Bills Digest no. 78 2008–09
Migration Legislation Amendment Bill (No.2)
2008
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
Contact officer & copyright details
Passage history
Date
introduced: 3
December 2008
House: Senate
Portfolio: Immigration and Citizenship
Commencement: Sections 1 to 3 commence on the day of Royal Assent.
All other provisions commence on a day to be fixed by Proclamation,
or six (6) months after the day of Royal Assent, which ever is the
sooner.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of the Bill is to
amend provisions of the Migration Act 1958 (Cth)
(‘Migration Act’) that relate to the way in which the
Migration and Refugee Review Tribunals conduct their merits review
and the time limit for lodging applications for judicial review of
migration decisions.
Schedule 2 of this Bill reintroduces similar
(though not identical) provisions originally contained in Schedule
1 of the Migration Legislation Amendment Bill (No.1) 2008 (Bill No.
1).
That schedule was subsequently amended during the second reading
debate when Government-led amendments in the Senate resulted in the
removal of the proposed provisions relating to time limits for
judicial review. It appears those provisions would have had
unintended consequences. As Senator the Hon. Chris Evans
explained:
Following introduction of the bill into
parliament, it became apparent that the amendments in the bill did
not cover all decisions which are judicially reviewable and which
should be subject to time limits. I am committed to reinstating
effective time limits for judicial review, and further
consideration will be given to how best to do this for all
judicially reviewable decisions. Therefore, amendments (2) to (7)
propose to amend schedule 1 to the bill to remove the items that
sought to reinstate effective time limits. This is to allow further
consideration to be given as to how best to reinstate effective
time limits for all judicially reviewable decisions.[1]
Moreover, as noted by the then shadow immigration Minister,
Senator the Hon. Chris Ellison the proposed time limits for
judicial review would have applied to decisions that were not
subject to merits review:
The government’s new amendments will
remove schedule 1 of the bill. It has come to light that the bill
as drafted would not have worked appropriately in relation to
decisions which have no merit review rights attached.[2]
The Government has now sought to overcome this oversight by more
clearly defining the types of decision that will be subject to the
new time limits for seeking judicial review, namely
‘migration decisions’ (which includes a privative
clause decision, a purported privative clause decision, or a
non-privative clause decision).[3]
At time of writing, this Bill had not been referred to a
Committee for consideration.[4]
The Coalition has previously expressed support for the
Government’s plan to reinstate effective time limits for all
judicially reviewable migration decisions.[5] Noting in particular that:
Certainly, it is in no-one’s interests
for someone who is about to be removed from Australia to then seek
to take action to avoid that when they have had adequate time to do
that previously - they have been on notice; they have had
that.[6]
However, Independent Senator, Nick Xenophon has stated that he
would not have been able to support the Government’s
proposed amendments to the time limits imposed on applications for
judicial review contained in Schedule 1 of Bill No.1. His concerns
stemmed from an inconsistency between the operations of the
Administrative Appeals Tribunal (AAT) and the Migration and Refugee
Review Tribunals (MRT and RRT). His main concern being that only
the AAT possesses the ability to grant an extension of time in
which applications can be lodged and from the view that ‘the
changes in this legislation will still not permit the courts to
allow an application to be lodged outside the set time
period’.[7]
The Explanatory Memorandum notes that the financial impact of
the proposed amendments will be negligible. In addition, it
suggests that the measures may result in a cost saving for the
Department, Tribunals and the Courts.[8]
This Bill contains some potentially contentious
provisions which, if enacted will:
- Change the means by which the MRT and RRT can request
information for the purposes of conducting merits review;
- Increase the length of time unsuccessful applicants have to
seek an extension of time to lodge an application for judicial
review;
- Remove the limitation placed on the Courts to grant the
extension for only a set period of time;
- Change what the Court ‘is required’ under the
Migration Act to consider when assessing whether to grant an
extension of time to lodge an application for review; and
- Remove the right of an unsuccessful applicant to appeal to a
superior Court the decision refusing an extension of time.
