Australian Immigration Daily News

In case you may have missed it, we are providing links to some news stories that appeared over the Queen's Birthday long weekend in the Australian media concerning further proposed changes to Australia's citizenship that are likely to be introduced into Parliament in the near future.

Here's a link to a story describing the changes, and here is another link to an article that provides some critical comments on the proposal.

These changes go beyond  the proposed changes to the Australian Citizenship Act that were announced by the government in late April. Those changes would increase the required period that an applicant for citizenship must be a permanent resident of Australia from the current 12 months to 4 years; would require applicants to demonstrate a "competent" level of proficiency in English; would change or, in the government's words, "strengthen" the citizenship test to require applicants to demonstrate understanding and acceptance of "Australian values"; and would require applicants to provide evidence that they have become "integrated" into the Australian community.

The additional amendments that became public over the weekend would go further, and would have the effect of conferring on the Minister personal powers to override decisions of the Administrative Appeals Tribunal relating to citizenship applications - presumably, to enable the Minister to overturn decisions of the AAT setting aside decisions by the Department to refuse citizenship applications.

In essence, the proposed amendments would grant the Minister personal powers similar to those which now exist under the Migration Act, which enable the Minister to set aside decisions of the AAT concerning the cancellation of visas on character grounds.

In the news article from the Sydney Morning Herald, Minister Dutton is quoted as saying that the changes would address an "anomaly" and allow him to deny citizenship to people with a criminal record.

Of course, existing law does give the Department that power already: under current subsection 21(h) of the Australian Citizenship Act, an application for citizenship can be refused if the Department is not satisfied that the applicant is "of good character". Therefore, under the law as it now stands, the Department has authority to refuse citizenship to an applicant even if the applicant has not been convicted of a criminal offence, but merely because they are not of "good character", interpreted under the leading decision of Irving v Minister for Immigration, Local Government and Ethnic Affairs as meaning the person's "enduring moral qualities". 

Although the Minister has defended the proposed new personal power to set aside citizenship decisions of the AAT by claiming that such Ministerial decisions could still be appealed to the Federal courts or to the High Court, it is clear that such reviews would necessarily be limited in scope, and would be restricted to examining whether the Ministerial decision to set aside the AAT was affected by "jurisdictional error".

As we have seen from the many decisions of the Federal courts concerning the Minister's personal powers to cancel the visas of non-citizens, it will likely be extremely difficult to challenge successfully a personal decision by the Minister to set aside an AAT decision reversing a decision of the Department to refuse a citizenship application.   

Commentary on this proposed change from members of the Australian legal community has been critical of this proposed change. 

The president of the Law Council of Australia, Fiona McLeod, was quoted in the news article int he Sydney Morning Herald as stating that: "Any attempt to wind back review powers should be treated with concern."

A lawyer who acts for refugees, David Manne, was quoted as stating that the proposed change was a "totally unwarranted and draconian move" and an attempt to "eviscerate" due process. 

And University of Western Sydney law lecturer Jason Donnelly was quoted as saying that the proposed change "completely undermines the object and independence of the AAT" and "opens the can of worms to the abrogation of other fundamental rights."

It certainly seems to the writer that this proposed change has the potential to render the entire AAT review process meaningless, because the Minister would have the power to overturn the AAT if he doesn't "like" the outcome in the AAT. And the due process/procedural fairness rights of applicants to have an independent review of an adverse Departmental decision would be very significantly undermined. 

What do you think of this? Would it too greatly enlarge the Minister's personal powers? 

Would it erode the principle that Australia is a country of laws, and not of men?

Would it be a step in giving the Minister more "autocratic" and "unfettered" power that should be avoided? 

Your views are invited in the comments section!