Migration law

15.43   The ALRC received a number of submissions from stakeholders regarding provisions in migration law that may be characterised as denying procedural fairness to persons affected by the exercise of public power.^[53]

Migration Act

15.44   Some provisions of the Migration Act 1958 (Cth) may be characterised as excluding procedural fairness. The provisions highlighted below explicitly exclude the rules of natural justice, while others vest significant discretionary and non-reviewable power in the Minister for Immigration and Border Security, effectively precluding access to a hearing, or to the reasons for a decision, regarding a decision by the Minister to revoke or cancel a visa.

15.45   The following provisions of the Migration Act may be characterised as denying procedural fairness:

• Under s 109, the Minister may cancel a visa if information provided to the Department of Immigration for the purpose of obtaining that visa was incorrect. Section 133A(4) provides that natural justice does not apply to a decision made under s 109.

• Section 133C(3) excludes natural justice from the Minister’s decision to refuse or cancel a visa under s 116 and if the Minister is convinced that it would be in the public interest to do so. Section 116 provides the Minister with a power to cancel visas for a range of reasons.

• Section 134A states that the rules of natural justice do not apply to the emergency cancellation of visas on security grounds when the Minister is advised by Australian Security Intelligence Organisation (ASIO) under s 134B that the visa-holder poses a security risk.

• Sections 500A(11) and 501A(3) exclude the rules of natural justice from decisions made by the Minister to refuse to grant to a person a temporary safe haven visa, or to cancel a person’s temporary safe haven visa.

• Section 501(3) excludes natural justice from the Minister’s discretionary power to cancel or revoke a non-citizen’s visa if the Minister reasonably suspects that a person does not satisfy the ‘character test’ and the decision is in the national interest.

• Section 501(5) provides that decisions under ss 501(3) and 501(3A) are not subject to the rules of natural justice. Section 501(3) allows the Minister to refuse to grant a visa or to cancel a visa if the Minister ‘reasonably suspects’ the person does not pass the character test. Section 501(3A) compels the Minister to revoke or cancel a non-citizen’s visa if the Minister reasonably suspects that a person does not satisfy the ‘character test’ where the person has a substantial criminal record; has committed a sexually-based offence against a child; or the person is serving a custodial sentence at the time of cancellation or revocation.

15.46   Other provisions in the Migration Act may be characterised as excluding procedural fairness in the processing of unauthorised maritime arrivals (UMAs):

• Section 198AE provides that natural justice rules do not apply to a decision by the Minister that an UMA be taken to a regional processing centre under s 198AD.

• Section 473DA confines the Immigration Assessment Authority (IAA) to observe the rules of natural justice by way of an exhaustive statement of natural justice requirements. Under pt 7AA, the Minister may refer to the IAA all applications for protection visas made by UMAs who arrived in Australia on or after 13 August 2012 that have been subject to a so-called ‘fast track application process’. The IAA will conduct a limited merits review and either affirm the fast track reviewable decision, or remit the decision for reconsideration in accordance with prescribed directions or recommendations.

15.47   There are several provisions in the Maritime Powers Act 2013 (Cth) which suspend the rules of natural justice as they relate to the powers of the maritime authority:

• Section 22B provides that the rules of natural justice do not apply to authorisations made under the Maritime Powers Act.

• Section75Bexcludes the rules of natural justice from ss 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G and 75H. These provisions largely relate to the maritime authority’s coercive powers to intercept and detain vessels within and outside of Australian maritime waters, as well as to detain and move individuals aboard those vessels.

15.48   Other migration laws that exclude the requirements of procedural fairness include, for example:

• Section 48A of the Australian Passports Act 2005 (Cth), which provides that there are multiple circumstances in which the Minister is not required to notify a person when the Minister receives a notice of refusal or cancellation of a non-citizen’s visa or other travel document.

• Section 36 of the Australian Securities and Intelligence Organisation Act 1979 (Cth) (ASIO Act), which provides that any adverse security assessment made in respect of a non-citizen is not subject to the hearing requirements under pt IV of that Act.^[54] Notice of an adverse security assessment, and the reasons for that assessment, are therefore not disclosed to affected parties or their legal representatives, contrary to the principle of procedural fairness.

