After tens of thousands of Australians had their lives put on hold by illegal Government action, the Morrison Government announced the largest allocation of places for partner visas in Australia’s history. Abul Rizvi reports.
IN THE October 2020 Budget, the Morrison Government announced the largest allocation of places for partner visas in Australia’s history.
At 72,300, the allocation for partners in 2020-21 is well over 20,000 places more than in any previous year (see Chart 1). It is 35,182 places more than the number of partner visas granted in 2019-20.
And just before debate of a Private Members’ Bill introduced by Labor Member for Bruce Julian Hill in late November 2020, Acting Immigration Minister Alan Tudge announced his intention in 2021 to help offshore partner visa applicants who are temporarily in Australia, so that they will not have to travel overseas to be granted their partner visa.
So has the Government backflipped on its long-standing policy of making it as hard as possible to get a partner visa?
This policy was initiated by Scott Morrison as Immigration Minister, who started limiting the number of partner visa places available. It was ramped up by Peter Dutton when he thundered that increased integrity checking of partner visa applicants had reduced the partner visa outcome in 2017-18 to 39,799. The outcome in 2016-17 had been 47,825.
Dutton said the Department of Home Affairs no longer just "ticked and flicked" visa applications but examined these closely — effectively implying that when Morrison was Immigration Minister, such "ticking and flicking" was acceptable.
Dutton would have known that any artificial increase in partner visa refusal rates at the primary level would achieve very little as a large portion of refused cases would appeal to the Administrative Appeals Tribunal (AAT), where the set-aside rate in recent years has been around 60 per cent.
It's possible Dutton was happy that some couples would find the bureaucratic run-around all too much and decide to settle in another country.
All that Dutton actually achieved was to frustrate the lives of ordinary Australians and their overseas-born partners. We will never know if his thundering about foreigners was designed to garner additional votes in his home state of Queensland in the 2019 Federal Election.
Dutton’s successors – Coleman and Tudge – continued to restrict places for partner visa applicants in 2018-19 and in 2019-20, despite the application backlog growing to over 100,000 when cases at the AAT are included. Processing times continued to blow out, complaints increased and media interest rose.
But it is unlikely that would have been enough for the Government to suddenly reverse its long-standing antipathy towards overseas-born partners of Australians.
A much more likely explanation for the sudden and historic reversal in partner visa policy is receipt of legal advice making it abundantly clear that limiting spouse visa places is illegal.
In a response to a question on notice asking if the Department had sought legal advice on whether administrative planning levels can override the legal program management tools set out in ss85-87 of the Migration Act 1958, the Department said, "any legal advice provided to the Government on this issue is subject to legal professional privilege".
In other words, the Department didn’t answer a simple yes or no question about whether it had sought legal advice but instead advised that it could not share such advice.
In response to another question asking whether the Department has ever advised partner visa applicants that their visa cannot be granted because there are insufficient places available, the Department spokesperson responded, “No, this would be contrary to the Department’s legal authority and established procedures”.
Finally, the Minister was asked if he can
"...confirm that the only basis for a decision-maker to not grant a visa to an applicant who has met all the legal criteria, is if the number of visas that can be granted in that category are capped or limited using the program management tools in ss85-87 of the Migration Act 1958?"
In response, the Department advised:
Partner visa applications are not subject to capping provisions under sections 85-87 of the Migration Act 1958 (the Act). Under section 51 of the Act, a delegate of the Minister may consider valid visa applications in such order as he or she considers appropriate. For the purposes of section 51 of the Act, delegates consider visa applications in the Migration Program streams in line with the planning levels and priorities set by Government.
In summary, then, the Department now agrees it is illegal to limit the number of partner visas granted but that it is in the power of the Immigration Minister to direct the order in which applications are processed and to take into account migration program planning levels and priorities.
The legal advice the Department received would have made it clear that such ministerial directions cannot override the intent of primary legislation. And the clear intent of primary legislation is that spouse and child visa applications must be processed on a demand-driven basis.
On receiving such advice, it is likely Tudge would not have been happy.
Having already been accused of being one of the ministers who administered the illegal and scandal-ridden Robodebt scheme, as well as being accused by a Federal Court judge of having acted "criminally", Tudge would not have wanted to be saddled with another instance of having acted illegally.
His most likely response would have been to take this legal advice to Cabinet in conjunction with a proposed major increase in places for partners in the 2020-21 Migration Program. He would have known that if the Government did not support the increase — the record would show that responsibility for past illegal action in limiting partner visa places would rest squarely with Morrison and Dutton.
Tudge would be the Minister who tried to fix the problem.
Not surprisingly, Cabinet agreed to the historic increase in partner visa places, but without an admission of guilt for past illegal action in limiting partner visa places.
Indeed, the Department has denied partner visa places have ever been limited, despite the very clear evidence in Chart 1 above.
Given the tens of thousands of Australians who have had their lives put on hold by illegal government action, will any of them initiate a class action to seek compensation?
Abul Rizvi is an Independent Australia columnist and a former Deputy Secretary of the Department of Immigration, currently undertaking a PhD on Australia’s immigration policies. You can follow Abul on Twitter @RizviAbul.
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