Each of these features is discussed in further detail below
(under ‘Main provisions’).
Items 1 and 9 amend existing subsection
359(2) relating to the MRT and 424(2)
relating to the RRT to provide that the Tribunals may invite either
orally (including by telephone) or in writing a person to give
information that the Tribunal considers relevant. This amendment is
in response to several Court decisions including SZKTI v
Minister for Immigration and Citizenship[9]
(‘SZKTI’) which found that existing section
424 (in similar terms to 359 as relating to the MRT) precluded the
RRT from obtaining information from an applicant orally, i.e. over
the telephone.
As highlighted by the Explanatory Memorandum, there may be
circumstances where the only way of contacting a person is
by oral means e.g. only a telephone number is provided to the
Tribunal registry. In addition, adverse information that is to be
relied upon in affirming a decision must first be put to the
applicant in writing for comment.[10]
However, there are some inherent difficulties in acquiring
information orally which raise procedural fairness concerns as
highlighted by the full bench of the Federal Court in
SZKTI:
… First, there is no clear material to
identify what Mr Cheah was asked by or told the tribunal. One
reason for the requirement laid down in s 424B is that where the
information is to be provided in writing, there is a record of a
writing. If it is to be provided at an interview, the interview is
to occur on a particular occasion at a particular place and time.
The tribunal is likely to make a record in that event, although it
does not have to do so. But, more significantly, the person from
whom the information is being sought will be given a fair
opportunity to prepare himself or herself to provide that
information with the consideration and degree of accuracy that a
fair hearing of the application for review application
demands…
An impromptu telephone call received by a
person who can provide the tribunal with information could be
regarded by the recipient with suspicion or reserve. Unless he or
she is assured he or she is speaking to the tribunal itself, as
opposed to an unidentified person claiming to be a member of the
tribunal (or an officer authorised by it to collect information),
the recipient of the call may not give a full and frank or even a
considered and accurate response. Moreover, in the present case, Mr
Cheah was contacted in a telephone call two months after he wrote
his letter. Whether he accurately recalled to mind in the telephone
conversation all the details he knew of the appellant, in
circumstances where he may not have been fully prepared to discuss
the appellant’s circumstances or to give a fair account of
his knowledge in respect of the information being sought, is not
known. That is one reason why Div 4 of Pt 7 of the Act provides a
detailed procedure for seeking such information which a person is
invited to provide…
One reason why a person may want such a formal
invitation is that he or she may have an adverse comment to make
about the applicant for review and wish to have the protection of
an occasion of a formal statutory enquiry, as opposed to a casual
telephone call. [11]
According to the Explanatory Memorandum, the proposed amendments
will enable the Tribunals to ‘more efficiently obtain the
information it requires to make a decision’. In addition,
conducting investigations in writing can cause considerable delay
without necessarily improving procedural fairness to the
applicant.[12]
However, with regard to the delay caused by following the existing
statutory scheme the full bench of the Federal Court in
SZKTI further observed:
In our opinion, if the tribunal requires
additional information to be provided by a person it must follow
the procedures that the Parliament has laid down to obtain that
information. One mechanism that the tribunal can use is to invite
the applicant or the person to a hearing and obtain evidence from
them on oath. It can then invite the applicant to provide further
information. The procedure is, after all, inquisitorial. It is not
an unusual feature of inquisitorial procedures, that proper enquiry
takes time and care. The tribunal will naturally seek to contain
the extent of its enquiries, consistently with its performance of
its duties having regard to s 420.[13]
Items 1–7 of Schedule 2
of the Bill amend the time limits imposed on applications for
judicial review. Existing sections 477 (Federal Magistrates Court),
477A (Federal Court) and 486A (High Court) of the Migration Act are
in a similar form and set out the time period in which applications
must be lodged. The current statutory framework sets strict
time frames and requires an application for a remedy to be lodged
within 28 days of actual notification of the decision. The Court
has discretion to grant an extension of up to 56 days but only if
an application for such an order is made within 84 days of actual
notification of the decision and the Court considers it in
the interests of the administration of justice to do so.[14]
This Bill proposes to ‘provide the Courts with broad
discretion to extend time where they consider it necessary in the
interests of the administration of justice…and enables the
Courts to protect applicants from possible injustice caused by time
limits’.[15]
These proposed legislative changes have arisen principally from two
judgments handed down in 2007.
