Bills Digest no. 75 2006–07
Migration Amendment (Review Provisions) Bill
2006
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Migration Amendment (Review Provisions) Bill
2006
Date introduced:
7 December 2006
House: The Senate
Portfolio: Immigration and
Citizenship
Commencement:
The day after the Act
receives Royal Assent
The Migration
Amendment (Review Provisions) Bill 2006 (the Bill) amends the
Migration Act 1958 (the Migration Act) to allow the
Migration Review Tribunal (MRT) and Refugee Review Tribunal (RRT)
flexibility in how they accord procedural fairness to review
applicants .(1)
The Bill will:
-
provide that where an applicant is at a hearing
before one of the tribunals, the tribunal member will have a
discretion to either (1) tell the applicant about any adverse
information before it at the hearing, and invite him or her to
respond, or (2) write to the applicant about the adverse
information, and invite him or her to respond. At the moment the
tribunals must provide adverse information in writing, and
-
create a new exception for information given by
the applicant to the department during the process leading to the
decision that is under review, such as passport details, family
composition and statutory declarations. This does not apply to oral
information given by the applicant to the Department.
On 7 December 2006, the Senate referred the
above Bill to the Senate Legal and Constitutional Affairs Committee
for inquiry
and report by 20 February 2007.
Section 424A of the Migration Act requires the RRT to give an
applicant particulars in writing of any information that the RRT
considers would be a reason for affirming the department s decision
and to invite the applicant to comment, subject to the exceptions
set out in subsection 424A(3).
Section 359A sets out the same requirements for the MRT.
424A Applicant must be
given certain information
(1) Subject to subsection (3), the Tribunal
must:
-
give to the applicant, in the way that the
Tribunal considers appropriate in the circumstances, particulars of
any information that the Tribunal considers would be the reason, or
a part of the reason, for affirming the decision that is under
review; and
-
ensure, as far as is reasonably practicable,
that the applicant understands why it is relevant to the review;
and
-
invite the applicant to comment on it.
(2) The information and invitation must be given
to the applicant:
-
except where paragraph (b) applies by one of the
methods specified in section 441A; or
-
if the applicant is in immigration detention by
a method prescribed for the purposes of giving documents to such a
person.
(3) This section does not apply to
information:
-
that is not specifically about the applicant or
another person and is just about a class of persons of which the
applicant or other person is a member; or
-
that the applicant gave for the purpose of the
application; or
-
that is non‑disclosable information.
Section 441A deals with methods for delivering documents to all
people other than the Secretary.
Subsections
353(1) and
420(1) of the Migration Act provide that in carrying out their
functions under the Act, the MRT and the RRT must pursue the
objective of providing a mechanism of review that is fair, just,
economical, informal and quick .
Timeliness is an important performance
indicator for the RRT. The Migration and Ombudsman
Legislation Amendment Act 2005 inserted section 414A into the
Migration Act which requires the RRT to finalise reviews within 90
days (see further the Bills
Digest). The RRT reports on this requirement every quarter and
the report is tabled in Parliament.(2)
The MRT/RRT Annual
Report 2005-2006 reports that in the first quarter of
2005-06, 35% of RRT decisions were made within 90 days. That figure
rose to 50% at the end of the second quarter, 55% at the end of the
third quarter to 58% at the end of the year. For cases decided in
the last quarter, 76% were decided within 90 days and the average
processing time was 83 days. The average time taken to finalise all
RRT cases during 2005-06 from receipt of DIAC s documents to
decision was 97 days (compared with 143 days in
2004-05).(3)
For those MRT cases where there is no
statutory time standard, time standards are set out in a Principal
Member Direction. These are 90 calendar days from lodgement to
decision for visa cancellation cases, and time standards ranging
from 180 to 240 calendar days from lodgement to decision for other
cases.
On 21 June 2006, the Principal Member of the
Migration Review Tribunal and the Refugee Review Tribunal issued a
new Direction relating to the Tribunals' Caseload and Constitution
Policy for 2006-07 entitled the
Principal Member Direction 1/2006 Tribunals' Caseload and
Constitution Policy. This policy is designed to support high
quality reviews and decisions; independence and impartiality in
decision-making; improving the timeliness of reviews; and giving
priority to cases based on the circumstances of individual
cases.
