Australian Immigration Department criticises government policy as “harsh”

The head of the Immigration Department has sharply criticised the Gillard government‘s decision to increase federal court fees since 2010, arguing the policy has had “harsh” and “unintended” consequences on refugee clients.

It is highly unusual for one of the government’s own departments to criticise policy in such a strident way, but in a letter to a Senate inquiry investigating the fee increases, the secretary of the Department of Immigration and Citizenship, Martin Bowles, says the rationale of the legislation is not working.

“Prior to the commencement of the fee changes on 1 November 2010 clients in immigration detention, criminal custody or who were experiencing financial hardship could obtain exemptions from application fees in the commonwealth courts. Such exemptions are, however, no longer available. This means that immigration detainees are now required to pay a mandatory fee of $100 to make a valid application to the courts,” he writes.

“From our perspective, the compulsory $100 fee combined with the absence of a discretionary waiver seems to have unintended and harsh consequences for some clients. Advocates have drawn our attention most particularly to cases involving visa refusal or cancellation on character grounds and in relation to irregular maritime arrivals.”

He writes that since the 2010 decision of the High Court it has been clear that assessments of protection obligations of refugees have been judicially reviewable.

“Irregular maritime arrivals are initially detained on Christmas Island or at other immigration detention centres that may be located in physically remote areas of Australia,” Mr Bowles wrote to the Senate committee.

“The practical difficulties for clients in detention in remote locations who wish to make fee payments to court registries are manifold.

“These include lack of identity documents, a more or less total absence of credit cards or onshore bank accounts and, in most cases, negligible cash resources.”

Mr Bowles said departmental data indicated more than 41 per cent of the irregular maritime arrival judicial review caseload had filed their application in Sydney.

“However, only 25 per cent of the irregular maritime arrival judicial review caseload are in detention in Sydney,” he wrote.

“This may indicate that other parties are assisting these clients to pay or facilitate the payment of this fee.

“The department is aware of several situations that have arisen where the $100 filing fee for clients in detention has been paid for the client by their legal representatives or by immigration advocacy organisations.

“The department acknowledges that one of the original policy rationales for the fee was to test the legitimacy of applications and minimise vexatious actions.

“However, successive governments have believed that many litigants in the migration context seek to prolong their stay in Australia through litigation.

“The payment of the fee would be unlikely to deter that conduct.”

The Attorney-General’s department in its submission defended the changes as “necessary”.

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