Bills Digest No. 74, 2016–17
PDF version [653KB]
Claire Petrie
Law and Bills Digest Section
15 March 2017
Contents
Purpose of the Bill
Structure of the Bill
Background
Migration codes of procedure
Tribunal amalgamation
Key features of the codes
Administrative Review Council report
Committee consideration
Senate Legal and Constitutional
Affairs Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Code of Procedure harmonisation
Procedural differences preserved by
the Bill
Changes to review rights and
procedures
Access to written material before the
Tribunal
Right to representation at hearing
Right to request interpreter
Natural justice provisions
Requesting evidence
Right to appeal dismissal of
application
Consequential and savings provisions
Responding to information
Fast track reviewable decisions
Officers of the Tribunal
Concluding comments
Date introduced: 30
November 2016
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: On Proclamation,
or six months after Royal Assent, whichever occurs first.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at March 2017.
Purpose of the Bill
The purpose of the Migration Legislation Amendment (Code
of Procedure Harmonisation) Bill 2016 (the Bill) is to amend the Migration Act 1958
(Cth) (the Act) to:
- merge
the codes of procedure in Parts 5 and 7 of the Act for review of decisions by
the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT),
in light of the changes to the migration review process following the 2015 tribunals
amalgamation
- clarify
the operation of the Act in relation to certain aspects of review and
- make
technical amendments regarding the review of decisions by the Immigration
Assessment Authority (IAA) in relation to family groups.
The Bill also makes consequential amendments to the Administrative
Appeals Tribunal Act 1975 (AAT Act).
Structure
of the Bill
Schedule 1 of the Bill harmonises the code of
procedure for migration reviews under the Act:
- Part
1 contains the main amendments to the Act, including the repeal of Part 7
and consolidation of review provisions under Part 5 of the Act
- Part
2 makes consequential amendments to the terminology in Part 5 of the Act
- Part
3 makes two consequential amendments to the AAT Act
- Part
4 contains application, saving and transitional provisions.
Schedule 2 provides for other amendments to the
Act:
- Part
1 amends provisions of the Act relating to responses to a written
invitation of the Tribunal
- Part
2 updates terminology in the Act relating to staff members of the AAT
- Part
3 amends provisions relating to fast track reviewable decisions and the IAA.
Background
Migration
codes of procedure
Parts 5 and 7 of the Migration Act currently
contain the codes of procedure which govern the merits review of certain
decisions made under the Act. Specifically:
- Part
7 applies to the review of certain decisions about the grant or cancellation of
protection visas, and before the 2015 tribunal amalgamation it primarily
governed the procedures of the Refugee Review Tribunal (RRT)[1]
and
- Part
5 applies to the review of most other decisions relating to the grant or
cancellation of visas, and before the amalgamation it governed the procedures
of the Migration Review Tribunal (MRT)[2].
Tribunal
amalgamation
On 1 July 2015, the RRT, MRT and the Social Security
Appeals Tribunal (SSAT) merged with the AAT to form a single tribunal for the
merits review of a wide range of federal government decisions. As a result of
the amalgamation, decisions which were previously reviewed by the RRT and MRT
are now reviewed by the Migration and Refugee Division (MRD) of the AAT.[3]
Despite the creation of a single review body in place of the two which
previously existed, the Tribunals
Amalgamation Act 2015 (Cth) preserved the separate Parts 5 and 7 of the
Migration Act. In reviewing migration and refugee decisions, the MRD is therefore
presently governed by the two different codes of procedure, depending on the
type of decision under review.
In the second reading speech for the Bill, Minister for
Immigration and Border Protection, Peter Dutton, stated that in light of the
amalgamation of the MRT and RRT’s functions into the MRD:
... it is sensible and appropriate for Part 5 and Part 7 to be
harmonised and streamlined into a consolidated Part.
It will also assist applicants intending to lodge a review
application, or who currently have a review on hand, with the Migration and
Refugee Division of the AAT to have one consolidated Part in the Migration
Act to refer to for the code of procedure governing review.[4]
Primarily because of these statutory procedural codes, the
MRD operates differently to other Divisions of the AAT. Part IV of the AAT
Act, which sets out the rights, powers and procedures which apply to the
Tribunal’s review of decisions, is expressly stated not to apply to the MRD.[5]
Not all migration decisions fall within the scope of Parts 5 and 7 (and
therefore the MRD)—certain decisions relating to business visas, migration
agents, deportation, protection visas and the refusal or cancellation of visas
on character grounds may be reviewed by the AAT in its General Division.[6]
Key
features of the codes
Statutory codes of procedure were first introduced for the
MRT and RRT under the Migration
Legislation Amendment Act (No 1) 1998 (Cth). Before this, the RRT and
then-Immigration Review Tribunal were subject to few express procedural
obligations, other than the obligation to offer the applicant a hearing if the
tribunal could not make a positive decision ‘on the papers’.[7]
In his second reading speech to the 1998 Bill, then-Minister for Immigration
and Multicultural Affairs, Philip Ruddock, stated:
The bill also includes certain safeguards for applicants by
introducing a code of procedure for both the Migration Review Tribunal and the
Refugee Review Tribunal which is similar to that already applying to decisions
made by the department.[8]
The codes under Parts 5 and 7 are substantially similar,
with a few important differences. Each sets out procedures governing the
conduct of the review, the Tribunal’s obligations and powers, and the rights of
the applicant. Key to both is the mandatory obligation of the Tribunal to
invite the review applicant to comment on information adverse to their case,
and invite the applicant to attend a hearing if the Tribunal is unable to make
a favourable decision on the papers.[9]
Both codes are expressed to be an exhaustive statement of
the natural justice hearing rule requirements which decision-makers must meet,
supplanting common law natural justice principles.[10]
This means that, at least in theory, a decision-maker who follows the
procedures set out in the relevant Part will not be found to have denied the
applicant procedural fairness. The issue has been more complex in practice.
