Bills Digest no. 81 2013–14

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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.

Elibritt Karlsen
Law and Bills Digest Section
4 June 2014

 

Contents

Purpose of the Bill

Background2

Committee consideration

Policy position of non-government parties/independents

Position of major interest groups

Financial implications

Statement of Compatibility with Human Rights

Key issues and provisions

 

Date introduced:  27 March 2014

House:  House of Representatives

Portfolio:  Immigration and Border Protection

Commencement: Sections 1 to 3 commence upon Royal Assent. Schedules 1 to 5 and Part 2 of Schedule 6 commence the day after Royal Assent. Part 1 of Schedule 6 commences on the earlier of a day to be fixed by Proclamation or six months after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

 

Purpose of the Bill

The purpose of the Migration Legislation Amendment Bill (No. 1) 2014 (the Bill) is to amend the Migration Act 1958 (Cth) (the Act)[1] to:

• clarify the restriction and scope on applying for further visas (Schedule 1)
• ensure that an application for a bridging visa does not prevent the removal of a detainee who is otherwise eligible for removal (Schedule 2)
• enable debt recovery from all persons convicted of people smuggling and illegal foreign fishing (Schedule 3)
• clarify and restrict the role of authorised recipients (Schedule 4)
• enable greater use of material and information obtained through a search warrant (Schedule 5) and
• clarify the scope of the procedural fairness requirements (Schedule 6).

The Bill will also amend the Australian Citizenship Act 2007 (Cth) (the Citizenship Act)[2] to:

• enable greater use of material and information obtained through a search warrant (Schedule 5).

Background

This is an omnibus Bill which seeks to clarify certain provisions within the Act. Some changes are in response to Federal Court judgments, while other changes are closing perceived loopholes or anomalies in the Act. These amendments are discussed in greater detail below under the heading ‘Key issues and provisions’.

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. The original reporting date was 6 June 2014, but this has been extended to 21 August 2014. Details of the inquiry are at the inquiry webpage.[3] The closing date for submissions was 26 April 2014. Only five submissions had been received. These are discussed in further detail below.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills made only two observations on the Bill.[4] The first related to item 6 of Schedule 1 (the application provision of the restriction on applying for further visas). The second related to the item 4 of Schedule 3 (the application provision of debt recovery from people smugglers and illegal foreign fishers). The Committee’s observations are discussed in further detail below under the heading ‘Key issues and provisions’.

Policy position of non-government parties/independents

The policy position of non-government parties and independents on this Bill is not currently known.

Position of major interest groups

Only five submissions had been received by the Senate Legal and Constitutional Affairs Legislation Committee. Of these, all were opposed to some aspect of the Bill. The only Schedule which received no comment was Schedule 3 which relates to debt recovery from people smugglers and illegal foreign fishers. Thus, considered cumulatively, the submitters were opposed to the amendments being proposed in all of the remaining Schedules of the Bill.

Financial implications

The Explanatory Memorandum states that the financial impact of the Bill is low and that any costs will be met from within the existing resources of the Department of Immigration and Border Protection (the Immigration Department).[5]

Statement of Compatibility with Human Rights

The Statement of Compatibility with Human Rights can be found at page 33 of the Explanatory Memorandum to the Bill. 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.

Parliamentary Joint Committee on Human Rights

At time of writing, the Parliamentary Joint Committee on Human Rights had not yet published its views on the Bill.

Key issues and provisions

Restriction on applying for further visas — Schedule 1

This Schedule proposes amendments to three main provisions within the Act that place restrictions on certain visa applicants from making further applications. These provisions are sections 48, 48A and 501E of the Act.

