Robots To Decide Your Visa

Determination by Algorithm – The Retirement of Evaluative Judgement

On March 30th 2018, confirming the growing trend of government instrumentalities to rely upon automated computer processes when making potentially life-changing decisions, Section 495A of the Migration Act (1958) was amended as follows:

“That the Minister may arrange for the use, under the Minister’s control, of computer programs for any purpose for which the Minister may, or must, under the designated migration law:

  • Make a decision
  • Or exercise any power
  • Or comply with any obligation
  • Or do anything else related to making a decision, exercising a power or complying with an obligation”

This latest Legislative Instrument replaced previous provisions which were due to expire on April 1st, under which the government had already initiated automated security assessment processes throughout its 13 detention centres and whilst this computerised risk assessment no doubt introduced cost savings and increased efficiency, its use without human oversight had to introduce some significant ethical concerns.

Where will it end?

The answer is difficult, even frightening, to predict. Whilst this computerised decision-making is being conducted “under the Minister’s control” it remains technically the responsibility of the Minister, but Ministers don’t program computers and computer programmers are generally not trained in the essentially human aspects of immigration law.

Laws are never static and complex transitional provisions may occasionally require consideration, together with relevant common law provisions.

It’s well within the boundaries of anticipation that more and more decisions, relative to visa approvals and/or cancellations will ultimately be made upon the basis of assessment by algorithms; an unnerving and inhuman prospect, but one we must be prepared to meet.

Search for transparency

With the growth of this trend, it’s becoming increasingly vital for the community to learn and to approve of the acceptance criteria, which is being programmed into the department’s computer systems.

Historical data doesn’t necessarily determine the future, any more than statistics determine the individual. There must be an understanding of the processes and clear avenues of appeal in cases of seemingly unfair decisions.

In fact, if history was any judge at all, the recent Centrelink computerised debt collection scandal would totally rule out reliance on government data decision-making for the foreseeable future.

Freedom of Information (FOI)

The majority of FOI statutes require agencies to publish information regarding policies and procedures. It is therefore arguable that this obligation should extend to technologies used in decision-making; they are, after all, instrumental in the implementation of those same policies and procedures and the definition of ‘document’, found in FOI legislation, clearly covers ‘guides used in decision-making’.

On this basis, it is widely believed that the criteria used in evaluation should either be readily available in the public domain, or immediately provided upon formal request.

Knowledge is Power

In the complex jungle of immigration, it really does pay dividends to obtain professional assistance; skilled practitioners who are specialised in the field, comprehensively trained to recognise the traps and the trends. It can save so much time and avoid so much unnecessary expense.

For more information on this or on any relating issues, contact the migration experts – Sellanes Clark and Associates – specialising in all immigration matters.

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