15.49   There are four areas of migration and related laws that have been the subject of debate in parliamentary inquiries—outlined in the following sections. These laws have also been highlighted as being of concern by stakeholders who made submissions to this Inquiry on the basis of excluding procedural fairness. These provisions, which are discussed in more detail below, concern:

• mandatory cancellation of visas;

• fast track assessment process for UMAs;

• changes to the Maritime Powers Act; and

• ASIO security assessments for non-citizens.

Mandatory cancellation of visas

15.50   Several stakeholders noted concerns with two parts of the Migration Act that require the Minister to cancel or revoke a visa on character or other grounds.^[55] By removing any discretion from the Minister’s decision-making process, visa applicants and visa-holders are unable to contest the reasons for the decision.

15.51   The first is s 501(3A) of the Migration Act, introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth).This provision compels the Minister to revoke or cancel a non-citizen’s visa if the Minister reasonably suspects that a person does not satisfy the ‘character test’ where the person has a substantial criminal record; has committed a sexually-based offence against a child; or the person is serving a custodial sentence at the time of cancellation or revocation. Section 501(5) provides that a decision is not subject to the rules of natural justice.

15.52   Several stakeholders expressed concerns about this provision, with some arguing that the seriousness of a decision to refuse or cancel a visa necessitated the application of procedural fairness to the decision-making process.^[56] The Refugee and Advice Casework Service (RACS) argued that the cancellation of visas should be subject to procedural fairness requirements given the seriousness of an adverse decision for certain visa applicants and visa holders—for example, asylum seekers or stateless persons—for whom a refusal or cancellation decision ‘may result in indefinite detention’.^[57]

15.53   The ANU Migration Law Program similarly commented that

Visa cancellation has serious consequences for the individuals concerned, and for this reason, visa cancellation decisions should be subject to strict procedural fairness obligations.^[58]

15.54   Kingsford Legal Centre noted that the formulation of the provision prior to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specified a range of factors a decision-maker could consider when exercising discretion to refuse or cancel a visa. The Centre wrote that, ‘in removing the Minister’s discretion to consider these factors, the person whose visa is to be cancelled is denied due process’.^[59]

15.55   The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 did not provide specific justifications for the removal of discretion. However, it did underscore the importance that the provision places on ministerial decision-making:

The community holds the Minister responsible for decisions within his portfolio, even where those decisions have resulted in merits review. Therefore, it is appropriate that the Minister have the power to be the final decision-maker in the public interest.^[60]

15.56   Section 134A provides that the rules of natural justice do not apply to the Minister’s decision to cancel or revoke a visa on security grounds under ss 109 and 134B. These provisions were introduced into the Migration Act by the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth).

15.57   The Explanatory Memorandum to the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014 explained that the obligation to cancel a visa under s 134A will arise if ASIO suspects that a person might be a risk to national security and recommends cancellation of the person’s visa. The power could be used in circumstances where ASIO suspects that a person, who applies for a visa from outside Australia, may pose a risk to national security but ASIO either has insufficient information or a lack of time to furnish a security assessment in advance of the person’s anticipated arrival in Australia.^[61]

15.58   These provisions mean that the Minister cannot exercise discretion to consider individual circumstances on a case-by-case basis. The Kingsford Legal Centre was concerned by this, arguing that

Previously, the Minister’s discretion afforded procedural fairness to the visa holder by ensuring that the decision was made in light of the relevant factors. The process is now automatic and applies to all regardless of the circumstances of their particular situation … The provision precludes the circumstances of the individual from being taken into account.^[62]

15.59   In examining the Counter-Terrorism Legislation Amendment (Foreign Fighters) Bill 2014, the Senate Standing Committee for the Scrutiny of Bills (the Scrutiny of Bills Committee) found that

A significant feature of the scheme is that the rules of natural justice are expressly excluded by proposed section 134A in relation to decisions made under proposed subdivision FB.^[63]

15.60   Despite this finding, the Scrutiny of Bills Committee’s conclusion was to refer any future consideration of the impact of this legislation on an individual’s access to procedural fairness to the Senate:

the committee leaves the general question of the appropriateness of the overall scheme, including the exclusion of the rules of natural justice which would require a fair hearing prior to the exercise powers which directly affect rights or interests, to the Senate as a whole.^[64]

