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SELECT COMMITTEE ON MINISTERIAL DISCRETION IN MIGRATION MATTERS
Ministerial discretion in migration matters
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SELECT COMMITTEE ON MINISTERIAL DISCRETION IN MIGRATION MATTERS
Ministerial discretion in migration matters
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SELECT COMMITTEE ON MINISTERIAL DISCRETION IN MIGRATION MATTERS
(SENATE-Tuesday, 18 November 2003)
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Content WindowSELECT COMMITTEE ON MINISTERIAL DISCRETION IN MIGRATION MATTERS - 18/11/2003 - Ministerial discretion in migration matters
CHAIR —Welcome. Do you have any comments to make on the capacity in which you appear?
Ms Le —I am just appearing, I suppose, as a human rights advocate and registered migration agent.
CHAIR —You have not lodged a submission to this inquiry. Did you wish to make an opening statement?
Ms Le —Yes, thank you very much. I thank the committee for inviting me to appear. I noted that my name appeared in several places during the course of the inquiry. I went from one position to another in the department's list of people who had lodged the most submissions. I was quite amazed, actually, at the numbers that I apparently lodged. I do not have any idea of how many I have lodged over the years and I have not, unfortunately, had time to go into my computer and find that information. Someone in the department told me that their numbers were based on sheer guesswork and that they also could not give me that information.
CHAIR —Do you want to name who told you that?
Ms Le —It was a senior-level departmental person.
CHAIR —You are not prepared to divulge their name?
Ms Le —No, I think not at this point; sorry.
CHAIR —What I am interested in is precisely what your question was and what their answer was in relation to that.
Ms Le —I asked: `How did you come to those figures?' I was told that `actually, all we did was we didn't really know who made the most', so during the course of the first submissions they just thought of people who had made a lot and—
Senator WONG —Punched their names in?
Ms Le —Yes, basically. I do not think they even did that; I think they just thought, `These people have made submissions,' and so they put them up. In relation to my success rate, I am sorry I actually used the term `success rate' because I do not think that is an appropriate term anyway. But I can only think of three cases that I have put up to ministers—I stress, ministers—over the past years that have not been successful.
What I would like to do here, before leaving it open to you for questions, is just address primarily the use made by the minister of his discretionary powers—that is point (a)—based on my experience. Ministerial discretion can and has, in my experience, acted as a safeguard and given an added level of review in some cases. I have used it to attempt to have Australia meet its international legal obligations under the 1951 convention, the statelessness convention and international human rights treaties. Yet I have found over the years that because the ministerial discretion is, as we know, non-compellable and non-reviewable, it is not in itself sufficient.
One of the problems that I see too is that a lot of it depends not on corruption but on the way in which people can bring cases directly to the minister in the event that the department does not do so. One of the ways I have been forced to use over the years, I suppose, is that, when all else fails, you use the media—and then the minister gets to hear about it. You heard evidence on this from the previous witness, but it has not—I repeat, not—been my experience that using politicians has been of any value at all. The cases that I have brought to any minister have not been cases based on: `Everyone who comes gets a go from Marion'. I choose my cases, if I can put it that way. I only put up cases to the minister where I believe those cases have absolute merit.
I have found that the problems have been where practitioners have used the system because, they tell me, there is no other way to gain access to the ministerial discretion option. The last witness alluded to that when he cited a case where he said, I think, that he went through the RRT process and failed at the ministerial discretion level and then he went back through the migration process and got it up by going through the MRT and then putting it back to the minister. To me, that is an abuse of process. But it has been forced on some people because of the fact that there are these cracks where there are no bridges to cross over, so you have to use the system. There are a number of practitioners who have told me that they lodge applications for refugee status knowing that those cases have no merit, just in order to get access to ministerial discretion. If that is the case—and I am sure it is—then obviously the system needs reviving.