Tribunals, such as the MRT and RRT that
conduct review of decisions made by administrative decision-makers
rather than making primary decisions, may be called review
tribunals. Review tribunals include those bodies that undertake
internal review of departmental decisions. Most review tribunals
are adjudicative in nature. Review tribunals are often established
in order to provide an informal alternative to judicial review, or
a tier of review prior to the exercise of a statutory appeal to a
court.
Often the requirements of the hearing rule of
procedural fairness are expressed in the form of an obligation to
afford each party to proceedings a reasonable opportunity to
present his or her case. A merits review tribunal must comply with
the rules of natural justice unless there is a statutory provision
which permits that tribunal to depart from some or all of those
rules, because those tribunals make final and binding decisions
about people s legal rights and obligations.
A body which is required to comply with the
rules of natural justice must give those people whose legal rights
and obligations will be affected by its decisions a fair hearing
(the fair hearing rule ) and the people who comprise the
decision-making body must be, and must be seen to be, impartial or
unbiased (the bias rule ).
Creyke and McMillan identify three minimum
requirements of the fair hearing rule. They are:
-
prior notice that a decision will be
made,
-
disclosure of the substance of the material on
which the decision will be made, and
-
an opportunity to comment upon that material
and to present material in support of one s own
case.(4)
There is potential for a wide range of
occurrences within the confines of these three broad
requirements.
This Bill has been introduced as a response to
decisions by the High Court and the Federal Court dealing with
statutory provisions which relate to Tribunals handling of adverse
information . The process by which the Tribunal may invite comment
on adverse information was considered in Minister for
Immigration and Multicultural Affairs v Al Shamry [2001] FCA
919 ( Al Shamry ), SAAP v Minister for Immigration and
Multicultural and Indigenous Affairs [2005] HCA 23 ( SAAP )
and SZEEU v Minister for Immigration and Multicultural and
Indigenous Affairs [2006] FCAFC 2 ( SZEEU ).
SZEEU basically resolves a possible
tension between the leading 2001 case of Al
Shamry and SAAP. The SZEUU judgment
concerned five appeals from judgments of lower courts dismissing
applications for judicial review of Refugee Review Tribunal
decisions that the appellants were not persons to whom Australia
had protection obligations. Questions had arisen about what
constitutes information and what constitutes a reason or part of a
reason for the decision. This is better understood by reference to
the facts of the leading two cases.
Al Shamry
Al Shamry arrived in Australia at Sydney
Airport on 14 June 1999. He was immediately detained and
interviewed by an officer of the Minister and a purported record of
the interview was made. The respondent filed an application for a
protection visa on 23 June 1999, which was refused by a delegate of
the Minister on 21 July 1999. After lodging an application for
review of the delegate's decision, the respondent attended a
hearing before the Tribunal on 24 August 1999. Justice Madgwick
noted that, at the conclusion of the hearing, the Tribunal member
had thanked the respondent for having been an honest witness . The
existence and relevance of the airport interview was not raised
with the respondent at or before the hearing before the Tribunal.
However, what had been said by the respondent in the airport
interview was ultimately used by the Tribunal, in its reasons for
decision, to impugn the credibility of the respondent.
In their joint judgment, Justices Ryan and
Conti identified the issue for determination in the following
terms:
Counsel for the Minister accepted that a failure
to observe the procedure laid down by s.424A is a reviewable error
under s.476(1)(a). It was also accepted that where there is
information of the kind described in s.424A(1)(a) particulars of
that information must be given to the applicant for the purpose of
obtaining his or her comments. However, it was said that
the information constituted by the airport interview came within
the exception created by s.424A(3)(b) in respect of information
given by the applicant for the purpose of the application.
Application in that context, was said to mean all information given
by the applicant to officials in the Department (including that
provided to the Tribunal) for the purpose of determining whether to
grant a protection visa to the applicant (Emphasis
added)(5)
The full Federal Court held that adverse
information provided by an applicant to the Department as part of
their visa application or in response to a possible visa
cancellation decision was not covered by the exemption
provisions in subsections 359A(4) and 424A(3).
