Health and Incapacity, and Children in Detention), and the remaining groups in July 2007 (Data Problems; Detention Process Issues; Other Legal Issues; and Notification Issues Including cases affected by the Federal Court Decision in Srey). In its published responses to each of the reports, the department agreed with nearly all of the ombudsman’s recommendations.
The ombudsman has also provided the department with an individual analysis of each of the 247 cases investigated. The department has established a project team which is considering appropriated remedial action for the 247 individuals involved.
During the last two years, the department has established a major reform and improvement programme to ensure that clients continue to be dealt with lawfully, fairly and reasonably. As part of its organisational transformation, the department has implemented reforms to governance, training, data management, compliance activity, client services, health services and identity verification. This reform process has established measures and initiatives to address the systemic issues noted by the ombudsman. The department’s ongoing and dynamic reform agenda will continue to guard against the mistakes of the past occurring again.
Reports by parliamentary committees
There has been one report by a parliamentary committee relating to the department during 2006-07.
Joint Standing Committee on Migration - September 2006: Negotiating the Maze: Review of arrangements for overseas skills recognition, upgrading and licensing
In July 2005 the department provided a submission to this inquiry outlining policy objectives, arrangements for overseas skills recognition and associated issues for licensing and registration and areas where Australia’s recognition procedures for migrants could be improved.
The department also appeared before the committee in September 2005 and March 2006 to expand on the submission and address specific issues arising out of the inquiry.
The committee’s report, which was tabled in parliament on 11 September 2006, contained 55 recommendations. Of these, 40 have been accepted entirely or in part and of these 14 have already been put into effect. None of the accepted recommendations significantly alter government policy.
A government response is under consideration.