7507

CABINET-IN-CONFIDENCE

Copy No. 48

C A B I N E T M I N U T E

Canberra, 15 October 1990

No. 14546

Submission 7507 Illegal Entrants: Response to the Report of the Joint Standing Committee on Migration Regulations (JSC)

The Cabinet agreed:-

(a) that the Minister for Immigration, Local

Government and Ethnic Affairs make a media

announcement along the lines of Attachment A to

the Submission;

(b) that the Minister for Immigration, Local

Government and Ethnic Affairs make a statement

to the Parliament in response to the Joint

Standing Committee (JSC) report along the lines

of Attachment B to the Submission;

(c) that the Government respond to the JSC report

along the lines of Attachment C to the

Submission;

... /2

This document is the property of the Australian Government and is not to be copied or reproduced

CABINE -IN-CONFIDENCE

[1]


2.

No. 14546 (contd)

(d) to amendment of the Migration Regulations, with

effect to 19 December 1993, to allow persons who

entered Australia illegally on or before 18

December 1989 to be granted a permanent entry

permit according to the criteria at Attachment D

to the Submission;

(e) that the Migration Regulations be amended so

that "innocent" illegal entrants, as detailed in

paragraph 13 and 14 and Attachment E to the

Submission, can regularise their status; and

(f) to amendment of Section 179 of the Migration Act

(a)

1958 to widen the operations of the Act to

include migration functions under the

Regulations as well as under the Act itself.

The Cabinet noted:-

the intention of the Minister for Immigration,

Local Government and Ethnic Affairs to report to

Cabinet if the number of approvals under

sub-paragraph (d) above exceeds expectations;

(b) that the Minister for Immigration, Local

Government and Ethnic Affairs proposes to

publicise widely, prior to expiry of the

transitional provisions on 31 October 1990, the

decisions made by Cabinet on pre-19 December

1989 illegal entrants;

... /3



[2]


3.

No. 14546 (contd)

(c) the proposals of the Minister for Immigration,

Local Government and Ethnic Affairs, at

paragraphs 16 to 18 and Attachment G to the

Submission, for the administration of his

discretionary powers under Sections 115 and 137

of the Act: and

(d) the resources required for successful

implementation of the proposals, as set out at

Attachment H to the Submission, which the

Minister for Immigration, Local Government and

Ethnic Affairs would be taking up with the

Minister for Finance.

Secretary to Cabinet


CABINET-IN-CONFI DENCE

[3]

CABINET-IN-CONFIDE CE CORRIGENDUM TO 7507

Submission No.

FOR CABINET Copy

Title

Minister

Purpose/Issues

Sensitivity I Criticism

Legislation involved

'\ency: .... Atical/significant dates

sultation: • Ministers/Depts

- - COII$alted

• Is there agreement?

Timing/handling of announcement

Cost

ILLEGAL ENTRANTS: RESPONSE TO THE REPORT OF THE JOINT STANDING COMMITTEE ON MIGRATION REGULATIONS (JSC)

The Hon Gerry Hand, Minister for Immigration, Local Government and Ethnic Affairs

12 October 1990

PLEASE REPLACE THE EXISTING PAGES 4, 5, 6 and 7 WITH THE REPLACEMENT PAGES.

Fin Yr ( Fin Yr ( Fin Yr (


CABI ET-IN-CONFIDENCE

I

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[4]

CABINET- I ~ -CONFIDENCE

10. Illegal entrants prior to 19 December 1989: I propose to

amend the Regulations such that an entry permit can be granted

to applicants in this group under criteria which would reflect

elements of the compassionate features of the former

~ legislation. Both are at Attachment E. The provisions would

end on 19 December 1993, allowing any affected person ample

opportunity to apply.

11. For those who apply in this program year only, approvals

would not be counted against annual migration program planning

levels. This will provide incentive for community groups to

encourage these illegal entrants to come forward in order to

avoid the potential impact on overseas applicants whose place

in the queue could be taken by them in future. I do not

expect these proposals to have a substantial impact on

migration program levels in view of their limited criteria and

of the low proportion of illegal entrants who came forward

under broad-based amnesties in the past. Numbers approved

will be carefully monitored and I will report to Cabinet if my

expectation proves incorrect. To encourage early application

and to contain administrative costs, I propose further -.

incentives in-terms of access to review and bans on

readmission (see Attachment E).

12. one in ten illegals on or before 18 December 1989

applying to remain, would add over 6 000 to the current Grant

of Resident Status backlog of 32 000 compared to 16 ooo in

July 1989 and 10 000 in July 1988. As the processing times

now range between one to three years, the danger exists that

the queue will grow as illegal entrants seek to exploit the

delays to prolong their stay. Public criticism of these

delays would result. My proposals create orderly management

of the backlog over the next four years, when substantial

numbers of new residence applications are expected from

Nationals of the People's Republic of China once their

concessional temporary entry permits expire in June 1994.

CABI ET- IN -CONFIDENCE

[5]

-s-CAB I NET- IN -CONFIDENCE

13. "Innocent" and other Illegal entrants under the new

legislation: The JSC did not realistically define what it

meant by "innocent" illegals and its treatment of this

question was inconclusive. As a starting point I propose to

make limited provision in the Regulations to address the

plight of those who became illegal entrants as minors

* (criteria at Attachment E), and for a low-cost quick remedy

for those who became illegal entrants because of erroneous

decisions of the Department through no fault of the applicant.

Review rights would attach to adverse decisions, to allow for

my intervention in deserving cases under the framework

proposed at paras 18 to 20 below.

14. Recognition of the plight of people who became illegal

entrants as minors, however, will not entitle other family

members who are illegal entrants, especially if they were the

cause of the applicant's illegal status to remain. "Innocent'.'

illegal minors should simply depart with their parents/family

- without the stigma of deportation attaching to the minor as

is presently the case. I recognise that this provision may

create an incentive for some unscrupulous parents to leave

their minor cnildre~ behind with relatives in order to . '

establish eligibility for themselves for the future. However,

I do not attach weight to that consideration as the structure

of the provision provides safeguards.

15. These are the only changes I propose on the question of

illegal entrants within the new legislation.

16. Discretionary Powers: The decision-criteria in the

Regulations are directed to obtain a certain outcome in terms

of profile and size of the intake. There will always be

one-off cases in terms of uniqueness or complexity that fall

outside the criteria, yet the rejection of which would be

regarded by the community as unreasonable. By definition, it

is difficult to foresee such cases. Indeed, any attempt to

cover such cases, without opening the doors too widely, would

lead to unworkable complexity in the regulatory scheme.

CABINET- IN -CONFIDENCE

[6]

-6-

CABINET- IN -CONFIDENCE 17. Sections 115 and 137 of the Migration Act (see

Attachment F) allow me to intervene and substitute a

favourable decision after each stage of the statutory review,

without being bound by the decision-criteria in the

regulations.

18. I propose that the Principal and Senior Members of the

Immigration Review Tribunal (IRT) and the secretary of my

Department refer deserving cases which have been reviewed and

refused, for me to decide whether I should intervene in those

particular cases irrespective of the terms of the regulations.

I had intended to provide guidelines by way of a Ministerial

Direction under Section 179 of the Migration Act for this

purpose. However legal opinion holds that this power is too

narrow to allow for this and I therefore propose to issue the

guidelines at Attachment G and table them. I seek to amend

Section 179 of the Migration Act 1958 to widen its operation

to include functions under the Regulations as well as the Act

itself.

19. These proposals will reduce pressure on me further to

expand the scope of discretion in the regulations. To do so

would create greate~ pressures on management of the migration

program. The involvement of the IRT represents an enhancement

of its role in the decision-making process.

RECOMMENDATIONS

20. I recommend that Cabinet:

(a) agree that I make the announcement along the lines of

Attachment A;

(b) agree that I make a statement to the Parliament in

response to the Joint Standing Committee (JSC) report

along the lines of Attachment B;

(c) agree to the Government's response to the JSC report at

Attachment C;

(d) agree to amendment of the Regulations, with effect to

19/12/1993, to allow illegal entrants on or before

18/12/89 to be granted a permanent entry permit along the

~ lines of the criteria at Attachment D;


[7]

(e) note my intention to report to Cabinet if the number of

~ approvals under (d) above exceed expectations;

~ (f) note my proposal not to count numbers approved under (d)

above against annual migration planning levels provided

application is made in the current program year;

(g) note that I propose to publicise widely the decisions

made by Cabinet on pre-19 December 1989 illegal entrants

prior to expiry of the transitional provisions on 31

October 1990;

(h) agree that the regulations be amended so that "innocent"

illegal entrants as detailed in paras 13 and 14 and

~ Attachment E can regularise their status;

(i) note my proposals for the administration of my

discretionary powers under Sections 115 and 137 of the

Migration Act at paras 16 to 18 and Attachment G;

(j) agree to amendment of Section 179 of the Migration Act to

widen its operations to include migration functions under

the Regulations as well as the Act itself (see para 18);

~(k) note the order of magnitude of resources required for

successful implementation of my proposals (at ·;

Attachment H) and that I will be taking these up

bilaterally with the Minister for Finance and bring

forward a further Submission if agreement on appropriate

resource levels cannot be reached by mid-November.