Following Al Shamry, the
Explanatory Memorandum notes that the tribunals complied with this
decision by orally providing any such adverse information to the
applicant for comment during the hearing.(6)
The applicants in the SAAP case were
an Iranian Sabian Mandean mother and her daughter. In her visa
application, SAAP described incidents of alleged persecution by the
Muslim majority in Iran, including her children being denied
admission to school, being prevented from working as a hairdresser,
an attempt to abduct the eldest daughter to forcibly convert her to
Islam, and her husband losing the sight of one eye from a thrown
rock. At the RRT hearing, conducted via video-link, the eldest
daughter was asked about these incidents, with SAAP out of the room
in Woomera and her migration agent present in the hearing room in
Sydney. The RRT member asked SAAP about her daughter s responses to
questions about SAAP s husband loss of sight and the children s
attendance at school. The RRT member said he would write to SAAP
about other answers given by her daughter on which he would like to
receive written submissions. This did not occur.
In the Federal Court, Justice Mansfield found
that the RRT had failed to fulfil these two aspects of section
424A, but held that this failure did not deprive SAAP of the
opportunity to learn of material adverse to her claim and to
comment on it; because her migration agent was present when the
daughter gave evidence, the RRT asked SAAP about certain aspects of
that evidence and SAAP had the opportunity to make submissions. The
Full Court upheld Justice Mansfield s decision declaring that the
RRT had not erred in dismissing SAAP and SBAI s claim for
protection visas. They appealed to the High Court.
The High Court held, by a 3-2 majority, that
the RRT failed to comply with section 424A of the Act, which it
held set out mandatory steps to accord procedural fairness.
The RRT was bound to give SAAP and SBAI written notice of the
information it had obtained from the eldest daughter and to
ensure as far as reasonably practical that they understood its
relevance to the review. Failure to do so gave rise to
jurisdictional error, rendering the RRT s decision invalid. The
Court ordered that the RRT s decision be quashed and that the RRT
review according to law the Immigration Department s decision to
refuse SAAP and SBAI protection visas.
Justice Kirby stated with respect to s
424A:
This is, after all, simply an express provision
to ensure that the Tribunal's procedures attain the highest
standards of justice to the applicants before it. As this Court has
pointed out in the past, such applicants are frequently in a
desperate situation and, in some cases, their safety and even their
lives may be at stake in the important decisions that the Tribunal
makes.(7)
The SZEEU case sought to resolve the
question how strict is the requirement? What if the information
defined broadly as in the Al Shamry case, does not lead to
unfairness? Can the decision still be quashed? The five cases in
SZEEU were representative of these borderline fact
situations.(8) The ratio is most clearly stated per
Justice Weinberg:
If Al Shamry stood alone and
no actual unfairness could be demonstrated relief would simply be
denied in the exercise of judicial discretion. SAAP
seemingly precludes this approach from being adopted.
Henceforth any decision based on information adverse to the
applicant where such information does not fall within any of the
exceptions in s.424A(3) is likely to be set aside irrespective of
whether there has been any actual unfairness. (emphasis
added)(9)
The Full Court of the Federal Court held that
the reasoning of the Full Court in following SAAP and
Al Shamry was cogent and persuasive, and the
decision in the lower court in SZEEU was not clearly,
plainly or manifestly wrong.(10)
When introducing the Bill, Senator Chris
Ellison stated that:
The cumulative effect of the court decisions is
creating serious operational difficulties for the tribunals,
including delays in finalising decisions.(11)
The Government response to these cases
represented by this bill is driven by efficiency concerns,
summarised by the second reading speech in the following
manner:
These amendments will allow the tribunals to
conduct reviews more efficiently, with less unnecessary process and
paperwork. This will help the Refugee Review Tribunal to comply
with its statutory 90-day time limit for finalising decisions. It
will also lead, in many cases, to the faster completion of many
cases, which will benefit review applicants who no doubt experience
stress and uncertainty in waiting to hear of a
decision.(12)
The Department of Immigration and Citizenship
(DIAC) states in its submission to the Senate inquiry that the
amendments may also benefit the applicant:
Allowing the Tribunals to put adverse
information to applicants during hearing may also, in many cases,
be of more assistance to applicants, than putting such information
in writing. The majority of applicants in both Tribunals are not
proficient in the English language. Wherever required, Tribunal
hearings are conducted with the assistance of an interpreter
accredited in the relevant language. Putting adverse information to
applicants with the assistance of an accredited interpreter is more
likely to result in the applicant understanding the substance of
the information and its significance to the outcome of the
review.(13)
The issues raised in this Bill were dealt with
in some detail in the Senate References Committee on Legal and
Constitutional Affairs report
Administration and operation of the Migration Act 1958
tabled on 2 March 2006, especially
Chapter 3 - Secondary assessment of visa applications.
