Migration Amendment (Merits Review) Regulations 2021 [F2021l00845] [2021] AUPJCHR 97 (25 August 2021)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Parliamentary Joint Committee on Human Rights

Purpose	This legislative instrument increases the fee for certain applications to the Administrative Appeals Tribunal from $1,826 to $3,000. The fee applies to applications for review of decisions relating to visas other than protection visas, and includes decisions in relation to sponsorships and nominations
Portfolio	Home Affairs
Authorising legislation	Migration Act 1958
Last day to disallow	15 sitting days after tabling (tabled in the Senate and the House of Representatives on 3 August 2021). Notice of motion to disallow must be given by 18 October 2021^[2]
Rights	Fair hearing; prohibition against expulsion of aliens without due process

Increased tribunal application fees

1.97 These regulations increase the fee for applications to the Administrative Appeals Tribunal (AAT) for review of decisions relating to visas (other than protection visas) from $1,826 to $3,000.^[3] The new fee is subject to annual increase, from 1 July 2022, consistent with existing legislated indexation arrangements.^[4] The fee increase applies to applications for Part 5 reviewable decisions under the Migration Act 1958 (Migration Act), including decisions to refuse to grant a non-citizen a visa and decisions to cancel a visa held by a non-citizen, as well as decisions in relation to sponsorships and nominations.^[5]

Preliminary international human rights legal advice

Right to a fair hearing and prohibition against expulsion of aliens without due process

1.98 Increasing the application fee for review of migration decisions in the AAT by 64 per cent for decisions regarding the determination of a person’s existing rights (for example, cancellation of a visa) appears likely to engage and may limit the right to a fair hearing.^[6] The right to a fair hearing provides that in the determination of a person's rights and obligations in a 'suit at law', everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.^[7] This right encompasses the right to equality before courts and tribunals, which guarantees parties equal access and equality of arms, and requires parties to be treated without any discrimination.^[8]

1.99 One dimension of the right to a fair hearing is the right of access to justice.^[9] The cost of engaging in legal processes in the determination of one's rights and obligations under law is, in turn, a component of the right of access to justice. The United Nations (UN) Human Rights Committee has stated that the imposition of fees on parties to legal proceedings which would de facto prevent their access to justice might give rise to issues under the right to a fair hearing.^[10] The findings of comparable jurisdictions are also relevant in this context. In this regard, the European Court of Human Rights has found that the amount of the fees assessed in light of the particular circumstances of a case (including the applicant’s ability to pay them) and the phase of the proceedings at which that restriction has been imposed, are material in determining whether a person has enjoyed the right of access to justice and had a fair hearing.^[11] As these regulations significantly increase the application fees for review of migration decisions in the AAT, this may have the effect that, in cases where an individual is unable to afford the filing fee for review of a visa decision involving the determination of their existing rights, their right to a fair hearing may be limited.^[12]

1.100 In relation to applications for review of decisions regarding refusal to grant a visa, the measure may also engage and limit the prohibition against expulsion of aliens without due process.^[13] This right is protected by article 13 of the International Covenant on Civil and Political Rights, which provides that an alien may be expelled only in accordance with a decision made under law and must be allowed to submit reasons against their expulsion and to have their case reviewed by a competent authority, and be represented for the purpose of that review. The UN Human Rights Committee has indicated that the guarantees in article 14 (the right to a fair hearing) do not generally apply to expulsion or deportation proceedings, but the procedural guarantees of article 13 are applicable to such proceedings.^[14] In the context of this measure, increasing application fees for review of decisions to refuse to grant a

non-citizen in Australia a visa (the consequence of which would be expulsion or deportation), would engage and may limit article 13.^[15] The UN Human Rights Committee has stated that article 13 should be interpreted in light of article 14 and encompasses ‘the guarantee of equality of all persons before the courts and tribunals...and the principles of impartiality, fairness and equality of arms implicit in this guarantee are applicable’.^[16]

1.101 The statement of compatibility acknowledges that articles 13 and 14 may be engaged insofar as the fee increase may prevent or disincentivise individuals from seeking review by reason of their financial capacity, and without such review, they could otherwise be lawfully removed from Australia under the Migration Act 1958.^[17] It is noted that these rights may be permissibly limited where such a limitation seeks to achieve a legitimate objective, is rationally connected to (that is, effective to achieve) that objective, and is proportionate.^[18] More specifically, in the context of financial restrictions on an individual's access to a tribunal or court – a type of limitation on the right of access to justice – the European Court of Human Rights has emphasised that a restriction will not be compatible with the right 'unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved'.^[19] Relevant considerations in assessing whether the financial restriction is proportionate include the individual circumstances of the case, including the applicant's ability to pay the fees, and the phase of the proceedings.^[20]