Gerry Hand 8 October 1990


[8]

CABINET-IN-CONFIDENCE Submission No. 7? Q..7. ......

FOR CABINET 04G Copy No ... . ................... ..

Title

Minister

Purpose/Issues

Sensitivity /Criticism

Legislation involved

aency: t.. ritical/significant dates

lnsultation: • Ministers/Depts

consulted

• Is there agreement?

Timing/handling of announcement

Cost

II.UX:;AL ENmANIS: RES~ 'lO 'IHE REroRl' OF 'IHE Jomr STANDING CD1MI'ITEE 00 MIGRATIOO RmJIATIONS (JSC) '!he Hon Gerry Harrl, Minister for Immigration, Local Gove.ri'Illelt arrl Etlmic affairs

• To address cxmmmity concern over the lack of opporb.mity for lorg-tenn illegal entrants who have established links in the Australian CCil1IID.li'lity to regularise their status umer the amemed Migration legislation which came into fo:roe on 19 December 1989 arrl to resporxl to the Joint stan:ii.rg Ccamnittee's (JSC) report on these

~\...,..,....,..., which was tabled in the Parliament an 11 September 1990.

prqnse an administrative frametoJOrk for the general exercise my discretionazy pc:MerS urrler Sections 115 arrl 137 of the

.Act, to address wider concerns about perceived u....L<:OA.:u.J~u.ity urrler the new legislative regime.

CM14237 of 6 August 1990 agreed to a CXlllpliance strategy to cum illegal migration.

SCire groups will argue that the response on illegals does not go far enough, others will argue that it goes too far. SUccessful i.nplementation of the CXlllpliance strategy announced on 6 August 1990 requires that these issues be addressed.

Attorney~ 1 s Department certifies that legislation is required ~ i.nple,nent :recxamnerxlation 20 (j) •

Transitional concessions for illegal entrants em on 31 October 1990. An announcement of the prqnsals in the submj ssion is required in advance of that date.

Prime Minister and cabinet (m&C) , Foreign Affairs and Trade (DFAT), Attorney~ 1 s (AG 1s), Employment Education arrl Trainirg (DEET), Irrlustrial Relations (DIR), Ccmnunity Services and Health (OOCH), Social Security (OOS) I Finance and Treasw:y.

No. SCire Depts express concern at prqnsal not to ca.mt approvals for applications by illegal entrants lodged in current program year, against migration plannirg levels. Finance opposes the prqnsal. See Attachment I.

A draft Press Release is at Attachment A. My proposed statenent to Parliament is at Attachment B with the Gove.ri'Illelt 1 s response to the JSC at Attachment C.

FiQ Yr ( 9 2 - 9 3 ) $~.lm(58.5ASLJ



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[9]

-2

On 6 August 1990 (CM 14237) Cabinet approved a compliance

strategy to address the record high number of illegal entrants

in Australia - 90 000 as at April 1990 (up from 60 000 as at

31 July 1989) - of whom some 12 600 had been illegal entrants

for 5 years or more at the end of last year. The strategy has

received widespread media coverage and is now being

implemented.

2. Implementation of the compliance strategy would be

enhanced by allowing access to entry permits for illegal

entrants - particularly those here before 19 December 1989.

This would address community and political pressures to

acknowledge exceptional compassionate claims of these illegal

entrants.

3. When I put my proposals to Cabinet for the compliance

strategy, I was unable to address the issue of illegal

entrants here before 19 December 1989, pending the report of

the Joint Standing Committee (JSC). We must act before the

transitional provisions for illegal entrants end on 31 October

1990. My proposed response to the report is at Attachment B.

A proposed Press .Release is at Attachment A.

4. The range of vi~ws the report encompasses makes it

difficult to accept its recommendations. The JSC recommends

that illegal entrants who have been here for 5 or more years

be allowed to stay subject to certain criteria; two dissenting

reports argue for 9 years. That approach would simply

perpetuate the current problem by continuing expectations that

the longer people overstay in Australia the better their

chances of obtaining residence.

5. Any response should not rely on principles which embrace

length of stay. This would cut across the philosophy of the

new legislation which requires people to make their claims I

while lawfully here. Any response should be confined to those

who were here illegally before 19 December 1989. Such a

response would be once only as it addresses the problem


[10]

... ..J

CABINET- IN- CONFIDENCE retrospectively and would ensure that there would be no

expectation that those who became illegal entrants on or after

19 December 1989 could access its provisions.

ISSUES

6. Australia faces a significant and mounting illegal

entrant problem, which threatens public support for the

migration program. While the future under the new legislation

and compliance strategy is clear, there are many who became

illegal entrants under the former discretionary regime. That

regime created expectations of being able to remain based on

claims of length of stay and links with the community.

7. There is broad support for our firm line against illegal

entrants under the amended legislation as evidenced by

representations to me, media reaction and dissent to the JSC

report. There is, however, pressure for further concessions

for illegal entrants - especially for "innocent" illegals -

and those who became illegal entrants prior to the new

legislation.

8. Any flexibility of response should not be a repeat of

past amnesties which clearly did not achieve their objectives.

The last amne&ty, (the 1980 Regularisation of Status Program),

attracted only some 10 per cent of the estimated illegal

population.

9. Unless we respond to exceptional compassionate claims to

remain by long term illegals, public and political support for

the tough measures of the compliance strategy will be

undermined. Our response should be confined to the most

deserving of those who became illegal entrants before

19 December 1989 (a total field estimated at 65 500). Before

and after introduction of the new legislation, there was

sustained publicity on its provisions for illegal entrants.

The transitional provisions for illegal entrants which end on

31 October this year sent further signals. In view of this I

do not accept that anyone who arrived under the new

legislation is unaware of the consequences of remaining in

Australia illegally.

CABINET- IN - CONFIDENCE

[11]

-.q-

CABINET- IN -CONFIDENCE 10. Illegal entrants prior to 19 December 1989: I propose to

amend the Regulations such that an entry permit can be granted

to applicants in this group under criteria which would reflect

elements of the compassionate features of the former

legislation. Both are at Attachment E. The provisions would

end on 19 December 1993, allowing any affected person ample

opportunity to apply.

11. For those who apply in this program year only, approvals

would not be counted against annual migration program planning

levels. This will provide incentive for community groups to

encourage these illegal entrants to come forward in order to

avoid the potential impact on overseas applicants whose place

in the queue could be taken by them in future. I do not

expect these proposals to have a substantial impact on

migration program levels in view of their limited criteria and

of the low proportion of illegal entrants who came forward

under broad-based amnesties in the past. Numbers approved

will be carefully monitored and I will report to Cabinet if my

expectation proves incorrect. To encourage early application

and to contain administrative costs, I propose further

incentives in -terms Of access to review and bans on

readmission (see Attachment E).

12. one in ten illegals on or before 18 December 1989

applying to remain, would add over 6 000 to the current Grant

of Resident Status backlog of 32 000 compared to 16 000 in

July 1989 and 10 000 in July 1988. As the processing times

now range between one to three years, the danger exists that

the queue will grow as illegal entrants seek to exploit the

delays to prolong their stay. Public criticism of these

delays would result. My proposals create orderly management

of the backlog over the next four years, when substantial

numbers of new residence applications are expected from

Nationals of the People's Republic of China once their

concessional temporary entry permits expire in June 1994.


[12]

-5-

CABINET- IN -CONFIDENCE 13. "Innocent" and other Illegal entrants under tbe new

legislation: The JSC did not realistically define what it

meant by "innocent" illegals and its treatment of this

question was inconclusive. As a starting point I propose to

make limited provision in the Regulations to address the

plight of those who became illegal entrants as minors

(criteria at Attachment D), and for a low-cost quick remedy

for those who became illegal entrants because of erroneous

decisions of the Department through no fault of the applicant.

Review rights would attach to adverse decisions, to allow for

my intervention in deserving cases under the framework

proposed at paras 18 to 20 below.

