NSWCCL writes to Senators re filing fee increase for migration-related matters

NSWCCL wrote to ALP and Cross-bench Senators regarding the increase in filing fees in the Federal Circuit Court for migration-related matters. The fee will rise from $690.00 to $3,300.00. NSWCCL urged Senators to vote to disallow this instrument.

1 December 2020

Dear Senator,

Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020

On October 29 this year, the Government introduced a swingeing increase in filing fees in the Federal Circuit Court for migration-related matters. The fee will rise from $690.00 to $3,300.00 on January 1 next year.

The New South Wales Council for Civil Liberties is deeply concerned by this change, as it will prevent many people from obtaining a review and reversal of unlawful, unjust, adverse decisions.  It will prevent others from being able to afford legal representation too, thus lessening their chances of having mistakes exposed.

The change was made by a legislative instrument, which accordingly can be disallowed during the current sitting of Parliament. It can be found at https://www.legislation.gov.au/Details/F2020L01416

We urge you to vote to disallow the instrument, and thus reverse the change.

Supporting argument.

Some of the decisions that the Circuit Court reviews involve visa denial or cancellation.  They lead to indefinite detention (which can otherwise last for years), or to deportation with permanent separation of families.  In some cases, families have lost their sole sources of financial support.  Where these harsh decisions are made unlawfully, they must be reversed.   But if people are unable to afford to seek review, those decisions will stand.  The people will suffer, unjustly.

Prominent amongst those who will be affected are asylum seekers who lack work rights (and have no support under current COVID-19 arrangements).  These people usually lack knowledge of Australian legal systems (which are complex), may have limited English, and are trying to cope with an unfamiliar culture.  Making things so much harder for them by the imposition of this fee, when they have little income or are entirely dependent on charity, is unconscionable.

It is true that applicants who can show financial hardship will be able, as at present, to obtain a fee waiver.  But under the new arrangements, they will still have to find the money to pay a substantial fee--$1,650.00. 

It seems likely that the intention of the Government is to attempt to lighten the load carried by the Federal Circuit Court.  It is probable, however, that thousands of litigants will be forced by this measure to represent themselves.  It is the universal experience across Australia that self-represented litigants take far more of a court’s time than those with competent support. 

In any case, the attempt to lighten workloads and to obtain funds for the Federal Circuit Court by this means—that is, at the cost to traumatised and defenceless people—is indefensible.  As the Law Council of Australia says, “Justice is not a commodity and our justice system should not be reduced to a user pays model”.

We join with the Law Council of Australia to urge you: vote to disallow this instrument.

The Secretary, NSW Council for Civil Liberties