Dennis Pearce has explained:
On its face, this type of provision appears to be directed to
excluding the common law rules of procedural fairness. However, it has not been
so interpreted. The initial consideration of the operation of the [exhaustive
statement of natural justice provisions] by the High Court was in Saeed v
Minister for Immigration and Citizenship [2010] HCA 23 ... The court read the
limitation on the natural justice hearing rule as restricted to the matters
specifically dealt with in the sections to which the limitation applied and not
to the operation of that rule at large. So if a provision does not fully cover
a requirement that would be applicable to the hearing under the common law
natural justice rule or there is no relevant provision, that requirement
remains applicable to the tribunal hearing.
... The effect of this has been to retain the significance of
compliance with the common law hearing rule in migration appeals.[11]
Key differences between Parts 5 and 7 include a
requirement that Part 7 hearings be held in private, and restrictions on the
publication of information which may identify a Part 7 applicant, their
relatives or dependants.[12]
In contrast, oral evidence taken by a Tribunal in connection with a Part 5
matter must be public, unless the Tribunal is satisfied that this is
impracticable, or that it is in the public interest for the evidence to be
taken in private.[13]
Part 7 also contains provisions guiding the Tribunal’s treatment of previous
decisions relating to the same applicant, and new evidence provided by an applicant
at the review stage, which are not replicated in Part 5.[14]
A number of provisions, including in relation to interpreters and
representation at hearing, are drafted differently in the two Parts. This is
explained in more detail below.
Administrative
Review Council report
A 2012 Administrative Review Council (ARC) review into
federal judicial review in Australia highlighted some of the issues surrounding
the use of statutory codes of procedure, particularly in the Migration Act.[15]
The ARC found that while setting out procedural requirements in legislation
could assist decision makers to make valid decisions, codes could also leave
little room for discretion and could potentially result in unfairness to
applicants.[16]
It recommended the development of clear guidance for policy makers on the
circumstances in which statutory codes of procedure are appropriate, and the
form they should take.[17]
However, the ARC was abolished in May 2015 and no further steps appear to have
been taken on this issue.[18]
In a joint submission to the ARC review, the MRT and the RRT
argued that the code had been the subject of significant litigation yet had not
improved the quality of decision making, and:
... the experience in the migration jurisdiction has been that
codification aimed at supplanting the natural justice hearing rule has distinct
limitations. Although the codification of procedure may have the advantage of
setting out a framework for the parties, experience shows that it leads to
unexpected interpretation, uncertainty and extensive litigation... Statutory
codes of procedure, whilst providing a framework for the parties, cannot
replicate the adaptiveness of common law procedural fairness.[19]
In contrast, the then-Department of Immigration and
Citizenship spoke in favour of the code of procedure, stating that it was
designed to eliminate the legal uncertainties flowing from non-codified common
law principles of natural justice, and that despite significant litigation
surrounding the migration procedural code, interpretation had subsequently
become ‘fairly settled’.[20]
The Department further noted that removal of the code could result in ‘the
potential loss of efficiencies gained through established and tested processes,
a short term spike in litigation and increased costs’, and would require the
introduction of an alternative form of guidance for decision makers.[21]
More recently, President of the AAT, Justice Duncan Kerr,
has referred to the migration code of procedure as an example of a legacy issue
which may need further consideration following the amalgamation, noting in
particular the concerns previously raised by the MRT and RRT.[22]
Committee consideration
Senate
Legal and Constitutional Affairs Committee
The Bill was referred to the Senate Legal and
Constitutional Affairs Legislation Committee for inquiry and report. Details can
be found at the inquiry
homepage.[23]
The Committee tabled its report on 14 February 2017, with the majority report
recommending that the Bill be passed.[24]
The report found that amending the Act to reflect the abolition of the MRT and
RRT ‘is both timely and necessary’. Although noting concerns raised by
submitters that the proposed amendments may compromise the functions and
integrity of MRD decisions, the Committee was satisfied that there were
sufficient protections within the Act to ensure that natural and substantial
justice ‘remains a core obligation of the AAT’.[25]
It further noted the potential for proposed amendments to ‘bundle’ together
certain IAA cases to improve outcomes for families applying for visas together.[26]
The Australian Greens and Labor Senators on the Committee
issued separate dissenting reports, both recommending that the Senate reject
the Bill in its current form. The Labor Senators stated that the proposed
changes, in particular amendments reducing the rights of applicants to access
all material before the Tribunal, and removing the right to request an
interpreter:
... could make it substantially more difficult for applicants
to understand Tribunal processes. They could potentially create a barrier for
many applicants looking to engage fully with the assessment of their cases, and
compromise how they are able to argue their case before the Tribunal. In this,
it is clear that the proposed amendments would significantly compromise the
current rights of applicants to be assessed by the Tribunal in a just and fair
manner.[27]
The Australian Greens opposed the Bill on the basis that
it would reduce the rights of applicants to receive a fair and just hearing
before the Tribunal, and would not achieve its stated goals of making the
Tribunal more efficient. Their dissenting report noted that the proposed
amendments may limit access to substantive justice for applicants, and
therefore increase the number of cases for which judicial review is sought.[28]
Senate
Standing Committee for the Scrutiny of Bills
In its first Scrutiny Digest of 2017, the Senate
Standing Committee for the Scrutiny of Bills requested the Minister’s response
to a number of concerns it raised regarding the Bill.[29]
These included:
- the
exclusion of certain types of decisions from merits review (though the
Committee noted that this largely mirrors the exclusions in the existing Act)
- the
removal of an applicant’s right to access written material given to the
Tribunal
- the
discrepancy between time limits applying to applicants and the Minister when
requesting that an oral statement of the Tribunal be provided in writing and
- provisions
requiring the Tribunal to draw an unfavourable inference in regards to the
credibility of claims or evidence not previously placed before the original
decision-maker in relation to an application for review of a reviewable refugee
decision.[30]
The Committee had not published a response from the
Minister at the time of writing.