14. Recognition of the plight of people who became illegal

entrants as minors, however, will not entitle other family

members who are illegal entrants, especially if they were the

cause of the applicant's illegal status to remain. "Innocent'~

illegal minors should simply depart with their parents/family

- without the stigma of deportation attaching to the minor as

is presently the case. I recognise that this provision may

create an incentive for some unscrupulous parents to leave

their minor children.- behind with relatives in order to . .

establish eligibility for themselves for the future. However,

I do not attach weight to that consideration as the structure

of the provision provides safeguards.

15. These are the only changes I propose on the question of

illegal entrants within the new legislation.

16. Discretionary Powers: The decision-criteria in the

Regulations are directed to obtain a certain outcome in terms

of profile and size of the intake. There will always be

one-off cases in terms of uniqueness or complexity that fall

outside the criteria, yet the rejection of which would be

regarded by the community as unreasonable. By definition, it

is difficult to foresee such cases. Indeed, any attempt to

cover such cases, without opening the doors too widely, would

lead to unworkable complexity in the regulatory scheme.

CABINET - IN - CONFIDENCE

[13]

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CABINET- IN -CONFIDENCE 17. Sections 115 and 137 of the Migration Act (see

Attachment F) allow me to intervene and substitute a

favourable decision after each stage of the statutory review,

without being bound by the decision-criteria in the

regulations.

18. I propose that the Principal and Senior Members of the

Immigration Review Tribunal (IRT) and the Secretary of my

Department refer deserving cases which have been reviewed and

refused, for me to decide whether I should intervene in those

particular cases irrespective of the terms of the regulations.

I had intended to provide guidelines by way of a Ministerial

Direction under Section 179 of the Migration Act for this

purpose. However legal opinion holds that this power is too

narrow to allow for this and I therefore propose to issue the

guidelines at Attachment G and table them. I seek to amend

Section 179 of the Migration Act 1958 to widen its operation

to include functions under the Regulations as well as the Act

itself.

19. These proposals will reduce pressure on me further to

expand the scope of discretion in the regulations. To do so

would create greater pressures on management of the migration

program. The involvement of the IRT represents an enhancement

of its role in the decision-making process.

RECOMMENDATIONS

20. I recommend that Cabinet:

(a) agree that I make the announcement along the lines of

Attachment A;

(b) agree that I make a statement to the Parliament in

response to the Joint Standing Committee (JSC) report

along the lines of Attachment B;

(c) agree to the Government's response to the JSC report at

Attachment C;

(d) agree to amendment of the Regulations, with effect to

19/12/1993, to allow illegal entrants on or before

18/12/89 to be granted a permanent entry permit along the

lines of the criteria at Attachment E;


[14]

CABINET- IN -CONFIDENCE (e) note my intention to report to Cabinet if the number of

approvals under (c) above exceed expectations;

(f) note my proposal not to count numbers approved under (c)

above against annual migration planning levels provided

application is made in the current program year;

(g) note that I propose to publicise widely the decisions

made by Cabinet on pre-19 December 1989 illegal entrants

prior to expiry of the transitional provisions on 31

October 1990;

(h) agree that the regulations be amended so that "innocent"

illegal entrants as detailed in paras 13 and 14 and

Attachment D can regularise their status;

(i) note my proposals for the administration of my

discretionary powers under Sections 115 and 137 of the

Migration Act at paras 16 to 18 and Attachment G;

(j) agree to amendment of Section 179 of the Migration Act to

widen its operations to include migration functions under

the Regulations as well as the Act itself (see para 18);

(h) note the order of magnitude of resources required for

successful implementation of my proposals (at

Attachment H) and that I will be taking these up . .

bilaterally with the Minister for Finance and bring

forward a further Submission if agreement on appropriate

resource levels cannot be reached by mid-November.

Gerry Hand 8 October 1990


[15]


ATTACHMENT A

GOVERNMENT TO AMEND MIGRATION LAW RELATING TO CERTAIN ILLEGAL

ENTRANTS

The Government is to amend the Migration Regulations to allow

certain people who were in Australia illegally before 19

December 1989 to regularise their status. The Minister for

Immigration, Local Government and Ethnic Affairs, Mr Gerry

Hand said the Regulation would be in force until 18 December

1993 to allow such people ample time to present their case.

Mr Hand, who announced this today, said the Government would

also amend the Regulations to allow certain "innocent" illegal

entrants to regularise their status.

In reaching the decisions, Mr Hand said, the Government had

had regard to the report of the Joint Standing Committee o~

Migration Regulations. But the view had been reached that the

time for further concessions to the great majority of those

who had broken the law was well and truly past.

He said these decisions finalised the Government's

consideration of issues relating to illegal entrants, and that

there should be no expectation of further exceptions or

concessions.

The decisions cleared the way for total implementation of the

new measures to deal with illegal entrants, announced in

August this year.


[16]

-9-CABINET- IN -CONFIDENCE

ATTACHMENT A

Provisions for pre-19 December 1989 illegal entrants

Mr Hand said a Migration Regulation would be made to allow

certain people who had been in Australia illegally before

19 December 1989 to regularise their status.

A special entry permit class would be created, with criteria

based on sections of the grant of resident status policy

applying before that date.

Such criteria would include:

whether the person was the spouse (married or de

facto), dependent child or aged parent of an

Australian citizen or permanent resident (a parent

would be required to meet the balance of family

test); or

whether tne person was an aged dependent relative, a

last remaining relative, a special-need relative or

an orphan relative of an Australian citizen or

permanent resident.

(Note to the Press: a full list of criteria is attached)

The criteria will be based on circumstances applying on (date)

-- the date of this announcement -- and must still be valid at

the time a decision is made. Where an application is based on

a spouse or de facto relationship, that relationship must be

"genuine and on-going".

"Those who come forward voluntarily within that time will have

the right of review of an unfavourable decision," the Minister

said.


[17]

-10-

CABINET- IN -CONFIDENCE ATTACHMENT A

"But a review application will go direct to the second-tier

Immigration Review Tribunal (IRT). This will ensure a quick

resolution of any claims and avoid attempts by applicants to

prolong their stay in Australia by being allowed review at

both first-tier and second-tier levels.

"People who come forward quickly will have a significant

advantage over those who delay their applications.

"A person who applies within 12 months of today's date will

face no exclusion period from Australia if he or she departs

as instructed. In the second year, an unsuccessful applicant

will face a two-year ban on readmission, and in the third year

a five-year ban will apply. No waiver of these periods will be

possible."

Mr Hand stressed that these concessions would only apply to

those people who ·came forward voluntarily.

People who failed to do so and who were apprehended would be

given no right of review, and would be subject to readmission

bans of one, two and five years in the first, second and third

years respectively. Again no waiver would be permitted.

"In addition, the Government has decided that approvals for

those who apply under these arrangements in the current

program year will not be counted against annual migration

program planning levels.

"But approvals for subsequent applications will be counted in

program levels in future years with a consequent impact on the

number of other overseas applicants who can be admitted.


[18]

-11-


ATTACHMENT A

"These measures are designed to encourage a quick response to

contain administrative costs. More importantly, they provide

fair and reasonable incentives to individuals as well as

community groups to seek to regularise the status of this

group of illegal entrants."

"Those members of the illegal community who had been hoping

for some other form of concession from the Government should

be under no illusion as to what these decisions mean," Mr Hand

said.

"Unless they meet the limited criteria outlined above, they

should waste no time in leaving Australia. This warning

applies particularly to those who have become illegal since 19

December 1989 -- these decisions contain nothing for them."

"There has been more_; than ample warning of the provisions of

the new legislation for dealing with illegal entrants," Mr

Hand said.

"In addition the Government has been extremely generous in

extending on a number of occasions the transitional provisions

by which illegal entrants could apply to regularise their

status under certain circumstances.

"These concessions, which end on 31 October, have been widely

publicised. Those who have a case to make can still do so

before 31 October. If they choose not to do so, they should

depart, or feel the full force of the amended Migration Act.


[19]

-12


"Innocent" illegals

In providing more detail on the Government's decisions, Mr

Hand said the Migration Regulations would also be amended to

take into account the circumstances of "innocent" illegals

that is, those people whose illegal status arose through

erroneous decisions of the Immigration Department, and not

through any fault of their own.

The Regulations would specify circumstances of innocence and

allow for such situations to be remedied.

"It has been decided that 'innocence' will also include those .

who became illegal as minors and who have a case to remain,"

the Minister said.

"However the defi_nition will not extend to family members who

had been the cause Of the illegality andjor who are themselves

illegal entrants. Nor will minors under 18 years of age be

eligible to remain -- they are not of legal age to make such

decisions."

