A/HRC/35/25/Add.3 VI. Cross-cutting issues A. Access to justice 87. Immigration administrative decisions can have consequences that are worse than those of criminal law decisions: an erroneous immigration decision can send someone to arbitrary detention, torture or even death, all outcomes which have been banned from Australian criminal law. To avoid such results, the criminal law has evolved, over a period of centuries, guarantees of a fair trial and of the rights of the defence. Administrative law must provide similar guarantees, when the consequences of the decision can be similar or worse. 88. The Special Rapporteur welcomes the efforts by Australia to quickly process the asylum claims referred to as the “legacy caseload”, which involve 30,000 asylum seekers, through the reintroduction of temporary protection visas and the establishment of a “fasttrack process”. Reportedly, more than half are yet to apply for humanitarian protection. So far, 3,000 people have been declined refugee status and 2,800 people have been granted a visa. However, concern remains that the “fast-track process” does not incorporate appropriate procedural safeguards, including the opportunity to be heard in person. 89. The Special Rapporteur urges the Government to include working rights and a reasonable duration on the visas (bridging visas or temporary protection visas) issued to foreigners released into the community, so that they can support themselves and their families while waiting to apply for or receive a decision. Many are issued with three-month visas, which do not make them employable and result in situations of destitution. The unbearable uncertainty of “permanent temporary” situations should be avoided at all costs. 90. Moreover, territorial sovereignty and the control of borders cannot justify any and all distinctions between foreigners and citizens. The only way to ensure that a distinction is not discriminatory is to ensure that courts and tribunals can review effectively the decisions made that affect the rights of individuals, whatever their status, and can check whether discrimination has occurred. This can only happen if access to justice, as required by international law, is available to all, regardless of immigration status. 91. Administrative law is complicated and migrants already face many barriers, including language, lack of legal information and information about their rights, social isolation, absence of financial means, and, for those who are in detention, physical separation. There can be no effective access to justice without effective support from competent judges, adequate legal representation and sufficient legal aid funding. In detention centres, an explanation by a case manager under contract from the Department of Immigration and Border Protection is not sufficient, as such persons represent the same department that will ultimately take the decision on the migrant’s immigration status. 92. Therefore, in immigration matters, Australia must lift all barriers to judicial review and appeals and the exception to the rules of natural justice. The Migration Act gives wideranging ministerial powers of discretion, which are non-compellable and non-reviewable. The Special Rapporteur cautions that such powers must not undermine the fundamental role of the judiciary. Moreover, Australia should repeal section 52 of the Disability Discrimination Act 1992, which exempts migration laws, regulations, policies and practices from the effects of the Act, leading to negative immigration decisions based on disability or health conditions. 93. Freedom of information procedures should also be strengthened, in order to ensure that no decision is taken which could affect the rights of individuals, where they have not been able to obtain all the information needed for adequate legal representation. B. Labour exploitation 94. The Special Rapporteur welcomes the various types of visa options available for migrants to come and work in Australia, such as the temporary work (skilled) visa (subclass 457) commonly known as the “backpacker’s visa”, working holiday visas and seasonal 17