The report deals with many of the overarching
policy concerns around refugee and migration determinations, such
as complexity and predicaments arising from codification of
migration policy, efforts of successive governments to speed claim
times up and avoid protracted court proceedings, issues with
bridging visas, the perceived vagueness of 1951 Refugee Convention
criteria, 'credibility' issues, the cost of judicial review,
'success' rates and many other concerns of the past decade.
Relevant to this bill, the report deals with
timeliness indicators,(14) the particular concerns of
approximately 30 per cent of RRT and MRT cases which involve an
unrepresented applicant,(15) and the issue of adverse
information. Regarding the existing section 424A, the report states
at pages 97-98:
3.34 The International Commission of Jurists
(ICJ), for example, raised particular concerns in respect of the
use of adverse information, including information from unidentified
sources. It advised the Committee that:
One gets a distinct sense, in the RRT in
particular, that the entire proceeding really takes the form of
cross-examination of the asylum seeker. ... There are no real rules
of admissibility of evidence. If the tribunal regards it as
relevant to its inquiry, it is admissible. Certainly it is open to
the tribunal to determine what weight to give to certain evidence,
but often an applicant who has given their evidence under oath in
person before the tribunal is confronted with information from
unidentified sources which would seem to contradict an aspect of
the person s evidence. Yet the witness who provides either
information or an opinion is often not identified. Their expertise
or their qualifications to express an opinion are not
disclosed.
3.35 ICJ representatives also argued that
applicants may be unable to rebut or examine adverse information in
any meaningful way:
If there is information before the tribunal that the tribunal
regards as a reason or part of a reason to affirm the department s
refusal then they are required [by section 424A of the Migration
Act] to issue a letter under that section to the applicant
disclosing the information, explaining why it is relevant and
inviting them to respond. But what happens ... is that you are not
given the actual documents. You are not given the exchange of
correspondence that may have given rise to this information. You
are not given full texts of documents. As a lawyer in a court, if
someone seizes upon a paragraph of a document to defeat my case, I
would ordinarily look at the document as a whole to ascertain the
proper context and see if there was anything else in the remainder
of the document which may rebut or perhaps qualify to some extent
the interpretation that has been given to the extract. That in my
view is proper natural justice the proper right to reply to adverse
information. But the tribunal is ... not obliged to give you that
document or that evidence. It can just paraphrase it in a letter or
provide it to you under section 424A, saying, We have information
that suggests X , where that conclusion may not even be what is in
the piece of information. So you do not have an opportunity to
examine the reasoning process that led to the statement that that
information means that conclusion.
3.36 The import of the above is that such
information can be used to reject an applicant's claim on the basis
of a lack of credibility:
It is often used as a basis on which to
conclude, as a finding of fact, that its weight outweighs the sworn
testimony of the person and that their credibility is doubtful.
Therefore their whole claims fails and that is it. Credibility is a
finding of fact in relation to which there is no access to judicial
review, so that is particularly problematic.
As a result, Recommendation 24 of the Senate
report states:
3.115 The committee recommends that applicants
have a right to be provided with copies of documents the contents
of which Tribunal members propose to rely upon to affirm the
decision that is under review.(16)
In their
submission to the current Senate inquiry, the MRT and RRT were
in favour of the Bill:
The Tribunals consider that the proposed
amendments will benefit applicants for review and enhance the
ability of the Migration Review Tribunal (MRT) and the Refugee
Review Tribunal (RRT) to meet their statutory obligations to
provide reviews that are fair, just, economical, informal and
quick.
The Tribunals experience with the operation of the current
provisions is that having to repeat to an applicant in writing what
has been dealt with comprehensively at a hearing is often
inappropriate and unnecessary in determining a review in a fair,
just, economical, informal and quick manner. In many cases, this
information is uncontested information...(17)
The position of most of the groups who made
submissions to the Senate inquiry, including the Human Rights and
Equal Opportunity Commission (HREOC), the Law Council, Australian
Lawyers for Human Rights, Amnesty International, Legal Aid NSW and
the Refugee Advice and Casework Service (RACS) is that the Bill
should not pass.