Discretion under the Migration Act

Mr Hand said he would invite the Immigration Review Tribunal

and the Secretary of his Department to bring to his attention

any case adversely decided, including those of "innocent"

illegals, which they believed might warrant the exercise of

his Ministerial discretion.

He would then use his existing powers under Sections 115 and

137 of the Migration Act to decide whether the Regulations

should be set aside in individual cases.

CABINET -IN- CONFIDENCE

[20]

CABINET- IN :1CONFIDENCE

ATTACHMENT A

Cases which might be referred in this way could include:

those in which the circumstances of the case are

such that the legislator could not have anticipated

them;

those in which the consequences of not having

recognised the circumstances in the legislation were

not intended by the legislator;

those which present compassionate circumstances of

such order that failure to recognise them would

result in severe hardship to an Australian citizen

or lawful permanent resident of Australia.

Mr Hand said this would create a framework for administration

of the exercise of the Minister's powers, which under the

Migration Act requi~~ reporting on a regular basis to

Parliament.

He said that this would enhance the role of the Immigration

Review Tribunal in the decision-making process and facilitate

development of the Regulations in the light of experience of

the decision-making process. He said that the new

administrative framework would address concerns over perceived

rigidity in the new legislation.


[21]

-14-


CRITERIA TO BE SPECIFIED IN THE MIGRATION REGULATIONS FOR THE

GRANT OF ENTRY PERMITS TO PEOPLE WHO WERE ILLEGAL ENTRANTS ON

OR BEFORE 18/12/89

1. Applicants must

(a) lodge their application in accordance with the

requirements of the Regulations (prescribed form,

fee and travel document);

(b) be

(i) the spouse of a lawful permanent resident of

Australia or an Australian citizen in a genuin~

and on-going marital relationship; or

(ii) the dependent child of a permanent resident or

Australian citizen; or

(iii)the aged parent of a permanent resident or

Australian citizen, and who meets the balance

of family test; or

(iv) the de facto spouse of a lawful permanent

resident of Australia or an Australian citizen

in a genuine and on-going relationship; or

(v) an aged dependant relative; remaining relative;

special need relative or orphan relative of a

lawful permanent resident of Australia or an

Australian citizen as described at

sub-regulation 127 (iii) (A) and (B); and


[22]

-l~-

CABINET - IN - CONFIDENCE ATTACHMENT A

(vi) able to satisfy normal health and character

requirements.

2. The circumstances outlined above must have existed at

the date of announcement of the provision and be

continuing at the time of decision.

3. The case presents compassionate grounds of such magnitude

that rejection of the application would create extreme

hardship or irreparable prejudice to the interests of

Australian parties.

4. A right of review will attach to those who come forward

voluntarily within the three years from the date of

announcement of the provision, but only to the

second-tier, Immigration Review Tribunal (to avoid

attempts to protract stay through allowing access to

review at both levels).

5. Exclusion under Regulation 36 will not apply to

unsuccessful applicants who come forward voluntarily

within 12 months of announcement of the provision and who

subsequently depart voluntarily as instructed.

6. For those who come forward voluntarily in the second and

third year of announcement of the provision, exclusion

periods of 2 and 5 years respectively will apply with no

recourse to waiver.

7. For those who apply after apprehension there will be no

review right and exclusion periods of one, two and five

years will apply respectively in the first, second and

third year from announcement of the provisions, with no

recourse to waiver.


[23]

-.LU


8. An entry permit will not be granted to an applicant who

fails to keep the DILGEA advised of any change of

residential address after lodgement of application.

9. Any existing applications from this group may, at the

option of the applicant be converted free of charge to an

application under these criteria.


[24]

CABINET -IN- CONFIDENCE ATTACHMENT B

PROPOSED RESPONSE TO THE PARLIAMENT TO THE REPORT OF THE JOINT

STANDING COMMITTEE ON MIGRATION REGULATIONS - "Illegal

Entrants in Australia - Balancing Control and Compassion"

Mr Speaker, I seek leave to make a Statement on the

Government's response to the Report of the Joint Standing

Committee on the Migration Regulations on the question of

illegal entrants entitled "Illegal entrants in Australia -

Balancing control and compassion" which was tabled in the

Parliament on 11 September 1990.

Before turning to the substance of the Report, I wish to make

a number of general comments. The fact that five of the nine

active members of the Committee have dissented from its report

illustrates the complexity of the issue of illegal immigration

and of providing fair and equitable measures which maintain

the integrity of the immigration program, its management,

controls and procedures.

The Committee has devoted considerable effort to considering

and reporting in the time available to it and I thank the

members for their work. Its report is useful in that it

focuses attention on matters where substantial action is

required.

The issue of illegal entrants, however, must be seen in the

context of the first and long held Migration Principle - that

the Australian Government will determine who will be permitted

to enter Australia for permanent stay. It follows that it is

untenable for individuals to take upon themselves to remain

illegally and to impose their will on the presumed generosity

of Australia. Under the previous legislation, illegal

entrants assumed an advantage over people outside Australia

seeking entry for permanent stay through legitimate channels.


[25]

-18-


ATTACHMENT B

They established circumstances to satisfy the concessions to

allow some to remain where the community would regard it as

unreasonable that they should depart. That situation must now

be addressed and confined to the past.

Mr Speaker, the increased number of illegal entrants, from

65,500 as at 19/12/89 to some 90,000 as at 30/4/90, is a

serious development which must be met with firm and resolute

action. I regard the reference in the title of the Joint

Standing Committee's report to "balancing control and

compassion" as misleading. It sends the wrong signals to

those who are illegal entrants and to those who champion their

cause. The challenge is not to reach or maintain a balance.

Illegal entrants have broken Australia's immigration law; most

have done so deliberately in the ill-advised expectation that

at the end of the day they will be permitted to stay. Any

perception that such a prize will continue as a reward for

law-breaking and 'that chances of being able to remain improve ;

with length of overstay, is misplaced under the new

legislation.

On 6 August this year I announced an enhanced strategy to curb

illegal immigration and to make it more difficult for illegal

entrants to establish a case to remain in Australia. This

Government is determined to ensure that the strategy works:

there is strong community support for it to do so.

Mr Speaker, against that background, I was somewhat

disappointed with the Committee's report. With some

exceptions, its recommendations have not presented realistic

options. This situation is exacerbated by the range of

dissenting views presented.

CABINET- IN - CONFIDENC

[26]

-19-

CABINET- IN -CONFIDENCE ATTACHMENT B

Although the Government has not accepted most of the

recommendations in the form in which they were made, they have

assisted consideration of arrangements for illegal entrants

after the transitional provisions expire on 31/10/90.

Mr Speaker, the Government is resolute that any response on

the question of illegal entrants must be confined to those who

were illegally here before 19/12/89, when the amended

legislation came into force. Sustained publicity before and

after then on the provisions affecting illegals entrants, and

the transitional provisions for certain illegal entrants, have

created a climate in which those who arrived under the new

legislation can hardly be unaware of the consequences of

remaining illegally.

The Government•s response is not an Amnesty. It provides a

limited and retrospective response in compelling circumstances

to those who were illegal entrants before the introduction .of

the new legislation.J This recognises that under the former

discretionary regime there developed a climate of expectation

of remaining through established links with the community.

Special limited criteria will be the basis upon which claims

to remain will be assessed. The criteria will be based on

selected requirements for the grant of resident status Section

6(A) (1) of the former legislation.

Qualified access to review of adverse decisions and for

exercise of Ministerial discretion will be provided to those

who come forward voluntarily to give flexibility in compelling

but unsuccessful review cases, on the advice of the

Immigration Review Tribunal and the Secretary of my

Department. Review will not be available to those who apply

after appprehension. These provisions will enhance the

compliance strategy now being put in place by quarantining and


[27]

CABINET- IN -CONFIDENCE ATTACHMENT B

clarifying entitlements to those who were here as illegal

entrants prior to the introduction of the new legislation.

I do not accept the Joint Standing Committee's major proposal

for a response based upon the principle of "absorption". This

is too close to an amnesty, against which there has been

bipartisan support for some years. Amnesties have not worked.

In the last amnesty - the 1980 Regularisation of status

Program - only some 10 per cent of the then estimated illegal

population came forward. Amnesties also exacerbate the problem

by creating an expectation of future amnesties. The

Committee's proposal would undermine the Government's

compliance strategy by offering a prospect of resident status

to future illegal entrants who became "absorbed".

Mr Speaker, the Government will provide a once-only response

for the target population with a "sunset" clause that it will

expire on 19/12/~3. This will allow people ample time to ~ome

forward. Those who vuluntarily make applications within. the

life of the provision will have review rights to the second

tier of the Immigration Review Tribunal which will allow for

quick resolution of claims and avoid attempts to prolong stay

through access to both levels of review. such rights will not

apply where an application is lodged after apprehension.