Fast track assessment process for Unauthorised Maritime Arrivals

15.61   TheMigration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014amended the Migration Actto create a new fast track assessment process for UMAs who entered Australia after a prescribed time. Several stakeholders argued that this new process arbitrarily and unfairly excludes procedural fairness from protection visa application processes for UMAs.^[65]

15.62   Under pt 7AA of the Migration Act, the Minister may refer fast track reviewable decisions made by immigration officials to a new body, the IAA, within the Refugee Review Tribunal (RRT), which will conduct a limited merits review. The fast track process radically confines any obligation for the IAA to observe the rules of natural justice by way of an exhaustive statement of natural justice requirements in s 473DA. This provision excludes any obligation to provide a visa applicant with a hearing.

15.63   RACS wrote that the practical effect of s 473DA is that the IAA will, generally:

• not hold hearings;

• not allow a fast track review applicant to respond or comment on adverse information raised at the primary stage, or the reasons for the decision to refuse the application;

• not seek new information from a fast track review applicant; and

• not be permitted to consider new information provided by the fast track review applicant, other than in what it identifies as exceptional circumstances.^[66]

15.64   The IAA is empowered to make a decision based on the paperwork alone. Further, the IAA

• will not offer a review applicant an interview or the opportunity to comment on an application, except in ‘exceptional circumstances’;^[67]

• is prohibited from considering new information or new evidence except in exceptional circumstances;^[68] and

• is under no obligation to provide an applicant with any documents relied upon in the initial decision by a delegate.^[69]

15.65   The ANU College of Law’s Migration Law Program distinguished between s 425 of the Migration Act, which requires the RRT tohold a hearing for protection visa applicants who arrived in Australia before 13 August 2012, and s 473DA which applies to UMAs who arrived after this date. The ANU Migration Law Program explained that the later section has been interpreted to mean that the IAA need not conduct a hearing with, or otherwise interview the applicant, except in exceptional circumstances.^[70]

15.66   The ANU Migration Law Program argued that pt 7AA is ‘unnecessary’ as there is an existing and established merits review system for migration matters with procedural fairness obligations.^[71]

15.67   The statement of compatibility with human rights for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 explained the policy rationale behind the creation of the IAA:

[t]he establishment of the IAA as a separate office within the RRT, will allow it to make findings independent of the Department and therefore the primary assessment process … The measures in this Bill are a continuation of the Government’s protection reform agenda and make it clear that there will not be permanent protection for those who travel to Australia illegally. The measures will support a robust protection status determination process and enable a tailored approach to better prioritise and assess claims and support the removal of unsuccessful asylum seekers.^[72]

15.68   The Scrutiny of Bills Committee noted that the aim of the Bill was to introduce a more rapid processing and streamlined model for the processing of protection claims. However, the Committee asked the Immigration Minister for advice

as to whether the fast track assessment process is compatible with the obligation to consider the best interests of the child and the right to a fair trial, and particularly: whether the proposed changes are aimed at achieving a legitimate objective; whether there is a rational connection between the limitation and that objective; and whether the limitation is a reasonable and proportionate measure for the achievement of that objective.^[73]

15.69   In the second reading speech to the Bill, the Minister for Immigration explained that this new approach to review will ‘discourage asylum seekers who attempt to exploit the current review process by presenting manufactured claims or evidence to bolster their original unsuccessful claims’.^[74]

15.70   In the Senate debate over the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), Government Senator Michaelia Cash explained that the government

must have the ability to act decisively and effectively, wherever necessary, to protect the Australian community. The government must also have the legislative basis to refuse a protection visa, or to cancel a protection visa, for those noncitizens who are a security risk. We must prevent and deter any threats posed by those who are a risk to the security of our nation and must implement legislative amendments such as those proposed in this bill to ensure the security and safety of the Australian community.^[75]

15.71   On the other hand, some have argued that the provisions unjustifiably deny procedural fairness by limiting access to a review process, thus denying a fair hearing. The Refugee Council of Australia (RCA) argued that the new fast track system administered by the IAA fails to provide ‘an adequate framework for ensuring accuracy and procedural fairness in decision-making’.^[76] The RCA distinguished between the IAA and RRT, stating that, unlike the RRT,

asylum seekers cannot apply to the IAA in their own right: cases must be referred to the IAA by the Minister. In most circumstances, the IAA will make assessments based solely on the information provided to it by the Secretary of the Department of Immigration … The applicant will not be permitted to participate in the process and cannot provide new information to support their claims other than in exceptional circumstances and within certain restrictions.^[77]