1.102 The statement of compatibility states that the objective of the measure is to reduce migration related backlogs in the AAT and Federal Circuit Court (the court), thereby enhancing the decision-making capacity of both bodies and providing individuals with a more timely service.^[21] It explains that the increased fee will offset expenditure to provide additional resources to the AAT and the court to reduce the migration related backlogs that have developed as a result of significant increases in the application rates as well as the prospective increase in matters that will be heard in the court.^[22] The explanatory statement further notes that the $3,000 fee is intended to strike an appropriate balance between the additional financial burden on individual applicants and the need to provide a high quality, efficient and timely review process, which will ultimately benefit all applicants for merits and judicial review.^[23]

1.103 While increasing the capacity and efficiency of the AAT and the court to hear and resolve matters is an important and necessary aim, if the ultimate effect of the measure were to deny access to the AAT for those who could not afford the application fees, it is not clear that revenue raising would, in itself, constitute a legitimate objective for the purposes of international human rights law. In this regard, in considering whether a financial restriction on an individual's access to courts pursues a legitimate aim, the European Court of Human Rights has stated that:

1.104 More generally, the UN Human Rights Committee has said that the failure to allow access to an independent tribunal in specific cases would amount to a violation of article 14 if such limitations ‘are not necessary to pursue legitimate aims such as the proper administration of justice’ or if the access left to a person ‘would be limited to an extent that would undermine the very essence of the right’.^[25] Where a tribunal fee results in the applicant desisting from their claim and the case never being heard by a tribunal, the very essence of the right of access to justice would likely be impaired and the right to a fair hearing may be breached.^[26] Questions therefore remain whether, for those who could not afford the application fee (even a reduced rate) and as a consequence could not apply for a review of a decision, this measure may undermine the very essence of the right to a fair hearing.

1.105 As regards proportionality, the statement of compatibility states that any limitation on the right of access to justice because of financial capacity is reasonable, necessary and proportionate because of the partial fee exemption arrangements.^[27] The statement of compatibility states that the Registrar of the AAT can reduce the application fee by 50 per cent if the fee would cause severe financial hardship to the review applicant, and successful applicants for review are entitled to a refund of 50 per cent of the fee.^[28] It notes that this partial fee waiver would address any unintended result of the fee increase preventing or disincentivising individuals from seeking review.^[29] As to the scope of the measure, the statement of compatibility notes that the fee increase does not apply to protection visas (including permanent and temporary protection visas and safe haven enterprise visas) or fast track reviewable decisions, and does not affect the existing full fee exemption for bridging visa decisions that have resulted in the individual being detained in immigration detention.^[30]

1.106 The full fee exemption for individuals in immigration detention and the exclusion of protection visa decisions from the fee increase would likely assist with the proportionality of the measure, as it will ensure that some vulnerable individuals are not prevented from accessing justice because of financial disadvantage. However, questions arise as to whether the partial fee exemption is a sufficient safeguard for others. Unlike application fees for migration matters in the court, which can either be reduced or completely waived in individual cases of financial hardship, the Registrar of the AAT can only reduce the fee by 50 per cent if the fee would cause financial hardship.^[31] While a partial fee exemption may somewhat assist with proportionality, it may not be adequate in all cases, noting that for some individuals a reduced fee of $1,500 may still be prohibitive. It is also noted that there is no merits review available for fee reduction decisions.^[32] In the absence of a full fee waiver and flexibility to consider the individual applicant's ability to pay the reduced fee, it is not clear that a partial fee exemption would be a sufficient safeguard, in itself, to ensure that migration applicants are not prevented from applying to the AAT for review of a decision because of associated application costs. Indeed, the jurisprudence of the European Court of Human Rights suggests that where tribunal fees are so high as to prevent an applicant from filing their claim and pursuing the matter in the tribunal, it would constitute a disproportionate restriction on their right of access to justice.^[33] The potential interference with rights is also relevant in this regard. The consequences of a non-citizen not being able to challenge a visa decision due to financial disadvantage may be deportation. In such cases, the interference with rights would appear to be significant, noting that the greater the interference, the less likely the measure is to be considered proportionate.