Mr Speaker, the Committee's proposals that illegal entrants

whose applications to stay are unsuccessful should not face

any period of exclusion from Australia are not acceptable. On

the grounds of equity and fairness alone, such an

all-embracing concession cannot be sustained . The Government's

only concession is that those who come forward voluntarily

within the first year of the "sunset" provision and who are

unsuccessful, will not face exclusion periods. The period of

exclusion will increase for each additional year people do not


[28]

......

CABINET- IN - CONFIDENCE ATTACHMENT B

come forward. For those apprehended, inclusion periods will

apply and increase year-on-year within the life of the special

provision. For those who apply after the current program

year, approvals under these provisions will be counted against

the annual migration program planning levels with a potential

impact on others applying overseas. These measures are

designed to elicit a quick response to contain administrative

costs. More importantly, they provide fair and reasonable

incentives to individuals as well as community groups to seek

to regularis~ the status of these illegal entrants.

Mr Speaker, I now turn to the question of so-called "innocent"

illegal entrants. The Government acknowledges that provisions

should be put in place. The Committee did not realistically

define what it meant by this term, other than on the question

of people who were minors when they became illegal entrants.

Apart from that group and those who have become illegal

entrants as a co~sequence of erroneous decisions of the

Department through rio fault of the applicant, there is. no

compelling argument that "innocence" should extend further.

Arrangements will be made so that those who are illegal

entrants as a result of such error will be able to redress

their status at minimal inconvenience and expense, with

provision for review of an adverse decision. Provisions will

also be made so that illegals who arrived as minors and who

now are aged 18 or over can resolve their status subject to

meeting special criteria. Illegal minors should simply depart

with or join their relatives overseas.

Mr Speaker, the Joint Standing Committee has criticised the

provisions of section 24 of the Act, that people about to be

issued a visa or entry permit, must notify any material change

in circumstances. It argues that failure to meet this

"positive candour" requirement may be cause to regard the


[29]

-22-

CABINET- IN - CONFIDENCE ATTACHMENT B

personjs concerned as an "innocent" illegal. Where the

circumstances of an applicant for a visa or entry permit

change to the extent that their eligibility no longer exists

or is doubtful, clearly their right to enter or remain is in

question. This is a separate issue from the notification

requirement or an applicant's lack of understanding of it. To

the extent that this provision may not be understood,

information needs will be addressed.

Mr Speaker, to acknowledge unsuccessful review cases which

have exceptional features which cannot be provided for in

Regulations, arrangements will be made for the Principal and

Senior Members of the Immigration Review Tribunal and the

Secretary of my Department to refer such cases for my

consideration. This will provide an administrative framework

to assist me in the exercise of my discretionary powers.

Administration will be under guidelines which I will table,

which will provide principles for guidance on the types of ·

circumstances ·which should be brought to my attention. · · These

proposals will also enhance the role of the Immigration Review

Tribunal in the decision-making process.

Mr Speaker, I seek leave to table the Government's responses

to the specific recommendations of the Joint Standing

Committee on Migration Regulations.


[30]

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ATTACHMENT C

RESPONSE TO SPECIFIC RECOMMENDATIONS IN THE REPORT OF THE

JOINT STANDING COMMITTEE ON MIGRATION REGULATIONS • Illegal

Entrants in Australia- Balancing Control and Compassion"

Recommendation at page 31.

"That if the positive candour requirement enshrined in Section

24 of the Act is to be retained, the Minister define those

material particulars which must be disclosed and takes steps

to ensure that such information is communicated to all visa

applicants when they are informed of the Minister's intention

to grant them a visa."

Response:

Measures will be taken to ensure that material particulars are

disclosed to applicants so that they are aware of their

obligations to notify changes.

It is not accepted that a failure to advise any change in such

information will necessarily result in so called "innocent"

illegal entrant status. Whether applicants understand or

comply with the notification provision, where their

circumstances have changed such that they no longer meet

criteria for the visa or entry permit class sought, their

right to enter or remain in Australia must be questioned. In

any event, cases deserving consideration because of

exceptional circumstances, are capable of redress under the

Minister's discretion.


[31]

CABINET- IN - CONFIDENCE ATTACHMENT C


"That the Department of Immigration, Local Government and

Ethnic Affairs seek legal advice on the question of the

conflict between Section 22 relating to curing illegal entrant

status and Section 14(2) and, if necessary make amendments to

the Act, including an amendment so as to make plain how

illegal entrant status is cured.•

Response:

Action will be taken to redress the conflict identified by the

Committee.


"That the provisions and practice concerning endorsement (of . .

entry permits -of persons subject to, and) under Section 20 be

re-examined and amended, in particular to put beyond doubt

that illegals who entered or secured stay by deception who

obtained a properly endorsed permit are not required to have a

fresh endorsement on each and every occasion of re-entry."

Response:

I have directed that action be taken to put beyond doubt any

confusion which the Committee has referred to in the instance

where an endorsed entry permit has been granted as a result of

deception.


[32]

-25-



"That Regulation 36(1)(b) be re-examined and amended so as to

put beyond doubt:

(a) the fact that the ban applies to those deported after 19

December 1989; and

(b) the ban applies to the principal deportee and not to

those immediate family members deported with the

principal deportee."

Response:

The recommendation at (a) is accepted.

Migration Regulation 36{1)b) refers in practically all cases

to people who we~e deported as criminal non-citizens. In such

circumstances~ dependants only travel with the deportee at the

request of those concerned. The permanent exclusion provision

would not apply to dependants of the principal deportee -

where dependants are Australian citizens exclusion provisions

do not apply as they would require neither a visa nor entry

permit if returning as citizens. Against this background the

recommendation at (b) is not acceptable to the Government.


"That Section 37 (of the Migration Act which places

restrictions on applications by illegal entrants for entry

permits) be amended to permit illegals (entrants) to make

further applications by leave where it would be harsh and

unconscionable to deny any such further applications."

CABINET- IN- CONFIDENCE

[33]

- 26 -


Response:

This recommendation would result in cumbersome and resource

intensive procedures. Where a person has an entitlement he/she

may apply and if refused, should depart. on grounds of equity

alone, there should be no further concessions for those who

simply remain in the hope and expectation that a further

opportunity will become available to them. Proposed variations

to the regulations relating to review will enable certain

cases to be referred after unsuccessful review to the Minister

where, in the view of the Secretary or Principal and Senior

Members of the Immigration Review Tribunal, there are

exceptional circumstances.


"That in order for the law to be administered fairly, a waiver

provision be incorporated into the regulations to allow for

late lodgements in appropriate circumstances."

Response:

In acknowledgement that in some situations it is impractical

for a detainee to lodge an application within 2 working days,

the dead-line was extended to 7 working days in March 1990, on

the condition that the detainee must request such an extension

before the expiry of the second working day. There is no

available evidence that the 7 working days is insufficient or

unfair. The situation will be carefully monitored. In the

event that a further change is necessary, that need will be

addressed.


[34]

-27-



"That

the Immigration Review Tribunal be empowered to consider

applications from illegals to reqularise their stay:

the Tribunal to be empowered to consider applications from

illegals who

(a) believe themselves to an innocent illegal entrant,

ie. that the person became an illegal entrant

because of factors beyond his or her control, or who

(b) meet the following conditions

has been in Australia for at least five years

prior to 31 October 1990 (that is arrived in J

Australia prior to 31 October 1985) and· is able

to present evidence demonstrating this fact:

and

has come forward and presented themselves to

the registrar of the Immigration tribunal

before 31 October 1990 by either

(i) completing an applications as outlined

below: or

(ii) completing a notice of intent to lodge

such an application in which they

undertake to complete a full application

form by 15 December 1990: and

(iii)completes such application form by 15

December 1990:


[35]

-~o-


is able to present information and evidence

which would satisfy the Tribunal that they have

made a positive and substantial contribution to

Australia during the period in which they had

been in Australia; or

can demonstrate that there are compelling or

compassionate circumstances which contributed

to the applicant•s illegal standing and which

should be taken into account by the Tribunal as

reasons for granting stay in Australia.

In making its determination the Tribunal will

take note of the following relevant

circumstances in the cases of those applying in

•••• (b) above:

age;

~enqth or residence in Australia; . .

strenqth of connections with Australia;

personal history including character,

conduct and employment record;

domestic circumstances;

compassionate circumstances;

any representations received on the

person•s behalf.