Existing section 48 of the Act limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused. More explicitly, non-citizens in Australia who do not hold a substantive visa,[6] and who since last entering Australia either had their visa application refused[7] or visa cancelled[8] can only apply for specific types of visas. At time of writing, 16 visas had been prescribed by the Migration Regulations 1994 for this purpose, which included seven Bridging visas.[9] Item 1 of Schedule 1 proposes to repeal existing subsection 48(1) and substitute it with new subsection 48(1). This amendment will make it clear that the restriction on applying for a further visa applies only if a non-citizen has had a visa cancelled ‘since last entering Australia’. While the existing provision contains a statement to this effect for the purposes of non-citizens who have had their visa refused since last entering Australia, the words ‘since last entering Australia’ are missing from the equivalent provision relating to those who have had their visa cancelled. According to the Explanatory Memorandum, this ‘suggests’ that a person who had their visa cancelled at any time would be subject to the prohibition in section 48 on applying for a further visa, which the Department claims would be contrary to policy intent.

Existing section 48A of the Act prohibits a person who has previously applied for and been refused a Protection visa from being able to lodge a further Protection visa application unless the Minister personally permits them to do so on public interest grounds (under section 48B of the Act).[10] Existing section 501E of the Act prohibits a person in Australia whose visa has been refused or cancelled under sections 501, 501A or 501B from applying for another visa, except a protection visa (though section 48A may apply) or a visa specified in the Migration Regulations.[11]

In brief, the amendments being proposed by items 1—5 of Schedule 1 will do two things. Firstly, they make amendments to subsections 48(1), 48A(1) and 501E(1). These amendments provide that a person who falls within the ambit of these sections is restricted from making a further application in their own right as well as having an application made on their behalf. Secondly, they insert new subsections 48(1A), 48A(1AA) and 501E(1A). These amendments expressly expand the operation of these restrictions to people who have been refused a visa for which the application had been lodged on their behalf irrespective of whether the application has been ‘finally determined’ (a merits review application remains undecided), or whether they knew about or understood the nature of the application due to mental impairment or because at the time of the application they were a child (under 18 years of age). Item 6 sets out when the amendments will take effect (see the Explanatory Memorandum for further details).[12] The Senate Standing Committee for the Scrutiny of Bills noted with respect to item 6 that:

Item 6 of Schedule 1 is an application provision which provides that the amendments in items 1 to 5 of that Schedule apply to an application for a visa that is made by or on behalf of a non-citizen on or after the day this item commences, even if the relevant refusal or cancellation decision that would bar a further visa application occurred before commencement of the amendments. Although this provision is not technically retrospective as the new provision prescribes a rule for the future based on antecedent facts (i.e. the existence of an earlier visa application), there is a question of fairness that arises to the extent affected persons (or their advisers) could not have been in a position to determine the legal consequences of an initial application for a visa that was made on their behalf… The committee draws the issue to the attention of Senators and leaves the question of whether the proposed approach is appropriate to the Senate as a whole.[13]

The Explanatory Memorandum notes that the amendments made by Schedule 1 are necessary because it will provide clarity and overcome any possible argument or interpretation that there may be some people that fall outside the ambit of the restrictions, which would be contrary to the policy intention of the Government.[14] As the Department explains:

If section 48 of the Act does not operate to prevent further visa applications by a non-citizen who is a minor unless the non-citizen knew about, or understood the nature of, the visa application that was made on their behalf and refused, it would theoretically be possible for a parent of the non-citizen to keep making repeat applications on behalf of the non-citizen despite the non-citizen not being able to satisfy the criteria for the visa applied for. The same could arguably also apply to enable the guardian of a non-citizen who lacks capacity because of a mental impairment, to make repeat applications on behalf of the non-citizen despite the non-citizen not being able to satisfy the relevant visa criteria.

This could create a potential loophole that undermines the integrity of Australia’s visa program by undermining the objective of section 48 of the Act, which is to prevent non-citizens who do not otherwise have a right to remain in Australia from delaying their departure from Australia by making repeat unmeritorious applications. This potential loophole could also create inconsistent immigration outcomes for different members of the same family unit (for example, the parents could be section 48 barred from making further applications after having been refused a visa since last entering Australia, but their minor children who were also refused would not be prevented from making repeat visa applications).[15]

The Minister also noted in his second reading speech that these amendments will enable the provisions to be applied objectively, based only on the facts, rather than subjectively and retrospectively.[16]

