Newsletter 164

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Restoring integrity to the Refugee protection system 

The Albanese Labour Government has unveiled a $160 million reform package to strengthen Australia’s refugee protection system, give a fair chance to genuine asylum seekers, and dismantle the business strategy of those who would try to take advantage of the system. 

Backlogs were permitted to build enormously throughout the entire immigration system during nearly a decade of neglect, underfunding, and poor administration by the previous government, and delays in processing and reviewing onshore Protection visa applications, in particular, spiralled out of control. 

According to the Nixon Report, these delays were “inspiring bad actors to take advantage by filing an increasing number of false applications for protection.” Both those who genuinely needed protection and the larger Australian community paid a price for this.

Real-time priority processing of protection visa applications will be implemented with an investment of $54 million in order to disrupt the economic model of system abusers and provide a quicker, more equitable, and more effective protection system for individuals who legitimately need Australia’s protection. 

The Administrative Appeals Tribunal, Federal Circuit, and Family Court of Australia will be better equipped to handle heavy caseloads involving Protection visas and other types of migration thanks to investments totaling more than $58 million. With this investment, we can: 

• For the AAT, an additional 10 members. This is on top of the 93 new Members that the government recently announced. The move of all of these additional AAT Members to the new Administrative Review Tribunal when it is established.
• 10 more judges for the Family Court and Federal Circuit.

A further $48 million has been pledged by the government to provide crucial legal aid services that will help applicants throughout the application process. 

Strengthening Australia’s immigration compliance and integrity 

Assigned to conduct a Rapid Review of the Abuse of Australia’s Visa System in January of this year, Christine Nixon, AO, APM discovered “abuses of sexual exploitation, human trafficking, and other organised crime” in Australia’s immigration system.

The review of Australia’s visa system, which Peter Dutton personally managed for six years, found severe flaws and weaknesses in it.

But as the Review’s conclusions demonstrate, under his watch, criminals were abusing Australia’s immigration system, and Peter Dutton chose to ignore it.

Although it will take time to address these systemic issues, today’s news shows that Peter Dutton’s mess is being cleared up.

The Albanese Labour Government will create a new Division under the Department of Home Affairs with an increase in funding of $50 million to re-prioritize immigration compliance and safeguard the integrity of the visa and migration system.

This Division will endeavour to address the immigration status of persons whose options for onshore visas have been exhausted, combat organised misuse of immigration programmes, and strengthen protections for vulnerable migrants.

The Albanese Labour Government will also improve the Office of the Migration Agents Registration Authority’s (OMARA) ability to punish dishonest Registered Migration Agents (RMAs), strengthen the framework for the OMARA to address criminality in the migration advice industry, and increase monetary penalties for providing illegal immigration assistance.

Rapid Review into the Exploitation of Australia’s Visa System 

The following elements were covered by the review’s purview:

• Details of the problems mentioned in media reporting.
• the use, handling, and exchange of data within Home Affairs for the purpose of addressing threat actors’ actions that aim to exploit visa system weaknesses through regulation and enforcement.
• the authority, resources, and penalties at the disposal of the Australian Border Force (ABF) and the Office of the Migration Agents Registration Authority (OMARA) to look into and take action against third parties looking to abuse the visa system, including both registered and unregistered migration agents.
• The ability to assess a person’s character throughout the spectrum of visas, as well as the weaknesses that have allowed threat actors to enter Australia and take advantage of our system
• How visa settings should be improved to reduce visa holders’ susceptibility, protect the legitimacy of visa programmes, and dissuade dishonest actors.
• the triage, referral, and decision-making processes for situations of concern, especially where there are signs that migrants are being exploited in Australia.

Government Response to the Report

On March 31, 2023, Ms. Nixon delivered the Nixon Review report to the government. In response to seven significant results, it presents 34 recommendations. Review of the Exploitation of the Australian Visa System (1271KB PDF).