15.72   Submissions to the Senate’s Legal and Constitutional Affairs Committee’s Inquiry into the Bill by the Law Council of Australia^[78] and the Refugee and Immigration Legal Centre^[79] noted that the IAA’s process excludes important procedural fairness guarantees, such as the right to be heard, to present and challenge evidence. The Law Council observed that the Bill ‘appears to infringe upon traditional rights and freedoms outlined in the Terms of Reference to the ALRC’s Inquiry’, including procedural fairness.^[80]

Maritime Powers Act

15.73   Several stakeholders raised concerns about the exclusion of natural justice from the Maritime Powers Act under changes in 2014 that increased the powers of maritime officials to turn around vessels on the high seas without providing accountability for such decisions.^[81]

15.74   The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) amended the Maritime Powers Act to exclude the requirements of natural justice in relation to the exercise of maritime powers under div 2, pt 2 of that Act. The Explanatory Memorandum to the Bill explained that the amendments provide

both substantive and procedural protections to individuals held by maritime officers. These protections strike a balance between, on the one hand, the necessity of treating individuals in accordance with natural justice and human dignity and, on the other hand, recognising the unique circumstances facing law enforcement in a maritime environment. Part 5 does not impose a general requirement to provide natural justice, and the explanatory memorandum clearly acknowledges that the ‘unique circumstances … in a maritime environment’ render the provision of natural justice in most circumstances impracticable. In dealing with powers to detain and move persons, Part 5 does not provide for natural justice. Nevertheless, to provide authorising officers with the greatest certainty while performing their work, it is appropriate to put it beyond doubt that they are not bound to provide natural justice in deciding to authorise the exercise of maritime powers.^[82]

15.75   The Senate Committee found that proposed s 22B amounted to a possible undue trespass on personal rights and liberties.^[83]The Committee went on to underscore the importance of procedural fairness in migration law:

The rules of natural justice are considered to be fundamental principles of the common law. The Maritime Powers Act contains a number of significant and coercive ‘maritime powers’ and the explanatory memorandum does not provide sufficient justification for the exclusion of natural justice for all of the powers in the Maritime Powers Act. Not all the powers are the same or require the same considerations in relation to their exercise. For example, different considerations may arise in relation to powers which enable a person or vessel to be detained than in relation to powers which enable a person or vessel to be transported to a destination (which may be outside of Australia). Without further details and analysis, the claim that application of the rules of natural justice is not consistent with the ‘unique circumstances … in a maritime environment’ does not enable the committee to properly consider the appropriateness of the proposed exclusion of natural justice.^[84]

15.76   In light of these concerns, the Committee sought the Minister’s advice as to why the exclusion of natural justice was considered reasonable.^[85] While the Minister provided a detailed reply that explained the effect of each new provision, the Committee reiterated its concerns about the exclusion of the rules of procedural fairness and referred the provisions to the Senate for further consideration.^[86]

15.77   The Law Council argued that the exclusion of the rules of procedural fairness cannot be justified in light of the seriousness of the consequences for persons removed from Australian waters—for example, ‘the relocation of affected individuals to a place where they face a real risk of persecution’.^[87]

15.78   The Human Rights Law Centre argued that the government should repeal the provisions in the Maritime Powers Act that exclude natural justice. The Centre contested the justification that ‘fairness at sea can be “impracticable”’, arguing that

‘impracticability’ does not justify completely excluding the duty to act fairly. It is a factor relevant to what fairness practically requires in the particular circumstances. More fundamentally, to the extent that acting fairly at sea could carry practical challenges, administrative inconvenience is a necessary and reasonable price to pay to ensure important decisions affecting people’s rights and liberties are properly made.^[88]

ASIO security assessments for non-citizens

15.79   Several stakeholders raised concerns about the exclusion of the fair hearing rule from ASIO’s adverse security assessment process in s 36 of the ASIO Act as it applies to non-citizens.^[89] Under s 36, notice of an adverse security assessment, and the reasons for that assessment, are not disclosed to affected parties or their legal representatives.^[90]