Policy
position of non-government parties/independents
As noted above, the Australian Greens and Labor Senators
on the Senate Legal and Constitutional Affairs Legislation Committee
recommended that the Bill not be passed. Other non-government parties and
independents had not commented on the Bill at the time of writing.
Position of major interest groups
The Law Council of Australia, Victoria Legal Aid and
Refugee Advice and Casework Service made submissions to the Senate Committee
Inquiry objecting to certain provisions of the Bill. The Law Council argued
that harmonisation of AAT procedures needs to occur across all divisions of the
Tribunal, so that review of migration decisions by the MRD is harmonised with
the review of (migration and non-migration) decisions in the General Division.
It states that under the Bill:
... the role and functions of the MRD remain distinctly
separate from the role and functions of the General Division and, in many
instances, the proposed changes erode the rights of review applicants to fair
hearings and continue to isolate the MRD distinct from—as opposed to harmonised
with—the remainder of the Tribunal with which it amalgamated.[31]
Victoria Legal Aid expressed concern that certain changes
made by the Bill:
... would water down substantive rights without any compelling
‘harmonisation’ rationale. Some of the changes are also likely to increase the
risk of successful legal challenge with decisions being subject to judicial
review and then remitted back to the Tribunal, creating inefficiency and delay.[32]
The Refugee Advice and Casework Service similarly raised
concerns that a number of the substantive changes within the Bill would
adversely impact on its clients and compromise existing procedural fairness
safeguards.[33]
Objections to specific provisions are discussed under the
‘Key issues and provisions’ heading below.
Financial
implications
The Explanatory Memorandum states that the Bill will have
low financial impact.[34]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[35]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights had not
commented on the Bill at the time of writing.
Key issues
and provisions
Code of
Procedure harmonisation
Part 1 of Schedule 1 contains the main amendments
to the procedural code. Item 94 repeals Part 7 of the Act, which governs
the review of certain Protection Visa decisions. Part 5 of the Act will now
apply to both the review of these decisions (referred to under the Bill as reviewable
refugee decisions[36])
as well as the migration decisions that it already covers (referred to as reviewable
migration decisions[37]).
Procedural
differences preserved by the Bill
As discussed above, the procedures for review under
current Parts 5 and 7 are substantially similar. Most of the existing procedural
differences in Part 7 are preserved under the following amendments proposed by
the Bill. For example:
- the
application requirements for reviewable refugee decisions, which item 39
inserts at proposed subsection 347A, remain the same as those
currently set out at section 412
- where
a non-citizen has had a previous reviewable refugee decision determined by the
Tribunal or RRT, and makes a further application, the Tribunal is not required
to consider any information considered in the earlier application, and may have
regard to, and take to be correct, any decision the review body made about, or
because of, that information. Item 44 inserts this provision at proposed
section 350A, replicating existing section 416 and
- where
an applicant for a reviewable refugee decision (refugee applicant) raises a
claim or evidence not previously raised in the Protection Visa application, the
Tribunal is to draw an unfavourable inference about the credibility of the
claim or evidence if satisfied the applicant has no reasonable explanation
about why it was not raised before the original decision was made. This is
inserted by item 53 at proposed subsection 358A, and is the
same as the existing section 423A.
The privacy protections currently in place for the review
of Part 7 decisions are also retained for reviewable refugee decisions within
the merged Part 5. In particular:
- hearings
in relation to reviewable refugee decisions must be held in private—item 66
inserts proposed section 365A to specify this, replicating existing
section 429. In contrast, oral evidence taken by the Tribunal in relation to a
reviewable migration decision must be taken in public, unless it is
impracticable or against the public interest to do so[38]
- if
the Minister substitutes the Tribunal’s decision with a more favourable decision,
and accordingly is required to provide to Parliament a statement setting out
the reasons for this decision, the statement must not include any information
that may identify a refugee applicant, or where the Minister thinks it would
not be in the public interest to do so, any information about another person
connected with a reviewable refugee decision[39]
and
- the
Tribunal must not publish a decision in relation to a reviewable refugee
decision where it could identify an applicant or any relative or other
dependant of an applicant.[40]
Changes to
review rights and procedures
Although the key procedural features and differences
between Part 5 and Part 7 have been preserved, the Bill makes some important
changes to Tribunal procedures and the substantive rights of applicants.
Access to written material before the Tribunal
Section 362A currently provides that a Part 5 applicant (migration
applicant) is entitled to have access to any written material given or produced
to the Tribunal for the purposes of the review.[41]
There is no equivalent provision under existing Part 7. Item 61 proposes
the repeal of this section.
The Explanatory Memorandum notes that other provisions
place obligations on the Tribunal to provide information to the applicant.