In order to inform its response, the government carefully studied the findings of the Nixon Review. As a result, it agreed, partially agreed, or in principle with 24 of the 34 recommendations, noted eight recommendations, and disagreed with two recommendations. The government’s response to the Nixon Review is available as a 212KB PDF.

NAB, MLC allegedly ‘ripped out’ millions in super fund scheme, court told 

A court has been informed that thousands of beneficiaries of the MLC Super Fund were charged $165 million in fees for no service in order to allegedly further the interests of the board and the National Australia Bank.

The Federal Court was told that MLC members were charged fees and premiums to their superannuation accounts between 1 July 2016 and 23 September 2020 in an alleged “sorry state of affairs” to fund the commissions “given in full” to financial services licensees.

The commissions “came with no requirement for advisors to do anything” in exchange, according to the group members’ legal counsel.

“The group members had the privilege of paying for that, and the advisor can sit back in a comfortable chair and just watch the money hit the bank account,”

A trustee for the MLC Super Fund named NULIS Nominees is the target of the class action lawsuit. MLC was a division of the National Australia Bank (NAB) until it was sold to IOOF Holdings in May 2021.

In the framework of ownership, NULIS “ripped out” $165 million from members before stopping just a few months shy of a “hard ban” proposed in a January 2021 legislative.

The fact that NULIS filings focused on its fee-charging procedure but were silent on how charging members would benefit them, according to the attorney, was “ironic but perhaps not surprising.”

“That silence is deafening,” he declared.

NT’s bid to overturn grant of land to traditional owners fails 

A suggestion that a number of land concessions be handed to the Aboriginal traditional owners was not overturned by the Northern Territory.

The proposal to transfer land in the north-west, close to the West Australian boundary, to persons the Aboriginal Land Commissioner (ALC) determined were traditional owners, was challenged in court by the territory’s government with support from the Commonwealth.

The NT’s request for review was denied on Thursday, October 5 in the late afternoon by Justice Mordy Bromberg of the Federal Court, who added that the case had “fascinating issues” presented.

Where does the sea end and the land begin is a crucial question. The Australian Northern Territory’s request for judicial review raises this intriguing dilemma, according to Justice Bromberg.

The ALC recommended the “Legune Area Land,” which comprises the estuaries of the Keep River and Victoria River, and the “Fitzmaurice River Region,” which includes the Fitzmaurice River estuary, under the terms of the Aboriginal Land Rights (Northern Territory) Act of 1976.

The NT claimed that the ALC misinterpreted the legislation and overstepped its authority when it recommended a grant of “land in the NT” as part of its narrowly defined role.

The Northern Territory Land Council, the third respondent, argued that the coastal low-water mark serves as the “boundary of the sea” for the purposes of the statute and marks the beginning of the land.

Justice Bromberg found the reasoning to be “consistent” with the ALC’s concentration “upon the line of the coast constituting the demarcation between land and sea” in reference to an argument in Risk v. Northern Territory of Australia, which considered whether the seabed of bays and gulfs in the NT can be the subject of a traditional land claim.

‘Extremely serious’ claims question Federal Court judge’s career history 

A man made “extremely serious” allegations that a Federal Court judge’s early career affected her judgement during the course of his racial discrimination complaint against the Fair Work Commission.

Loi Toma’s request for leave to appeal a judgement rendered by Justice Elizabeth Raper was denied by Justice Robert Bromwich of the Federal Court on the grounds of perceived bias resulting from Raper’s former professional and social connections.

Mr. Toma attempted to bring a claim of racial discrimination against the Fair Work Commission to the Federal Court after filing a complaint with the Australian Human Rights Commission.

As there was “no articulation or evidence of how the conduct constituted racial discrimination in the requisite sense and it sought to reagitate matters that had already been reviewed in court,” Justice Raper denied his motion in October of last year.

Mr. Toma cited Justice Raper’s swearing-in ceremony, which took place after the first return date of the case and was attended by the Fair Work Commission’s current president, in his attempt to obtain permission to appeal Justice Raper’s ruling. He said that no one informed the parties of this.

