1.1        Labor senators recommend that the Senate reject the bill in its current form.

1.2        The bill purports to amend the Migration Act 1958 (the Migration Act) to harmonise the codes of procedure functions of the former Migration Review Tribunal (MRT) and the former Refugee Review Tribunal (RRT), now that their functions have been consolidated into the newly-established Migration and Refugee Division (MRD) of the Administrative Appeals Tribunal (AAT or Tribunal).

1.3        However, the committee received evidence that argued the bill would not achieve its stated objectives of harmonising codes of practice and driving efficiency across the AAT, while preserving the substantive rights of applicants to have their cases heard in a just and fair manner.

Watering down the substantive rights of applicants

1.4        The department submitted that the bill's provisions would have no effect on the rights of applicants to the Tribunal to seek reviews of refusal or cancellation decisions made under the Migration Act.

1.5        However, some submitters were concerned that the bill would repeal sections 353(b) and 420(b) of the Migration Act, which include the provision that the AAT must 'act according to substantial justice and the merits of the case'.[1]

1.6        Moreover, submissions also noted that the bill would repeal subsection 357A(3) of the Migration Act, which sets out an 'Exhaustive statement of natural justice hearing rule', and stipulates that 'In applying this Division, the Tribunal must act in a way that is fair and just'.[2]

1.7        The Explanatory Memorandum asserts that these sections have been removed as they are duplicative, and that the Tribunal would remain subject to section 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act).[3] This requires that the Tribunal 'must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick'.[4]

1.8        However, the committee received compelling evidence that these amendments could significantly water down the rights of applicants to be guaranteed substantive justice in their appeals to the Tribunal. As Victoria Legal Aid submitted

This 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.[5]

Access to merits reviews

1.9        Labor Senators also note that the Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) has sought the Minister's clarification on a number of matters of concern relating to the bill in their most recent Scrutiny Digest.[6]

1.10      One of these concerns was that the bill would limit the availability of merits reviews in proposed subsection 338A.[7] The Scrutiny Committee notes:

...subsection 338A(1) provides that a number of reviewable refugee decisions are excluded from review on specified grounds:

• that the Minister has issued a conclusive certificate in relation to the decision, on the basis that the Minister believes it would be contrary to the national interest to change or review the decision;
• that the decision to cancel a protection visa was made by the Minister personally;
• the decision is made in relation to a non-citizen who is not physically present in the migration zone when the decision is made; or
• that the decision is a fast track decision. A 'fast track decision' is a decision to refuse to grant a protection visa to certain applicants, for which a very limited form of review is available under Part 7AA of the Act.[8]

1.11      Labor Senators concur with the Scrutiny Committee and express concern that these provisions mean a large number of decisions relating to protection visas would either not be subject to merits review or only have limited review, and are insufficiently explained in the legislation and Explanatory Memorandum.

Removing rights of applicants

1.12      More specifically, Labor Senators are concerned that the bill would reduce the current rights applicants have under the Migration Act to have their claims considered in a just and fair manner by the Tribunal. It is clear that the bill would not only limit applicants' access to documents being used to assess their case, but that it would also remove the right for applicants to request a translator to assist them giving evidence.

Access to information being considered by the Tribunal

1.13      The bill would remove section 362A of the Migration Act, which currently gives applicants the right 'to access written material before the Tribunal for the purposes of the review, up until the time that a final decision is made'.[9]

1.14      The Explanatory Memorandum states this amendment is proposed as the current provisions duplicate the clear obligations the AAT has to provide applicants with the opportunity to comment on adverse information being considered as part of their case under sections 359A and 359AA of the Migration Act.[10]

1.15      However, several submitters gave evidence that these amendments could give rise to significant issues of procedural fairness, by making it more difficult for applicants to access all documents and information being considered by the Tribunal in the assessment of their case.[11] Victoria Legal Aid argued that:

Without an express right to access the material before the Tribunal, Applicants will not be in a position to 'know what they do not know'.

This change 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.[12]

1.16      The Law Council of Australia (Law Council) noted a number of flaws with the amendments made by the bill and submitted that:

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. That was the purpose of this section when it was created and there is no obvious reason why refugee applicants cannot also be provided with a right of access to their personal information through the statutory framework of the [Migration Act].[13]

1.17      The Scrutiny Committee also noted that these provisions would compromise the procedural fairness of the Tribunal:

...the proposed repeal appears to reduce the applicant's access to information which the Tribunal has before it for the purposes of the review. In this regard the committee notes that the common law rule of procedural fairness may require disclosure of adverse information that is relevant, credible and significant even though a decision-maker disavows any reliance on that information as part of the reason for their decision to affirm a decision under review.[14]

1.18      Labor Senators consider it is essential that applicants must be able to access all information being considered in the assessment of their cases by the Tribunal.