I believe there should be a review of all the section 417 cases. A review should be done by DIMIA and they should then categorise them and evaluate the basis of the submissions. I was a teacher for about 30 years. One of the things that students often do is come to you and say, `Thank you so much for giving me an A,' or, `Why on earth did you only give me an E?' My reply was always, `First of all, I did not give you an A, you earned it,' or, `Unfortunately, you did not do enough work to get more than an E.' So when I heard Senator Santoro, in questioning the last witness, make a statement that the evidence put before this committee is that Labor politicians are more successful I felt that was a bit like my students. And I think if that is the level of debate or discussion that has gone on here then it is pretty appalling, because if we are talking about whether politicians of whichever ilk are more successful in putting cases to the minister then obviously there is something very wrong with the system.
I have unfortunately believed that the cases I put to the minister which were successful were there on their merits. I have fought some of them all the way and I have found that there have been problems. But, again, some of the evidence that has been given here has been pretty poor, in my opinion—and probably what I am going to say will be judged the same way. One of the things I want to correct is the submission by the Vietnamese Community in Australia. I have not been able to access everything off the web site—I am not very computer literate—but I did manage to get this one. I would say that it is fundamentally a very good submission with some very good ideas in it, but one of the problems they level at the last minister, Philip Ruddock, is that they did not have any Vietnamese cases get up before Philip Ruddock.
If they are talking about submissions they made that is probably true. But I can tell you that in 1997 Minister Ruddock intervened on 10 Vietnamese cases from the boat Vagabond and he granted them the right to remain in Australia, after Senator Bolkus had put a lot of energy into—for the first time ever and perhaps the only time, I do not know—putting in what was called a conclusive certificate and saying that they had no further rights to access the system. When Philip Ruddock became minister he declared that to be unlawful. They went through the system and then, at the end of the day, he granted them all the right to remain in Australia.
I really do want to address the issue here, which is the way in which the ministers have used these discretionary powers. Apart from that case—and I do have permission from my clients to use their names—I have another case of a Vietnamese woman who went through the RRT. At the end of the day, the RRT was ignorant of her situation. Philip Ruddock was not ignorant of her situation; he knew that her father had been very high ranking in the South Vietnamese system and he overturned what the tribunal had done. The tribunal was the ignorant one; it refused to accept the evidence and just said that it was not credible, or whatever it usually says. The minister intervened because he knew the truth of the matter. Another young man I dealt with who was here went through the MRT, and the minister intervened in his case in order to help his stepchildren. You heard evidence earlier of problems with stepchildren. We can all give anecdotal evidence, but I can take you to my cases and say, `This is where the minister intervened.'
I suppose the biggest area in which I have found the minister has intervened has been where the RRT and/or his department have made obvious glaring errors. One of the biggest problems is that the department do not always send on the submissions that are put to them, and we as the practitioners or the people bringing the submissions do not know when the department have passed on our submissions and when they have not, so we never know whether the minister is receiving them.
I cite the case of a man called Prec Kalavaci, whom this minister finally signed off on on the day before he left office and handed over to Senator Vanstone. Prec Kalavaci spent over two years in Villawood detention centre. When his case came to me it was at the end of the road. I basically said I did not want to do a section 417 because I really hate them—the problem is that you do not know whether or not they are going to get up. But when I read it, I saw that he had a referral by the RRT that said the case should go to the minister, it had gone to the Federal Court and the judge said it was a case that should obviously go to the minister—and nothing happened. I put in a submission that was ignored by the department, as I found out under freedom of information. I went to the minister and said, `What about your ministerial guidelines?' I gave him three or four cases and said, `They do not operate, because your department does not pass them on to you.' At that point the minister turned to the officers in his department and said: `Haven't I asked that these kinds of cases always get sent to me? Why hasn't it happened?' When it was sent to him, he did intervene—and so he should; I believe that was the right thing for him to do in that case.
My access to the minister—this minister and past ministers—has not been party political. I have represented people to ministers over the last 25 years and I have never seen it as a political process, although the problem of what is in the public interest has been an interesting one. When I take a case I believe is in the public interest, I obviously have the evidence in front of me that says here is a case of a person the public has a real interest in keeping in Australia. The minister has intervened in cases where there have been family members here and so on.
