Dutton’s debacle: How the faux-tough immigration cops lost control of our borders

The Nixon review of how Australia’s visa systems are exploited hasn’t come out of the blue. We’ve known for a long time that here was something alarmingly wrong with the way the Immigration Department, and then Home Affairs as it became, was managing our visa system — especially the onshore humanitarian visa processing system.

An auditor-general report in late 2015 concluded: “There are weaknesses in almost all aspects of the Department of Immigration and Border Protection’s arrangements for managing visa holders’ compliance with their visa conditions.” In 2019, Crikey exposed the extent of the rorting of onshore humanitarian visas for cheap labour by organised crime. Last year Nine newspapers’ Trafficked series further revealed sex trafficking, visa rorting and exploitation of temporary visa holders.

Throughout the Coalition’s time in office, it insisted it alone could secure our borders, that it had stopped the boats, that it was the only party capable of the toughness needed to ensure we controlled who entered Australia. First Scott Morrison, then Peter Dutton, proclaimed their leadership potential by being the tough cop on the immigration beat. From late 2014, when Mike Pezzullo was appointed Immigration secretary, there was a senior bureaucrat to match their rigour. But the rhetoric masked a comprehensive failure that allowed organised crime, sex traffickers and fake asylum seekers to exploit what turned out to be disturbingly porous borders.

The Nixon review is, unusually, everything that Home Affairs Minister Clare O’Neil says it is — a shocking indictment of the failure of Dutton, who has for years paraded as a tough guy on borders when he was presiding over a debacle.

But it’s not merely Dutton. Yesterday O’Neil declined to point the finger at Pezzullo as well, but as the portfolio leader for nearly nine years there is no way he can avoid blame. And the responsibility extends well beyond the Immigration/Home Affairs portfolio. The systemic undermining and partisan stacking of the Administrative Appeals Tribunal (AAT) by the Coalition — also revealed by Crikey in 2019 — was a crucial enabler of organised crime and visa rorting.

The problems dissected in Nixon’s report were foundational in the Coalition’s supposedly tough stance on border protection. The Australian Border Force — a creation of Tony Abbott’s, portrayed at the time as a new, hard-hitting cop on the immigration and customs beat — turns out to, in Nixon’s words, have “limited legislative powers to effectively investigate visa and migration fraud, and the exploitation of temporary migrant workers. The formation of the ABF in 2015 brought together a variety of legislative powers (across 35 pieces of legislation), within which there are significant discrepancies.”

The Coalition also under-resourced investigating visa fraud: “With the integration of the Department of Immigration and Border Protection and the Australian Customs and Border Protection Service in 2015, the field compliance and immigration investigation function and associated staff were transferred from the department to frontline ABF operations. With diminishing investigative and field compliance resources, specialist migration investigations have reduced …”

As a result: “The ABF currently has an investigations capability of 120 across the full ABF jurisdiction, and difficult decisions are regularly made about the prioritisation of finite resources to protect the border … There is currently no compliance or investigative capability within the department’s immigration group.”

The under-resourcing, as is now well known, extended to visa processing, massive delays meaning applicants could game the system while in the country — especially the onshore protection visa, as Crikey detailed in 2019. The current onshore protection visa processing time, Nixon found, is more than two years; between 2017 and 2022, the average processing time was 668 days. Unsuccessful applicants — around 90% of applications are rejected — can then appeal to the AAT, adding years of delay: the length of time required for the finalisation of an AAT appeal has increased from 450 days in 2016 to 800 in 2022, during which time applicants can work in Australia.

This provides the context for the Coalition’s relentless stacking of the AAT with partisan hacks, Liberal and National mates and failed MPs. A 2019 review of the AAT commissioned by the Coalition and conducted by conservative former High Court judge Ian Callinan found that the Coalition’s merging of migration review into the AAT had been botched and that the government was appointing far too many people without legal qualifications, leading to long delays in migration cases that were being exploited.

The ability of tens of thousands of fake asylum seekers to game the visa system for years on end, providing an exploitable workforce for organised crime, was thus the product not merely of the failings of Dutton and Pezzullo, but of attorneys-general George Brandis and Christian Porter too.

Labor is now spending more than $50 million to dramatically accelerate Home Affairs’ processing of onshore protection visa applications, adding a further 10 AAT members to the 90-odd it has recently appointed, and will be expanding the Federal Circuit Court, in addition to creating a division of Home Affairs that will make permanent, or at least long-term, the taskforce that is investigating visa fraud.

All of these things could have been done by the Coalition, which understood fully how the visa system was being gamed and abused. Instead it relied on a misplaced reputation for being tough on border protection, while criminals, traffickers and illegal immigrants made a mockery of it.