Limits on the admission of new information to be considered by the Tribunal

1.19      The bill includes provision to insert a new section 358A, setting out how the Tribunal is to deal with new claims of evidence in reviewable refugee decisions.[15] The Explanatory Memorandum suggests this new provision mirrors (and repeals) the existing section 423A of the Migration Act.

1.20      The Scrutiny Committee outlined this new provision:

The proposed section provides that, if an applicant raises a claim or presents evidence relevant to a protection visa not previously placed before the original decision-maker in relation to an application for review of a reviewable refugee decision, then the tribunal is required to draw an unfavourable inference about the credibility of the claim or evidence. However, this unfavourable inference is only to be drawn if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.[16]

1.21      The law Council noted that it had opposed the introduction of section 423A, and that it similarly opposed this amendment, as:

It is a longstanding function at common law that a tribunal has the power to make findings of credibility of an applicant including to make findings where an applicant has raised new claims or presented new evidence which was not before the primary decision maker. The Tribunal's power to make such findings has been repeatedly endorsed by the Courts, and the Committee submits that the Tribunal should be able to undertake this duty without the need for legislation.[17]

1.22      The Scrutiny Committee noted that merits review tribunals are generally given the task of making the 'correct or preferable' decision–and that they are not responsible for assessing 'whether the decision which the original decision-maker was the correct or preferable decision on the material before the original decision-maker'. Moreover, they noted that the courts have concluded that applicants are entitled to introduce new facts to support their applications to merits review tribunals.[18]

1.23      On this, the Scrutiny Committee concluded that:

...limiting merits review tribunals to facts and claims presented in an original application is a significant departure from their typical and distinctive function....it is not immediately apparent why the nature of decisions concerning protection visas would justify a departure from the normal approach to merits review, which derives from the overriding function of making the correct or preferable decision. Arguably, the importance of ensuring compliance with Australia's international obligations in relation to refugees indicates that departure from contemporaneous review in the context of merits review of decisions to refuse protection visas should be well justified in the explanatory memorandum.[19]

1.24      Labor Senators share these concerns, and consider that applicants should not be prevented from submitting relevant new evidence to a merits review tribunal assessing their case.

Provision of interpreters

1.25      The Migration Act currently provides that a 'person appearing before the Tribunal to give evidence may request the Tribunal to appoint an interpreter for the purposes of communication between the Tribunal and the person'.[20] The bill would replace this provision with:

If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with the person proceed through an interpreter during his or her appearance.[21]

1.26      Some submitters noted that this would only allow interpreters on the Tribunal's own motion, removing the right of applicants to request an interpreter be provided to them.[22] For example, Victoria Legal Aid noted that the amendment:

...creates the possibility that the Tribunal will (a) consider whether it will decline to engage an interpreter even where a person giving evidence before it is not proficient in English; and (b) that it may in fact decide not to engage an interpreter despite the person before it having insufficient English to participate in the hearing.[23]

1.27      The Refugee Advice & Casework Service (RACS) noted that this would be a:

...considerable change from the position in current section 366C of the Act, which provides that a person appearing before the Tribunal may request an interpreter and that the Tribunal must comply with such request unless it considers that the person is sufficiently proficient in English.[24]

1.28      Moreover, RACS noted it could give rise to serious issues of procedural fairness for applicants:

If passed, the proposed amendment would adversely impact a number of our clients and would give rise to serious issues of procedural fairness...particularly in circumstances where it is not immediately clear to the Tribunal that the applicant is not sufficiently proficient in English.[25]

1.29      Labor Senators consider that the ability to request the assistance of interpreters should remain a right for applicants before the Tribunal. To remove this right is clearly a reduction of the rights applicants currently have under the Migration Act, and could seriously compromise the procedural fairness of assessments made by the Tribunal.

Conclusion

1.30      Labor Senators note that the bill would remove the explicit requirement for the Tribunal to 'act according to substantial justice and the merits of the case'.[26] Moreover, the bill would also reduce the specific rights of applicants to access material being considered by the Tribunal to assess their case, as well as removing their right to request a translator.

1.31      All these changes 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.

1.32      For these reasons, Labor Senators consider that the bill should not be passed by the Senate in its current form.

Recommendation 1

1.33      Labor Senators recommend that the Senate rejects the bill in its current form. 

Senator Louise Pratt
Deputy Chair

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