CHAIR —I do not want to interrupt your line of submission to the inquiry but, unfortunately, we have limited time and I am sure there are questions from the committee, so if there are a couple of issues you want to finish up on that would be helpful.
Ms Le —I will quickly go through some. The problems with the system are that (1) it is non-compellable, but, more importantly, it is non-reviewable—and I have gone back and sought review after review; (2) the cases are screened by the department; (3), the use made by some agents of the tribunals, as the last witness said; (4), the poor decision making at the primary and secondary levels that make this review mechanism necessary; (5), the often poor advice from advisers or unscrupulous people who are ripping people off; (6), the definition of public interest; and (7), the issues of gender and torture. From my point of view, there has not been corruption as such. I think a government has a right to take submissions from politicians on all sides of the political fence.
CHAIR —I have a question going back to the earlier issue of the number of interventions that have been granted. The figures provided by DIMIA under 24G suggest that from November 1999 to August 2003, you made 64 section 417 requests regarding 20 cases and, of those, the minister intervened in six. That is DIMIA's record of the cases that were intervened in between November 1999 and 2003.
Ms Le —Six?
CHAIR —If you wouldn't mind, you may want to take that on notice and have a look at your files to see whether or not the department's record is correct in that regard. You may want to make some comment on it now, but I thought you had in respect of—
Ms Le —Sorry, that really threw me. Can you give me that number again: from November 1999—
CHAIR —From November 1999 to August 2003, DIMIA says you made 64 section 417 requests regarding 20 cases and that, of those, the minister intervened in six. Those were 417 matters. If you are unsure, the secretariat can—
Ms Le —Totally wrong.
CHAIR —The secretariat can provide that DIMIA submission to you at the conclusion of your evidence today so that you might be able to have a look at it as well.
Ms Le —Totally wrong.
CHAIR —You reject that, do you?
Ms Le —I absolutely reject it.
CHAIR —Did you want to take it on notice to have a look at your figures?
—Off the top of my head, when I was sitting down there, I wrote down some figures. Even if we do not count the Vietnamese boat of 10 people, off the top of my head very quickly I came up with—and I have put some of them together—almost 20 cases where he did intervene.
CHAIR —When you seek the intervention of the minister in relation to section 417 requests, do you make an appointment with the minister to go and see him? How do you progress them? Do you write a submission? Would you mind just detailing the process? The committee of inquiry has been looking at the process, and it seems that there are multiple pathways which all seem to eventually lead to Rome, to the minister, at some point.
Ms Le —Not just this last minister. I probably put the first one in to the new minister. I have a client come and I write a detailed submission which addresses the guidelines. First, I look at it and see whether I believe it meets the guidelines laid down by the minister as I see it. The biggest problem is what is called public interest—how do we define that? I then send off the submission. I usually fax it straight to the minister's office and I follow it up with a hard copy in case they lose it or say they did not receive it. After that I continue, if I need to, to put more evidence before the minister. I never see or hear where it goes to. It just heads off into the abyss, into oblivion. When I need to, I keep ringing up the minister's office and saying, `What's happening?' I probably made less contact with this minister than with the others, because I knew Philip Ruddock over years when he was in opposition. I did not make very much contact with him initially because I thought it was probably inappropriate.
Normally I would not go to see a minister on specific cases. But because I feel the system has been so bad in the last two years, so appalling at both the primary decision making level and at the RRT, I have gone to the minister. In the case of, say, Prec Kalavaci, which I have already cited, I was so annoyed I put it down in front of him and said: `This is an example of the way your department behaves and is not doing its job. Ministers rise or fall by the standard of work being done by their department. If you're not being told things that you should be told, that you have asked to be told by your guidelines, it makes a mockery of the guidelines, it wastes my time, it puts my clients and the people I am representing in a frenzy and no-one gets anywhere.'