Arguably, the most contentious amendments proposed in this Bill are those being put forth in this Schedule. All submitters to the Senate Legal and Constitutional Affairs Legislation Committee were opposed to these amendments for various reasons. Some of these include:

• the changes increase the potential for instances of injustice to arise as some vulnerable people will be denied the opportunity to present their claims for asylum in their own right
• the changes will prohibit re-consideration of issues that have been considered in a previous application even though such an application may not have appropriately taken into account the views and capacity of a minor or other vulnerable person
• the changes will adversely affect particularly vulnerable groups of asylum seekers due to factors entirely beyond their control
• the changes could result in unintended consequences such as refoulement
• the changes are not proportionate to the administrative burden on the Department
• the changes raise doubts about Australia’s compliance with international law such as the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities
• the retrospective nature of the changes is not fair for applicants
• the changes are premature and misconceived and
• the Minister’s personal and non-compellable powers under section 48B of the Act to exclude the operation of the provision on public interest grounds is a grossly inadequate safeguard against refoulement for particularly vulnerable people subject to the prohibition in section 48A of the Act. [17]

RACS further presents two case studies to highlight how the proposed changes could give rise to the potential for injustice:

A 17 year old young man lives independently of his parents in a relationship not approved of by his parents. He is included on a non-meritorious protection visa application by his parents without his knowledge. This application is refused. He only learns of this visa application history when he makes his own visa application in the future, which is deemed invalid.

A 16 year old girl remains in conflict with her father due to family violence and remains living in a refuge with her mother. She is included in a non-meritorious visa application without her knowledge by her father which is refused. When her mother includes her on a subsequent meritorious visa application as her dependent, she is informed that the application by the daughter is invalid due to the father’s previous application.[18]

The Bill does not propose to insert a definition of the term ‘mental impairment’ and the term is not currently defined in the Act or Migration Regulations. In addition, it is not known how many ‘active’ applications are currently being considered that take advantage of this ‘loophole’ or why these changes are being introduced at this particular point in time.

With respect to Australia’s obligations under the Convention on the Rights of the Child, Article 3(1) provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.[19]

The Australian Government’s position in respect of Article 3(1) is that ‘the best interests of the child is a, not the primary consideration, in all actions affecting the child. The best interests of the child may be outweighed by countervailing considerations. In the migration context, these could include, for example, national security or the integrity of the migration framework’.[20]

Removal of bridging visa holders — Schedule 2

Item 1 of Schedule 2 proposes to repeal existing paragraph 198(5)(b) and replace it with new paragraph 198(5)(b). Existing section 198(5)(b) creates a mandatory obligation on the Department to as soon as reasonably practicable, remove a detainee who has not taken the opportunity to apply for a visa (in accordance with section 195) or revocation of a cancellation (under section 137K). The section does not currently expressly stipulate any type of visa that must be applied for. The amendment being proposed in this Bill will stipulate that the Department must remove a detainee who was entitled to apply for a substantive visa[21] or revocation of the cancellation of a substantive visa but did not do so. In addition, the obligation to remove in such circumstances will apply irrespective of whether the detainee has made a valid application for a bridging visa.

The amendment being proposed by item 2 will expressly clarify that despite the power of removal contained in subsection 198(5) of the Act (including new paragraph 195(5)(b)), the Department must not remove a non‑citizen who has made a valid application for a protection visa which has not been refused or finally determined, even if the application was made outside the time limit (under subsection 195(1)). Item 3 clarifies that these amendments will apply to the removal of existing detainees following commencement.

