Migration Amendment (Merits Review) Regulations 2021 - Disallowance

19 October 2021

The Migration Amendment (Merits Review) Regulations which Senator McKim and I are moving to disallow will increase the AAT migration review application fee, as Senator McKim also mentioned, from $1,826 to $3,000. This is not the incremental double-digit fee increase that we would normally expect to see. The AAT's previously gazetted fee rise for 2021 was an increase of just $20, which was in keeping with the small increases of previous years. So this instrument demonstrates the government's ongoing targeting of migrants or, should I say, shakedown of migrants, because that's very much what it is.

We can see this in another piece of legislation, the Social Services Legislation Amendment (Consistent Waiting Periods for New Migrants) Bill. It is evident that this government sees migrants as little more than cash cows and an annoyance that must be squashed the minute they try to assert their rights. Even with the 50 per cent discount for those in severe financial hardship, or a 50 per cent refund for successful reviews, a review application will cost migrant applicants a minimum of $1,500.

This AAT disallowance follows a similar disallowance I put forward late last year to reverse the increase to the Federal Circuit Court application fee for migration litigants. That instrument increased the application fee from $690 to a massive $3,330. The government at the time justified the 400 per cent fee hike on migration litigants only as necessary to help pay for court resources. In the same vein, the government says this increase is to fund extra resourcing for the AAT to reduce the migration related backlogs. It is not the job of litigants to resource the courts; it's the job of government to do this.

As I stated last time and will say again now, access to justice cannot be on a user-pays basis. I knew then that letting the FCC instrument slide would be a slippery slope and, here today, we have proof. The government has been emboldened to try the same trick again, this time with the AAT merits review for migration litigants for decisions relating to visas, sponsorships and nominations. These massive fee hikes are not just about cashing in; they are also about embedding disincentives to discourage migrants from pursuing their cases. We should all be very clear about that. We should also note that no external consultation was undertaken whatsoever.

As I have said previously, justice should be accessible for all. Justice should not be based on a user-pays system. Justice should treat all litigants fairly and equally. This AAT regulation does not do that in any shape or form, and it deserves to be thrown out.

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