This case concerned a Bangladeshi national who unsuccessfully
applied for a new visa. When his application was refused by the
Department he instructed his migration agent to seek a review of
the decision. However, the review application was lodged one day
after the 21-day period for filing a review application with the
MRT which meant it did not have the jurisdiction to determine the
review application and there was no provision for an extension of
time. Mr Bodruddaza then commenced proceedings in the High Court
under its original jurisdiction claiming that the Department had
made an error in refusing him a visa. However, again the
application to the High Court was outside the maximum period
specified in section 486A of the Migration Act and the Court did
not have the power to make an order allowing an application to be
lodged out of time.
The High Court unanimously declared section 486A (time limit on
applications to the High Court for judicial review) invalid on the
basis that the provision was inconsistent with the power of
judicial review contained in section 75(v) of the
Constitution.[17]
As their Honours explained, the main reason for the invalidity of
the provision stemmed from an impermissible restriction on the
right to seek relief:
Section 486A is cast in a form that fixes upon
the time of the actual notification of the decision in question.
This has the consequence that the section does not allow for the
range of vitiating circumstances which may affect administrative
decision-making. It is from the deficiency that there flows the
invalidity of the section…. The fixing upon the time of the
notification of the decision as the basis of the limitation
structure provided by s.486A does not allow for supervening events
which may physically incapacitate the applicant or otherwise,
without any shortcoming on the part of the applicant, lead to a
failure to move within the stipulated time limit.[18]
In this case the full bench of the Federal Court considered what
is involved in the concept of notification for the purposes of
lodging an application for judicial review in the Federal
Magistrates Court. Section 477 of the Migration Act provides that
the time period for initiating proceedings in the Federal
Magistrates Court commences when an applicant is actually
notified of the migration decision. As noted in the Explanatory
Memorandum, actual notification (as opposed to deemed notification)
creates uncertainty because it can be difficult to ascertain when
an applicant is actually notified.[20]
Most of the other relevant provisions in the Migration Act
dealing with notification[21] contain deeming provisions, that is, irrespective of
when an applicant is actually notified, the applicant is taken or
deemed to have been notified by operation of the Migration
Act. However, in their Honours’ view, such deeming provisions
were ineffective for the purposes of section 477 due to its
intended operation.
Though subsection 430D(2) relating to notification of decisions
where the applicant is in immigration detention, also requires
actual (as opposed to deemed) notification, the High Court in
WACB v Minister for Immigration and Multicultural and
Indigenous Affairs (2004) 210 ALR 190
(‘WACB’) held that physical delivery was
required in such cases. Accordingly, the majority in SZKKC
concluded that for the purposes of section 477, the sole method of
actual notification was by physical delivery (by hand) to the
applicant personally.[22]
Such an interpretation stemmed from a combination of the
decision of WACB and the actual wording of section 477,
the result of which left the Courts with no room to manoeuvre and
according to Justice Giles created an absurdity in the operation of
the legislation.[23] Significantly, Justice Buchanan was of the view that
the problem appeared in very large measure to have been created by
the introduction of the requirement for ‘actual (as opposed
to deemed) notification’ in section 477 (and section 477A and
section 486A) without much attention to how these additional
provisions would interact with the comprehensive and interlocking
arrangements already in place in Part 7 and also in other Parts of
the Migration Act.[24] As the Explanatory Memorandum notes, ‘it would be
expensive and impractical for the Tribunals to implement the
practice of personally serving a written statement of the reasons
for the decision’.[25]
Items 1, 3 and 5 amend subsections
477(1) relating to the Federal Magistrates Court,
477A (1) relating to the Federal Court and
486A (1) relating to the High
Court respectively to provide that an application for a remedy must
be made to the respective Court ‘within 35 days of the date
of the migration decision’. This new simplified formulation
not only allows for an additional seven days in which to lodge an
application for judicial review, it removes the requirement that
the application be made within a stipulated time (currently 84
days) and removes the limitation on the Courts’ discretion to
extend the time (currently a maximum 56 days).