The Explanatory Memorandum notes that the policy intention behind subsection 198(5) of the Act is that the making of a bridging visa application should not be a bar to removal from Australia nor should it result in indefinite immigration detention which is the unintended result the existing section is currently having.[22] According to the Minister’s second reading speech, there is a small cohort of detainees who have only applied for bridging visas and thus are unable to be removed from Australia.[23]

Surprisingly, the last time the interpretation of this provision came before the courts was in 2003 in the Federal Court case of Peng Boon Foo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1277. In that case, Hill J was called upon in interlocutory proceedings to briefly consider whether the word ‘visa’ in existing subsection 198(5) meant all visas or only substantive visas as argued by Counsel for the Minister. In the short time available to consider the point, his Honour simply noted:

The word ‘visa’ is defined in s 5 of the Act, unless the contrary intention applies, to have the meaning given to it by s 29 of the Act. Section 29 empowers the Minister to grant a non-citizen permission inter alia to remain in Australia. Section 29, one would think, should be read in connection with the other provisions of Division 3 which concern themselves with various kinds of visas including, see s 37, bridging visas. In various sections of the Act, including indeed subsection (2) of s 195, there is used the word ‘substantive visa’. A substantive visa is defined to be, in s 5, a visa other than inter alia a bridging visa. It seems to be quite strongly arguable that the word ‘visa’ when used in s 195 and the corresponding provisions of s 198(5) refer to visas of all kinds and not limited to visas which are substantive visas, or some intermediate category which encompasses substantive visas together with some kinds of bridging visas not being the kind involved here.[24] [Emphasis added].

In that case the Minister argued that to interpret the provision in a way which included bridging visas would produce strange results. However, his Honour was not entirely convinced. Acknowledging that time did not permit an exhaustive analysis of the provision, his Honour instead found that the word ‘visa’ encompassed all classes of visa:

Clearly too, the Court will construe legislation so as to give effect to the parliamentary purpose and in a way that will not lead to an extraordinary result. The present is not the occasion to come to a final conclusion on the point. It may well be that other judges or a Full Court have had need to consider the provisions of s 195 or s 198(5) but time has not enabled the necessary research to be done either by the legal advisers to the party or by me. It suffices here merely to say that endeavouring to interpret the provisions of s 195 by reference to the context in which the subsection appears. At least on a prima facie basis the ordinary meaning of the word ‘visa’ is such as to encompass all classes of visas.[25] [Emphasis added].

It is significant to note that according to the Department, the scope of the proposed amendment will not affect detainees who were not immigration cleared (including unauthorised air arrivals) or unauthorised maritime arrivals.[26] This is because these categories of detainees are not subject to section 195 of the Act and as such are not affected by the anomaly arising from its operation which this proposal seeks to address.[27] The Refugee Council of Australia (RCOA) is of the view that the proposed amendments would protect only some of the people subject to removal from Australia (those entitled to lodge a valid visa application) but expresses concern for the thousands of asylum seekers living in Australia who do not have adequate safeguards against refoulement:

The proposed amendments to subsection 198(5) which would provide a safeguard against refoulement for some asylum seekers, relate only to people who are entitled to apply for a visa under section 195 of the Migration Act 1958 or to apply under section 137K of the Act for revocation of a visa cancellation. As such, this safeguard would not apply to people who are not entitled to lodge a visa application under section 195, including those who were not “immigration cleared” upon arrival in Australia or who first arrived in at an excised offshore place. As a result, the proposed amendments to subsection 198(5) would protect only some of the people who may be subject removal from Australia under this provision. There are currently thousands of asylum seekers living in Australia who are precluded from lodging a Protection Visa application by virtue of Australia’s excision policy. It is unclear from the proposed amendments how these asylum seekers will be protected against refoulement given that they cannot access the safeguard under subsection 198(5). [28]

The Refugee Advice and Casework Service (RACS) argues that the proposed amendments contained in Schedule 2 are also not necessary given the existing legislative safeguard provided by existing section 74 of the Act which prevents a person from making an application for a bridging visa within 30 days of a decision to refuse an earlier application.[29] Salvos Legal also emphasises that there are other reasons a person should not be removed while they have a bridging visa application under consideration. For instance, they may have made a bridging visa application because they have the intention of lodging a subsequent visa application or they might be in the process of preparing a request for ministerial intervention (including on grounds never previously raised).[30] RACS similarly emphasises that a person might have applied for a bridging visa for the purpose of preparing to leave Australia voluntarily or perhaps they may have applied for one while their judicial review application is heard.[31]

