Fee waivers in review applications

20.62 The ALRC recommends that the Australian Government should consider reviewing the MRT’s application fee arrangements—contained in reg 4.14 of the Migration Regulations—including their impact on the ability of victims of family violence to access merits review. Such a review should be conducted in consultation with community and migration legal centres, and the MRT. It could consider the re-structuring the hierarchy of fees to ensure that victims of family violence are not unduly denied access to merits review.

20.63 Applications for all visas are considered, in the first instance, by a DIAC officer as a delegate of the Minister. In the event of an unfavourable decision, applicants can apply for merits review of the visa decision to the MRT.^[73]

20.64 When making an appeal to the MRT, an application fee must be paid.^[74] Prior to 1 July 2011, the application fee for review in an MRT case was $1400.^[75] This amount is refundable to an applicant if a favourable decision on the case is made.^[76] Prior to 1 July 2011, the entire fee could be waived where the relevant decision maker was satisfied that ‘the fee has caused, or is likely to cause, severe financial hardship to the review applicant’.^[77] However, the Migration Amendment Regulation 2011 (No 4) (Cth) removed the MRT’s ability to waive the fee.^[78] A separate piece of amending legislation also increased the review application fee to $1540.^[79] For applications lodged after 1 July 2011, where the MRT is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship’ for a review applicant, it can reduce the fee by 50%—to $770.^[80]

The impact of fee waiver removal on victims of family violence

20.65 Many stakeholders expressed serious concern about the impact of the removal of the MRT’s fee waiver power on those experiencing family violence, and called for the fee waiver power to be reinstated.^[81] Some argued that the requirement to pay the fee had the potential to reduce access to merits review—and the family violence exception—as well as perpetuating violence and the vulnerability of victims whose finances are controlled by their sponsor.^[82]

20.66 The Refugee and Immigration Legal Centre noted that ‘all but a handful of the people … have been able to seek review only because they have been able to have the Tribunal fee waived completely’, and the requirement to pay a fee ‘has begun to cause hardship to clients’.^[83] In addition, stakeholders also argued that the inability to access merits review had a number of potential consequences for victims of family violence. For example, Community Legal Centres NSW (CLC NSW) argued that as a result of the fee:

Some of these women will return to their partners (in hope that they will pay the MRT fee, and the case can be re-assessed as an ongoing relationship); some will stay unlawfully in Australia after their visa ends; some will lodge Protection Visa applications (even if they clearly cannot meet the protection visa requirements, as this is a more affordable way to remain legally in Australia and eventually access the Minister’s discretion to ‘intervene’ under s 417 of the Migration Act.^[84]

20.67 Stakeholders also argued that the financial benefit derived from the fees collected—in cases whether it would otherwise have been waived—were marginal compared to the potential detrimental impact on victims of family violence. For the financial year 2009/2010, fee waiver requests to the MRT accounted for 10% of lodgements, less than 5% of which were granted.^[85] This would have amounted to $393,500 if the new fee were paid and does not represent a significant proportion of the MRT’s revenue.

20.68 CLC NSW suggested a number of potential solutions, including:

• A hierarchy of fees, depending on the nature of the application to the MRT: e.g. business/employment related matters paying a higher fee; family visas paying a more moderate fee; family violence claims and applications from people in detention paying no fee; or

• Amend the Migration Regulations 1994 to specify that no fee is payable by an applicant who claims (at DIAC or MRT-level) to meet the family violence provisions for the visa they applied for.^[86]

The need to review fee structures

20.69 In the ALRC’s view, the re-introduction of the fee waiver provisions is desirable to ensure that victims of family violence have access to merits review and ultimately, the family violence exception. In particular, the ALRC is concerned about the potential impact the fee requirement may have on the ability of victims of family violence to access appropriate services and migration assistance to ensure their safety.

20.70 However, reverting back to the old fee waiver structure would require a broad structural reform of the MRT’s fee structure, with implications extending beyond victims of family violence. In all areas of this Inquiry, the ALRC has been cognisant of avoiding the creation of a two-tiered system in which family violence is emphasised above other forms of disadvantage. For example, if the Migration Regulations were amended to provide that a full fee waiver is available to victims of family violence, a question arises to why victims of family violence get such treatment and not others who may also be suffering financial hardship.

20.71 Given that a new fee structure was implemented on 1 July 2011, the ALRC recommends that the Australian Government should review the impact of the provisions on victims of family violence, in consultation with community and migration legal centres and the MRT. Such a review could consider re-structuring the hierarchy of fees to ensure that victims of family violence are not unduly denied access to merits review, as suggested by the NSW CLC. The Attorney-General’s Department (AGD) is currently conducting a review of the current fee arrangements.^[87] The ALRC notes that AGD may wish to consider the concerns expressed by stakeholders to this Inquiry about the impact of the removal of the MRT’s fee waiver on victims of family violence.