Judicial decisions and decisions of administrative tribunals

The Migration Act provides for comprehensive merits reviews of decisions about visas. The Migration Review Tribunal (MRT) can review most visa decisions. The Refugee Review Tribunal (RRT) reviews decisions relating to protection visas. The Administrative Appeals Tribunal (AAT) can review certain business visa cancellation decisions and character related refusal and cancellation decisions, other than decisions made personally by the minister. The AAT also has jurisdiction to review decisions relating to registration of migration agents and decisions under the Australian Citizenship Act 2007 and the Freedom of Information Act 1982.

The following significant decisions were made in 2008–09:

• Sales v MIAC (No.2) (17 July 2008). The Federal Court held that the minister could not cancel certain types of visas under section 501 of the Migration Act because the visas had been conferred by operation of law and had not been ‘granted’ as mentioned in section 501. This outcome limited the capacity of the minister to cancel visas held by non-citizens with serious criminal records. The parliament subsequently passed legislation which restored the minister’s power to cancel the affected visas and validated past cancellation decisions.
• SZHKA v MIAC (5 August 2008). This Federal Court decision, in essence, establishes that an applicant is generally entitled to a hearing by the tribunal member who decides the case. In addition, it establishes that more than one hearing may be required if new issues arise during the review process.
• MIAC v Kumar (11 March 2009). The High Court, upholding the minister’s appeal, confirmed that the Migration Act provides a high level of protection to confidential information provided by members of the public about alleged breaches of migration law. The High Court emphasised the importance to the administration of the Migration Act of the capacity to protect information provided by members of the public on a confidential basis.
• Sok v MIAC (16 October 2008). The High Court, overturning a decision of the Federal Court, agreed with the minister’s argument that the MRT can deal with claims of domestic violence by spouse visa applicants, even if those claims were not previously made to the department. The High Court also held that the MRT must offer the applicant an oral hearing before the MRT can refer the domestic violence claims to an ‘independent expert’. Referral to an independent expert is required if the MRT is not satisfied that the domestic violence occurred.

Civil litigation

At 30 June 2009, there were 34 civil compensation claims before the courts, including six matters involving members of the 247 cases that were referred to the Ombudsman in 2005 for events occurring between December 1998 and March 2006.

During 2008–09, the department reached out of court settlements involving the payment of compensation in 32 of the 247 Ombudsman referred cases. There were a further five non-247 formal claims that were finalised without the payment of compensation.

Reports by the Auditor-General

The Australian National Audit Office (ANAO) has published the following reports of performance audits conducted in the department during 2008–09.

Audit Report No. 35, 2008–09: Management of the Movement Alert List

The objective of the audit was to assess the effectiveness of the department’s management of the Movement Alert
List (MAL).

The ANAO noted that the department has managed an extended period of growth in the numbers of records in MAL. The ANAO further noted that while work had been done to improve data quality and an accountablity structure had been implemented, further work was required to ensure the completeness, quality and accuracy of MAL records.

The ANAO found that during the past four years the department had successfully managed the development and implementation of the new version of MAL, the Central Movement Alert List (CMAL). The introduction of CMAL has improved management control over the department’s MAL operations and provided a basis for the department to enhance its quality assurance of MAL data and of the operation of the system as a whole.

The ANAO made five recommendations aimed at increasing the efficiency and effectiveness of the department’s management of MAL, which the department has accepted.

Audit Report No. 36, 2008–09: Settlement Grants Program

The objective of the audit was to assess the effectiveness of the management of the Settlement Grants Program (SGP). The ANAO found that an effective framework had been developed to support the program (including strategic risk management) and that the program has been implemented in a manner consistent with government policy.

The ANAO made six recommendations aimed at developing and implementing an effective performance management framework, improving settlement needs information, ensuring that key decisions are adequately documented, and evaluating the program.

The department accepted the recommendations and has already put in place a number of measures which address the issues raised. Other initiatives will be implemented progressively.