Senator HUMPHRIES —I am sorry if I ask a question that perhaps you answered before I came back after having to go somewhere—just tell me if that is the case. You were making comment as I came in that a problem with the minister's discretion is that it is non-compellable and non-reviewable. Would you propose, if you were in charge, a different model for how these decisions should be made? Were you criticising the non-compellability and non-reviewability of the minister's decision making? How would you structure an ideal system in terms of process?
Ms Le —I once said about this system to the past minister that if it only worked because he was there with all of his knowledge of the way the system worked and of the law—and I have a great deal of respect for Philip Ruddock's knowledge of the immigration law—and if he was taking so much of this upon himself and making those kinds of decisions then obviously there was something wrong with the system. That is because no minister should have that many cases going through to him if everyone down the line is acting with integrity and only bringing cases that are, as the UN gave evidence, ones that people consider to be absolutely essential.
I think there is something wrong with the system and there has been ever since 1989, when the department decided on 19 December—or that is where it came down—to codify so much of the human issues into legislation. Human lives are complex, and once you start setting things in concrete, as the last witness said, you are going to start having major problems. I personally like the idea that the tribunals, if they are operating correctly, would be able to say, `They do not qualify under this section but maybe under that one.' For example, I have a case of a woman called Valbona Kolba, who is a singer of great merit. There has been a lot of to-ing and fro-ing with the minister's office and I understand the UN have now intervened on her behalf as well.
What happened was that they said she could apply as a gifted and talented person because she is being sponsored by the South Australian State Opera. They told the minister that, I gather. But she has to go offshore to do that and she cannot go offshore because she does not have a visa or any country to go to because she is stateless—so we ran into a problem there. The minister, though, would have the power to intervene there and say, `She can stay; give her a permanent visa under that category.' But it is very cumbersome.
What would I do in the ideal world? I would bring back the system that the department dislikes, the grant of residence status—the old GORS—which says, `Okay, here we have a humanitarian case that the department, a section of the department or even another independent body, looks at on humanitarian grounds,'—on the grounds that the UN have put here today—and then says, `Okay, this one is deserving of an intervention under this or that criteria.' Then we would not have that huge group that is going off now to the minister. What we are looking at is that the department is doing it anyway. Perhaps it is only the ones that politicians get involved in that get to the minister or the ones that the media get involved in and then he or she hears about. But I would certainly say there needs to be another step in there because we have made the system too narrow.
Senator HUMPHRIES —Can you clarify what you are saying about the problems in the system in the last couple of years—that they have been at the level of initial officer assessment in the department and in the MRT or the RRT?
Ms Le —In the RRT. I find the MRT are better because they stick to the framework and you know when you go before them what is expected, therefore you can put your case up properly and address the criteria, and you rise or fall by the letter of the law usually. But when I go to the RRT I find the decision making there is appalling in a lot of cases. My feeling is that under this government there has been a very laissez faire attitude. Migrants themselves have been devalued, so that laissez faire attitude is: the more we turn down, the more we reject, the more we get a tick for our employment—not in all cases, but I think it is there.
Senator HUMPHRIES —This inquiry is focused on that part of the system which is at the end—the ministerial discretion. Do you feel that when the minister has exercised a judgment, that judgment has been a sound judgment, a fair judgment?
Ms Le —In the cases I have done?
Senator HUMPHRIES —From your experience and knowledge of the system and the cases you are familiar with.
Ms Le —Yes. I have certainly never offered him a bribe! And I am going back, too, to Senator Bolkus and Gerry Hand.
—You mentioned that you do not often get to see the minister. How many times would you have seen a minister to pursue or advance particular cases since the time you have been involved in the system?
Ms Le —Most of the times when I have been to see any minister it has been on issues. It may be six times I have seen Philip Ruddock in his office—it may be eight. It is not many; during the first two or three years probably not at all. When he was in opposition I saw him a lot more—I used to go out there. Only in the last two or three years has it been where I have brought specific cases to him and said, `This is appalling.'
Senator HUMPHRIES —Did he or his office at any stage say to you, `No, I am not interested in discussing this matter with you'?