Debt recovery from people smugglers and illegal foreign fishers — Schedule 3

Item 1 of Schedule 3 proposes to repeal and substitute the heading to section 262 to more accurately reflect the amendments being proposed (that is, remove reference to section 250 (which relates to the detention of suspected offenders)). Item 2 proposes to repeal existing paragraphs 262(1)(a) and (b) and substitute them with new paragraphs 262(1)(a), (1)(b), and (1)(ba). These paragraphs provide for the financial liability of persons who have been detained under section 189 (which requires the detention of unlawful non-citizens who are in the migration zone), and were on board a vessel when it was used in connection with the commission of an offence under the Act or a prescribed fishing offence, and are convicted of the offence. Currently under section 262, detention debts cannot be recovered from illegal foreign fishers and people smugglers who are not initially detained ‘because of subsection 250(2) of the Act’ (for example, because they were not initially suspected of being involved in a people smuggling offence) or who are not in immigration detention because they have been granted a criminal justice stay visa while in criminal detention.[32] These amendments will mean that all convicted people smugglers and people who have been convicted of an offence relating to the control of fishing, regardless of whether they are in immigration detention when the conviction occurred and regardless of whether or not they were detained because of subsection 250(2) of the Act, are liable to the Commonwealth for the cost associated with their immigration detention and removal.[33]

Item 3 inserts new subsection 262(4) which clarifies that amended subsection 262(1) applies to a person who is convicted of a relevant offence, regardless of whether or not the person has completed serving any sentence imposed in respect of the commission of that offence. The amendment also makes it clear that the debt can also be recovered from the person at the time they are convicted of the relevant offence.[34] The detention, transportation and removal costs that a person will be liable for remain as currently provided for in paragraphs 262(1)(c) to (g) of the Migration Act.

Item 4 sets out when the amendments will take effect. They will apply to a person who is convicted of a relevant offence after the amendments commence (that is, the day after the Bill, if passed, receives Royal Assent), but can include costs that were incurred before that time (for example, if a person was held in immigration detention at any time before their conviction). The Senate Standing Committee for the Scrutiny of Bills noted with respect to item 4 that:

Although it may be argued that this application provision is not technically retrospective—as the new provision prescribes a rule for the future based on antecedent facts (i.e. costs being incurred for detention)—there is a question of fairness that arises to the extent affected persons could not have been in a position to determine the legal consequences of costs being incurred due to them being placed in immigration detention. Rendering persons liable to pay costs for their detention and removal in circumstances where they have been convicted of an offence may, in practical result, be considered to increase the penalty retrospectively in circumstances where some of those costs have already been incurred. The committee therefore seeks the Minister’s further advice as to the justification for the proposed approach, particularly in relation to the rationale for applying the new approach to costs incurred prior to the day the amendments commence.[35]

At time of writing, the Minister’s advice on this issue had not been published by the Committee.

Authorised recipients — Schedule 4

Put simply, the role of an authorised recipient is to receive documents from the Minister or the Review Tribunals on behalf of a visa applicant. An applicant does not have to nominate an authorised recipient — they can instead elect to receive all the documents themselves. When the Minister or Tribunal communicates with an authorised recipient, they are not required to also communicate with an applicant because it is as if they have already done so. That is, if they have communicated with the authorised recipient, the applicant is taken to have been notified. However, recently the Courts have interpreted the provisions in the Migration Act governing authorised recipients in a way that the Government is claiming is broader than originally intended. These amendments address these concerns and clarify and limit the role of the authorised recipient.

Items 1—5 make amendments to section 379G of the Act which governs authorised recipients for the purposes of the MRT while items 6—10 make identical amendments to section 441G of the Act governing authorised recipients for the purposes of the RRT. Items 11—16 make similar amendments to section 494D of the Act which governs the way authorised recipient interact with the Department.