The desirability or otherwise of absolute or non-extendable time
limits was considered by the Senate Legal and Constitutional
Legislation Committee inquiry into the provisions of the Migration
Amendment (Judicial Review) Bill 2004 which observed:
While some submissions stated they did not
object to time limits, nor should time limits be ignored, they were
firm in the view that courts must retain a general discretion to
extend any time limit where circumstances and the interest of
justice support an extension.[26]
In addition, the Refugee & Immigration Legal Centre noted in
their submission to the committee that they were ‘not aware
of other statutory schemes which impose limits on seeking judicial
review without providing for judicial discretion to extend those
time limits’.[27]
With regard to the constitutionality of the proposed amendment,
Callinan J in Plaintiff S157/2002 v Commonwealth[28]
(‘Plaintiff S157’) observed that he did not
doubt that the Commonwealth has the power to prescribe time limits
on the High Court in relation to the remedies available under
section 75 of the Constitution ‘but [those] time limits must
be truly regulatory in nature and not such as to make any
constitutional right of recourse virtually
illusory…’.[29] In his Honour’s view, 35
days accompanied by a power to extend time might perhaps lawfully
be prescribed.[30]
The new formulation contained in proposed subsections
477(1) relating to the Federal Magistrates Court,
477A (1) relating to the Federal Court and
486A (1) relating to the High
Court clarifies that for the purposes of establishing when the 35
day time period commences, the date of the decision will be the
date the decision is made, not when the applicant receives it, as
is presently the case.
Depending upon the type of migration decision made (oral or
written) and by whom (AAT, MRT or RRT), proposed subsection
477(3) (inserted by item 2 of Schedule 2
of the Bill) defines the ‘date of the migration
decision’ as:
- the date of the written decision or
- the date of the oral decision or
- the date of the written notice of the decision, or
- the date that the Court considers appropriate.
Proposed subparagraphs 477(2)(a) and
(b) relating to the Federal Magistrates Court,
477A (2)(a) and (b) relating to the Federal Court,
and 486A(2)(a) and (b) relating to the High Court
provide that such Courts may order an extension of the 35
day period if:
- an application is made in writing which outlines why,
in the interests of the administration of justice, an extension is
necessary, and
- the Court is satisfied that it is necessary, in the
interests of the administration of justice, to grant an
extension.
Though this procedure is not too dissimilar from existing Court
procedures which require an affidavit to be completed setting out
the reasons why an extension of time should be granted[31] it is worth noting
that there appears to be an increasing number of applicants seeking
judicial review that are self represented (i.e. have no legal
representation). For instance, the High Court’s 2007–08
Annual Report states that 93% of the immigration applications filed
in 2007–08 were filed by self-represented litigants.[32]
As the Human Rights and Equal Opportunity Commission (HREOC) has
previously asserted:
It must be remembered that persons making
claims under the Migration Act may have little familiarity
with Australian legal processes, and may face linguistic and
cultural barriers to effectively managing their application and
advocating on their own behalf. This is particularly the case with
asylum seekers who may be fleeing from torture and trauma.[33]
Proposed subsections 477(4) and (5) (inserted
by item 2 of Schedule 2 of the Bill) relating to
the Federal Magistrates Court, 477A(4) and (5)
(inserted by item 4 of Schedule 2)
relating to the Federal Court and 486A(4) and (5)
(inserted by item 6 of Schedule
2) relating to the High Court clarify that the 35 day
period commences even if the decision is invalid or an
error is made in any of the provisions mentioned in the definition
of ‘date of migration decision’. This has the effect
that if, for example, the RRT makes a technical error in recording
the date or recording the actual decision that is made[34] the time for lodging
an application for judicial review will nevertheless have
commenced. Similarly, the time will have begun to run even if the
RRT makes a more substantive error by failing to set out the
findings on any material questions of fact or by failing to refer
to the evidence on which such findings are based.
