The ministerial power to grant a visa is unchallengeable, and its use is not novel

Peter Dutton could grant visas to the Biloela family – his powers are broad and sweeping

At the height of the au pairs affair last year, a Senate inquiry into the matter heard that between assuming the immigration portfolio in December 2014 and the end of August last year, Peter Dutton had exercised his ministerial prerogative to grant somebody a visa to live in Australia 4,129 times: a rate of three a day.

The ministerial power to grant visas is unchallengeable, it is extraordinarily broad and loosely defined. But its use is not novel.

For all of the Machiavellian manoeuvrings of recent Australian political history, an immigration minister remains the most powerful person in the Australian government: vested with extraordinary, unchallengeable and secret powers to control the lives of people in, or seeking to come to, this country. The powers held by those responsible for the immigration portfolio dwarf those vested in the prime minister, the attorney general or foreign affairs minister.

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Previous immigration ministers – most notably Labor’s Chris Evans, who ordered a review of the powers – have decried the burden and caprice of “playing God” with the lives of people seeking to stay or come to Australia.

But since then, in particular with debates around the “resolving the asylum legacy caseload” bill in 2014, and “regional processing cohort” bill this year, the trend has been consistent, and in one direction only: towards the consolidation of unchallengeable powers within the minister’s person.

(The creation of the Home Affairs super-department has created a hierarchy of several ministers who hold the power to administer the Migration Act: home affairs minister Peter Dutton, immigration minister David Coleman and assistant minister Jason Wood.)

In the case of the Biloela Tamil family facing imminent deportation, the home affairs minister and other ministers in the department have the power to personally intervene in a visa decision if they believe it is in the “public interest” to do so. But public interest is not defined in the legislation, and can be deployed however a minister sees fit.

For a democracy founded upon a series of checks and balances, the powers are extraordinary.

The minister has sole discretion in deciding what is in the public interest and what is not: the minister cannot be compelled to intervene (there is no legal obligation on the minister to consider applications) and the power cannot be delegated to any other person: the decision must be made by the minister personally.

The minister’s decision cannot be appealed to any court or tribunal, for any reason.

The power was created to be a safety valve for extraordinary and unforeseen circumstances, where following the letter of the law would lead to an unjust outcome.

This is why the argument that family members in the Biloela case have not been found to be refugees is irrelevant. Ministerial intervention is designed precisely for situations where people are not found to be refugees. Otherwise there would be no reason for it, and no circumstance when it would be needed to be used.

Ministerial guidelines offer some insight into when it might be used. The guidelines outline when cases may or may not be considered. Most relevantly for the Biloela family, these include “compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship”.

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Generally, ministerial intervention is employed quietly and with the assistance of department officials who offer advice on whether or not the power should be used.

In circumstances that also involved a boat arrival to Australia, in 2015, Dutton intervened in the case of a Rohingyan child from Myanmar who fled by boat after his parents were murdered in front of him. The child was being held on Nauru and was considered particularly vulnerable. His only surviving relatives were an elderly grandmother in Myanmar and two relatives in Australia.

Nauru’s justice minister, David Adeang, asked Dutton to allow the boy to resettle in Australia. Advice from his own home affairs department warned Dutton that doing so could be seen as a weakening of the offshore policy and might spark a resurgence in boats. However, the minister granted him a visa to live in Australia.

The department told Dutton the “exceptional [transfer] will likely be characterised by refugees in Nauru, and others as a direct contradiction [of] your strong messaging that refugees determined under regional processing arrangements will not be resettled in Australia”.

The department warned that allowing a Nauru-determined refugee to settle in Australia “may undermine this strong policy stance and create a loophole through which the policy can be circumvented” through new illegal maritime arrivals to Australia. The boy was resettled with his relatives in Australia with no media or public attention.

In the more well-ventilated au pairs case, Dutton also intervened on separate occasions to overrule his departmental officers who had cancelled the visas of women who sought to enter Australia, ostensibly as tourists, but whom the department believed intended to work as au pairs while in the country.

A Senate inquiry into the au pairs affair found that while the minister is afforded broad powers not subject to judicial or merits review, there is no binding definition of “public interest” the minister must observe.