Section 359A requires the Tribunal to provide clear particulars of any information
that it considers would be the reason, or part of the reason, for affirming the
decision under review, and section 359AA permits the Tribunal to orally
give an applicant particulars of relevant information.[42]
The effect of repealing section 362A is that the Tribunal is not required to
provide to the applicant all the material before it, including non-adverse
information which may or may not have been provided by the applicant. Victoria
Legal Aid has opposed the change, arguing that it would:
... undermine the transparency of the Tribunal’s
decision-making generally and impede an Applicant’s awareness of whether or not
they have been denied procedural fairness in relation to a document before the
Tribunal at the time of the review.[43]
The Law Council of Australia has also strongly argued
against repealing the section, stating that an applicant should have access to
all material before the Tribunal, including that which is non-adverse, to
assist with the process of seeking advice and preparing for hearing. It notes:
In order to put their best case forward, the applicant must
be able to consider all information that may be used in a decision which
affects them.
... As a starting point, s 362A enables a person to seek advice
about their case, its prospects of success and what is needed to improve
prospects of success... This involves consideration as to the weight of evidence
and the extent of evidence in a particular matter. It also enables correction
of oversights and misunderstandings at the primary stage.[44]
In response to the Law Council’s concerns, the Department
has noted the absence of a provision equivalent to section 362A under existing
Part 7 of the Act, and stated that despite this, Part 7 review applicants ‘have
not been hindered in their ability to prepare and present their case’.[45]
The Tribunal’s obligation to provide particulars of
adverse information is further limited under the Bill, as item 56 amends
section 359A by inserting proposed paragraph 359(4)(aa), to provide that
the Tribunal is not required to give to an applicant information that was
included, or referred to, in the written statement of the decision that is
under review.[46]
The Explanatory Memorandum states that the applicant should already know of
such information, and that it would hinder the efficient conduct of the review
if the Tribunal were required to provide, and to seek comment from the applicant
on, information of which they should already be aware.[47]
The Refugee Advice and Casework Service (RACS) has raised
concerns with this proposed amendment, arguing that an applicant—particularly
one who is self-represented and non-English speaking—may not at the time of the
Tribunal hearing have knowledge of all the reasons for the initial decision,
nor access to the relevant information referred to in the initial decision.[48]
It has suggested that it would be contrary to natural justice and procedural
fairness principles for the Tribunal to refuse an application based on information
from the initial decision, without having to first raise these concerns with
the applicant.[49]
Right to
representation at hearing
There are currently very limited rights to representation
for applicants appearing at hearings before the MRD. This is in contrast to
applicants appearing in the General Division of the AAT, who are entitled to
representation at hearings.[50]
The issue of representation is dealt with differently under Parts 5 and 7.
Under section 366A, a Part 5 applicant is not entitled to be represented when
appearing before the Tribunal, though may have another person present to assist
them. Previously, this restriction applied to proceedings before the MRT, although
it has been said that ‘in practice’, it was ‘not uncommon for an adviser to
make submissions at MRT hearings, although proceedings are tightly controlled
by the member’.[51]
In relation to Part 7 decisions, subsection 427(6) states
that a person appearing before the Tribunal to give evidence is not
entitled to representation. The provision is silent on the issue of
representation in other circumstances, and the MRT-RRT has previously noted
that, when the provision applied in the RRT proceedings:
... this has been interpreted as leaving a discretion for the
member to permit representation, and a consideration being whether in the
circumstances of a case procedural fairness requires it.[52]
By repealing Part 7 (and therefore subsection 427(6)), the
current Bill applies section 366A to all refugee and migration applicants
appearing before the MRD. It appears that a practical consequence of this will
be to remove what has been interpreted as a discretion to allow refugee
applicants representation in certain circumstances.
Right to
request interpreter
The Bill amends the procedure surrounding the use of an
interpreter in Tribunal proceedings. Currently, a person appearing before the
Tribunal to give evidence in a Part 5 matter may request the Tribunal appoint
an interpreter. The Tribunal must comply with such a request unless it
considers that the person is sufficiently proficient in English, and it can
also appoint an interpreter despite a request not having been made.[53]
In contrast, Part 7 does not give a refugee applicant a similar power to
request an interpreter, but provides that the Tribunal may direct that one be
used where the person is not proficient in English.[54]
Item 71 repeals and substitutes proposed section
366C to provide that the Tribunal may direct that an interpreter be used if
a person appearing before the Tribunal to give evidence is not proficient in
English. This means that the Tribunal has no obligation to appoint an
interpreter on request from a migration or refugee applicant, but has
significant discretion on this issue. The Explanatory Memorandum does not
explain why the right to request an interpreter has been removed, but states
that in considering and deciding whether to appoint an interpreter the Tribunal
will:
... also take into account the Tribunal’s existing
responsibility under section 2A of the AAT Act to pursue the objective
of providing a mechanism of review that is fair, just, economical, informal and
quick.[55]
Victoria Legal Aid has raised concerns with this
statement, suggesting that the proposed amendment will increase the risk that a
person appearing before the Tribunal will have their ‘fundamental rights to be
heard undermined in order to save money or time in the performance of the Tribunal’s
functions’, and that it may lead to confusion for the Tribunal about how to
exercise its discretion.[56]
RACS has also opposed the change, noting that it would give rise to procedural
