Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

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. What kind 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?

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

The Migration Review Tribunal currently has a discretion to waive the $1,540 fee for a review of the decision if it is satisfied that the fee would cause the applicant severe financial hardship. That is a criterion and it seems to be a very fair criterion. It is not something which is done lightly but that discretion exists. Under these regulations, which I call 'mean and tricky regulations', which are the subject of this disallowance motion, the Migration Review Tribunal will only be able to reduce the review fee by 50 per cent. You have to ask: why? And where is the equity of this? It seems to me quite unreal that a person who is deemed to be suffering financial hardship and is unable to pay $1,540 is somehow supposed to be able to pay $770. If we are talking about people who are on the poverty line and are struggling, and for whom every cent counts, $770 is a very significant some of money. If they cannot pay $770 does that mean that the individual will have no access to a review? Furthermore, this fee well exceeds fees for other types of merits reviews of Commonwealth agency decisions. For instance, the Social Security Appeals Tribunal applies no fees if someone wants to appeal a Centrelink decision about entitlements, nor does the Administrative Appeals Tribunal for a review of a Commonwealth workers compensation decision. It is $100 to appeal a visa cancellation on character grounds to the Administrative Appeals Tribunal and just $77 to appeal a taxation objection decision of less than $5,000 to the Small Taxation Claims Tribunal. So the $1,540 fee for a review of the MRT is exorbitant to begin with and to suggest that someone deemed to be in financial hardship is able to pay even half of that is beyond me. I support this disallowance motion.

Kim Carr (Victoria, Australian Labor Party, Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

On behalf of the minister I indicate the government's position in regard to this disallowance motion. I would agree with Senator Hanson-Young and with the point that Senator Xenophon made that the work of the Migration Review Tribunal and the Refugee Review Tribunal is very important. What the evidence points to is that decisions are becoming more complex and are becoming more lengthy and that there are increasing numbers of occasions on which the tribunals are required to make decisions, therefore it is important that the necessary resources be provided to allow them to do their important work. So the government has agreed to changes to the application fees for these tribunals in terms of applications to offset the appropriation for the operations of the tribunals in 2011-12 and in the out-years. Under these funding arrangements, the tribunals would have to incur operating losses in 2011-12 and in the forward years, making them technically insolvent, so the tribunals have insufficient cash reserves and the financial assets to meet their commitments as they fall due in the period of 2011-12.

The fee amendments will fully offset an increase in appropriations to these tribunals and avoid operating losses over the forward estimates period consistent with the operating budget rules. So any disallowance of the fee amendments will have a very negative effect on the government's fiscal projections and, of course, any additional offsets required from the tribunals instead may adversely impact upon the way in which these tribunals are actually able to operate. These changes would enable the two tribunals to avoid operating losses over the forward estimates period and enhance the tribunals' capacity to respond to the significant increase in caseloads and the deterioration in the processing times.

The tribunals incurred operating losses of approximately $10 million between 2008-09 and 2010-11. The operating losses have been funded from accumulated appropriations and this is a position that is not sustainable. The revised funding for the tribunals increases the cost provisions per case taking into account increases in the operating costs such as the members' remuneration increases which have been determined by the Remuneration Tribunal itself. It recognises also increases in the complexity of cases due to the impact of court judgments on the conduct of reviews and the effort needed to resolve cases. The application lodgements for the MRT and the RRT increased by 23 per cent between 2007-08 and 2009-10. The MRT application fee of $1,400 has not increased since the MRT was established in 1999. The RRT application fee, which is only payable post decision if the applicant is found not to be a refugee, has been at $1,400 since 2003.

The proposed changes for increases in the MRT and RRT application fees by 10 per cent from $1,400 to $1,540 will take effect from 1 July 2011. The application fee for the RRT only becomes payable after the review is completed and if the applicant is found not to be a refugee. The retaining of 50 per cent of the MRT application fee, rather than refunding the full application fee, is if the MRT sets aside the primary decision for applications for a review lodged on or before 1 July 2011. No fee is currently payable in relation to MRT applications by persons in immigration detention who are seeking a review of a decision to refuse or cancel a bridging visa, and no change is proposed to this. As to a reduction of a fee of 50 per cent on MRT applicants who are in financial hardship, rather than a full waiver for applications for review lodged on or after 1 July 2011, the $1,400 application fee to the MRT can be waived on the basis that the payment would cause severe financial hardship. There were fee waivers in some 490 cases, or six per cent of the applications lodged in the period of 2010-11, and 338 cases, or five per cent of the applications, in the year 2008-09. It should be noted that the fee will be refunded if the tribunal makes a favourable decision. So these provisions do preserve that arrangement. Automatic adjustment of the MRT and the RRT application fees for CPI increases would apply every two years.

The effect of agreeing to this disallowance would be quite severe. The disallowance of the proposed fee structure would have a quite serious impact on the operations of the tribunals to the tune of about $3½ million, which is based on the proposition that there are some 8,300 cases currently being decided in the period of 2011-12. The disallowance of the partial fee waivers would have a negative impact of some $2.3 million per annum and that is based on the proposition that some 6,000 cases are being decided before the MRT in the period of 2011-12 and with, of course, the MRT only primary decisions setting aside at the rate of 49 per cent.

  The disallowance of this regulation would result in both these tribunals having to internally reallocate funding from other parts of their budgets to provide for payment of the full refunds. These charges are about providing quality decision-making and to give these tribunals the resources they need to ensure that they maintain effective and efficient case resolutions. If this disallowance is agreed to by the Senate it would result in substantial delays in the time taken to review a decision, the impact of which would be felt most acutely by those who are in immigration detention, who, as a consequence of such an action, would remain in detention for much longer periods of time. The proposal that the Greens are advancing here would seriously disadvantage people who are currently in detention.

  Many of the applications that are going to these tribunals are from parents and partners—and, of course, there are some children—who are waiting to join family members in Australia. Disallowing these changes in the fee structure may mean more time is spent separated from families. What the government is proposing is economically responsible and just, and it provides us with the appropriate mechanism to place support with those who are facing severe financial hardship. I seek the support of the Senate in rejecting this disallowance motion.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

On the behalf of the coalition, we will not be supporting the Greens motion.

Question put:

That the motion (Senator Hanson-Young's) be agreed to.

The Senate divided. [18:28]

(Acting Deputy President—Senator Back)

Question negatived.