Last week the Federal Court granted an interim injunction to a child born in Australia preventing her removal from Australia pending a consideration of any case she may have to remain. The child is the youngest daughter of a Tamil family who until recently were living in the Queensland country town of Biloela. The case will be fully considered later but it raises complex issues regarding the statutory bars preventing asylum seekers from even making any application at all, and the exercise of the ministerial discretion to lift that bar.
Under the Migration Portfolio legislation, there are around 47 provisions that allow the minister to exercise their discretion in the public or national interest. The minister can grant any visa the minister wants to grant, or none at all. Most of these powers are in the Migration Act and generally provide an unfettered, non-compellable and non reviewable power exercisable only by the minister. They are colloquially known as the 'God powers'. Liberty Victoria published an analysis of these powers in 2017 in a report called 'Playing God'.
Back in 2008, then Immigration Minister Chris Evans stated: 'In a general sense I have formed the view that I have too much power ... I am uncomfortable with that not just because of a concern about playing God but also because of the lack of transparency and accountability for those ministerial decisions, the lack in some cases of any appeal rights against those decisions and the fact that what I thought was to be a power that was to be used in rare cases has become very much the norm.'
While some of these powers are obscure and probably rarely used, what has become more common is a process whereby a statutory bar is created to prevent any application for a visa being lodged unless the minister literally personally intervenes to lift the statutory bar. The group most affected by such statutory bars are those who arrived by boat to Australia.
People who arrive by boat without a visa are called 'unauthorised maritime arrivals' (UMA) under the Migration Act, not 'illegals'. The term 'illegal' has no use in migration and refugee law in Australia, except in the political arena. Once someone is a UMA, they must be detained. The designation UMA creates a statutory bar (s46A), that can only be lifted by the minister personally (s46A(2)), and is commonly used to allow asylum seekers to apply