fairness issues, particularly in circumstances where it is not immediately
clear to the Tribunal that the applicant is not sufficiently proficient in
English.[57]
Natural
justice provisions
The Bill removes some existing provisions which state the
natural justice obligations of the Tribunal. In particular, item 51
amends the ‘exhaustive statement of natural justice hearing rule’ at section
357A by repealing subsection 357A(3), which requires the Tribunal to act in a
way that is ‘fair and just’ in conducting its review. The Explanatory
Memorandum states that this subsection is redundant, as in reviewing decisions
the MRD is already bound by paragraph 2A(b) of the AAT Act which provides:
In carrying out its functions, the Tribunal must pursue the
objective of providing a mechanism of review that:
... (b) is fair, just, economical, informal and
quick;
This objects statement was inserted into the AAT Act
by the Administrative Appeals Tribunal Amendment Act 2005 (Cth). The
Explanatory Memorandum to the Bill stated that the objects statement was not
intended to be a basis on which a person may seek judicial review of a decision
made by the AAT, but that it would ‘serve as an accountability measure by which
the AAT can assess its own performance and the AAT’s performance may be
measured by the Government’.[58]
RACS has expressed concerns with the proposed change,
arguing that the objects statement under the AAT Act is not the same as
the requirements imposed on the Tribunal by subsection 357A(3):
... section 357A(3) imposes a higher threshold on the Tribunal,
in that it requires the Tribunal to act in a way that is fair and just, whereas
section 2A requires that the Tribunal merely pursue the objective of
providing a review mechanism that is fair and just.[59]
Item 47 repeals Division 4 of Part 5, which
contains provisions about the Tribunal’s way of operating and guidance
decisions. The substance of these provisions is inserted elsewhere in Part 5,
except for paragraph 353(b) which is not preserved.[60]
Paragraph 353(b) currently provides that the Tribunal, in reviewing a Part 5
reviewable decision, ‘shall act according to substantial justice and the merits
of the case’.[61]
It is mirrored by paragraph 420(b) under Part 7, which is also repealed. The
Explanatory Memorandum provides that the paragraph is unnecessary, again due to
the operation of paragraph 2A(b) of the AAT Act.[62]
Victoria Legal Aid has opposed this change and argues that
paragraph 2A(b) of the AAT Act does not replicate the repealed
paragraphs:
... although there is some overlap between the two phrases, the
balance of [paragraphs] 353(b) and 420(b) is on justice, while s 2A(b) reflects
a greater efficiency motive.
... The change in focus and language in respect of the
Tribunal’s conduct may materially affect the safeguards currently provided to
Applicants including by ensuring that the Tribunal conducts its review focused
on the substantial justice of the case.[63]
Requesting
evidence
Item 59 repeals and substitutes proposed section
361, which sets out the applicant’s rights to request the Tribunal call
witnesses or obtain evidence. Existing section 361 allows a migration applicant
to provide written notice, within seven days of receiving notice of a hearing,
requesting the Tribunal to obtain particular oral or written evidence or other
written material. This is somewhat different to the Part 7 provision, which
provides that a refugee applicant may provide a written notice requesting oral
evidence from a specific person or persons (but not written materials), within
the same seven day timeframe.[64]
In both cases, the Tribunal must have regard to the applicant’s notice but is
not required to comply with it.[65]
By repealing Part 7, the Bill brings both migration and
refugee applicants within the scope of proposed section 361, which
allows an applicant to request the Tribunal to obtain oral or written evidence
or other written material. Rather than a seven-day timeframe, the applicant has
until the start of the day of the hearing to provide the written notice.[66]
As with the existing provisions, the Tribunal must have regard to the request
but is not required to comply with it.[67]
The Law Council has raised concerns with the provision,
arguing that the requirement can be onerous and complex for applicants, and
that failure to provide written notice within the specified time may lead to
the Tribunal ignoring the notice.[68]
However, the amendments proposed by the Bill do not significantly depart from
existing procedure, and provide the applicant with a longer timeframe (rather
than seven days from receiving notice of the hearing) in which to make the
written request.
Right to
appeal dismissal of application
Item 101 inserts proposed paragraph 476(2)(e),
to specify that the Federal Circuit Court does not have jurisdiction to review
a decision by the Tribunal to dismiss an application where the applicant fails
to appear before the Tribunal at the scheduled time and place.[69]
Where the Tribunal dismisses an application for failure to
appear, the applicant may, within 14 days of receiving notice of the dismissal
apply to the Tribunal for reinstatement.[70]
If the applicant does so the Tribunal must consider whether to reinstate the
application or confirm the decision to dismiss.[71]
If the applicant does not apply for reinstatement within 14 days, the Act
directs that the Tribunal must issue a written statement confirming the
decision to dismiss.[72]
The Explanatory Memorandum notes:
In each case a decision under paragraph 362B(1A)(b) does not
finalise the Tribunal’s decision on the review ... if the Tribunal does reinstate
the application, the fact that it was dismissed does not prejudice the outcome
of the review. It would be an inappropriate use of the Federal Circuit Court’s
time and resources to determine whether the dismissal decision had been
correctly made ... prior to one of the three possible outcomes above and the
applicant having no further recourse to the Tribunal.[73]
Where the Tribunal subsequently confirms the decision to
dismiss the application, either following an application for reinstatement or
due to the applicant’s failure to apply for reinstatement, this decision will
itself be reviewable.[74]
Consequential
and savings provisions
The majority of other items in Schedule 1, Parts 1 and 2
make minor, consequential amendments to the terminology in the Act, such as by:
- omitting
references to Part 7 of the Act
- replacing
references to a ‘Part 5-reviewable decision’ with ‘reviewable migration
decision’, and references to a ‘Part 7-reviewable decision’ with ‘reviewable
refugee decision’ and
- repealing
and substituting headings for Parts, Divisions and sections.
