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REGULATIONS AND DETERMINATIONS - Migration Act 1958 - Disallowance

Speeches in Parliament
Sarah Hanson-Young 21 Sep 2011

Senator HANSON-YOUNG (South Australia) (18:03): I move:

That the Migration Amendment Regulations 2011 (No. 4), as contained in Select Legislative Instrument 2011 No. 122 and made under the Migration Act 1958, be disallowed. [F2011L01376]
On 23 August I gave notice of the Greens' intention to move this disallowance to the Migration Amendment Regulations 2011 (No. 4) after numerous community legal centres and pro bono lawyers contacted my office deeply concerned about the impact that this regulation would have on their current and prospective clients.

The introduction of the Migration Amendment Regulations 2011 (No. 4), which came into effect on 1 July, introduces serious financial restrictions on access to justice for people experiencing some form of financial hardship. Up until 1 July the Migration Review Tribunal had the power to waive the application fee for merits review if the payment would cause financial hardship.

However, changing the existing 1994 migration regulations will mean the Migration Review Tribunal can reduce the fee by only 50 per cent. In other words, they now only have the power to reduce the $1,540 fee by half to $770, if they are satisfied that the payment of the fee has caused or is likely to cause severe financial hardship to the review applicant.

Nowhere in the explanatory memorandum does the minister explain why these dramatic changes are necessary. While the statement highlights that the purpose of this regulation is to charge applicants a reduced fee if the payment would cause severe financial hardship, it fails to highlight that previously a full waiver was available. This I suggest is somewhat disingenuous and, dare I say it, sneaky. While the accompanying statement does not state that this change would have no impact or effect on business or competition, it fails to summarise the likely impact on individuals who are directly involved, which of course will be considerable. This is about whether or not people get to live in Australia.

The Greens do not see there being any justification for slashing the fee waiver for applicants seeking a review of their visa decision. Given that the criteria for the tribunal to reduce the fee are based on evidence that the applicant would have to face severe financial hardship, it is ridiculous that someone who is assessed as being unable to pay over $1,500 could somehow still be able to pay $770. Apparently $1,500 is unacceptable but $770 is okay.

Time and time again community legal centres and access to justice advocates have stressed the importance of being able to offer complete fee waivers where the situation is warranted. The problem with this regulation is that without payment of the tribunal fee the application for merits review is deemed invalid. So if you cannot cough up the $770 you cannot even lodge an application to have your case reviewed. This could result in a significant number of vulnerable individuals, who previously would have been considered for a complete fee waiver, now being unable to raise the required $770 reduced fee in order to access the review. So it is only if you have enough money that you can access the legal system.

In 2010-11 the Migration Review Tribunal granted 511 fee waivers, highlighting its importance in ensuring access to justice is available for vulnerable individuals. This figure is increasingly important when comparing the application fee of the Migration Review Tribunal to other types of merit reviews of Commonwealth agency decisions. For example, no fees apply to either the Social Security Appeals Tribunal, which looks at Centrelink decisions, or the Administrative Appeals Tribunal. So for some tribunals you may have to pay a fee but there is nothing beyond a basic fee of $75. Applicants who would like to see a review of a decision by the Migration Review Tribunal have to pay $1,500. They could get a waiver to $770 but anybody else appealing to other Commonwealth agencies does not have to pay anywhere in that vicinity.

A number of legal experts, who I understand have contacted the minister's office expressing their concerns over this regulation, have indicated that the inability of Migration Review Tribunal to waive the application fee will have an adverse effect on both Australian citizens and permanent residents, along with a variety of individuals seeking to obtain or retain a particular visa.

The following case clearly identifies the impact that this regulation could have on individuals residing or wanting to reside in Australia. A woman who came to Australia on a temporary partner visa, who had an Australian citizen husband, separated from him due to serious domestic violence. As she is on a temporary visa, she is not eligible for ongoing Centrelink payments and is living on her cousin's couch. Wanting to remain in Australia because she has been here for some time-she has family connections, she has social connections-she contacted DIAC who informed her that, if she provided evidence of her domestic violence, then she may be able to stay on her current visa. However, as the woman did not receive any professional migration advice, she failed to provide evidence from the approved persons list and her visa was subsequently refused. She of course needed this decision reviewed.

The only option available to appeal this decision is through the Migration Review Tribunal. As the woman does not have $1,540, nor the $770 she would require even if it were agreed that the payment of the fee would cause financial hardship, the option of appealing is not a live one. A decision like this could be seen as directly in conflict with the intention of the domestic violence provisions in the migration legislation-to allow people to leave violent relationships without jeopardising their immigration status. The minister has refused to outline and answer this question-the rationale for why we would want to undermine our obligations in this area.

According to Community Legal Centres New South Wales, access to the Migration Review Tribunal is not a futile exercise. With more than 40 per cent of all DIAC decisions reviewed by the tribunal reversed to a positive decision, that means only 36 per cent of all previous decisions were upheld. That is a pretty bad strike rate for the department of immigration in the first instance.

Decisions made by DIAC are incredibly important and affect the lives of applicants and their sponsors. By removing the fee waiver right of the tribunal, this regulation will effectively prevent financially disadvantaged individuals from seeking merits review due to the increase in cost. And yet again, there is no argument put forward by the minister as to why this is the case. The only argument which has been flagged is of course one of cost savings. If we accept that it is unreasonable to expect someone who would face severe financial hardship to have to pay $1,540, how can we expect the very same person to fork out $770 just to have a review of a negative decision? With limited consultation with the legal sector and the introduction of this regulation, and the adverse impact which this may have on some of their clients, I would urge all senators to reconsider their opposition to this disallowance motion, which is in clear conflict with the government's own A strategic framework for access to justice in the federal civil justice system 2009.

While I understand that both the government and the opposition have already indicated that they will not be supporting this disallowance motion, I look forward to hearing their justifications as to why this measure is necessary at all and the type of impact they expect the removal of the waiver will have on financially disadvantaged applicants.
So you are unable to access a review of your decision if you have the money to pay for it.

of Labor value is that? The Greens believe that in order to comply with the principle of natural justice for all visa applicants they must have the right to have their appeal heard, irrespective of their financial status. This is a core issue which goes right to the heart of where this government is at when it looks at the review of migration decisions. Why is it that, if you have enough money, you can have your appeal assessed, but if you do not have enough money, bad luck? Where is the justification from the government to cut and slash this financial assistance to disadvantaged individuals, aside from their own budgeting issues and trying to keep more money in the coffers?

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