The Explanatory Memorandum notes that this will ‘ensure
that the time limits operate effectively’ and ‘seeks to
ensure’ that the Courts are ‘not required to examine
whether there is a jurisdictional error in the migration decision
in order to determine whether the application for review is within
time’. [35]
Accordingly, unless an applicant can put forth (in writing)
convincing reasons why they should be able to lodge their
application outside the prescribed time period, a migration
decision that potentially contains one or more jurisdictional
errors (most likely unbeknownst to the applicant) may nonetheless
remain ‘valid’ and enforceable as the Courts will not
be required under the Migration Act to examine the migration
decision or the applicant’s prospects of success.
Though this approach may facilitate the Court’s timely
resolution of applications for extension of time, the proposed
amendment sits uneasily with the High Court’s pronouncement
that an administrative decision which involves jurisdictional error
is ‘regarded, in law, as no decision at all’.[36] It also appears to be
at odds with the High Court observations in Jeffers v
R[37] that the
merits of an application (whether the applicant can
demonstrate any prospect of success in the appeal) are
determinative in the Court’s consideration of whether to
grant an extension of time.
More recently, in considering whether it is ‘in the
interests of the administration of justice’ to grant an
extension of time to file an application for judicial review, Stone
J in Fisher v Minister for Immigration and Citizenship[38]
similarly observed that this not only requires consideration of the
reasons put forth for the delay but also an assessment of the
merits of the case:
The latter requirement [whether an extension of
time is in the interests of the administration of justice] would
involve consideration not only of the reasons for not meeting the
original time limit but also whether the application, were the
extension of time to be granted, would have any prospect of
success. An assessment of the prospects of success would
require [the Court] to consider at some level the merits of the
application for judicial review…(emphasis
added).[39]
The practical importance of this proposed amendment is best
illustrated by looking at a real case scenario. In the matter of
SZKPD v Minister for Immigration and Citizenship[40]
(‘SZKPD’) Federal Magistrate Turner was
required to determine whether the applicant could commence
proceedings in the Federal Magistrates Court outside the prescribed
time period for doing so as set out in section 477 of the Migration
Act. The applicant lodged his application outside the 28 day period
but sought an extension of time in which to commence proceedings
for judicial review. The question that arose for determination was
whether the Court was satisfied that it was in the interests of the
administration of justice to order an extension. Very little is
revealed about the applicant from Federal Magistrate Turner’s
judgment. At the time of hearing he was detained at Villawood
Immigration Detention Centre (IDC), and he had unsuccessfully
sought asylum in Australia with the assistance of his migration
agent. He represented himself before the Federal Magistrates Court
and when asked why an extension should be granted he had simply
responded that his ‘migration agent was two months late in
telling him of the decision’. Though the Court accepted the
applicant’s evidence in this regard, it nonetheless found
that it was not satisfied that it was in the interests of
the administration of justice to extend the time for making the
application because the applicant was deemed to have been notified
of the decision when his migration agent was notified by operation
of section 430C(2) of the Migration Act.
Without commenting upon the merits or otherwise of the reasons
for delay, three points need to be made about this case. Firstly,
Federal Magistrate Turner did not consider it necessary to examine
the migration decision made by the RRT to see, amongst other
things, whether it had any prospect of success or whether it was
free from jurisdictional error. Secondly, as is commonly the case,
the applicant was unrepresented and had claimed that his
predicament had arisen from the actions of his migration agent.
Thirdly, and perhaps most importantly for present purposes, the
order dismissing the application by Federal Magistrate Turner was
subsequently set aside (by consent)[41] on appeal to the Federal Court
by Justice Branson who remitted the matter back to the Federal
Magistrates Court ‘to be determined according to
law’.[42] Though the Federal Magistrates Court subsequently
found the Tribunal’s decision was not affected by
jurisdictional error[43] this case nonetheless serves to highlight the
importance of extension of time determinations and the right of
appeal in such cases to ensure they are determined according to
law.