The reasons given by these organisations
include the following:
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The Bill will not achieve its aim of creating a
mechanism of review that is fair, just, economical, informal and
quick. Instead, the changes are more likely to result in
inconsistency, confusion and unfairness in the review process,
increasing the risk of incorrect decisions and the refoulement of
applicants.(18)
-
The Bill creates the potential for an unfair
process for determining refugee and migration cases which may
breach the human rights of applicants by not providing a fair
hearing;(19) and/or by leading to incorrect decisions
which increase the likelihood of refoulement of asylum seekers
(returning a person to a country where they face
persecution).(20)
-
The opinion of the superior courts in regard to
what constitutes procedural fairness is correct and should be
followed.(21) Justice Madgwick recently raised concerns
about natural justice in immigration decisions in the
press.(22) In relationship to the courts in the area of
migration review, ALHR cites Justice John Basten of the NSW Supreme
Court, a leading migration law expert, who has noted with regard to
SAAP:
-
In order to understand how the High Court dealt with the matter,
it is necessary to take a step back and examine the statutory
history. The key to this history, as is now well known, lies in a
succession of attempts by various governments to tie down the
elements of procedural fairness which it was considered should
properly govern the exercise of powers under the Migration Act, so
that decisions would not be invalidated by overly generous and
unpredictable judicial assessment of what procedural fairness
required in a particular situation. One way in which that was
sought to be done was by setting out the procedures in the Act and
preventing any judicial review in the Federal Court for breach of
non-statutory obligations of fairness: see old s.476 (now repealed)
inserted by the Migration Reform Act 1992 (Cth). Another step taken
was of course the inclusion in 2001 of the privative clause, which
was undoubtedly intended to be the stick which would kill the
snake, though interestingly amendments which sought to codify
exhaustively statutory procedural fairness followed the
introduction of the privative clause. The judgment of the Court in
Plaintiff S157 v Commonwealth (2003) 211 CLR 476, effectively
precluded the privative clause from fulfilling its intended
function. However, Plaintiff S157 did not deal with the new
provision stating that the statutory procedures set out
exhaustively the content of the obligation of procedural fairness:
see s.422B. (23)
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Asylum claimants as well as many applicants for
migration should be understood to be amongst those most in need of
procedural safeguards. This is due not only to their vulnerability
in a different social, cultural and legal context, but also to the
consequences of an incorrect decision. The Castan Centre argues
that the thrust of this Bill is inconsistent with the RRT s own
Credibility Guidelines which recognise the specific vulnerabilities
of asylum seekers, including problems with oral
evidence.(24)
-
The amendments will particularly disadvantage
unrepresented applicants and children:
The majority of unrepresented applicants may not
understand the legal significance of the adverse information being
communicated to them and of their response. In fact, given the
following factors, namely
-
the anxiety associated with the nature of the
proceedings;
-
the natural desire of applicants not to
antagonise or offend the decision maker; and
-
the pressure of the moment;
applicants are likely to attempt to respond to the Tribunal
immediately, regardless of whether it is actually in their best
interests to do so.(25)
-
The safeguards in the amendments rely too much
on the exercise of Tribunal Member s discretion, especially
adjournments.(26)
There are no new direct costs associated with
the Bill. The Financial Impact Statement states that amendments are
likely to result in potential savings for the Tribunals as
unnecessary processes will be avoided .(27) However
several submissions to the Senate inquiry argue that amending the
legislation will result in more legal challenges, not
less.(28)
The Department of Immigration and Citizenship
states at paragraph 35 of its submission:
It is possible that there will be increased
costs associated with litigation as a result of the amendments
contained in the Bill. Increased complexity in the conduct of
litigation may result in higher costs. Although higher costs can be
expected during the initial period after enactment until the
interpretation of the provisions is settled, once this occurs
litigation costs are likely to lessen for all
parties.(29)
Schedule 1 amendments to
the Migration Act 1958
Item 1 inserts new
subsection 357A(3) at the end of section 357A which
provides that in applying Division 5 of Part 5 of the Act, the MRT
must act in a way that is fair and just. Division 5 relates to the
MRT s conduct of its reviews. This overarching requirement
complements subsection 353(1) of the Act, which provides that in
carrying out its functions under the Act, the MRT must pursue the
objective of providing a mechanism of review that is fair, just,
economical, informal and quick.
Existing section 360 provides that, unless the
MRT considers that it will find in the applicant s favour or the
applicant consents to not appear before the MRT, the MRT must
invite the applicant to appear before it to give evidence and
present arguments relating to the issues arising in relation to the
decision under review. Section 366 provides that the MRT may allow
the applicant to appear or to give oral evidence before it by
telephone, closed-circuit television or any other means of
communication. The MRT is required to appoint an interpreter if the
applicant is not sufficiently proficient in English.