Ms Le —They have said, `The minister has made decisions; he is not going to look at this case.' And I am persistent—if I believe in it I will keep going. When we say `non-reviewable' I keep reviewing, but they keep knocking it back. I just keep going.
Senator BARTLETT —You have painted a picture as someone who has worked in this area a long period of time. Obviously it is always good when the minister uses a discretion as you have asked, but it is almost the luck of the draw to the extent that people who have come into your sphere of activity have a good and effective advocate in using this process as opposed to everybody else out there—although obviously there are other good advocates. Is that a key flaw, as you see it; that because it is all so vague and general you have to have someone who knows how to persist and can hassle the right people and all of that sort of thing?
Ms Le —Absolutely. The whole situation is really messy. I would not like to say that it is working well; it is not working well. It is messy, time consuming and stressful. Those of us who are doing it do not know what the outcome is—as I said, the submission heads off into the abyss. I found the best result comes from hassling poor old people like Peter Knobel and people in the minister's office, and then they hassle the department. Otherwise it is very messy and I think it needs to be reviewed.
Senator BARTLETT —I think you said at some stage that you felt it had got worse in the last couple of years. One of the reasons you gave was the quality of decision making. Are there other reasons, such as some of the changes to the laws, which have restricted, to some extent, what the decision makers are able to do and expanded the range of areas where the minister has discretion?
—Yes, I think that has something to do with it. One of the witnesses—I think it might have been the previous one—said that there are just too many laws and they are getting more and more unworkable. But you also have cases like the Kosovars—the remnants of the safe haven people. I understand decisions are coming down about that today. I am terrified to go to my box to find out what they are. Obviously, at the end of the day, they will all be heading for ministerial discretion. We have a problem there. The minister exercised his discretion to lift the bar to allow people who have been here for four years to apply. They then applied and went through the system. At the end of the day my feeling is that a lot of them will probably be rejected and they will go to the minister for discretion. What a messy system is that? Then you get the issues there where you are looking not just at the public interest factors which forced him to lift the bar but also at the rights of the child, where children have been here for four years. That applies to the Timorese as well. It is extremely messy and is being used in a way that I do not think is helpful.
Senator BARTLETT —Can I just confirm a statement you made before. In terms of your activities and your contact with a lot of other people who try to use the system for good outcomes, have you had any indication or evidence of corruption or inappropriate exercise of the discretion power?
Ms Le —Did you ask whether I had evidence?
Senator BARTLETT —Yes, or are you aware of the discretion power being misused under the narrower definition of corrupt—the `cash for visas' type of definition, to put it bluntly?
Ms Le —No, none at all. I was quite surprised, actually, when those allegations surfaced, because I know the way that ethnic communities work. I do not know Mr Kisrwani—I have never met him, to my knowledge—but I know that there are people in other ethnic communities who would make those kinds of representations. In the past I have made them, simply because I am involved with a lot of ethnic communities. I do not know whether it was cash for visas, but I found it extraordinary that Philip Ruddock would face that kind of accusation. I have never seen any evidence of that in all the years I have known Philip.
I do not see it as a problem if I know Senator Humphries—as I do; I have known him for many years—or you, and I approach you and ask you for assistance. You know that I am a valid person—as Philip Ruddock knows me to be and as, hopefully, Senator Bolkus knows me to be, and so on. If I approach you and you think, `Marion's a person of integrity,' you are certainly going to look at a case I bring to you, aren't you? I think the same applied to Philip Ruddock. If I put up a case I certainly expected that Philip Ruddock was going to have a look at it. But then I expected that of Gerry Hand and I expected that of Nick Bolkus. Nick Bolkus was very loud in the attendance that he gave to my cases. He did not like it at all, but he did it.
Senator BARTLETT —In terms of the system as a whole—and you have been quite critical of it—you are not suggesting that discretion should be eliminated completely; you are suggesting, as a way of improving it, that there should be more scope for flexibility elsewhere in the system so that not everything has to be funnelled through to the minister. Is that it, broadly speaking?