Proposed subsection 476A(3) (inserted by
item 1 of Schedule 3 of the Bill) removes the
right to appeal in the Federal Court a decision of the Federal
Magistrates Court or a single judge of the Federal Court which
orders, or refuses to order, an extension of the prescribed time in
which to lodge an application for judicial
review.
Proposed subsections 476A(4) similarly removes
the right to appeal in the High Court a decision of the Federal
Court which orders or refuses to order an extension of the
prescribed time in which to lodge an application for judicial
review.[44]
Though these proposed amendments were not contained
in Bill No.1 the Government has not indicted what has changed
between the drafting of the two Bills to necessitate the imposition
of the limitation nor provided detailed reasons why this measure is
needed other than:
- it will strengthen and enhance the new time limits;
- it may help to prevent applicants from making weak or vexatious
appeals to deliberately delay their removal; and
- seek to encourage applicants to seek timely resolution of their
cases.[45]
In the context of examining these proposed amendments it is
relevant to highlight some previous amendments to the Migration Act
which have, to a greater or lesser extent resulted in restrictions
on judicial review of migration decisions:
- Migration Reform Act 1992
- Migration Legislation Amendment (Judicial Review) Act
2001
- Migration Amendment (Excision from Migration Zone)
(Consequential Provisions) Act 2001
- Migration Legislation Amendment (Transitional Movement) Act
2002
- Migration Litigation Reform Act 2005[46]
Such legislative changes have often been accompanied by changes
to Rules of Court (rules that govern the procedures of Courts). For
instance, following the Migration Litigation Reform Act
2005 the High Court made new rules of Court ‘to cope
with defined proceedings in the Court without oral
hearings’.[47] Therefore now any two Justices of the High Court may
determine an application without listing it for hearing and in
cases where an applicant is unrepresented, dismiss an application
without requiring any party to respond to the applicant's written
case.[48]
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The Explanatory Memorandum notes that these amendments are
needed to strengthen the new time limits and to ‘discourage
unsuccessful visa applicants from taking advantage of the
delays caused by litigation to prolong their stay in
Australia’.[49] Accordingly, it may be pertinent to examine some recent
statistics surrounding the judicial review of decisions made
pursuant to the Migration Act.[50]
According to the MRT and RRT 2007–08 Annual Report,
the MRT decided 5 219 cases during the year and 5% of its cases
were ‘taken to judicial review’ during the financial
year. This compares to 2 318 cases decided by the RRT which had 45%
of its decisions ‘taken to judicial review’. In
addition, there were 13 applications for judicial review lodged
relating to decisions made by the AAT concerning visas under
the Migration Act.[51]
The Federal Magistrates Court Annual Report states that
during the 2007–08 financial year, 1 552 migration matters
were filed with the Court Registry which was a 26.58% reduction on
filings for the previous financial year (2 114).[52] The Court’s jurisdiction
(or workload) is divided between family law and general federal law
(including migration). The following graph illustrates the number
of Court filings for 2007–08, of which migration matters made
up only 1.8% of the Court’s total filings.
The Report further states ‘there has been a general
downward trend in the number of migration applications filed in the
Court’:
…during the year filings have decreased
by 27 per cent. Despite this reduction, the Court’s workload
in the migration area is still significant. The migration workload
makes up 22.2 per cent of the Court’s total general federal
law workload; and, excluding bankruptcy matters (largely heard by
registrars), represents 75 per cent of the general federal law work
of federal magistrates.
In 2007–08 the Court finalised 545 more
migration matters than it received. This means that matters are
being disposed of in an increasingly timely manner. Eighty-three
per cent of migration matters were finalised within 12 months
compared to 67 per cent in 2006–07.[53]
In relation to the Federal Court, its Annual Report
states that ‘Migration Act matters are a substantial
proportion of the Court’s appellate jurisdiction’.