As noted in the background section above, as a
consequence of the High Court decision in SAAP, section
359A currently requires that the MRT must always provide the
particulars of the information and the invitation to comment to the
applicant in writing even if the information has already been
covered orally at hearing.
Item 2 inserts the operative
provision for the changes to the MRT procedures, new
section 359AA. It provides a new discretion for the MRT to
orally give particulars of information and invite the applicant to
comment on or respond at the time that the applicant is appearing
before the MRT in response to an invitation issued under section
360.
Where a review applicant is appearing before
the MRT pursuant to an invitation issued under section 360,
new paragraph 359AA(a) provides the MRT with a
discretion to give to the review applicant orally, clear
particulars of the information that the MRT considers would be the
reason, or part of the reason, for affirming the decision under
review (adverse information).
There are several safeguards for the new
practice of dealing with adverse information orally at a
hearing.
New paragraph 359AA(b)
provides that:
-
if the MRT exercises its discretion to orally
provide adverse information, then the MRT is obliged to ensure, as
far as is reasonably practicable, that the applicant understands
why the information is relevant to the review, and the consequences
of the information being relied on in affirming the decision.
-
The MRT is also obliged to orally invite the
applicant to comment on or respond to the adverse information and
to advise the applicant that he or she may seek additional time to
comment or respond. If the applicant seeks additional time to
comment or respond, the MRT must adjourn the review, if it
considers that the applicant reasonably needs additional time to
comment or respond.
-
In inviting the applicant to comment on, or
respond to information while the applicant is appearing before it,
the MRT must clearly set out the particulars of information and why
it is relevant. The applicant can seek clarification and make
additional comments.
The Explanatory Memorandum states:
It will enable the MRT to give clear particulars
of information orally at a hearing without also being required, as
is presently the case, to give the same particulars in writing to
the applicant after the hearing.
The amendment will facilitate the more efficient conduct of reviews
by improving their quality, timeliness and will reduce the cost of
reviews.
The amendments will also ensure that applicants are not taken by
surprise and are given time, if necessary, to provide their
comments or response.(30)
Items 4 to 16 amend existing
sections 359A to 359C to make the language consistent with new
section 359AA.
Item 7 inserts new
subsection 359A(3). It provides that the MRT is not
obliged, under section 359A, to give particulars of the information
to an applicant, nor invite the applicant to comment on or respond
to the information if, at the time the applicant appeared before
it, the MRT exercised its discretion under new section 359AA
(inserted by item 2) to orally give clear particulars of the
information and orally invited the applicant to comment on or
respond to the information.
If the MRT has exercised its discretion under
new section 359AA to provide clear particulars of the information
to the applicant orally, it may still choose to provide the
particulars, or part of the particulars, and the invitation to
comment on or respond to the information, to the applicant in
writing, under section 359A.
Item 9 inserts new
paragraph 359A(4)(ba) into subsection 359A(4).
Subsection 359A(4) provides that certain
classes of information are excepted from the requirement in
subsection 359A(1).
New paragraph 359A(4)(ba)
provides for a new class of information that is excepted from the
requirements of subsection 359A(1). The MRT will not be required to
give to the applicant information that the applicant has given
during the process that led to the decision that is under review,
unless it was information provided orally by the applicant to the
Department.
This includes, for example, written information
provided to the Department by the applicant as part of their visa
application (where it is the decision to refuse that application
which is under review by the MRT), or in response to a notice of
intended visa cancellation (where the subsequent visa cancellation
is under review).
For example, an applicant might have provided a copy of their
passport to the Department in support of a visa application but not
to the MRT in support of their review application. Because the MRT
receives the applicant s file from the Department, the MRT will
have the copy of the passport. If there is information in that
passport that would be a part of the reason for the MRT to affirm
the decision under review, the MRT is not required to inform the
applicant of the particulars of the information in the passport,
because the applicant had already provided that passport.
The exception provided by new paragraph 359A(4)(ba) does not
extend to information that the applicant has provided orally to the
Department. This would include information provided by the
applicant as part of interviews with the Department for the
purposes of applying for a visa or in response to a possible visa
cancellation decision or information provided to the Department as
part of some other process (for example, an interview with a
Departmental officer at an airport about the applicant s entry into
Australia). Such information is typically not recorded
verbatim.(31)
Items 17 to 32 are mirror
amendments that relate to the RRT. For example, Item
17 inserts new subsection 422B(3) at the end of section
422, which provides that in applying Division 4 of Part 7 of the
Act, the RRT must act in a way that is fair and just.