Part 3 of Schedule 1 makes consequential amendments to two
provisions of the AAT Act to remove references to Part 7 of the Migration
Act.
Part 4 of Schedule 1 contains application, saving and
transitional provisions. The majority of Schedule 1 amendments will apply to
review of a decision for which an application has been made before, on or after
the date of commencement, unless the application has been finalised.[75]
The Bill’s amendments will not apply to certain actions taken prior to
commencement. For example, where the Tribunal has issued the applicant with an
invitation to appear under existing sections 360A or 425A, prior to the date of
commencement, the existing provisions relating to this notice and requests for
evidence continue to apply.[76]
Responding
to information
Part 1 of Schedule 2 amends provisions of the Act which
deal with the Tribunal’s obligation to give an applicant certain information
and an opportunity to respond. Under existing subsection 359A(1) the Tribunal
must provide to an applicant clear particulars of any information that it
considers would be the reason, or part of the reason, for affirming the
decision under review, and invite the applicant to ‘comment on or respond to’
the information. If the applicant does provide a comment or response, and the
Tribunal cannot make a favourable decision on the papers, it must invite the
applicant to attend a hearing before the Tribunal.[77]
If the applicant does not provide comments or a response as invited, the
Tribunal has no obligation to invite the applicant to a hearing and may proceed
to make a decision.[78]
Item 2 removes the phrase ‘or respond to’ from
paragraph 359A(1)(c), so that the Tribunal’s obligation is to invite the
applicant only to comment on the information. Items 1 and 3 to 11 make
consequential amendments under proposed Subdivision D of Division 4, Part
5 to remove further references to an applicant ‘responding’ to information as
invited by the Tribunal.[79]
The term ‘comment on’ is not defined under the Act, either
in its current form or as amended by the Bill. The Explanatory Memorandum
provides:
The purpose of this amendment is to ensure that an applicant
must provide a substantive comment in response to an invitation given by the
Tribunal. This addresses the decisions of the Federal Court in Minister for
Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233,
where it was found that a response does not require substantive remarks or
observations, but requires merely an answer or reply of any sort to the
information in the invitation.
The amendment will ensure the Tribunal may proceed, pursuant
to subsection 359C(2), to make a decision on the review without inviting the
applicant to a hearing if the applicant chooses to reply in a way that does not
substantively engage or grapple with the issues contained in the information
put to them in the invitation ... Omitting the words “or respond to” will ensure
that applicants cannot preserve their entitlement to appear before the Tribunal
under section 360 where they have merely acknowledged receipt of the
information, or provided any answer or reply that does not indicate the
applicant’s position in relation to the information.[80]
The proposed amendments have been criticised by Victoria
Legal Aid as having the potential to significantly disadvantage
self-represented, non-English speaking applicants who may find it difficult to
understand the content of the adverse information and the obligation to comment,
as well as to provide a comment that demonstrates substantive engagement or
grappling with the adverse information. It has argued:
... this reform is ill-adapted to its intention. Moreover, if
the intention is achieved, it will adversely impact the most disadvantaged
cohort of applicants seeking review before the Tribunal on important matters;
potentially locking them out of the one forum (oral hearing) in which (subject
to adequate provision of an interpreter) they will be able to best advance
their application for review.[81]
Fast track
reviewable decisions
Part 3 of Schedule 2 amends provisions relating to the Immigration
Assessment Authority (IAA) to permit it to review together decisions relating
to members of the same family unit. The IAA was established in April 2015 as a
separate office within the RRT, and following the tribunal amalgamation became
an independent authority within the Migration & Refugee Division of the
AAT.[82]
The IAA conducts fast track reviews of Protection Visa decisions for fast
track applicants—people who arrived in Australia by boat without a
valid visa on or after 13 August 2012, and before 1 January 2014, and who
have been permitted by the Minister to make an application for a protection
visa in Australia.[83]
A fast track applicant does not make an application to the IAA directly;
instead, the case is referred to the IAA by the Minister.
Item 27 inserts proposed subsection 473CA(2)
to provide that in referring a fast track reviewable decision to the IAA, the
Minister may refer together decisions which relate to applicants in the same
family unit. Item 28 inserts proposed section 473DG which states
that the IAA may review two or more fast track reviewable decisions together,
whether or not they have been referred together to the Authority. However, the
Authority is not required to review decisions together, even if they have been
referred together under section 473CA.[84]
The Refugee Advice and Casework Service has raised concerns with the wording of
proposed section 473DG, noting that the provision does not make it clear
whether the two or more decisions would have to be related to the same family
unit in order for the IAA to review them together.[85]
The other amendments in this Part clarify the procedure of
the IAA when reviewing applications together. Item 33 inserts proposed
section 473HEA which states that if the Minister refers decisions together
to the IAA, and the IAA reviews those decisions together, documents given to
any of the applicants in connection with the review are taken to be given to
each of them. A note is also inserted into subsection 473HA(1) to this effect.[86]
Subsections 473HA(2) and 473HB(2) currently deal with the
giving of documents by the IAA to a minor, and specify that the IAA may instead
give a document to an individual who is at least 18 years of age if the
Authority reasonably believes that the individual has (or works for an
organisation which has) day-to-day care and responsibility for the minor. Items
31 and 32 insert proposed subsections 473HA(2A) and 473HB(2A)
respectively, to provide that these provisions do not apply where the Authority
is reviewing applications together under proposed section 473HEA. RACS
has opposed these changes, stating that they could result in important
documents being given to a minor who is a member of a family unit whose
decisions are being considered together, and that this would constitute receipt
of the documents by each member of the family unit.[87]
Officers of
the Tribunal
Part 2 of Schedule 2 removes references in the Act to an ‘officer
of the Tribunal’. Item 14 repeals the definition of officer of the
Tribunal from section 337. Item 13 inserts into subsection 5(1)
a definition of staff member of the Tribunal, meaning a member of
the staff of the Tribunal. All references in the Act to an officer of the
Tribunal are replaced with a reference to the Registrar or a staff member of
the Tribunal.