The president, Adam Hatcher, who was vice president at the time, was not the “guest of honour,” as Mr. Toma suggested, but it “almost certainly would not matter” if he were, according to Justice Bromwich.

“None of these circumstances have been shown to amount to any basis for a fair-minded lay observer to reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of what Her Honour was required to decide,” said Justice Bromwich.

Furthering his arguments, Mr. Toma claimed that Justice Raper’s conduct “confirms that her conflicts affected her judgement” and that the rejection of his appeal had demonstrated real bias.

“Such an allegation is extremely serious and should never be made upon the basis of nothing more than a party’s failing case, which is all that is in substance proffered,” Justice Bromwich stated.

“A merely negative outcome, which is all that is left, will not do.

“This aspect advanced for the grant of leave to appeal has no chance whatsoever of success, and to refuse leave to appeal on this basis could not possibly occasion any injustice,” the statement reads.

NULIS slams allegations of $165m super ‘scheme’ with NAB 

A superannuation trustee accused of taking $165 million from beneficiaries as part of a grandfathering commission “scheme” said the allegations were “inaccurate, unfair and contrary to principle”. 

“(We) categorically reject (the applicants’) assertion that NAB and NULIS had a plan in place starting in September 2015 to retain the grandfathering of commissions.

The submission of a scheme or a done deal has been described in a number of ways, and it has also been claimed that a procedure appeared to exist.

“Those allegations are very serious,” Mr. Thomas stated.

In his opening remarks, Mr. Thomas said that Mr. Brady’s member package “relatively remained unchanged” and that he was in “exactly the same position” following the subsequent financial transfer.

“The account remained the same, the benefits remained the same, the investment options remained the same, and the fees payable by Mr. Brady remained the same,” stated Mr. Thomas.

Regarding the applicant’s claims that the decision to permit the grandfathering of commission was hurried through and made in favour of NULIS and NAB, Mr. Thomas refuted those claims.

Instead, he emphasised how “careful, considered, and robust” the choice was.

According to Mr. Thomas, the material from the commission was presented to NULIS in April 2016; however, they declined it because they were dissatisfied. The court was informed that the commissions were only approved after NULIS obtained more pertinent information.

“This was to the board’s credit and is inconsistent with grandfathering being a ‘done deal’ after 2016,” Mr. Thomas stated.

Piper Alderman flags competing Qantas class action 

Piper Alderman, a business, informed the court that it was just a matter of weeks before it will file a competing class action lawsuit against Qantas for failing to reimburse consumers in full for cancelled flights during the epidemic.

Thomas Bagley, lawyer for Piper Alderman, said the company has spent six months looking into the large airline and may be ready to bring its own cases within the next two weeks when he appeared in the Federal Court on Thursday (12 October) morning.

The possible class action filed by Piper Alderman will conflict with those filed two months ago by Echo Law.

According to both companies, Qantas “enjoyed significant financial benefits at its customers’ expense” by offering travel credits or vouchers in lieu of full cash refunds for its cancelled COVID flights.

Due to “significant restrictions” and the possibility of expiration, the vouchers, according to Echo Law, were “much less valuable to customers than the refunds to which they were entitled.”

Piper Alderman’s class action was challenged by Echo Law attorney Dr. Oren Bigos, who informed the court that Piper Alderman “simply turned up and said they want in” without having identified a lead applicant or filed any paperwork.

According to Dr. Bigos, allowing Piper Alderman to interrupt the meeting will impede the process of developing a schedule.

“If the case is postponed, it will create a precedent where someone might show up without starting their own case. He has shown up without having his own proceeding. Dr. Bigos said.

However, Justice Murphy warned the two enterprises from acting contrary to the interests of the group members by merely pursuing a plurality fight rather than taking into consideration integrating the two.

It is almost never in the best interests of the group’s members, according to Justice Murphy; instead, “it’s in the funders’ or the lawyer’s”

Justice Murphy signaled that he would issue an order requiring the filing of any rival class actions before the court within the next two weeks.