In respect of those applying under •••• (a)

above, the Tribunal will take note of whether

they are, in the judgement of the Tribunal, an

innocent illegal;

will take note of information addressing

factors as for (b) above;


[36]

-29-


will make a recommendation to the Minister

on the qrant of an entry permit. Such

innocent illeqals will also be required to

meet the health and public interest

criteria.

In order for the Tribunal to be able to assess such

circumstances, each applicant will be required to

complete a form qiving detailed information

necessary for the Tribunal to determine the veracity

or merits of their claims:

that the Department will be qiven an opportunity to

make a submission on a case if they so desire:

that the tribunal have the authority to access all

relevant files and Departmental documents, to call

witnesses, includinq the applicant and Departmental

officials:

that for those applying under (b) above if the

Tribunal is satisfied:

(a) the Tribunal is able to determine that a

person be granted permanent residence:

(b) that there be no capacity for review of

the decision to the Administrative Appeals

Tribunal:

(c) that there would be the capacity to access

the Minister pursuant to section 137 of

the Act.•


[37]

JV


Response:

Under the Migration Act amendments introduced in 1989 and the

review provisions it provides, it is inappropriate that the

Immigration Review Tribunal assume responsibility as primary

decision-makers. The procedures proposed are cumbersome and

protracted; and would be resource expensive.

Apart from the case of minors, the additional circumstances

cited by the Committee are best described as mitigating rather

than "innocent". The Migration Regulations will be amended to

enable claims from so-called "innocent" illegals to be dealt

with. With regard to those whose status results from erroneous

decisions of the Department through no fault of the applicant,

I propose to amend the Regulations so that their status can be

regularised at minimal inconvenience and cost.

The proposal of the ~ommittee that those who became illegal

entrants as minors should be able to apply to regularise their

status is accepted in part. The screening requirements will,

however, limit eligibility to those who became illegal

entrants as minors and who now are aged 18 or over. It is

expected that those under 18 would depart with any illegal

entrant relatives or be returned to their parents or closest

relatives in their normal "home" country. The criteria for the

substantive assessment of applications will be subject of

amendment to the Regulations.

For others who were illegally in Australia prior to 19/12/89,

there will be a "sunset" Regulation until 19/12/93 for them to

regularise their status. A final and finite opportunity will

be made for this group. Thereafter, any illegal entrant will

have to bear the full consequences of the new legislation.


[38]


Separate criteria to assess eligibility for this group will be

along the lines of Section 6(A) (1) of the legislation prior to

19/12/89.

Unless an application under this is lodged after apprehension,

there will be a right of review of an unfavourable decision.

Furthermore, there will be provision to enable the Principal

or Senior Members of the Immigration Tribunal or Secretary of

the Department of Immigration, Local Government and Ethnic

Affairs to bring to the Minister's notice any case which has

been unsuccessful at review which warrants consideration

because of exceptional circumstances. A Ministerial Direction

will be issued to provide guidance on the principles to apply

in considering whether to bring cases to the attention of the

Minister.

I do not concur with the observations of the Committee that

those of the above Who make unsuccessful applications should

be excluded from the restrictions on return to Australia.

Those who apply after apprehension will face exclusion bans of

one, two and five years if they applied in the first, second

and third year respectively of the special concession. Others

who come forward voluntarily will face a ban of two years if

they applied in the second year of the concession, and five

years if they applied in the third - in other words the ban

will not apply in the first year.


"That

the regulations prescribe that in exceptional compelling,

and compassionate circumstances the Immigration Review


[39]

-.:SL-


Tribunal may recommend to the Minister that he exercise his

absolute discretion or power to grant a permanent temporary

entry permit (sic);

in reaching its decision the Tribunal shall have regard

to;

(a) the public interest which would normally suggest

that deportation would be the proper course;

(b) whether or not the particular circumstances had

arisen since the applicant's arrival in Australia;

and

(c) the strength or connections with Australia which

would suggest that further residence is a preferable .

result."

Response:

Given the Government's response to the preceding

recommendation, a response is not required on this

recommendation.

Recommendations at page 72.

"That

(a) any notice of appeal to the Tribunal is treated as notice

of application;

(b) the Immigration Appeal Tribunal have the ability to

consider both the appeal and an application under the

above concession."


[40]

CABINET - IN - CONFIDENCE ATTACHMENT C

Response:

One of the important initiatives in the amendments to the

Migration Act on 19/12/89 was that for an application to have

been made, it must be in the form required. To accede to the

recommendation would conflict with existing law and accepted

practice and encourage procrastination which the amendments

have sought to remedy.

The role of the Immigration Review Tribunal is to review

decisions. It would not be appropriate for it to be a primary

decision-maker in the way envisaged by the Committee.

"That where an illegal entrant who has lodged an application .

to remain in Australia in accordance with these provisions is

refused by the Immigration Review Tribunal, providing the

illegal entrant leaves within 28 days of receipt of the

refusal decision,. there be no time restrictions on the period

within which that p~rson can be granted a visa or entry

permit, if they apply from overseas."

Response:

This issue is addressed in the response to the recommendation

at page 69 of the Committee's report.


"That in order to deter those assisting illegals this

provision (Section 80 - re harbouring) be utilised."

Response:


[41]

-34-


Departmental compliance and investigations officers will refer

to the Office of the Director of Public Prosecutions any

instance of harbouring where available evidence and the public

interest indicates a prosecution might be sustained. Often the

problem faced is the availability of sufficient evidence and

the need to keep the illegal concerned in Australia until

prosecution eventuates.


the Minister for Immigration, Local Government and Ethnic

Affairs addresses the issue of migration agents,if

necessary referring the issue back to this Committee for .

investigation and report;

in the interim,·· the Minister for Immigration, Local

Government and Ethnic Affairs establishes an immigration

advisory service for the purposes of giving advice on

immigration matters to any person who requests such

advice;

that such a service be funded independently of the

Department of Immigration, Local Government and Ethnic

Affairs."

Response:

The matter of an immigration advisory service and of

immigration agents is under consideration and an announcement

will be made at a later date.


[42]

-35-



•That formal arrangements be put in place to permit persons in

the custody of the Department of Immigration, Local government

and Ethnic Affairs to apply for bail. Such jurisdiction to be

devolved to the Immigration Review tribunal who would have

power to grant bail, subject to appropriate sureties andjor

reporting arrangements.•

Response:

This need is recognised and appropriate arrangements for bail

will be developed. It is not considered appropriate for such

a function to be the responsibility of the IRT.

-,


[43]

..JV

CABINET- IN - CONFIDENCE ATTACHMENT D

A. CRITERIA TO BE SPECIFIED IN THE MIGRATION REGULATIONS FOR

THE GRANT OF ENTRY PERMITS TO PEOPLE WHO WERE ILLEGAL

ENTRANTS ON OR BEFORE 18/12/89

1. Applicants must

(a) lodge their application in accordance with the

requirements of the Regulations (prescribed form,

fee and travel document);

(b) be

(i) the spouse of a lawful permanent resident of

Australia or an Australian citizen in a

genuine and on-going marital relationship; or

(ii) tQe dependent child of a permanent resident or

Australian citizen; or

(iii) the aged parent of a permanent resident or

Australian citizen, and who meets the balance

of family test; or

(iv) the de facto spouse of a lawful permanent

resident of Australia or an Australian citizen

in a genuine and on-going relationship; or

(v) an aged dependant relative; remaining

relative; special need relative or orphan

relative of a lawful permanent resident of

Australia or an Australian citizen as


[44]

)

-.:J , • •


described at sub-regulation 127 (iii) (A) and (B); and

(vi) able to satisfy normal health and character

requirements.

2. The circumstances outlined above must have existed at

the date of announcement of the provision and be

continuing at the time of decision.

3. The case presents compassionate grounds of such magnitude

that rejection of the application would create extreme

hardship or irreparable prejudice to the interests of

Australian parties.

4. A right of review will attach to those who come forward

voluntarily within the three years from the date of

announcement of the provision, but only to the

second-tier, Immigration Review Tribunal (to avoid

attempts_to protract stay through allowing access_ to

review at both levels).

5. Exclusion under Regulation 36 will not apply to

unsuccessful applicants who come forward voluntarily

within 12 months of announcement of the provision and who

subsequently depart voluntarily as instructed.

6. For those who come forward voluntarily in the second and

third year of announcement of the provision, exclusion

periods of 2 and 5 years respectively will apply with no

recourse to waiver.

7. For those who apply after apprehension there will be no

review right and exclusion periods of one, two and five


[45]

-38-


years will apply respectively in the first, second and third

year from announcement of the provisions, with no recourse to

waiver.

a. An entry permit will not be granted to an applicant who

fails to keep the DILGEA advised of any change of

residential address after lodgement of application.