15.80   To be eligible for a protection visa, non-citizens must not have received an adverse security risk assessment from ASIO.^[91] According to the RCA, at the time of their submission to this Inquiry, there were ‘at least 32 people who have been found to be owed refugee protection but remain in indefinite immigration detention because they have received adverse security assessments’.^[92]

15.81   In February 2014, the Senate Legal and Constitutional Affairs Committee conducted an Inquiry into theMigration Amendment Bill 2013. The Legislation Committee’s report noted that the Bill aimed to ‘clarify administrative certainty’.^[93] However, some submissions to that Inquiry expressed concern over the means adopted to achieve this end.^[94]Notably, the United Nations High Commissioner for Refugees (UNHCR) noted

its concern that a refugee who has received an adverse assessment has very limited legal avenues to contest a negative assessment and is not afforded procedural fairness or natural justice.^[95]

15.82   There has been criticism from Australian commentators and international bodies about the lack of transparency in this process. For instance, the UN’s Human Rights Committee received communications from two Royhingan asylum seekers in 2011 and 2012 who had received adverse ASIO security assessments. The Committee wrote that

The secret basis of the security assessment renders it impossible to evaluate the justification for detention.^[96]

15.83   In 2013, the Australian Human Rights Commission noted its concern about

the lack of transparency of the ASIO security assessment process. Under the new Independent Reviewer process refugees are provided with an unclassified written summary of reasons for the decision to issue an adverse security assessment. However, there is limited information available about the content of the summaries of reasons. In particular, it is unclear whether they will set out any details about the information that ASIO relied upon to make the adverse assessment.^[97]

15.84   Professor Ben Saul was critical of the lack of notice and reasoning provided to asylum seekers and their legal representatives:

An affected person is only able to adequately respond to the case against them if they know the essential substance of that case. Currently, at the decision-making stage, ASIO need not disclose anything that they reasonably believe would prejudice national security.^[98]

15.85   In the ALRC’s 2004 report, Keeping Secrets: The Protection of Classified and Security Sensitive Information, there was a lengthy discussion of the use of secrecy provisions in migration law, including an earlier and similar iteration of s 36 of the ASIO Act. In that Inquiry, the ALRC considered that

the real issue is the availability of meaningful review which allows the aggrieved party a proper opportunity to consider and seek to challenge or contradict all the evidence available to the decision maker. Thus, the ALRC considers that there is a legitimate concern in relation to the use of secret evidence in immigration and similar matters.^[99]

15.86   Several stakeholders raised concerns about the justifications for this process, given the seriousness of the likely consequence of an adverse security assessment—indefinite detention or deportation. For instance, the Human Rights Law Centre submitted that:

Given the seriousness of the consequences flowing from an adverse ASIO security assessments, it is crucial that they be made through a process that is fair, transparent and reviewable.^[100]

15.87   The Victorian Foundation for Survivors of Torture stated that it has had more than 20 clients who have been in prolonged, indefinite detention because of receiving adverse security assessments.^[101]

15.88   Some stakeholders argued that the balance between individual rights to procedural fairness and the advancement of national security rests too far towards the latter. The Law Council argued that

Restricting a person’s freedom of movement may be for the legitimate purpose of preventing individuals from taking part in hostilities, engaging in terrorist activities or crime. However, questions arise as to whether certain counter-terrorism legislative measures are proportionate to achieving this objective and justified.^[102]

15.89   Finally, the Gilbert and Tobin Centre for Public Law and the UNSW Law Society pointed to the use of a special advocate regime in the UK, Canada and New Zealand where lawyers, having passed security clearance processes, are given access to the charges and evidence laid against their clients. They proposed this as an alternative model to the current regime under s 36 of the ASIO Act.^[103]

15.90   In 2012, the Australian Government established the Independent Reviewer of Adverse Security Assessments, tasked with reviewing non-citizens’ adverse ASIO security assessments. The Reviewer’s role is to examine material relied upon by ASIO when making an adverse security assessment, with a view to deciding whether the assessment was appropriate.^[104] The applicant may also submit material to the Reviewer.