During the 2007–08 financial year, 1 020 (67.86%) appeals
(and related actions) lodged with the Court related to decisions
made under the Migration Act. The majority of those appeals came
from judgments of the Federal Magistrates Court but the Federal
Court has instituted procedures to ensure the timely resolution of
such matters:
The Court continues to apply a number of
procedures introduced to streamline the preparation and conduct of
these appeals and applications, most of which are heard by a single
judge rather than a Full Court. It is important to note that rather
than seeking additional judicial resources, the Court has
implemented structural and procedural changes to facilitate the
expeditious management of the migration workload.
Initially, the Court applies systems to assist
with identifying matters raising similar issues and where there is
a history of previous litigation. This process allows for similar
cases to be managed together resulting in more timely and efficient
disposal of matters. Then, all migration appeals and related
applications (whether to be heard by a single judge or by a Full
Court) are listed for hearing in the next scheduled Full Court
sitting period. Fixing appeals and applications for hearing in the
four, four-week, scheduled Full Court sitting periods has, to date,
provided greater certainty and consistency for litigants. It has
also resulted in a significant number of cases being heard and
determined within the same four-week sitting period…[54]
In relation to the High Court, its Annual Report states
that during the reporting year 57 cases were commenced in the
original jurisdiction of the Court (including applications made
under section 75(v) of the Constitution against officers of the
Commonwealth) compared with 67 in 2006–07. The Full Court
delivered judgment in 11 cases filed in the original
jurisdiction.[55]
With regard to the High Court’s appellate jurisdiction, the
following table shows the number of appellate cases that were
finalised during the year:
In relation to the time taken to determine appellate cases, the
Annual Report states as follows:
Eighty-six per cent of the applications for
leave or special leave to appeal and 80 per cent of the appeals
decided by the Court during the reporting year were completed
within nine months of filing. The figures for 2006-07 were 81 per
cent and 62 per cent respectively, although it should be noted that
in 2007-08 the Court decided almost double the number of
applications decided during 2006-07.[56]
At first glance this appears to be a relatively minor and
uncontroversial Bill. Its principal objective is broadly to make
amendments to the Migration Act that will ‘ensure a more
efficient migration review system’.[57] However, upon closer examination this
Bill, if enacted, will have serious consequences for some
unsuccessful applicants wishing to have their migration decisions
reviewed by an administrative review tribunal and the Courts.
For unsuccessful applicants that lodge their application for
merits and judicial review within the prescribed time
periods, the amendments proposed in this Bill will make very little
difference. Though, such persons may be affected if the
Tribunal invites a person to give information to it orally rather
than in writing, as discussed above.
The consequences of this Bill will be most significant for
applicants that do not lodge their application for judicial
review within 35 days of the date of the migration decision.
Undoubtedly, the most important change is the proposed removal of
the right to appeal to a superior Court a decision granting or
refusing to grant an extension of time in which to do so, as
highlighted by the case of SZKPD.
However, there are some significant positive measures contained
in this Bill. Most notably, vesting the Courts with a broad
discretion to extend time limits for judicial review will
re-instate effective time limits for applying for judicial review
of migration decisions in the Federal Magistrates Court, the
Federal Court and the High Court. It may also serve to overcome any
potential injustices that may arise from the actions of migration
agents, strict Tribunal timeframes for lodging applications for
merits review and of course justifiable delays caused by applicants
themselves.
Though it is undoubtedly important to resolve migration matters
expeditiously (particularly if the applicant is in immigration
detention), it is equally important to allow for due process with
respect for the rule of law, especially when decisions are being
made using complex legislation with potentially grave consequences.
As HREOC observed in the context of the Migration Amendment
(Judicial Review) Bill 2004:
… care must be taken to ensure that
measures which may be intended to promote the efficient management
and disposition of migration claims do not come at the cost of the
fundamental rights of those people involved.[58]
Members, Senators and Parliamentary staff can obtain further
information from the Parliamentary Library on (02) 6277 2759.
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Elibritt Karlsen
28 January 2009
Bills Digest Service
Parliamentary Library
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