|
April 21, 2025
Monday 21 April 2025
Rhiannon Down
The Australian
Home Affairs Minister Tony Burke has been personally reviewing migration decisions made by Labor’s new appeals tribunal, in a bid to neutralise the crisis stemming from a botched ministerial direction that allowed violent criminals to avoid deportation.
After Labor came under intense political pressure over its failed Direction 99, The Australian can reveal Mr Burke made the extraordinary request that every visa cancellation case the government lost in the Administrative Review Tribunal should be referred to him to consider.
A submission, marked sensitive, shows Mr Burke decided on October 22 that only cases deemed to pose a “serious risk” to the community would be referred to him to weigh using his ministerial powers to override the ART’s decision.
The policy has resulted in at least 99 cases when a visa cancellation was reversed by the ART being referred to Mr Burke as of October 8, according to the submission, with a further 47 cases still to be assessed.
The Coalition seized on Mr Burke’s actions as “another admission of failure” from Labor on migration, while legal experts have criticised the Immigration Minister for undermining the independent tribunal, formerly known as the Administrative Appeals Tribunal.
As Labor seeks to avoid scrutiny over its management of the migration system following a wave of political scandals, Mr Burke has rejected the criticism, saying his decision was in the interest of public safety.
“I make no apology for taking a hard line to protect community safety,” he said.
The new guidelines signify a shift closer to the standards under former immigration minister Andrew Giles, who asked that only cases that posed a “very serious ongoing risk” be referred to him.
This includes cases where a non-citizen with a history of violent, sexual or family violence offending and resulted in a 10-year sentence had their visa reinstated.
Mr Giles was forced to replace his ministerial order with Direction 110 in June, after The Australian revealed that guidelines requiring tribunals to place greater weight on a foreign criminal’s ties to Australia had allowed dozens of rapists and pedophiles to avoid deportation.
Australian Lawyers Alliance spokesman and barrister Greg Barns said Mr Burke’s level of oversight reflected a lack of trust in the ART’s decision making.
“Mr Burke’s actions unfortunately continue the trend begun by Peter Dutton when he was minister, of not trusting independent decision makers to make proper and fair judgments about individuals,” he said.
“To check all cases where the AAT rules against the department is evidence of that attitude.”
The submission justified the level of oversight saying the tribunal’s decisions may be “based on legal and factual assessments”, it may not always take into the consideration the “broader implications on national security, public safety and community expectations”.
Opposition home affairs spokesman James Paterson criticised Labor for its “weak policies”, declaring that only a Coalition government has the “strength to keep Australians safe”.
“This is another admission of failure from the Albanese Labor government on border protection and community safety,” he said.
“After the election they watered down the tough deportation policies of the previous government and stopped referring cases for visa cancellations to the minister.”
Mr Burke was handed the critical portfolios in a reshuffle on July 27, meaning he made the request to review every single case the government lost in the tribunal days after assuming the role.
“On August 1, 2024, you requested that all departmental losses decided by the AAT since the introduction of MD110, are referred to you for consideration of exercising your personal non-delegable powers to set-aside and substitute a decision of the AAT,” the submission states.
The Albanese government relaunched the tribunal as the ART on October 14, after the appeals body was plagued by criticism over its history of political and unmeritorious appointments.