9. Any existing applications from this group may, at the

option of the applicant be converted free of charge to an

application under these criteria.

B. THE TERMS OF SECTION 6A(1) OF THE MIGRATION ACT PRIOR TO

19 DECEMBER 1989 WERE:

"Conditions on which entry permits may be granted to

non-citizens after entry into Australia

6A. (1) an entry permit shall not be granted to

a non-citizen after his entry into Australia unless

one or more of the following conditions is fulfilled

in respect of him, that is to say -

(a) he has been granted, by instrument under the

hand of a Minister, territorial asylum in

Australia;

(b) he is the spouse, child or aged parent of an

Australian citizen or of the holder of an

entry permit;

(c) he is the holder of a temporary entry permit

which is in force and the Minister has


[46]

CABINET - IN - CONFIDENCE ATTACHMENT D

determined, by instrument in writing, that he has the status

of refugee within the meaning of the Convention relating to

the Status of Refugees that was done at Geneva on 28 July

1951 or of the Protocol relating to the Status of refugees

that was done at New York on 31 January 1967;

(d) he is the holder of a temporary entry permit

which is in force, is authorised to work in

Australia and is not a prescribed non-citizen;

or

(e) he is the holder of a temporary entry permit

which is in force and there are strong

compassionate or humanitarian grounds for the

grant of an entry permit to him."

-,

CABINE - IN - CONFIDENCE

[47]

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CABINET- IN - CONFIDENCE ATTACHMENT E

CRITERIA TO BE SPECIFIED IN THE MIGRATION REGULATIONS TO ALLOW

FOR REGULARISATION OF THE STATUS OF •INNOCENT• ILLEGAL

ENTRANTS

Applicants must

1. Have become an illegal entrant through erroneous decision

the Department through no fault of the applicant, or

2. Have become an illegal entrant whilst a minor and;

3. Be aged 18 years or over at the time of application and;

4. Have spent the majority of their formative years in

Australia and;

5. No longer be an integral part of a family unit with which J

he or she entered Australia and;

6. be able to satisfy health, character and public interest

criteria.

CABINET- IN- CONFIDENCE

[48]

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CABINET- IN - CONFIDENCE ATTACHMENT F

MIGRATION ACT 1958 - SECTIONS 115 AND 137 - EXERCISE OF

MINISTERIAL DISCRETION

Internal review of certain decisions

S.115 (5) Where the Minister thinks that it is in the

public

interest to do so, the Minister may:

(a) set aside a decision affirmed, varied or made

by a review officer under regulations made

under subsection (1); and

(b) substitute a decision that is more favourable

to the applicant;

(6) Where the Minister thinks it is in the public

interest to do so, the Minister may:

(a) set aside a decision reviewed by a review

officer under the regulations made under

subsection (1), being a decision in relation

to w~ich the review officer has recommendatory

powers; and


to the applicant than the redecision

recommended by the review officer;

(7) Where the Minister sets aside a decision under

subsections (5) or (6), he must cause to be

laid before each House of the Parliament a

statement that:

(a) sets out the decision set aside; and

(b) where the decision set aside is under

subsection

(6) sets out the recommendation of the review

officer; and

(c) sets out the decision substituted by the

Minister; and


[49]

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CABINET- IN - CONFIDENCE ATTACHMENT F

(d) sets out the reasons for the Minister's

decision referring in particular to the

Minister's reasons for thinking that his or

her actions are in the public interest.

Minister may set aside the Tribunal's decision etc

S.137 (1)

(a)

(b)

(2)

(a)

Where the Minister thinks it is in the public

interest to do so, the Minister may

set aside a decision of the Tribunal: and

substitute a decision that is more favourable

to the applicant:

Where the Minister thinks it is in the public

interest to do so, the Minister may

set aside a decision reviewed by the Tribunal,

being a decision in relation to which the

Tribunal has recommendator powers: and


to the applicant than is the decision

recommended by the Tribunal:

(3) Where the Minister sets aside a decision under

subsection (1) or (2), he or she must cause to

be laid in each House of the Parliament a

statement that

(a) sets out the decision set aside; and

(b) where the decision is set aside under

subsection (2) - sets out the recommendation

of the Tribunal; and

(c) sets out the reasons for the Minister's

decision, referring in particular to the

Minister's reasons for thinking that his or

her actions are in the public interest.


[50]

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CABINET- IN - CONFIDENCE ATTACHMENT G

MINISTER'S DISCRETION UNDER SECTIONS 115 AND 137 OF THE

MIGRATION ACT 1958 - GUIDELINES AS TO CIRCUMSTANCES IN WHICH

CASES OF A COMPELLING NATURE MIGHT BE REFERRED TO THE MINISTER

Circumstances of the case are such that the regulations could

not have anticipated them, and

2. the consequences of not having recognised the

circumstances in the regulations were clearly not intended,

and

3. the applicant presents strong compassionate

circumstances of such order that failure to recognise them

would result in irreparable harm and continuing hardship to an

Australian citizen or lawful permanent resident of Australia

aggrieved by the ·decision.

CABINET -IN- CONFIDENCE

[51]

-qq-

CABINET- IN - CONFIDENCE ATTACHMENT H

RESOURCE REQUIREMENTS

It is essential that my proposals be resourced to ensure rapid

processing of applications and avoid protracted delays which

would otherwise result, thereby undermining the compliance

strategy I announced on 6 August 1990.

2. The response proposed seeks to provide an orderly

strategy for dealing with requests for change of status and to

provide limited review rights to persons who come forward in

the first year of the concessions.

3. The difficulty of seeking to deal in isolation with

illegal entrants covered by further concessions is that it

would require differential processing between such applicants

and other persons who are already in the queue. Existing

applicants, many of whom were legal when joining the queue,

currently face a .waiting time of between one and three years.

This reflects-the increase in the backlog from around 10,000

persons in July 1988, to nearly 16,000 in 1989 to around

35,000 in July 1990. This increase was fed in 1989/90 by PRC

nationals, which covered nearly 10,000 applications, and by

persons seeking to regularise their status ahead of the

legislative changes that came into effect on 19 December 1990.

4. Although the question of additional resources to deal

with the application from PRC nationals with humanitarian

claims was taken up in my Submission on " Provisions for

People's Republic of China Nationals (PRC) in Australia",

this issue was overtaken by the very tight Budget

timetable. There also has been no other compensation for

the very significant increase in the resident workload.


[52]

CABINET -IN -4C ONFIDENCE

ATTACHMENT H

5. It is worth noting that the backlog has contributed an

estimated $9m to Commonwealth revenue, reflecting the very

high level of cost recovery that takes place in the

Immigration portfolio. Against this background, it is a

little surprising that the Government has not been

subject to considerable public criticism. However,

recent media and Parliamentary interest suggests that

this position will not be able to be maintained for long.

6. The resource allocation for processing grant of resident

applications seeks to ensure the elimination of the non PRC

backlog by the end of the proposed three year application

period and the PRC backlog by the expiry of the four year

temporary entry permit class. This will also better allow th~

Department to manage its staffing resources given the very

considerable difficulties in both staffing up and staffing

down.

7. The proposed rE?view rights are limited to the IRT·. This

means that some additional costs will be incurred because of

the lack of document preparation from the first tier.

However, it still remains significantly cheaper than the

two tier option.


[53]

CABINET- IN -46

CONFIDENCE

ArTACHMEN1' H

ASSUMPTIONS

NEW CONCESSIONS FOR ILLEGALS No. of Cases 6000 Cases per ASL 200 Cost per ASL 36000

REVIEW FOR NEW CONCESSION 20o,.t, Cases rejected 1200 5Qo,.t, Seeking review 600 ASL per 1 000 cases 12 Cost per 1 000 cases 850000

PAC HUMANITARIAN GORSIPEPAE No. of GORS Cases 6100 No. of PEPAE Cases 3600 No. of Withdrawals 3400 Total Cases Remaining 6300 Cases per ASL 150 Cost per ASL 36000

GORS/PEPAE: NON HUMANITARIAN BACKLOG No. of Cases

GORS 9000 PEPAE 4600 Less Processing Backlog 1590 Total 12010

Cases per ASL 200 Cost per ASL 36000

GORS/PEPAE: NON PAC HUMANITARIAN BACKLOG No. of Cases ;

GORS 5400 PEPAE 450 Less Processing Backlog 680 Total 5170

Cases per ASL 150 Cost per ASL 36000

ADMINISTRATIVE COSTS Lease cosVASUyear 7000 Fitout cost per ASL (one off) 8000 Running CosVASUyear 8300

LESS PAC PROCESSING COSTS FOR 437s o,.t, Reduction in 437s 20 Effect on -ASL 8.7 -$ 378000