Item 18 inserts new
section 424AA relating to the RRT which is equivalent to
item 2 inserting new section
359AA in relation to the MRT as set out above.
Item inserts new
paragraph 424A(3)(ba) in relation to the RRT which is
equivalent to the item 9 insertion of new
paragraph 359A(4)(ba) for the MRT as set out above.
Item 33 deals with the
application of the amendments in Schedule 1. New paragraph
33(a) provides that the amendments made by this Act apply
to an application for review of an MRT-reviewable decision made
under section 347 of the Act which is made after item 33 commences
(the day after the Act receives the Royal Assent).
New paragraph 33(b) provides
that the amendments made by this Act apply to an application for
review of an RRT-reviewable decision made under section 412 of the
Act which is made after item 33 commences (the day after the Act
receives the Royal Assent).
The Bill does
address Justice Weinberg s concern that there was an inflexible
requirement in the legislative framework even where there was no
manifest unfairness in a particular case.
The High Court has stated categorically what
it considered to be the requirements for procedural fairness in RRT
decisions in the SAAP case. Given the fact that the Bill
makes the amendments contingent on an overarching fairness
requirement in several places, it seems inevitable that the High
Court would construe these requirements strictly. The Bill may not
therefore provide legal certainty in the short term and will
initially be subject to challenge, as DIAC has foreshadowed. The
attitude of the courts in the long term will depend on the specific
facts of each case, any particular vulnerabilities of the claimant
and whether there have been any elements of unfairness within the
overall framework of the legislation.
The effect of the Bill may also be different
in situations where the tribunals are dealing with large numbers of
new claims, as opposed to the current relatively quiet period.
-
Senator Chris Ellison, Second reading speech , Senate
Debates, 9 December 2006, p. 1.
-
The most recent third report was tabled on 12 September
2006.
-
MRT/RRT Annual Report 2005-6, p. 32.
-
Creyke and J McMillan, Control of Government Action: text,
cases and commentary, LexisNexis Butterworths, Sydney, 2005.
See further M Aronson, D Dyer and M Grove, Judicial Review of
Administrative Action, 3rd ed, Lawbook Co, Sydney, 2004; and
Neil Rees, Procedure and evidence in 'court substitute' tribunals ,
Australian Bar Review, October 2006, v.28(1): 41-87.
-
Minister for Immigration and Multicultural Affairs v Al
Shamry [2001] FCA 919 at [17].
-
Explanatory memorandum, p. 2.
-
SAAP v Minister for Immigration and Multicultural and
Indigenous Affairs [2005] HCA 23 at [169].
-
For a summary of the five fact situations, see the RRT
Bulletin, August 2006, p. 13.
-
SZEEU v Minister for Immigration and Multicultural and
Indigenous Affairs [2006] FCAFC 2 at 122.
-
SZEEU v Minister for Immigration and Multicultural and
Indigenous Affairs [2006] FCAFC 2 at [9] per
Moore J, [154] per Weinberg J, [184],
[199] per Allsop J.
-
Senator Chris Ellison, op. cit.
-
ibid.
-
DIAC, submission 13.
-
Senate References Committee on Legal and Constitutional Affairs
report
Administration and operation of the Migration Act 1958, 2
March 2006, p.
-
Senate Report, op. cit, pp. 93 94
-
Senate Report, op cit, p. 117.
-
RRT and MRT Submission 12. p. 1.
-
HREOC Submission 5, p. 2.
-
As protected by Article 14(1) of the International Covenant
on Civil and Political Rights ( ICCPR );
-
As protected by the Refugees Convention, the ICCPR, the
Convention on the Rights of the Child and the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
-
Amnesty International submission 14.
-
-
ALHR submission 9, pp. 6 7.
-
Castan Centre for Human Rights, submission 4, p. 12.
-
RACS, submission 8, p. 3.
-
-
Explanatory Memorandum, p.3.
-
For example, Castan Centre submission 4, p. 14.
-
DIAC, submission 13, p. 8.
-
Explanatory memorandum, p. 5.
-
Explanatory memorandum, pp. 8 9.
Sue Harris Rimmer
14 February 2007
Bills Digest Service
Parliamentary Library
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