Ms Le —I think there has to be more flexibility. There also has to be more honesty. If we look at things like the temporary protection visa applications at the moment, we see that it is a totally dishonest system that we are running. It is in breach of all our international laws and obligations to make people who are on temporary protection visas go back through the system. At the end of the day, every single one of those cases is going to end up before the minister for ministerial discretion. That is totally dishonest. It is an abuse of our obligations under international law, and I will certainly be putting every single case up to the minister and telling him that. I have said that in the interviews that I have been involved in at the lower level. It is appalling. The level at which the decision making is being made is abysmal. Someone like me—with degrees, with an intellect—sits there and feels insulted, offended and all of those things at the primary decision making stage.
We need to get that right. We need to start looking at our international obligations realistically and being truthful about the way in which we are judging cases. We need to stop playing politics, whoever we are. Wherever we are we need to be looking at the cases and judging them fairly, justly, properly and in line with our international obligations. Then we will not have all of these problems at the other end. I can tell you that it will be a major problem, for whichever party is in power, with the Afghans. It is going to be a problem still with the Kosovars. It is not in the public interest for this government to carry on the way it is carrying on at the moment. There is a political statement for you. It is not in our international interest and it is not in the public interest. So I am saying: what is the definition of `public interest' here when you have got people in Young, in Moree and all over the place saying, `We want these Afghani people, who are contributing to our community, to stay here'? Isn't that the public interest? But the other interest is right at the beginning, where they are refugees anyway, and we are doing everything that is wrong. I feel ashamed, actually.
Senator WONG —You have made some comments about your impressions of a number of the previous ministers. Leaving aside the personalities involved, don't you think there is a problem in a system that privileges a relationship with an advocate or a community leader in the context of an application for ministerial discretion? You say, `I didn't mind Philip, and he treated me well.' But that is really not the test, is it? The test is whether or not—
Ms Le —No, I do not think I said that.
Senator WONG —I am sorry; I was paraphrasing.
Ms Le —I have to say that I do not think personalities should come into it. I think the policies of Philip Ruddock have been disgraceful.
Senator WONG —I understand your views on that. Whilst I may share them, we are not ventilating them in this inquiry.
Ms Le —I might have gone to see Philip Ruddock, but I do not believe that I went to see Philip Ruddock because I had any kind of relationship with him, apart from the fact that he was the minister.
Senator WONG —Who gets to see Minister Ruddock?
Ms Le —Anyone who has any kind of real input into what is going on in Australia—and I have had that for 30 years. I went to see Senator Bolkus, I went to see Gerry Hand, I went to see West, I went to see Holding—you name them, I have seen them.
Senator WONG —Yes; you are a registered migration agent, you have skills in the area and you have a reputation—all of which we accept. What about the tens of thousands of failed asylum seekers who do not have Marion Le representing them?
Ms Le —With all respect, isn't that the same with any group that gets access to anybody? We have a system—
Senator WONG —Well, who has access?
—in place in a democracy that says, `We have a hierarchy here; we have church groups, and people make applications and people come to see ministers.' That is what politics is about.
Senator WONG —There is a distinction. People can come to see ministers as members of a democracy to lobby for policy change. There are very few instances under our system of law where a minister can be personally lobbied to make such an important legal decision about a person's status in Australia. It is entirely different from people lobbying for policy changes, as they are entitled to. I make no criticism of you in this, Ms Le; I simply make the observation that you may have had reasonable experience with ministers of both political persuasions, but do you really think a system that relies on a failed asylum seeker having an advocate who is able to get in the door is one that has sufficient probity? Not everyone gets to see Minister Ruddock.
Ms Le —I think you are quite correct that if the system relies on that, then that is a major problem. As I said, I did say to the minister, `If the system is relying on you exercising your ministerial discretion, there must be something wrong with the system.' One of the things that were consistently said was that Philip Ruddock had intervened in more cases than any other minister. That was supposed to show, I gather, that he was more compassionate. My question to him—and I think it is a valid question—was: `If you have intervened in more cases than any other minister, perhaps you need to look at why you needed to do that. There must be something wrong with the system.'