The term ‘officer of the Tribunal’ currently has the same
meaning under the Act as under the AAT Act, where it is defined as
meaning the Registrar, or a person appointed as an officer of the Tribunal
under section 24PA.[88]
The amendments will therefore remove the requirement for a person to be
appointed as an officer of the Tribunal, and allow for the Registrar or any
staff member of the Tribunal to do things such as receive applications and
other documents, and provide administrative assistance to the IAA.
Concluding comments
The changes proposed by the Bill ensure that the review
functions of the Migration & Refugee Division of the AAT—and the rights of
applicants appearing before it—are covered by a single code of procedure, contained
in Part 5 of the Act. However, it is important to note that in merging the two
existing procedural codes, the Bill makes important changes to certain Tribunal
procedures and the rights of applicants.
[1]. The
decisions reviewable under Part 7 are set out at section 411 of the Act.
[2]. The
decisions reviewable under Part 5 are set out at section 338 of the Act.
[3]. Administrative
Appeals Tribunal (AAT), ‘Amalgamation
of tribunals’, AAT website, 2016; M Coombs, C Petrie and D Spooner, Tribunals
Amalgamation Bill 2014, Bills digest, 83, 2014–15, Parliamentary
Library, Canberra, 2015.
[4]. P
Dutton, ‘Second
reading speech: Migration Legislation Amendment (Code of Procedure
Harmonisation) Bill 2016’, House of Representatives, Debates, 30
November 2016, p. 4879.
[5]. AAT
Act, section 24Z—within Part IV, only sections 25 (Tribunal’s power to
review certain decisions) and 42 (resolving disagreements where Tribunal is
constituted by multiple members) apply to the MRD.
[6]. AAT,
Administrative
Appeals Tribunal: decisions subject to review (jurisdiction as at 31 December
2016), AAT, Canberra, pp. 172–174, 31 December 2016.
[7]. A
Freckelton, Administrative
decision-making in Australian migration law, Australian National
University, Canberra, ch. 4, 2015.
[8]. P
Ruddock, ‘Second
reading speech: Migration Legislation Amendment Bill (No. 1) 1998’, House
of Representatives, Debates, 2 December 1998, p. 1122.
[9]. R
Germov, ‘Fairness
under threat: procedures at the migration and refugee review tribunals’, Law
Institute Journal, November 2012, p. 45.
[10]. Migration Act 1958
(Cth), sections 357A and 422B. These provisions were inserted into the Act by
the Migration
Legislation Amendment (Procedural Fairness) Act 2002 (Cth).
[11]. D
Pearce, Administrative Appeals Tribunal, 4th edn, LexisNexis
Butterworths, Australia, 2015, pp. 115–116.
[12]. Migration
Act, sections 417, 429 and 431.
[13]. Ibid.,
section 365.
[14]. Ibid.,
sections 416 and 423A.
[15]. Administrative Review Council (ARC), Federal
judicial review in Australia, September 2012, pp. 142–145.
[16]. Ibid.,
p. 145.
[17]. Ibid.,
recommendation 9.
[18]. M
Coombs, ‘Abolition of the Administrative Review Council’, Budget
review 2015–16, Research paper, 2014–15, Parliamentary Library,
Canberra, May 2015, p. 110.
[19]. Migration
Review Tribunal (MRT)—Refugee Review Tribunal (RRT), Submission
to the Administrative Review Council, Consultation Paper on Judicial Review
in Australia, 5 July 2011, p. 3; ARC, Federal
judicial review in Australia, op. cit., p. 120.
[20]. Department
of Immigration and Citizenship (DIAC), Submission
to the Administrative Review Council, Consultation Paper on Judicial Review
in Australia, July 2011, p. 7.
[21]. Ibid.;
also see ARC, Federal
judicial review in Australia, op. cit., p. 144.
[22]. D
Kerr, Reviewing
the reviewer: the Administrative Appeals Tribunal, Administrative Review
Council and the road ahead, Ethos, 238, Canberra, December 2015.
[23]. Inquiry
homepage, Senate Legal and Constitutional Affairs Legislation Committee,
‘Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016
[Provisions]’.
[24]. Senate
Legal and Constitutional Affairs Legislation Committee, Migration
Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 [Provisions],
The Senate, Canberra, February 2017.
[25]. Ibid.,
p. 20.
[26]. Ibid.,
p. 21.
[27]. Labor
Senators, Dissenting
report, Senate Legal and Constitutional Affairs Legislation Committee, Migration
Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 [Provisions],
The Senate, Canberra, February 2017.
[28]. Australian
Greens, Dissenting
report, Senate Legal and Constitutional Affairs Legislation Committee, Migration
Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 [Provisions],
The Senate, Canberra, February 2017.
[29]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
Digest, 1, 2017, The Senate, 8 February 2017, pp. 20–26.
[30]. Ibid.,
pp. 24–26. The Committee noted that proposed section 358A substantially
mirrors existing section 423A of the Act, and therefore restated concerns it
had raised previously.