Items 1 and 6 clarify that the role of an authorised recipient is simply to receive documents on behalf of the review applicant—not do things on behalf of the applicant. Items 2 and 7 insert new subsections 379G(1A) and 441G(1) respectively which clarify that the Tribunals must give the authorised recipient any document that it would otherwise have given to the applicant, even if the review application was not properly made pursuant to section 347 or 412 respectively. As noted in the Explanatory Memorandum:

This amendment addresses the finding of the Full Federal Court in SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27 that the term “applies for review” in subsection 379G(1) of the Act means that an application must have been properly made under section 347 for the obligation of the Tribunal to give documents to an authorised recipient to be engaged.[36]

Items 3 and 8 clarify that the authorised recipient cannot vary or withdraw the notice authorising the authorised recipient. Only the review applicant will be able to do this.

Items 4 and 9 insert new subsections 379(3A) and 441G (3A) respectively. These new subsections enable the authorised recipient to vary the address to which documents will be sent without the involvement of the review applicant. As the Explanatory Memorandum notes:

This amendment ensures that an authorised recipient who is authorised in a notice to receive documents on behalf of the applicant in connection with the review is able to unilaterally vary the address given for the authorised recipient in the notice. This is to avoid the MRT being legally required to send correspondence to an outdated address merely because it was the authorised recipient, rather than the applicant, who had notified of the change in address.[37]

Items 5 and 10 repeal subsections 379G (4) and 441G (4) respectively. These subsections enabled the Tribunals to communicate with the applicant by means other than giving a document to the applicant, provided the Tribunals gave the authorised recipient notice of the communication. The subsections have been made redundant by the reduced role to be played by the authorised recipient as previously outlined in items 1 and 6.

Item 11 clarifies that the role of an authorised recipient under section 494D of the Act is simply to receive documents on behalf of the visa applicant—not do things on behalf of the visa applicant. As noted in the Explanatory Memorandum:

The amendment also addresses comments made by the Full Federal Court in MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156, at paragraph 35, in relation to section 494D of the Act, that an authorised recipient is “constituted effectively as the agent of the visa applicant” because the provision allows the authorised recipient to “do things on behalf of” the applicant. This is broader than the policy intention for the role of an authorised recipient, which is only to receive documents and not to do anything else on behalf of the applicant or person.[38]

Item 13 similarly clarifies in section 494D that the authorised recipient cannot vary or withdraw the notice authorising the authorised recipient. Only the visa applicant will be able to do this. Item 14 inserts new subsection 494D(3A) which will enable the authorised recipient to vary the address to which documents will be sent without the involvement of the visa applicant. Item 15 repeals existing subsection 494D(4). This subsection enabled the Minister to communicate with the visa applicant by means other than giving a document to the applicant, provided the Minister gave the authorised recipient notice of the communication. This subsection has been rendered redundant by the reduced role to be played by the authorised recipient as previously outlined in item 11. Item 17 sets out when the amendments will take effect (see the Explanatory Memorandum for further details).

RACS disagrees with the proposed change in Schedule 4 and argues that the Act should remain as it is in relation to authorised recipients. They contend that ‘the proposed amendment removes the current, rational, position that a client applicant is free to instruct an agent and tell that agent what the agent is empowered to do. It reduces the agent to an address’. They assert that they represent an incredibly vulnerable client base and that if their role is changed, they will not be able to remain fully appraised of their of their client’s cases and to properly present their client’s claims. Though they acknowledge that the Explanatory Memorandum notes that ‘these amendments do not prevent a person from acting as agent of the applicant due to some other authorisation’,[39] they assert that the Bill and the Explanatory Memorandum are silent as to how any more wide-reaching authorisation from a client to agent would be notified to or observed by the Department.[40] The Government explains that prior to MZZDJ v Minister for Immigration and Border Protection, as a matter of policy and practice, an authorised recipient was regarded as being authorised to receive documents only and that additional evidence of authority was generally required if an authorised recipient purported to do other things on behalf of the applicant. Moreover, the Government asserts that:

