Dutton's Home Affairs covered up illegal partner visa cap

A report by the ANAO has skirted around the issue of the Coalition's illegal practice of limiting partner visas and opposing the Migration Act. Dr Abul Rizvi reports.

IN THIS audit report on management of the family migration program, the Australian National Audit Office (ANAO) appears to have had the wool pulled over its eyes by the Department of Home Affairs (DHA).

The key issue this audit was to address was: Has the Coalition Government been limiting the number of spouse visas it issues and does the Migration Act allow it to do so?

This audit was triggered by two letters from Julian Hill MP, Member for Bruce. The first was dated 3 September 2019 and the second, after a Parliamentary Inquiry into the matter, was dated 23 July 2021. Both letters point to the illegality of limiting spouse visas in particular.

In his July letter, Hill quotes the Human Rights Law Centre, which states:

‘The backlog and waiting times are a result of the Australian Government’s decision over several years to reduce the number of family visas available each year... The Australian Government has refused to grant more family visas in line with demand, despite the fact that s87 of the Migration Act 1958 makes it unlawful to impose a cap on the number of Partner or Child visas to be granted each year.’

Dutton's negligence haunts 2022-23 Migration Program

The allocation for partner visas may have been increased to clear Peter Dutton's illegally engineered backlog, but the tens of thousands of affected Australians may be waiting a long time for an apology.

The ANAO says that in 2016-17, the Coalition agreed to a proposal (from then Minister Peter Dutton) to adopt the term “planning ceiling” to establish an upper limit rather than a target for the migration program as had been practice since World War Two. That enabled Dutton to unilaterally reduce the migration program in 2017-18 to 162,117 against the Cabinet-approved “ceiling” of 190,000.

As part of this and despite a booming partner application rate and rapidly rising backlog, Dutton also reduced the number of partner visas issued from 47,825 in 2016-17 to 39,799 in 2017-18. That was as blatant an illegal act as any minister for immigration has ever committed. I wrote about that a number of times including in May 2019.

What the ANAO appears to not understand is that planning levels for the migration program, including planning levels for partner visas, are purely administrative tools. They cannot override the law, even if they are supported by a Cabinet decision.

Within whatever planning levels government and ministers decide, they must still abide by the law which states the number of partner visas cannot be arbitrarily limited.

After some years when DHA continued to limit the number of partner visas to less than 40,000 per annum, and thus allowed the backlog and processing times to blow out even further, it suddenly announced that for 2020-21 it would increase the partner planning level to over 72,000.

Partner visas: Another Dutton scandal

Peter Dutton has cut down on the number of partner visas available and created a backlog of 80,000 applications, flouting the Migration Act.

In doing so, it used the cute footnote that ‘partner visas will be granted on a demand-driven basis’. As if that is what it had been always doing. It was clearly apparent DHA had at last woken up to the fact it had been acting for years in contravention of the Migration Act. Perhaps it had at last sought legal advice on this rather than doing so when Dutton had originally demanded a cut in partner visa places.

So how did DHA explain the sudden almost doubling of the partner visa planning level to the ANAO?

The ANAO states that this was part of a proposal from DHA to the Coalition Government to ‘a temporary shift from a 70-30 per cent split to a 50-50 per cent split between the Skilled and Family programs for 2020-21 to take account of reduced demand for skilled visas’.

That was utter rubbish that the ANAO should never have fallen for. There were more than enough skilled migration visa applications to deliver a 70-30 per cent split, including applications from onshore applicants.

Moreover, if DHA could so easily increase the partner visa planning level, that simply confirmed that it had previously been deliberately and illegally limiting the number of partner visas.

What DHA was looking for was a way to cover up its past illegal behaviour without the ANAO noticing and reporting on it.

It seems DHA succeeded in that.

How the ANAO missed such a blatant and illegal action, one akin to some of the cover-up practices revealed in the Robodebt Royal Commission, we may never know.

But a good journalist could simply ask the Auditor-General: Why didn’t your staff undertaking this audit ask DHA for the legal advice provided to Peter Dutton when he demanded the partner visa planning level be illegally cut?

The true answer to that question is that at the time, DHA did not realise that limiting partner visas was illegal so never sought or provided the legal advice that it should have. Once it discovered its illegal actions, it then proceeded on a not-so-elaborate cover-up.

Dr Abul Rizvi is an Independent Australia columnist and a former Deputy Secretary of the Department of Immigration. You can follow Abul on Twitter @RizviAbul.