1.107 Further, it is noted that the increased fee for review of migration decisions is significantly higher than the standard application fee for all other AAT matters ($3,000 for migration matters compared to $962 for all other matters).^[34] In light of the guarantees encompassed in the right of equal access to justice and individuals' right to enjoy this right without discrimination, questions arise as to whether this measure, which imposes a considerably higher fee on those seeking review of migration decisions compared to other decisions (and therefore disproportionally affects migrants), may have a discriminatory effect on vulnerable groups. In the broader context of user fees for essential government services, the UN Office of the High Commissioner for Human Rights has observed that where user fees are imposed by governments, those fees must be structured 'in a manner that, at a minimum, does not prevent the poor and those of low income, as well as other vulnerable groups, from accessing basic and emergency services'.^[35]

1.108 In order to assess the compatibility of this measure with the right to a fair hearing and the prohibition against expulsion of aliens without due process, further information is required as to:

Committee view

1.109 The committee notes the regulations increase the fee for applications to the Administrative Appeals Tribunal (AAT) for review of decisions relating to visas (other than protection visas) from $1,826 to $3,000 (a 64 per cent increase). The increased fee applies to decisions to refuse to grant a non-citizen a visa and decisions to cancel a visa held by a non-citizen as well as decisions relating to sponsorships and nominations. To the extent that the measure has the effect of preventing some individuals in Australia from having their visa decision reviewed in the AAT due to an inability to pay the application fee, it may engage and limit the right to a fair hearing and the prohibition against expulsion of aliens without due process. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.110 The committee notes that increasing the capacity and efficiency of the AAT and Federal Circuit Court to hear and resolve matters is an important and necessary aim. However, the committee also notes that there are questions as to whether revenue raising, in the context of this specific measure, would constitute a legitimate objective for the purposes of international human rights law. Further, the committee notes that while the partial fee reduction would likely assist with the proportionality of this measure, there are questions as to whether this safeguard alone would be sufficient in all circumstances.

1.111 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this bill, and as such seeks the minister's advice as to the matters set out at paragraph [1.108].

^[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Migration Amendment (Merits Review) Regulations 2021 [F2021L00845], Report 10 of 2021; [2021] AUPJCHR 97.

^[2] In the event of any change to the Senate or House's sitting days, the last day for the notice would change accordingly.

^[3] Schedule 1, item 1. Subparagraph 504(1)(a)(i) of the Migration Act 1958 authorises the regulations to make provision for the charging of fees payable in connection with the review of decisions made under the Act or the Migration Regulations 1994.

^[6] For a discussion on the committee's previous comments in relation to increases to court fees for migration matters see Parliamentary Joint Committee on Human Rights, Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020 [F2020L01416], Report 15 of 2020 (9 December 2020) pp. 2–5; Report 1 of 2021 (3 February 2021) pp. 103–111.

^[7] International Covenant on Civil and Political Rights, article 14. The right to a fair hearing applies where domestic law grants an entitlement to the persons concerned: see, Kibale v Canada (1562/07) [6.5]. The term 'suit at law' relates to the determination of a right or obligation, and not to proceedings where a person is not contesting a negative decision (for example, a decision to refuse to give a worker a promotion would not necessitate a determination of a matter in which the person had an existing entitlement): see, Kolanowski v Poland (837/98) [6.4].

^[8] UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007) [8].

^[9] See, United Nations Development Programme, Programming for Justice: Access for All (a practitioner's guide to a human rights-based approach to access to justice) (2005).

^[10] See, UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (2007) [11]; and Lindon v Australia, Communication No. 646/1995 (25 November 1998) [6.4].

^[11] Kreuz v Poland, European Court of Human Rights, Application No. 28249/95 (2001) [60]. In Kijewska v Poland, European Court of Human Rights, Application No. 73002/01 (2007) at [46], the court considered that the refusal by a court to reduce a fee for lodging a civil claim may constitute a disproportionate restriction on an applicant's right of access to a court, and be in breach of article 6 of the European Convention on Human Rights. Further, in Ciorap v Moldova, European Court of Human Rights, Application No. 12066/02 (2007) at [95], the court considered that the nature of the complaint or application in question was a significant consideration in determining whether refusing an application for waiver of court fees was a breach of article 6 (in this case, the applicant had sought to lodge a complaint about being force-fed by authorities while detained in prison).

^[12] To the extent that the effect of this instrument may be to limit a person’s ability to challenge a visa decision, the consequence of that decision being the person’s deportation from Australia, the measure may also engage and limit a number of other rights, including the rights to protection of the family and the child (if family members are separated and children are affected by the decision); and freedom of movement (if cancellation of a visa prevents a person from re-entering and remaining in Australia as their own country).