Audits in progress

ANAO audits which started during 2008–09 and are in progress are:

• Senate Order No. 11—to assess the appropriateness of the use of confidentiality provisions in selected Australian Government contracts and whether selected agencies had compiled internet listings of contracts, as required by the Senate Order and agreed to by the government
• Australian Customs and Border Protection Service—Illegal Foreign Fishing in Australia’s Northern Waters.

Other ANAO audit activity

The ANAO has also published reports on the following cross-agency audits in which the department participated during 2008–09:

• Protective Security Audit (Security Clearances and Vetting)
• Senate Order for Departmental and Agency Contracts (No.10)
• Australian Government Agencies Management of their Websites
• Cross Portfolio Audit on Green Procurement and Sustainable Office Management
• Construction of the Christmas Island Immigration Reception and Processing Centre
• Management of the Australian Government’s Action Plan to Eradicate Trafficking in Persons.

Reports by parliamentary committees

There have been three reports by parliamentary committees relating to the department during 2008–09.

Senate Standing Committee on Legal and Constitutional Affairs—November 2008: Inquiry into the Migration Legislation Amendment (Worker Protection) Bill 2008

On 14 October 2008 the Senate, on the recommendation of the Selection of Bills Committee, referred the provisions of the Migration Legislation Amendment (Worker Protection) Bill 2008 (the Bill) to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report by 7 November 2008.

The Bill sought to:

• provide the structure for better defined sponsorship obligations for employers
• improve information sharing across all levels of government
• expand powers to monitor and investigate possible non-compliance
  by sponsors
• introduce meaningful penalties for sponsors found in breach of their obligations.

The committee received 24 written submissions and held a public hearing in Sydney on 31 October 2008. The final report dated 10 November 2008 made two recommendations:

• that a review of the Act’s operation be conducted within three years of commencement
• that the Senate pass the Bill without amendment.

The Bill was subsequently passed by both Houses of Parliament, and received the Royal Assent on 18 December 2008. The Migration Legislation Amendment (Worker Protection) Act 2008 has been proclaimed to commence on 14 September 2009.

Joint Standing Committee on Migration—December 2008: Immigration detention in Australia: A new beginning—criteria for release from immigration detention

On 1 December 2008, the Joint Standing Committee on Migration tabled the first of three reports on its inquiry into immigration detention. The first report addresses criteria for release from immigration detention. The majority report contained 18 recommendations. A dissenting report by Mr Petro Georgiou MP, Senator Dr Alan Eggleston and Senator Sarah Hanson-Young contains two recommendations.

The majority report focuses on the criteria that should be applied in determining:

• release from detention
• review mechanisms for ongoing detention
• removals and detention changes.

The department has been providing advice to the minister on possible content of a government response to the recommendations of the Joint Standing Committee on Migration. As at 30 June 2009 the government had not responded to the report.

Joint Standing Committee on Migration—May 2009: Immigration detention in Australia: Community-based alternatives to detention

On 25 May 2009, the Joint Standing Committee on Migration tabled its second report on its inquiry into immigration detention. The report focused on community based alternatives to detention and contained 12 recommendations.

Mr Petro Georgiou MP produced a dissenting report. Senator Concetta Fierravanti-Wells and Senator Sarah Hanson-Young made additional comments and Dr Sharman Stone MP produced a minority report.

At 30 June 2009 the government had not responded to the committee report.

Ministerial, parliamentary and cabinet business

The department handles a consistently high volume of ministerial, parliamentary and cabinet-related business, as shown in Table 86.

Table 86: Handling of ministerial, parliamentary and cabinet business

Type of statistical material	2005–06	2006–07	2007–081	2008-09
Ministerial correspondence, submissions and briefs
Correspondence	38 049	25 459	27 853	23 498
Submissions	3 150	4 989	4 257	2 401
Function and meeting briefs	464	464	353	274
Parliamentary
Possible minister’s questions	988	862	563	582
Estimates questions on notice	722	548	192	232
Parliamentary questions on notice	149	131	52	52
Cabinet documents
Exposure drafts	90	72	37	63
Final submissions/memoranda	68	68	50	91
Minutes	138	108	101	235

1. Numbers affected by 2007 Federal election and preceding caretaker period.

Commonwealth and Immigration Ombudsman

The department received 516 complaints from the Commonwealth and Immigration Ombudsman in 2008–09, a decrease of 9.3 per cent on the previous year.