Senator WONG —The system is more highly regulated. For example, the East Timorese were dealt with through the discretionary process—
Ms Le —That is right.
Senator WONG —as opposed to through the establishment of a particular class of visa.
Ms Le —If you look at what Gerry Hand and Prime Minister Hawke did in the past, you will see that they intervened in all the Chinese students' cases and made a case in which they flipped them all over and back through the system.
Senator WONG —My recollection of that was that a visa class was created, wasn't it?
Ms Le —Not one visa class; several.
Senator WONG —Exactly; but as opposed to the East Timorese situation, which requires a section 417 exercise of discretion in relation to every single applicant.
Ms Le —My point on that is that it is unwieldy and messy—
Senator WONG —I thing we are in agreement.
—and that is where a decision should have been made just to give it to them, except in the cases of, say, those who are excluded because they have criminal records or something. But to do it the way that it is being done—and this is my point about the Kosovars; it is the same—at the end of the day you get this channelling to the minister again, whereas a policy decision should be made on that, especially when you are lifting bars, as in the case of the Kosovars, and you are putting them through hell in the meantime.
I will go back quickly to when you talked about whether or not people get access. In all the years that I have gone to ministers and talked about them, it has mostly been in the area of policy. When I have used cases I have used them as I have wanted to do here today, just to give an example of what is going wrong with the system. So the case that have I used today of Prec Kalavaci is the case about which I said to the minister, `You see what's happening: here is a very clear-cut case where your department is not putting that one through, and that's an example of other ones.' I asked him to go back and make sure the department looked at that case, and he was surprised. My point on that was: `It is not that I want you to do something in this case particularly, but that you look at this case as an example of what is wrong with your system.'
Senator WONG —But isn't there more wrong with the system than just that? I accept your point on that; I think it is a reasonable one. But we do have evidence that Mr Kisrwani had pretty reasonable access to the minister and his office.
Ms Le —He obviously had much more than me.
Senator WONG —I think the evidence was that two or three times a week he would put in a call to the minister's DLO. There is obviously a difference between you and Mr Kisrwani: he is a travel agent and you are a registered migration agent with some special knowledge and reputation in the area. Don't you think a system which potentially privileges applicants who happen to have someone acting on their behalf or making representations on their behalf who has a good relationship with the minister is problematic?
Ms Le —It is problematic. But most things that are being dealt with when you are in the migrant category and you have all of the problems at the bottom—you are new arrivals, you do not speak the language and you do not know who to go to—of course are problematic. But that is a problem, again, where I think community leaders can play a role. I make no judgment at all on the corruption, as to whether it was or was not. What I am saying is that valid and valued community leaders should be playing a valid role.
Senator WONG —Who decides, Ms Le, who is valued and who is not?
Ms Le —I think the community decides.
Senator WONG —But at the end of the day it is the minister who decides.
Ms Le —It depends.
Senator WONG —The minister decides what weight she or he will give to which community leader.
—I think we should be analysing the cases that Mr Kisrwani supposedly brought to the minister. I am not sure, when we are talking about people bringing cases to the minister, whether they do a proper submission or not. It would be more valuable to have a look at, say, a submission made by me and a letter that goes, with respect, from Senator Humphries—because he has provided letters, as I know. People provide letters. That is a letter in support of something; that is not a submission. I have seen cases where I have been told, `This person has already had a section 417 application to the minister and therefore you can't put another one.' Therefore that person is sitting in detention because some politician has been asked to write a letter and that has been treated as a section 417 application, which it is clearly not. If Mr Kisrwani says, `Hey, I met this poor lady with 25 children who's living in some hovel and I have been asked to ask you to look at the case because she happens to be Lebanese,' I personally in a sense cannot see a problem with that. What I see as a problem is if it goes further than that.
Senator WONG —What do you mean, `If it goes further than that'?
Ms Le —If it goes further than that and he says, `I will guarantee that the 25 children of this poor lady sitting in a hovel will bring 25 more children's parents into the party,' or something like that. That would be a problem. But it is not if he just says, `I heard about this case.'
