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senate vote 2021-10-19#5
Edited by
mackay staff
on
2021-10-29 11:58:12
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Title
Regulations and Determinations — Migration Amendment (Merits Review) Regulations 2021; Disallowance- Regulations and Determinations - Migration Amendment (Merits Review) Regulations 2021 - Disallow
Description
<p class="speaker">Nick McKim</p><p>I, and also on behalf of Senator Griff, move:</p>-
- The same number of senators voted for and against this [motion](https://www.openaustralia.org.au/senate/?id=2021-10-19.132.2), which means it failed. The motion was:
- > *That the [Migration Amendment (Merits Review) Regulations 2021](https://www.legislation.gov.au/Details/F2021L00845), made under the Migration Act 1958, be disallowed [F2021L00845].*
- To disallow a regulation is to stop it from having any more legal force.
- Tasmanian Senator [Nick McKim](https://theyvoteforyou.org.au/people/senate/tasmania/nick_mckim) (Greens) [explained that](https://www.openaustralia.org.au/senate/?id=2021-10-19.132.2) "*This instrument increases fees for applications to the Migration and Refugee Division of the Administrative Appeals Tribunal.*"
<p class="italic">That the Migration Amendment (Merits Review) Regulations 2021, made under the <i>Migrat</i><i>ion Act 1958</i>, be disallowed [F2021L00845].</p><p>I do so with disappointment and sadness because we shouldn't have to be debating a motion like this in the Senate. We really shouldn't have to be dealing with matters that are contained in the Migration Amendment (Merits Review) Regulations 2021. Under this amendment, put forward by the government, the Administrative Appeals Tribunal fees for migration reviews will increase from $1,826 to $3,000. That's nearly a doubling of fees. The government explains this by saying that the increase to the fee is part of a funding package for the Administrative Appeals Tribunal and the Federal Circuit Court announced in the 2021-22 federal budget. I say to the government very clearly that if you want to increase funding to the AAT and the Federal Circuit Court—and you should want to increase funding to those organisations—simply fund it in the budget. But you haven't chosen to fund the entirety of the funding package straight out of the budget. You've decided to engage, quite unsurprisingly, in a neoliberal approach: a user-pays increase of nearly 100 per cent.</p><p>Is that being rolled out to all applicants to the AAT? No, it's not. This massive fee increase will be borne by migrants to Australia, many of whom are already facing significant financial hardship and many of whom are already struggling to access the justice that they so richly deserve. This is, plain and simple, a policy to prevent migrants accessing a fair hearing of their cases.</p><p>This instrument increases fees for applications to the Migration and Refugee Division of the Administrative Appeals Tribunal. This division reviews decisions about protection visas—that is, cases that involve refugees and people who seek asylum in Australia. It reviews decisions relating to character. So this instrument quite clearly seeks to deny justice to people who came to this country and asked this country and this government for asylum, for protection and for help as they fled persecution in different parts of the world. These are people who are trying to access justice to prevent the government from turning them away and returning them to danger and persecution. When these people have the absolute temerity, the cheek, to challenge the government's refusal to provide them with protection, and when they turn to the AAT to appeal a decision that the government has made to deny them protection and to deny them asylum, when they take one of the last shots of justice in this country, they're being priced out of it by the government.</p><p>In its explanatory statement, the government argues that the Federal Circuit Court retains a significant backlog of approximately 14,000 matters on hand as at 30 April 2021 in its migration case load, while the Migration and Refugee Division of the AAT has approximately 58,000 active applications. Those numbers are accurate. Those numbers constitute a cry for help, because justice delayed is justice denied. But the answer to the challenges posed by those numbers is not to increase the fees. The answer is to properly fund the AAT and the Federal Circuit Court out of the government's budget. Let's not forget this year's budget contains over $50 billion—50 billion with a 'B' dollars—in direct subsidies for burning fossil fuel while our climate is breaking down around us. That is $50 billion of taxpayer funds going into the pockets of people who dig up and transport and burn fossil fuels in the middle of a climate crisis. Yet somehow the government can't afford to find the money to adequately fund the Administrative Appeals Tribunal and the Federal Circuit Court. Give us a break! Of course you could find the money if you wanted to. You don't have to price people out of accessing justice in order to run a coherent AAT and Federal Circuit Court. You simply don't.</p><p>It's worth noting that the AAT finds in favour of significant numbers of appellants. That is, it overturns government decisions regularly, and I do mean regularly. This of course is embarrassing to the Department of Home Affairs, which makes many of these decisions, and of course it's embarrassing to the government. So now the government is trying to price people out of the AAT by nearly doubling its fees for people who are appealing migration matters.</p><p>It's worth pointing out that the Migration and Refugee Division of the AAT also reviews matters relating to the cancellation of visas, to sponsors, to employer nominations and to the points system set out in the Migration Act and associated regulations. As such—and this is a critical point—this fee increase is likely to prevent many vulnerable people—and they are overwhelmingly women and children who are fleeing family violence—from accessing a fair hearing of their case. They will be denied access to statutory rights of review, and this will result in survivors of family violence, and in some cases Australian citizen children, being expelled from Australia. That is one of the potential consequences of what we are debating here today, because applicants for partner visas are eligible, in some circumstances, for permanent residence if they are victims of family violence perpetrated by an Australian citizen or permanent resident who is the sponsor of their visas. In those circumstances, it is quite common for women and children who flee such violence not to receive important letters from the department because, for example, they've moved into emergency accommodation and the person at their original address fails to forward the mail to them. This failure to receive, and subsequent incapacity to respond to, written correspondence from the department can lead to their visa applications being refused by the government. In such circumstances, the only avenue for them to remain in Australia is to apply to the AAT for a merits review.