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Thursday, 10 March 2005
Page: 171

Senator BARTLETT (6:45 PM) —I rise to speak tonight on the operation of the Migration Act and one case in particular which has received some publicity in recent times and which has got a good result—that is, the 104-year-old woman from China, Mrs Hu, who was granted a visa this week by Minister Vanstone. I congratulate the minister on that decision.

I want to use that case to highlight the inherent absurdities that have now developed in the administration and operation of our Migration Act, the enormous amount of incredibly inefficient administrative activity that happens unnecessarily, the absurd amount of power that rests in the hands of one or, to be correct, two ministers, and the enormous amount of unnecessary effort that community advocates, community legal centres, migration agents, review tribunals, families and applicants have to make because of the inefficiencies that have developed in the Migration Act. A few things need to be cleared up about this particular case. I will go into it in a little detail but, for privacy purposes, will only use the details that are on the public record. Because Mrs Hu now has a permanent visa, there is no risk of retaliatory action being taken as there might be in raising the case of somebody who was still in need of ministerial intervention, so it is a good case to use.

Mrs Hu was here on a visitor visa, which ran out in 1996. It was a valid visa. She was here visiting her family, who are residents of Australia. When the visa ran out, I am informed that the family applied for a further visa—an aged parent visa—to enable Mrs Hu to stay here because she was not able to get transportation back to China. They were not successful with that or they were told it would not be successful because of the age of the applicant and the fact that she would not meet the criteria at the time. So technically Mrs Hu was here illegally through to 2001. I have to stress that she did not disappear, go underground or go into hiding. She was here openly with her family throughout that time and was certainly not receiving any entitlements. She was not a burden on the taxpayer. Nonetheless, I am informed that she was without an authorised visa.

In 2001 she was required to meet with the Department of Immigration and Multicultural and Indigenous Affairs. She was then given a bridging visa with no expiry date. One could say that that is a creative way of dealing with the situation. Bridging visas, for those who are not aware, are meant to be short term, as the name implies, until a person’s status is regularised by another visa. So normally people in the community are on a bridging visa whilst their application for a more permanent visa is determined. In this circumstance, she was just left on an indefinite bridging visa, which I would argue is a completely inappropriate use of that particular visa. It is basically a way of circumventing the Migration Act, because there was no category into which she would fit.

However, this served the purpose of regularising her status—for the purposes of the migration department, anyway. The trouble is that on a bridging visa you are not entitled to Medicare. That became an issue when Mrs Hu broke her arm in 2003 and was treated at a hospital, and then again the next year when she suffered another injury which required that she be taken to hospital. The hospital then—not unreasonably, perhaps—wanted payment for those visits to hospital. The family had difficulty with the bills and were not able to get the debts waived at that stage. Again, they sought to regularise Mrs Hu’s status, who, at this stage, had been on a so-called bridging visa for over three years.

The process then had to go through further stages to get to what finally happened, with the minister using her ministerial discretion. The family were required to apply for a visa that almost certainly Mrs Hu was not going to be entitled to. They were required to appeal the expected knocking back of that visa application to the migration tribunal and then had to hope that the minister would exercise her discretion. There is no legal way to require the minister to do so. The minister is not required to even consider the matter. In this case the minister said publicly that she would. But if she makes a negative decision, there is no legal avenue to pursue the matter. There is no way that that power can be compelled to be used or appealed against in the way that it is used.

The government’s and the minister’s policy is that they will not exercise that discretion until somebody goes through the process of applying, being rejected, going to the tribunal and being rejected again. That is just extraordinarily inefficient. It is the same thing that applies time and time again to a whole range of people in the community who apply for migration visas and protection visas and also in certain circumstances to people who have humanitarian grounds for staying but where there is no visa that fits. We actually have tight criteria for refugee visas in Australia, which may surprise some people. You can have genuine humanitarian grounds, such as fear of persecution, that do not fit into the refugee convention. You can be told that quite clearly but still have to go through the process of applying, being rejected, going to the tribunal and being rejected, and then hoping that you get lucky with the minister using her discretion.

Apart from the massive cost of wasting the tribunal members’ time and wasting department officials’ time to appeal to the Migration Review Tribunal as Mrs Hu had to do, and apart from the fee of $1,400—a fee which I expect would have been returned or could have been waived as there is that provision—you have the stress of never knowing for sure whether or not you will succeed. You could have the minister making all the encouraging statements you like, as happened in Mrs Hu’s case, but never be sure.

The minister made what I believe was a very misleading statement, saying that at no stage did Mrs Hu face deportation. It is true that at no stage had the immigration department decided she would be deported and sent a letter saying, ‘Pack your bags,’ but the fact is that, throughout all of that time, there was a real risk that she could at any stage have her bridging visa cancelled and be told to go or, following her appeal to the minister, be told: ‘No, I’m not going to exercise my discretion. You’ve gotta go.’ I think it is very disingenuous, to put it politely, to say that at no stage did she face deportation. Of course she faced that risk. It was reported in the paper that, when she was rejected at the tribunal, she was so stressed that she was not able to eat. This is the reality. The fear of that sort of situation or, if you are a refugee, the fear of deportation back to the place you have fled is quite enormous. To have that hanging over your head for what could potentially be years is stressful. I do not think that people should underestimate how debilitating that can be to mental health. To leave people in that state of total uncertainty and just have a minister giving a nod and a wink and saying, ‘I’ll be humanitarian, you can certainly be assured of that,’ which is basically what we got, is a ridiculous system.

I support having ministerial discretion there but it must be a last resort. Senator Santoro would know that as he was part of the Senate Select Committee on Ministerial Discretion in Migration Matters. I encourage people to look at the data in the report that came out of that inquiry. That inquiry was set up in part to try to get at the former immigration minister, Mr Ruddock, under the so-called cash for visas allegations. I certainly made it clear that I saw no evidence of that at the time. What I did see is not a system that is corrupt in that sense of the word but a system that has got out of control in the way in which all of the other avenues have been blocked off. The only avenue left for thousands of people is this avenue of ministerial discretion, and the only person who can exercise that is the minister. It cannot be delegated.

The figures on page 29 of the report show us that we have over 6,000 requests a year. None of them can be approved except by the minister, individually. To think that the minister has nothing else to do than go through and look at at least 483 requests, because that is how many he approved, is ridiculous—let alone a minister that is also supposed to be the minister for indigenous affairs. It is a completely inefficient, unsatisfactory system. It may have had a good result finally, after a lot of stress for Mrs Hu—and I again thank the minister for that—but it is a system that has clearly been distorted from its original intent and really needs to be significantly reviewed and reassessed. I urge the government again to go back and look at the recommendations in that report with an objective eye.