To ensure the legislation accurately reflects policy and practice, and to avoid potential administrative uncertainty as a result of the MZZDJ decision, it is proposed that the Act be amended to put it beyond doubt that an authorised recipient’s role is a passive one and extends only to receiving documents and, where necessary, to update their own address or addresses where documents for the client may be sent. The proposed amendments would not affect the ability of migration agents to do things other than receiving documents on behalf of their clients, because their broader authority is derived separately from their agency relationship with the client. [Emphasis added].[41]

RACS also emphasise that removing the ability of the authorised recipient to unilaterally withdraw their authorisation is likely to create uncertainty and confusion. For instance, when an agent withdraws from acting for a client (where they cannot contact their client or due to a conflict of interest developing between two concurrent clients), they claim it would be appropriate to allow an agent to cease the role as authorised recipient other than with the consent of the client.[42] However, the Government argues that to permit an authorised recipient to unilaterally withdraw their authorisation could create administrative uncertainty for the Department:

In particular, the Department is concerned this means that a mere authorised recipient could simply make an assertion that they have the client’s consent to withdraw themselves as the authorised recipient, and the Department would have to accept such an assertion despite the absence of supporting evidence. This could create administrative uncertainty for the Department, as well as negative client service implications in circumstances where an unwilling authorised recipient seeks to unilaterally abandon their role by asserting they have the client’s consent to withdraw from their role when in fact they do not.[43]

Using material and information obtained through search warrants — Schedule 5

Item 1 of Schedule 5 inserts new section 51A after section 51 to the Citizenship Act. This amendment will enable the Minister, the Secretary or a Departmental officer (whose duties include making decisions or assisting in making decisions, in relation to Australian citizenship) to receive and use ‘warrant material’[44] and ‘warrant information’[45] for the following three purposes:

• making a decision, or assisting in making a decision, to approve or refuse to approve a person becoming an Australian citizen
• making a decision, or assisting in making a decision, to revoke a person’s Australian citizenship or
• making a decision, or assisting in making a decision, to cancel an approval given to a person under section 24 (which requires the Minister to make a decision on a citizenship application).

The Explanatory Memorandum explains the purpose of the amendments:

The purpose of the amendments made by this item is to overcome the limitation on using information obtained under a search warrant issued under Division 2 of Part 1AA of the Crimes Act 1914 for the purposes of making an administrative decision under the Citizenship Act as provided for in new subsection 51A(3). The amendments do not require or compel a constable or Commonwealth officer to provide this information or material.[46]

Item 2 similarly inserts new section 488AA into the Migration Act to enable the Minister, and an officer (including the Secretary) to receive and use ‘warrant material’ and ‘warrant information’ for the following purposes:

• making a decision, or assisting in making a decision, to grant or refuse to grant a visa
• making a decision, or assisting in making a decision, to cancel a visa
• making a decision, or assisting in making a decision, to revoke a cancellation of a visa or
• making a decision in relation to the detention, removal or deportation of a non-citizen from Australia.

The Government further explains that ‘the amendments would not further extend coercive powers or administrative responsibilities, simply to provide further information to administrative officers for more effective decision making’:[47]

This will enhance decision-making and as a result, will enhance the integrity of the migration and citizenship programmes. This enhancement will be particularly prevalent where persons have provided false, misleading or fraudulent information to the Department and have acquired, or will acquire, a visa or citizenship as a result.[48]

However, the Refugee Council of Australia is the view that it would be unwise to make sensitive information about criminal matters more readily available to administrative decision-makers operating under a less stringent regulatory framework:

RCOA believes that further clarification is needed as to the operation of the proposed amendments allowing for material obtained under a search warrant issued under the Crimes Act 1914 to be used in decision-making relating to visas and citizenship. Neither the Bill itself nor its Explanatory Memorandum provide sufficient information as to why this amendment is needed or how it will operate in practice. This is of serious concern given the significant differences in the legislative regime governing the use of search warrants for the purpose of investigating criminal activity and the legislative regime governing the determination of a person’s visa status.