</p><p>Importantly, unless the applicant can pay the AAT fee within the prescribed period, which in normal circumstances ranges between seven and 21 days, their AAT application will be invalid. Yes, the AAT does have the discretion to halve the application fee if satisfied that the payment of the full fee is likely to cause severe financial hardship. However, with the new fees—which, remember, have nearly doubled the original level of fees—that discounted fee would still be $1,500, and the AAT has no discretion to extend the period to pay that fee.</p><p>This is from a government whose Prime Minister claims to be the prime minister for women. This is a disgraceful effort by the government. It is a punitive move, and it's typical of the disdain that this government has for migrants, for refugees and for people seeking asylum. They have yet again failed to offer adequate support for survivors of domestic and family violence. They are trying to claw back money from the people who can afford it the least while shelling out billions of dollars for the diggers-up, burners and transporters of fossil fuel and for the richest in our society through their massive tax cuts for the most wealthy high-income earners in Australia and through JobKeeper payments that went to some of the world's richest people, who run companies in this country which increased their profits during the pandemic.</p><p>So it's pretty clear, colleagues. If you are one of this society's most wealthy—if you are one of the billionaires or one of the big corporations—you're going to make out like a bandit under this government, and you'll invest your donations in the Liberal Party, and your return on investment will be through the roof. But if you're a migrant to Australia who gets the dodgy, rough end of a decision from Home Affairs—and there are many, many of those decisions made—and you want access to justice, take a hike, because this government is going to try and price you out of the justice system. That's what we are seeking to disallow today. What the government is trying to do with this regulation is absolutely unconscionable. I commend the disallowance to the chamber, and I thank Senator Griff for allowing me to co-sponsor this disallowance with him.</p> <p class="speaker">Richard Colbeck</p><p>OLBECK (—) (): The regulations increase and index the filing fees for certain migration matters in the Administrative Appeals Tribunal. The increase does not apply to applications concerning protection visas. The fees have barely increased since 1999, and the additional revenue will fund extra resources at the AAT and the Federal Circuit Court. If paying a fee would cause severe financial hardship to an applicant, the AAT has the capacity to reduce it by 50 per cent.</p> <p class="speaker">Stirling Griff</p><p>[by video link] The Migration Amendment (Merits Review) Regulations which Senator McKim and I are moving to disallow will increase the AAT migration review application fee, as Senator McKim also mentioned, from $1,826 to $3,000. This is not the incremental double-digit fee increase that we would normally expect to see. The AAT's previously gazetted fee rise for 2021 was an increase of just $20, which was in keeping with the small increases of previous years. So this instrument demonstrates the government's ongoing targeting of migrants or, should I say, shakedown of migrants, because that's very much what it is.</p><p>We can see this in another piece of legislation, the Social Services Legislation Amendment (Consistent Waiting Periods for New Migrants) Bill. It is evident that this government sees migrants as little more than cash cows and an annoyance that must be squashed the minute they try to assert their rights. Even with the 50 per cent discount for those in severe financial hardship, or a 50 per cent refund for successful reviews, a review application will cost migrant applicants a minimum of $1,500.</p><p>This AAT disallowance follows a similar disallowance I put forward late last year to reverse the increase to the Federal Circuit Court application fee for migration litigants. That instrument increased the application fee from $690 to a massive $3,330. The government at the time justified the 400 per cent fee hike on migration litigants only as necessary to help pay for court resources. In the same vein, the government says this increase is to fund extra resourcing for the AAT to reduce the migration related backlogs. It is not the job of litigants to resource the courts; it's the job of government to do this.</p><p>As I stated last time and will say again now, access to justice cannot be on a user-pays basis. I knew then that letting the FCC instrument slide would be a slippery slope and, here today, we have proof. The government has been emboldened to try the same trick again, this time with the AAT merits review for migration litigants for decisions relating to visas, sponsorships and nominations. These massive fee hikes are not just about cashing in; they are also about embedding disincentives to discourage migrants from pursuing their cases. We should all be very clear about that. We should also note that no external consultation was undertaken whatsoever.</p><p>As I have said previously, justice should be accessible for all. Justice should not be based on a user-pays system. Justice should treat all litigants fairly and equally. This AAT regulation does not do that in any shape or form, and it deserves to be thrown out.</p> <p class="speaker">Katy Gallagher</p><p>I rise briefly to state that Labor will support this disallowance motion. These regulations increase the Administrative Appeals Tribunal application fee for review of decisions relating to visas other than protection visas from $1,826 to $3,000 from 26 June 2021. Exorbitant application fees like those set out in these regulations discourage and, in some cases, completely prevent, individuals from accessing justice. As such Labor will support disallowance of these regulations.</p> <p class="speaker">Slade Brockman</p><p>The question is that the motion from Senator Griff, moved by Senator McKim, be agreed to.</p><p></p><p></p> -
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