[31]. Law
Council of Australia (LCA), Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016,
20 January 2017, p. 4.
[32]. Victoria
Legal Aid (VLA), Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016,
13 January 2017, p. 1.
[33]. Refugee
Advice and Casework Service (RACS), Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016,
25 January 2017, p. 1.
[34]. Explanatory
Memorandum, Migration Legislation Amendment (Code of Procedure
Harmonisation) Bill 2016, p. 1.
[35]. The
Statement of Compatibility with Human Rights can be found at pages 42 to 48 of
the Explanatory Memorandum to the Bill.
[36]. Item
34 inserts proposed section 338A, which provides a definition of reviewable
refugee decision. This covers the same decisions as the term Part
7—reviewable decision under current section 411.
[37]. Items
32 and 33 amend section 338 to replace the term Part 5—reviewable
decision with the term reviewable migration decision.
They do not make substantive changes to the types of decisions covered by this
term.
[38]. Item
66 repeals and substitutes proposed section 365 which relates to the
public review of reviewable migration decisions. However, it does not change
the substantive effect of the section.
[39]. This
is inserted into proposed paragraphs 351(5)(b) and (c) by item 45,
and replicates existing subsection 417(5) under Part 7 of the Act.
[40]. Proposed
section 369, inserted by item 77. This preserves the substance of
existing section 431 of the Act.
[41]. Subsection
362A(2) provides that this right is subject to requirements of the Privacy
Act 1988 (Cth).
[42]. Explanatory
Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016, op. cit., p. 14.
[43]. VLA,
Submission
to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 2.
[44]. LCA,
Submission
to the Senate Legal and Constitutional Affairs Committee, op. cit., pp.
6–8.
[45]. DIBP,
‘Answers
to written questions on notice’, Senate Legal and Constitutional Affairs
Committee, Inquiry into the Migration Legislation Amendment (Code of
Procedure Harmonisation) Bill 2016, received 7 February 2017, p. 3.
[46]. This
is in addition to existing exceptions, set out under subsection 359A(4), which
include information: 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; that the applicant gave for the purpose of the application for review; that
the applicant gave during the process that led to the decision that is under
review, other than such information that was provided orally by the applicant
to the Department; or non-disclosable information.
[47]. Explanatory
Memorandum, p. 12.
[48]. RACS,
Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016,
op. cit., p. 2.
[49]. Ibid.
[50]. AAT
Act, section 32. Note that there are some limitations on the right to
representation to applicants within the Social Services and Child Support
Division, although the Tribunal may grant permission for an applicant to be
represented.
[51]. MRT
and RRT, Submission
to the Productivity Commission, Access to Justice Arrangements Inquiry,
31 October 2013, p. 3.
[52]. Ibid.
[53]. Section
366C.
[54]. Subsection
427(7).
[55]. Explanatory
Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016, op. cit., p. 17.
[56]. VLA,
Submission
to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 3.
[57]. RACS,
Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016,
op. cit., p. 5.
[58]. Explanatory
Memorandum, Administrative Appeals Tribunal Amendment Bill 2005, p. 2.
[59]. RACS,
Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016,
op. cit., p. 5.
[60]. Paragraph
353(a) currently provides that the Tribunal is not bound by technicalities,
legal forms or rules of evidence. This provision is preserved in proposed
357B, which is inserted by item 52.
[61]. The
same requirement as applying to review of Part 7 reviewable decisions is
included at paragraph 420(b), which is repealed alongside the rest of Part 7.
[62]. Explanatory
Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016, op. cit., p. 10.
[63]. VLA,
Submission
to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 2.
[64]. Section
426.
[65]. Subsections
361(3) and 426(3).
[66]. Schedule
1, item 59, proposed subsection 361(2).
[67]. Schedule
1, item 59, proposed subsection 361(3).
[68]. LCA,
Submission
to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 9.
[69]. The
Tribunal’s power to dismiss for a failure to appear is set out under paragraph
362B(1A)(b) of the Act.
[70]. Subsection
362B(1B).
[71]. Subsection
362B(1C).
[72]. Subsection
362B(1E).
[73]. Explanatory
Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016, op. cit., p. 24. The Explanatory Memorandum further notes that the
applicant can still seek review of the dismissal decision in the High Court of
Australia in its original jurisdiction.
[74]. A
decision to confirm the decision to dismiss an application must be made by a
written statement under section 368 and cannot be made orally (paragraph
362B(1C)(b) and section 362B(1E)). Paragraph 368(1)(e) provides that such a
written statement must indicate that the decision under review is taken to be
affirmed. The Act does not restrict the right to appeal such a decision.
[75]. Schedule
1, items 117 and 118.
[76]. Schedule
1, item 122.
[77]. Section
360.
[78]. Subsection
359C(2).
[79]. Item
12 provides that the amendments made by this Part apply to written
invitations given by the AAT under section 359A on or after commencement.
[80]. Explanatory
Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016, op. cit., p. 34.
[81]. VLA,
Submission
to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 4.
[82]. Immigration
Assessment Authority (IAA), ‘About’,
IAA website, 10 May 2016.
[83]. IAA,
‘What
you need to know about the Immigration Assessment Authority’, IAA website,
May 2016.
[84]. Schedule
2, item 28, proposed subsection 473DG(3).
[85]. RACS,
Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016,
op. cit., p. 7.
[86]. Schedule
2, item 29.
[87]. RACS,
Submission
to the Senate Legal and Constitutional Affairs Committee, Inquiry into the
Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016,
op. cit., p. 7.
[88]. AAT
Act, section 3.
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