The department says that on 13 December 2013 its Colombo office received a valid Partner (Subclass 309) visa application for Mrs CN. Mr CM claims that this application was submitted on 4 December 2013. Nothing turns on the difference between these dates. On 19 December 2013, the Hon Scott Morrison MP, then Minister for Immigration and Border Protection, gave a direction under s 499 of the Migration Act referred to as Direction 62 – order for considering and disposing of Family Stream visa applications (Direction 62). Direction 62 relevantly provides: Revocation Direction 43, given under section 499 of the Act and dated 18 July 2009 is revoked. Application (1) This Direction applies to delegates who consider valid applications for Family Stream visas under section 47 of the Act, and perform functions or exercise powers under subsection 51(1) of the Act to consider and dispose of applications for Family Stream visas, including in respect of matters remitted from the Migration Review Tribunal and the Administrative Appeals Tribunal. … Preamble High levels of demand for Family Stream visas have created a need to manage the consideration and disposal of applications for these visas in an orderly fashion. … Interpretation … In this Direction: … Illegal Maritime Arrival has the same meaning as ‘unauthorised maritime arrival’ in section 5AA of the Act. … Order for considering and disposing of Family Stream visa applications (1) Paragraphs (a) to (g) set out the order of priority for considering and disposing of Family Stream visa applications, with paragraph (a) being the highest priority and paragraph (g) being the lowest priority. … (g) Applications in which the applicant’s sponsor (or proposed sponsor) is a person who entered Australia as an Illegal Maritime Arrival and holds a permanent visa. …
Where, after conducting an inquiry, the Commission finds that an act or practice engaged in by a respondent is inconsistent with or contrary to any human right, the Commission is required to serve notice on the respondent setting out its findings and reasons for those findings. The Commission may include in the notice any recommendations for preventing a repetition of the act or a continuation of the practice, and for the taking of action to remedy or reduce the loss or damage suffered by a person as a result of the act or practice. Recommendation 1 The Commission recommends that the Minister either amend Direction 62 to remove s 9(2)(b) or issue a replacement Direction without s 9(2)(b). Recommendation 2 The Commission recommends that when deciding the order for considering and disposing of the visa application of Mrs CN, the delegate of the Minister take into account any special circumstances of a compelling or compassionate nature. Department’s response The Commission provided a notice of its findings and recommendations to the department on 6 July 2015 and asked whether the Commonwealth has taken or is taking any action as a result of the findings and recommendations. The department replied to this request on 6 August 2015, saying: The Department has consulted with the Minister for Immigration and Border Protection, the Hon Peter Dutton MP on this matter and remains of the view outlined in correspondence to you on 15 June 2015. The reply did not indicate that the Commonwealth was taking any action in response to the Commission’s findings and recommendations. I report accordingly to the Attorney General. Gillian Triggs President Australian Human Rights Commission October 2015