[54]

0 l> m -z m -1 l

z

0 0 z ., -c m z 0 m

TOTAL REQUIREMENTS

NEW CONCESSION FOR ILLEGALS REVIEW FOR NEW CONCESSION PAC HUMANITARIAN GORS/PEPAE GORS/PEPAE:NON HUMANITARIAN BACKLOG GORS/PEPAE:NON PAC HUMANITARIAN BACKLOG TOTAL '·:·

,. '•' "

INDICATIVE RESOURCE USAGE 1990 /91

ASL $ NEW CONCESSION 4.8 172800 REVIEW FOR NEW .CONCESSION 1.5 54432 PAC HUM.GORS/PEPAE 2.1 75600 G/P NON HUM. BACKLOG 7.2 257832 G/P NON PAC HUM. BACKLOG 5.5 197520 SUBTOTAL"•·•·•':•:•·• :·. :::· .. _:;: ':~:(' 21.1 '''· 758184 LEASE COSTS 136841 FITOUT COSTS 156389 GENERAL ADMIN 214922 TOTAL•· .. . 21.1 1266336 RECEIPTS 364200 LESS PAC 437 COST 4.3 185220 NET COST 16.8 716916

LEASE/ ASL SALARIES ADMIN FIT OUT

30.0 1080000 249000 310800 7.2 259200 250800

42.0 1512000 348600 354800 60.1 2161800 498415 670366 34.5 1240800 286073 365467

..... 173.7 6253800 . 1632888 1701433

1991 /92 1992 /93 ASL $ ASL $

12.6 453600 12.6 453600 1.5 54432 2.1 75168 7.6 273600 9.7 349200

31.3 1125072 21.6 778896 15.5 558900 13.5 484380

!· 68.5 2465604 :)<·:-<·•:·: 59.5 2141244 468839 401737 379427 608577 549077

68.5 3922447 ' 59.5 3092058 :.:.:.

894600 909000 3.1 136080 1.0 41580

65.3 2891767 58.5 2141478

_: t~TA~ ::. LESS PAC

~~}td~T RECEIPTS PROC.COST 1639800 2040000 ,"400200 510000 180000 ::·: 330000 ?~15400 378000 1

: 1837400· '•'

:. 3~43058:f :: 3330581 ' •,•' . . .

:~; 1B92340': 1892340 .

0 l> m -z m

9588121 ' 2220000 .:t -~::~ \:·: !::;:::::-=·· 6990121 -1

-1993 /94 TOTAL z

ASL $ ASL $ I .t::. -...I

30.0 1080000 2.1 75168 7.2 259200

22.6 813600 42.0 1512000 60.1 2161800

0 0 z

34.5 1240800 "11 -: 24.7 :::~·888768 ' ::~:~:;$· - 173.7 6253800 158200 1165617

535816 260312 1632888

24.7 1307280 173.7 9588121 52200 2220000

c m z

~ 0 >-:l 1-:1 m ~

0.3 15120 8.7 378000 24.3 1239960 165.0 6990121

()

::r: 3: crJ z ~

::r:

[55]

-48-

CABINET- IN - CONFIDENCE ATTACHMENT I

COORDINATION COMMENTS

DEPARTMENT OF SOCIAL SECURITY

1. "The Department of Social Security notes the lack of

precise projections on the numbers of illegals who are likely

to take up the opportunity to apply for permanent entry. This

makes it difficult to assess the impact on Social Security

outlays or on the overall profile of the migration intake.

Further, although the 1 - 3 year delay in processing

applications means that the impact will not be felt for some

time, the Department considers that failure to count illegal

entrants granted permanent entry towards the overall migration .

limits undermines the intended economic focus of the migration

program.

2. "The proposed response to the report of the JSC in

respect of the guidelines for approving applications from

illegal entrants and on Ministerial discretion is

generally supported.

DEPARTMENT OF EMPLOYMENT EDUCATION AND TRAINING

3. "While supporting the basic thrust of the submission, the

Department of Employment, Education and Training considers

that successful applications for permanent resident status by

illegal entrants should be included within the family

component of the migration program to ensure that the planned

balance of skilled and family components of the program is not

compromised. This would be consistent with DILGEA's present

practice for dealing with other cases of change to permanent

resident status."


[56]

-49-

CABINET - IN - CONFIDENCE ATTACHMENT I

DEPARTMENT OF INDUSTRIAL RELATIONS

4 • No comment.

DEPARTMENT OF COMMUNITY SERVICES AND HEALTH

s. "The Department of Community Services and Health notes

the terms of the Statement to Parliament in response to the

Joint Standing Committee Report on Migration Regulations, and

further notes that the proposals outlined in the Statement are

likely to have minimal impact on Medicare enrolments."

DEPARTMENT OF FOREIGN AFFAIRS AND TRADE

6. "We observe that the proposal may be seen by many as yet

another amnesty and will be described as such in the media.

;

7. "Given the number of previous amnesties the Government

has announced as the last, we would expect some erosion of

Australia's credibility on Immigration matters."

DEPARTMENT OF TREASURY

8. "Treasury generally supports the recommendations and

agrees that subsequent careful monitoring and reporting of

outcomes is desirable.

9. "With respect however to the inclusion in annual

migration planning levels of illegal entrants who are


[57]

\

-so-CABINET- IN - CONFIDENCE

ATTACHMENT I

allowed to stay (recommendation (e), Treasury is inclined to

think that it would be more logical, and would better maintain

the integrity of the immigration program, if such inclusion

commenced immediately, rather than after a delay. Given the

lack of effectiveness of earlier amnesty efforts, its seems

doubtful that the intermediary role of community groups in

encouraging illegal entrants to front up would have a

significant influence one way or the other."

DEPARTMENT OF FINANCE

10. "Finance has no objections to the proposed concessions if

this means that the Government's overall compliance strategy

can be implemented more effectively. However, it is important

that the concessions are indeed limited to "innocent illegals"

and those in "compelling circumstances" and that the numbers

involved are kept small. In this respect, Finance notes that

the Minister expects over 4800 illegals to be granted J

permanent residence as a result of these concessions. · ' Finance

is concerned that the criteria for the concessions should be

applied rigorously to prevent rorts and bogus cases being

accepted.

11. "Finance is strongly opposed to the proposal not to count

those approved under the above concessions as part of the

annual migration program target previously determined by

Cabinet. Not counting those approved within the program:

(a) contradicts the concept of a managed migration program as

it would be a further "below the line"


[58]

-51-

CABINET- IN ~ CONFIDENCE ATTACHMENT I

increase in the size of the program (in addition to the

potential 20000 PRC Nationals who, Cabinet has agreed,

should also not be counted as part of the program); and

(b) would further dilute the economic focus of the

intake as the majority of those granted permanent

residence would fall under the immediate family category

and not be subject to skills testing.

12. "Finance is not opposed to the granting of review rights

to pre 19 December 1989 illegals who apply under the new

concessions. Finance notes that there is an existing

resource agreement for processing review applications and

that this proposal should be considered within that

context.

13. "With regard to the GORS/PEPAE backlog, Finance notes

that this issue w~s effectively resolved for 1990-91 in the

context of the . 1990-~1 Budget with DILGEA being funded to

process all pre 20 June PRC nationals for the special 4 year

temporary entry permit (ie. a significant portion of the

backlog) as well as being resourced to process over 18000

GORS/PEPAE cases per year. For the outyears, Finance notes

that there are a number of unknown variables (eg. the number

of pre 20 June PRC nationals who withdraw their GORS/PEPAE

applications in favour of the special four year temporary

entry permit, the impact of the new migration legislation on

the rate of GORS/PEPAE applications) that will affect the size

of the GORS/PEPAE backlog and therefore determine the most

appropriate response. Accordingly, Finance suggests that


[59]

I -52-

CABINET- fN - ~ CONFIDENCE

ATTACHMENT I

Cabinet should not consider resourcing for the GORS/PEPAE

backlog at this time but that the matter should be held over

until after completion of the zero-based review of DILGEA

running costs that the Ministers for Immigration and Finance

have agreed should be conducted as soon as possible. In any

case, Finance notes that the issue of the GORS/PEPAE backlog

is only indirectly related to the main proposal in question

and that no outlays offsets have been identified for the

resources sought."

DEPARTMENT OF THE PRIME MINISTER AND CABINET

1.4. "The Department of the Prime Minister and Cabinet

supports the recommendations of the Submission."

ATTORNEY-GENERAL'S DEPARTMENT

1.5. "Attorney-Genera.!' s Department certifies that legi~lation

is required to implement recommendation 20(j). 11


[60]

Documents

7507