Part 1AA of the Crimes Act 1914 prescribes specific criteria for when a search warrant can be sought, who can authorise the use of such a warrant, what use can be made of that information, how that information is to be stored and under what circumstances it can be shared and with whom. These provisions generally require that a clear connection be established between the use or sharing of information and the prevention, investigation or prosecution of a criminal offence. They are also subject to reporting requirements and independent oversight mechanisms, as well as penalty provisions for the misuse or unauthorised disclosure of such information. These provisions are designed to ensure that, in the exercise of these powers for law enforcement purposes, the fundamental rights of those subject to the warrant – including the rights to privacy and a fair trial – are also preserved.

Under the proposed amendments, however, information obtained under search warrants will be made available to administrative decision-makers and used for purposes which extend well beyond preventing, investigating or prosecuting a criminal offence. In addition, the proposed amendments do not include any specific oversight or reporting requirements, such as those relating to privacy considerations, the destruction of material no longer required or penalties for misuse of information.[49]

Procedural fairness — Schedule 6

Item 2 repeals existing subsection 57(3) from the Act. Section 57 of the Act sets out the Department’s obligation to give applicants the particulars of relevant information and provide them with the opportunity to comment. Under subsection 57(1), information (other than non-disclosable information)[50] will be relevant if the Minister considers that the information:

• would be the reason or part of the reason for refusing the visa
• is specifically about the applicant or another person (not just about a class of persons of which the applicant or other person is a member) and
• was not given by the applicant for the purpose of the application.

Existing subsection 57(3) provides that this procedural fairness obligation only applies to cases where the visa can be granted while the applicant is onshore and a decision to refuse the visa would be an MRT or RRT reviewable decision. The existing procedural fairness obligation owed to offshore applicants is succinctly set out in the Department’s Policy and Advice Manual:

Before making decisions on visa applications decision makers must give visa applicants an opportunity to comment on certain kinds of issues and information. This is called “the obligation to give procedural fairness” (also referred to as the “natural justice hearing rule”).

Procedural fairness is about giving people a “fair go” when making decisions about them. It is about giving a person who will be affected by a decision an opportunity to put their case and to meet the case put against them.

For onshore visa applicants, the obligations to give procedural fairness are set out in s57 of the Migration Act. The situation is different for offshore applicants, however. The department previously took the view that the effect of s51A and s57 of the Act was that procedural fairness did not apply in relation to offshore applicants. However, following the High Court decision in Saeed, the obligation to give procedural fairness now applies in the offshore context.

The content of the obligation - in other words, what it is that a decision maker must do to comply - is defined by the common law. In general terms, it does not oblige decision makers to give applicants an opportunity to comment on, for example, obvious issues, a lack of information provided in visa applications, documentation that is obviously fraudulent or general country information that does not impact negatively on the claims made by an applicant. Nor does it oblige decision makers to give an opportunity to comment if they are ready to grant the visa on the basis of information already at hand.[51]

This amendment will remove the distinction between the procedural fairness requirements applying to onshore and offshore applicants, so that the procedural fairness requirements set out in existing section 57 will apply to all visa applications. However, it is relevant to note that section 57 of the Act is narrower in scope than the common law procedural fairness ‘hearing rule’. Unlike common law, which requires any adverse information that is ‘relevant, credible and significant’ to be put to the applicant, under section 57 of the Act, adverse information only needs to be put to the visa applicant for comment if the information:

• would be the reason, or a part of the reason, for refusing to grant the visa
• is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member and
• was not given by the applicant for the purpose of the application.[52]

Nonetheless, it appears the dual application of procedural fairness under section 57 of the Act or the common law, depending on the nature of the visa application, has led to some confusion within the Department:

Apart from increased risk of applying the incorrect type of procedural fairness, many decision makers also have difficulty determining whether the adverse information is “relevant, credible and significant” (the common law test) and must therefore be put to the visa applicant for comment. This has increased the risk of jurisdictional error in visa decisions due to failure to apply procedural fairness correctly.[53]

RACS would prefer to instead see the application of the higher common law standard to all applicants and argues that notwithstanding the proposed amendment, there remain significant differences between the way in which onshore and offshore applications are subject to review.[54]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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