Cabinet in Confidence

[1]
CABINET-IN-CONFIDENCE
Copy No.
C A B I N E T
48
MI 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)

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
[2]
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

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:-
(a)
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)

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
CAB INET-IN-CONFID ENCE
[3]
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
This document is the property of the Australian Government and is not to be copied or repro duced
CABIN ET-I N-CON FI DENCE
[4]
CABINET-IN-CONFIDE CE
7507
CORRIGENDUM TO
Submission No.
FOR CABINET
Copy
ILLEGAL ENTRANTS: RESPONSE TO THE REPORT OF THE

JOINT STANDING COMMITTEE ON MIGRATION REGULATIONS
(JSC)
Title
Minister
The Hon Gerry Hand, Minister for Immigration, Local

Government and Ethnic Affairs
Purpose/Issues
12 October 1990
PLEASE REPLACE THE EXISTING PAGES 4, 5, 6 and 7

WITH THE REPLACEMENT PAGES.
SensitivityI Criticism
Legislation
involved
' \ency:
....Atical/significant
dates
sultation:
Ministers/Depts
- COII$alted
Is there
agreement?
Timing/handling of
announcement
Cost
Fin Yr (
Fin Yr (
Fin Yr (
CABI ET-IN-CONFIDENCE
CABINET- I
[5]
~ -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.
delays would result.
Public criticism of these
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
[6]
-sCAB 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.
is difficult to foresee such cases.
By definition, it
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
[7]
-6-
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.

would create
program.
greate~
To do so
pressures on management of the migration
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;
[8]
(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
(h)
October 1990;
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
(j)
Migration Act at paras 16 to 18 and Attachment G;

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.
8 October 1990
Gerry Hand
[9]
Submission No.
FOR CABINET
Title
7? Q..7.......
04G
Copy No... ......................
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
Minister
Etlmic affairs
Purpose/Issues
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
urrler the new legislative regime.
u....L<:OA.:u.J~u.ity
CM14237 of 6 August 1990 agreed to a CXlllpliance strategy to

illegal migration.
Sensitivity /Criticism
cum
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.
SCire groups will argue that the response on illegals does
Attorney~ 1 s
Legislation
involved
required
aency:
t..ritical/significant
dates
lnsultation:
Ministers/Depts
consulted
Is there
agreement?
Timing/handling of
announcement
Department certifies that legislation is

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 1 s), 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 (
Cost
92 - 93 )
$~.lm(58.5ASLJ
[10]
-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.
vi~ws
The range of
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
[11]
..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
[12]
-.q-
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.
delays would result.
Public criticism of these
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.
[13]
-5-
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.
is difficult to foresee such cases.
By definition, it
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
- u-
[14]
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;
[15]
(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
[16]
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
Migration Regulations.
o~
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.
[17]
-9-
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.
[18]
-10-
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.
[19]
-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.
[20]
-12
ATTACHMENT A
"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
[21]
CABINET- IN : CONFIDENCE
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.
[22]
-14-
ATTACHMENT 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
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
[23]
-l~-
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.
[24]
-.LU
ATTACHMENT A
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.
[25]

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.
[26]
-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
[27]
-19-
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 Governments 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
[28]
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
......
[29]
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
[30]
-22-
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.
[31]
-23-
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.
[32]
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.
[33]
-25-
ATTACHMENT C

"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
circumstances~
we~e
deported as criminal non-citizens.
In such
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."
[34]
- 26 -
ATTACHMENT C
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.
[35]
-27-
ATTACHMENT C

"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:
[36]
-~o-
ATTACHMENT C
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 applicants 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
persons 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;
[37]
-29-
ATTACHMENT C
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.
[38]
JV
ATTACHMENT C
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.
[39]
ATTACHMENT C
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
[40]
-.:SL-
ATTACHMENT C
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."
[41]
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:
[42]
-34-
ATTACHMENT C
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.
[43]
-35-
ATTACHMENT C
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.
-,
[44]
..JV
A.
ATTACHMENT D
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
-.:J ,
[45]
ATTACHMENT D
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
[46]
-38-
ATTACHMENT D
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
[47]
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)

which is in force, is authorised to work in
Australia and is not a prescribed non-citizen;
or
(e)

which is in force and there are strong
compassionate or humanitarian grounds for the
grant of an entry permit to him."
-,
CABINE - IN - CONFIDENCE
[48]
-40-
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.
[49]
-41-
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
(b)

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
[50]
-42-
(d)
ATTACHMENT F
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)

interest to do so, the Minister may
(a)
set aside a decision of the Tribunal: and
(b)

to the applicant:
(2)

interest to do so, the Minister may
(a)
set aside a decision reviewed by the Tribunal,

being a decision in relation to which the
Tribunal has recommendator powers: and
(b)

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.
[51]
-43-
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.
[52]
-qq-
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.
[53]
4
CABINET -IN - C 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.
[54]
46
ArTACHMEN1' H
ASSUMPTIONS
NEW CONCESSIONS FOR ILLEGALS
No. of Cases
Cases per ASL
Cost per ASL
REVIEW FOR NEW CONCESSION
20o,.t, Cases rejected
5Qo,.t, Seeking review
ASL per 1000 cases
Cost per 1000 cases
PAC HUMANITARIAN GORSIPEPAE
No. of GORS Cases
No. of PEPAE Cases
No. of Withdrawals
Total Cases Remaining
Cases per ASL
Cost per ASL
6000
200
36000
1200
600
12
850000
6100
3600
3400
6300
150
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
Fitout cost per ASL (one off)
Running CosVASUyear
LESS PAC PROCESSING COSTS FOR 437s
o,.t, Reduction in 437s
Effect on
-ASL
-$
7000
8000
8300
20
8.7
378000
[55]
TOTAL REQUIREMENTS
ASL
l>
-z
m
-1
l
NEW CONCESSION FOR ILLEGALS