Senator WONG —You do not have any problem with certain people having more access to the minister than others—that is essentially what you are saying.
Ms Le —I think it is a fact of life. If I rang you and asked you if I could come and see you, you may or may not say yes, but I would not see that as being—
Senator WONG —But your clients' rights do not depend on me making a decision. We come back to my point.
Ms Le —It might.
Senator WONG —We may have to just agree to disagree on this, Ms Le, because I am conscious that it is lunchtime and people are probably hungry—I know I am and you probably are too. It just seems to me there is a difference between lobbying about issues and policies and people, and lobbying the final decision maker in matters of people being allowed to stay in Australia or not. They are very different sorts of relationships.
Ms Le —I would totally agree with you on that. That is why I think it is very important to have a look at the system that has given rise to this, where it has become necessary to personally, in some people's cases, lobby the minister on specific cases. There must be something wrong. I can give you examples of cases where I feel I have to keep ringing. I guess I still have difficulty seeing what is different with someone lobbying the minister on issues relating to migration and someone lobbying the minister on issues relating to trade.
Senator WONG —That is where we will have to disagree.
Senator SANTORO —Thank you for your contributions today. In terms of comparing Mr Kisrwani to yourself, which you did, do you think that you would be able to ring up a departmental liaison officer or an officer within a ministerial intervention unit and get access?
Ms Le —Me?
Senator SANTORO —Yes.
—I would expect to because I am a registered migration agent—but I do not do that.
Senator SANTORO —But you would be able to? You would expect to get access?
Ms Le —Of course. I am a registered migration agent. I expect that when I ring someone they are going to answer the phone, yes.
Senator SANTORO —But you would be able to have a discussion, presumably, with him or her?
Ms Le —Yes.
Senator SANTORO —You mentioned before that you do not put in for ministerial intervention and the exercise of ministerial discretion for every case that comes before you?
Ms Le —No, not at all.
Senator SANTORO —What sort of cases do you reject or not act for? What criteria do you apply?
Ms Le —In the last week, I have had cases where people have gone through the system and then asked, `Can you do a ministerial on this?' where it was very obvious that they had come here, to use the terminology of the government, `looking for a migration outcome' when they could have stayed offshore and been sponsored properly. There are people who have come in and made applications under the refugee system and have clearly not been refugees. I consider that to be something that is an abuse of process and I do not touch those cases either. We obviously should not be abusing the refugee system. There is a big problem when people are told, `Use the refugee system to get to the minister to have an outcome.' I know people who are, to use the government's terminology, `languishing in camps'. It is real; they are there for years. I do not take on cases that I do not think have merit. I do not know whether that answers your question.
Senator SANTORO —It does. It is helpful. Would you attribute your high success rate to—and I use this word advisedly—the quality of the cases that you put up? In other words, are they cases that have, first of all, a good base in merit as well as being of a quality nature? Quality is probably not the right word but is your success rate attributable to the fact that you put up cases that have the greatest chance of success?
Ms Le —I would expect all my cases to succeed.
Senator SANTORO —I appreciate that that is your expectation but is that the reason?
—Yes. I have women who have been victims of rape and I have taken issue with the previous minister on that, and I said I will continue to fight him on those cases—the gender related issues—and if he does not think that they should have ministerial intervention then I will take it elsewhere. I have done that. My success rate, I suppose, if you are calling it my success rate is the merit of the cases. When I have had women who have been pack-raped and the tribunal says that it is not a refugee claim, that it is not valid persecution, and then ignores other issues that it should be looking at, of course I am going to take those cases on to the minister. If I need to, I will continue to fight them all the way to the United Nations in Geneva because those cases are still in the system. I am not going to give up if I think a case has merit.
CHAIR —As there are no further questions from the committee, thank you, Ms Le. Your evidence today has been most helpful for the committee's inquiry. We appreciate the time that you have given.
Proceedings suspended from 1.09 p.m. to 2.22 p.m.