Of the 516 new complaints, 380 were resolved. Of these finalised complaints, administrative deficiency was identified in 28 cases, or approximately 7 per cent of cases.

In all, 581 complaints were brought to resolution in 2008–09. Of these, 380 were from this financial year and 201 had been carried over from previous years.

A total of 105 finalised complaints were reported as administratively deficient in 2008–09—the 28 from this financial year and 77 which had been carried over from previous years.

The most common causes for such findings were unreasonable delays in visa processing, factual errors, inadequate advice provided and various procedural deficiencies.

In April 2009, the Ombudsman started to refer complainants to the department’s global feedback unit. This change is a response to the department’s enhanced complaints handling mechanisms.

Australian Human Rights Commission (formerly the Human Rights and Equal Opportunity Commission)

The department received 21 new complaints from the Australian Human Rights Commission (AHRC) in 2008–09 compared to seven in the previous year, 16 in 2006–07 and 24 in 2005–06.

Of these 21 complaints, nine were closed in the period, two complaints were withdrawn, two were resolved through conciliation and five were terminated by the AHRC.

The most common issues raised in the complaints related to visas and detention.

Reports by external bodies

In July 2008 the Ombudsman published an own motion investigation report on The Safeguards System—a system designed to assist departmental decision makers when processing visa applications. The report found the system to be a useful tool, however, the Ombudsman identified several areas for improvement and made five recommendations. These related to improving transparency of the safeguards system, strengthening quality assurance processes, regularly reviewing safeguards profiles, improving consistency in record keeping and, as a matter of priority, updating the Risk Factor List.

The department accepted all recommendations. In May 2009, the minister replaced the Risk Factor List with comprehensive safeguards profiles, which will be updated every six months. These new profiles to guide decision makers contain current information on local and political circumstances as well as risk profiles based on compliance statistics.

In March 2009 the Ombudsman published his report Use of Interpreters—AFP, Centrelink, DEEWR and DIAC. This report made a number of positive references to the department’s use of interpreters against eight best practice principles. It also identified the need for the department to improve its policies and staff training. The department responded to the Ombudsman’s single recommendation and agreed to take a lead role in promoting interagency cooperation and consistency in the use of interpreter services.

In April 2009 the Ombudsman released the abridged report Detention Arrangements: The Case of Mr W. The Ombudsman conducted a review of Mr W’s case in response to a request from the secretary of the department in July 2008.

The investigation found that while Mr W had not been unlawfully detained, the department failed to consider whether community detention arrangements would have been more appropriate for him, given his claim to be a survivor of torture and trauma. The report also found that the department could have done more to provide mental health care for Mr W throughout its dealings with him. The report made eight recommendations addressing various administrative deficiencies. The department agreed to all recommendations and has acted quickly to address Mr W’s particular circumstances.

The AHRC published the Immigration Detention Report: Summary of observations following visits to Australia’s immigration detention facilities in January 2009. The department was already actively addressing many of the matters raised in the AHRC report.

The New Directions in Detention Policy, announced by the minister on 29 July 2008, outlined significant reforms in Australia’s immigration detention system. The new policy provides for seven key immigration detention values to guide detention policy and practices into the future.

The AHRC also tabled a report in March 2009 entitled Complaints by immigration detainees against the Commonwealth of Australia. This report identified certain breaches of detainees’ human rights relating to a visit by an invited delegation from the People’s Republic of China in 2005. The department undertook to compensate these clients and provide each of them with a formal apology.

The government’s response to the Senate Standing Committee on Foreign Affairs, Defence and Trade’s report The removal, search for and discovery of Ms Vivian Solon was tabled in the Senate on 27 November 2008. The government accepted all of the committee’s recommendations and they have been implemented.