REVIEW FOR NEW CONCESSION
PAC HUMANITARIAN GORS/PEPAE
GORS/PEPAE:NON HUMANITARIAN BACKLOG
GORS/PEPAE:NON PAC HUMANITARIAN BACKLOG
,''.
TOTAL ':
"
.,z
-c
m
z
0
m
ADMIN
1080000
249000
259200
250800
1512000
348600
2161800
498415
1240800
286073
6253800 . 1632888
LEASE/
FITOUT _:
t~TA~::.
310800
1639800
510000
LESS PAC
RECEIPTS PROC.COST
2040000
180000
354800 ?~15400
'
670366 : 3330581
. .
.
365467 1892340 .
1701433 9588121 ' 2220000
~~}td~T
,"400200
::: 330000
378000 1837400
1
l>
-z
:.3~43058:f
''
,'
:~; 1B92340':
.:t
-~::~
\:: !::;:::::-=
6990121
-1
-z
INDICATIVE RESOURCE USAGE

1990 /91
z
0
30.0
7.2
42.0
60.1
34.5
.... 173.7
SALARIES
ASL
NEW CONCESSION
REVIEW FOR NEW .CONCESSION
PAC HUM.GORS/PEPAE
G/P NON HUM. BACKLOG
G/P NON PAC HUM. BACKLOG
SUBTOTAL"':: :. :::.. _:;:
LEASE COSTS
FITOUT COSTS
GENERAL ADMIN
TOTAL .
RECEIPTS
LESS PAC 437 COST
NET COST
1991 /92
ASL
4.8
172800
1.5
54432
2.1
75600
7.2
257832
5.5
197520
':~:(' 21.1 ''' 758184
136841
156389
214922
. 21.1 1266336
364200
4.3
185220
16.8
716916
12.6
1.5
7.6
31.3
15.5
68.5
68.5
3.1
65.3
1992 /93
1993 /94
ASL
453600
54432
273600
1125072
558900
2465604
468839
379427
608577
3922447
894600
136080
2891767
12.6
2.1
9.7
21.6
13.5
:)<:-<:: 59.5
453600
75168
349200
778896
484380
2141244
401737
'
:.:.:.
59.5
1.0
58.5
549077
3092058
909000
41580
2141478
ASL
2.1
22.6
: 24.7
TOTAL
ASL
75168
813600
:::~888768 '
::~:~:;$
30.0
7.2
42.0
60.1
34.5
173.7
158200
24.7
0.3
24.3
260312
1307280
52200
15120
1239960
173.7
8.7
165.0
1080000
259200
1512000
2161800
1240800
6253800
1165617
535816
1632888
9588121
2220000
378000
6990121
0
0
.t::.
-...I
-c
"11
~
>-:l
1-:1
()
::r:
3:
crJ
::r:
[56]
-48-
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."
[57]
-49-
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
[58]
-soCABINET- 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.
(a)
Not counting those approved within the program:
contradicts the concept of a managed migration program as

it would be a further "below the line"
[59]
-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
[60]
-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
is required to implement recommendation 20(j). 11
legi~lation

Cabinet in Confidence

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[1]

Canberra, 15 October 1990

Illegal Entrants: Response to the Report

The Cabinet agreed:(a)

that the Minister for Immigration, Local

that the Minister for Immigration, Local

that the Government respond to the JSC report

to amendment of the Migration Regulations, with

that the Migration Regulations be amended so

to amendment of Section 179 of the Migration Act

the intention of the Minister for Immigration,

that the Minister for Immigration, Local

CAB INET-IN-CONFID ENCE

the proposals of the Minister for Immigration,

the resources required for successful

CABIN ET-I N-CON FI DENCE

ILLEGAL ENTRANTS: RESPONSE TO THE REPORT OF THE

The Hon Gerry Hand, Minister for Immigration, Local

PLEASE REPLACE THE EXISTING PAGES 4, 5, 6 and 7

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

Both are at Attachment E.

The provisions would

end on 19 December 1993, allowing any affected person ample

For those who apply in this program year only, approvals

would not be counted against annual migration program planning

This will provide incentive for community groups to

encourage these illegal entrants to come forward in order to

expect these proposals to have a substantial impact on

To encourage early application

and to contain administrative costs, I propose further

incentives in-terms of access to review and bans on

one in ten illegals on or before 18 December 1989

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

Public criticism of these

My proposals create orderly management

of the backlog over the next four years, when substantial

CABI ET- IN -CONFIDENCE

-sCAB I NET- IN -CONFIDENCE

"Innocent" and other Illegal entrants under the new

The JSC did not realistically define what it

meant by "innocent" illegals and its treatment of this

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

Recognition of the plight of people who became illegal

entrants as minors, however, will not entitle other family

illegal minors should simply depart with their parents/family

I recognise that this provision may

create an incentive for some unscrupulous parents to leave

behind with relatives in order to . '

establish eligibility for themselves for the future.

I do not attach weight to that consideration as the structure

These are the only changes I propose on the question of

illegal entrants within the new legislation.

The decision-criteria in the

Regulations are directed to obtain a certain outcome in terms

There will always be

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

Indeed, any attempt to

Sections 115 and 137 of the Migration Act (see

Attachment F) allow me to intervene and substitute a

I propose that the Principal and Senior Members of the

Immigration Review Tribunal (IRT) and the secretary of my

However legal opinion holds that this power is too

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