An extraordinary use of power

When appeals to the minister from asylum seekers and separated families are routinely rejected, it’s hard to see how visas for two au pairs are in the ‘public interest’, Marianne Dickie writes.

I can still remember the first time I spoke to someone seeking ministerial discretion. She taught at a primary school in North Queensland and asked to speak with the senator I worked for about her husband.

As I sat on a tiny kindergarten chair this dignified and distraught woman described how her husband – also a father and grandfather – was going to be deported to a European country he left as a baby. Needless to say, the appeal she made to the minister supported by my employer was not successful.

Since then I have worked with at least 40 families seeking intervention from the minister. One case that will always remain with me is the case of Mr Shahraz Kayani, an Australian citizen who died in 2001 after setting himself alight outside Parliament House in Canberra. His self-immolation was an act of despair following the government’s refusal to allow his wife and children to Australia. This was followed up by a refusal to allow his daughter a visitor visa to attend her father’s funeral.

In reality, the minister receives thousands of requests to exercise his powers. These include requests from asylum seekers who have been refused visas, parents of children who have failed to satisfy the health criteria for permanent residency, and families trying to reunite with their children who are stuck in war-torn countries.

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In order to rise above the pile of intervention requests, people often resort to public campaigns, such as the family in Biloela and a Brisbane mother facing separation from her Australian citizen son. These are critical cases where the failure has a devastating impact on families and communities. Sometimes they succeed in their intervention request – overwhelmingly they do not. This makes recent discussions of Home Affairs Minister Peter Dutton’s interventions in 2015 to stop two au pairs being deported all the more galling.

The Migration Act 1958 contains ‘public interest powers’, which allow the minister to grant a visa in a range of circumstances. These powers have always been intended by the parliament to provide a safety net for those that either can’t fit into the criteria of the legislation or suffer unintended consequences of the legislation.

The power is discretionary and non-delegable. It is also non-compellable, which means there is no legal duty for the minister to consider using it when requested to do so, and non-reviewable, which means no one can examine the decision. If the minister does use it then it must be in the public interest to do so.

Sadly the term ‘public interest’ is not defined in the Act. Ministerial Guidelines advise departmental staff that “what is or what is not in the public interest is for the Minister to determine”.

In 2008 the Rudd Government commissioned Elizabeth Proust, former head of the Victorian Department of Premier and Cabinet, to examine the extent to which the minister should use these powers. Her report recommended a stark reduction in their use and their availability.

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Both the Senate Select Committee and the report by Elizabeth Proust expressed concern that the powers are so discretionary there is no legal requirement to follow any administrative process. This allowed people who could access the minister to raise their issue independent of the Department vetting process.

The Senate Select Committee noted the concerns of stakeholders that the nature of the powers led to a system whereby it was not ‘what you know but who you know’. Despite attempts by the Committee to see if this view was justified, they concluded “that the current structure of the system invites the perception of corruption and opens the way for unscrupulous behaviour at all levels”.

The opaque nature of some of these powers is mitigated to some extent by Ministerial Guidelines. Despite the fact that the minister can work outside the guidelines, they are used as evidence that the powers remain a safety net.

Until 2015, guidelines detailing the circumstances where a minister may consider using his powers under s195A specified eight reasons a case should be brought to his/her attention. All relate to individual issues such as health, irreparable harm to an Australian citizen or family unit, refugee claims, inability to return to country of origin and strong compassionate circumstances. The guidelines were clear that the intention of this power is to ensure people do not stay in detention longer than necessary.

Since the removal of these guidelines under Minister Dutton in 2015, we can only look to his new guidelines for the ministerial discretion powers under ss417, 351 and 501J when trying to determine what circumstances might have moved Dutton to intervene and assist to grant two au pairs a visitor visa.

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The Ministerial Guidelines are meant to guide the departmental unit administering to the thousands of submissions for intervention as to what cases they may raise before the minister. The new guidelines include a set of ‘principles’, which make it clear that Dutton had an expectation a person who is not granted a visa will leave Australia and only cases with unique or exceptional circumstances should be bought to his attention.

The changes to previous iterations of these removed detailed references to Australia’s obligations under international law as primary reasons for intervention, as well as length of time the person had lived in Australia as a consideration. Nevertheless, they retained seven strong descriptions of what the minister would consider unique or exceptional circumstances, including “serious and irreversible harm to an Australian citizen or an Australian family unit”, and “significant threat to personal security human rights or human dignity”.

The only indication we have of why the minister may have wanted to consider intervening in these cases are in the statements he lay before Parliament. In one statement, he explained that the public interest was served because the grant was considered a “discretionary and humanitarian act to an individual with ongoing needs. It is in the interest of Australia as a humane and generous society to grant this person a visitor visa”.

If this applies to the grant of a visa for a young woman on holidays it is extraordinary. I doubt the families facing forced separation who have been unable to get the minister to even consider their case would accept this was a valid use of this power.