^[13] It is noted that this measure will not affect the full fee exemption for a review of a bridging visa decision that resulted in an individual being placed in immigration detention. See statement of compatibility, p. 5. Thus, article 13 would only be engaged in the context of this measure in relation to individuals who have been refused the grant of a visa but may remain in the community on a bridging visa pending removal.

^[14] UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and Tribunals and to Fair Trial (2007) [17].

^[15] Sections 189, 196 and 198 of the Migration Act 1958 require an unlawful non-citizen (individuals who do not have a valid visa) to be detained and kept in immigration detention until they are: granted a visa (such as a temporary bridging visa pending removal from Australia) or removed from Australia as soon as reasonably practicable.

^[16] UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [17], [63]. See also UN Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant (1986) [10], where the UN Committee stated that article 13 requires that 'an alien...be given full facilities for pursuing [their] remedy against expulsion so that this right will in all circumstances of [their] case be an effective one'.

^[18] The due process guarantees in article 13 may be departed from, but only when ‘compelling reasons of national security’ so require. See also UN Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant (1986) [10]. Note that if there are compelling reasons of national security not to allow an alien to submit reasons against their expulsion, the right will not be limited. Where there are no such grounds, as is the case in relation to this measure, the right will be limited, and then it will be necessary to engage in an assessment of the limitation using the usual criteria (of necessity and proportionality).

^[19] Kreuz v Poland, European Court of Human Rights, Application No. 28249/95 (2001) [55]. See also Podbielski and PPPU Polpure v Poland, European Court of Human Rights, Application No. 39199/98 (2005) [63].

^[20] Kreuz v Poland, European Court of Human Rights, Application No. 28249/95 (2001) [60]. See also Podbielski and PPPU Polpure v Poland, European Court of Human Rights, Application No. 39199/98 (2005) [64].

^[24] Podbielski and PPPU Polpure v Poland, European Court of Human Rights, Application No. 39199/98 (2005) [65]. In this case the European Court of Human Rights, at [66]–[69], held that 'the principal aim [of the court fees] seems to have been the State's interest in deriving income from court fees in civil cases'. It concluded that 'in the circumstances and having regard to the prominent place held by the right to a court in a democratic society, the Court considers that the judicial authorities failed to secure a proper balance between, on the one hand, the interest of the State in collecting court fees for dealing with claims and, on the other hand, the interest of the applicant in vindicating his claim through the courts...The Court therefore concludes that the imposition of the court fees on the applicant constituted a disproportionate restriction on his right of access to a court'.

^[25] UN Human Rights Committee, General Comment No. 32: The right to equality before courts and tribunals and to a fair trial (2007) [18].

^[26] Kreuz v Poland, European Court of Human Rights, Application No. 28249/95 (2001) [54], [66] and [67].

^[31] The committee commented on the recent increase to application fees for migration matters in the Federal Circuit Court (from $690 to $3,330). See Parliamentary Joint Committee on Human Rights, Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020 [F2020L01416], Report 15 of 2020 (9 December 2020) pp. 2–5; Report 1 of 2021 (3 February 2021) pp. 103–111. In relation to this legislative instrument, the Attorney-General advised the committee that the increase in fees set the application for migration matters in the FCC at the mid-point between the filing fees in the AAT and the Federal Court. By increasing the AAT application fee to $3,000, questions arise as to whether this measure will result in further increases to the FCC fees in order to achieve the objective of setting the FCC fee for migration matters at a mid-point between the AAT and the Federal Court (which is $4,885 for an appeal from the FCC or $4,895 for an appeal from the AAT).

^[33] Kreuz v Poland, European Court of Human Rights, Application No. 28249/95 (2001) [66]–[67].

^[35] UN Office of the High Commissioner for Human Rights, Realizing Human Rights Through Government Budgets (2017), p. 77.

Australian Parliamentary Joint Committee on Human Rights

Migration Amendment (Merits Review) Regulations 2021 [F2021l00845] [2021] AUPJCHR 97 (25 August 2021)

Migration Amendment (Merits Review) Regulations 2021 [F2021L00845][1]

Increased tribunal application fees

Preliminary international human rights legal advice

Right to a fair hearing and prohibition against expulsion of aliens without due process

Committee view

Migration Amendment (Merits Review) Regulations 2021 [F2021L00845]^[1]