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
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
Migration Legislation Amendment Bill
(No. 1) 1998
Date Introduced: 12 November
1998
House: Senate
Portfolio: Immigration and Multicultural Affairs
Commencement: Schedules 1-7 commence on a
day fixed by Proclamation or six months and one day after Royal
Assent, whichever is the earlier.
The Bill:
-
- merges the two tier review process for non-refugee visa
decisions (Departmental review and review by the independent
Immigration Review Tribunal) into a single review by the newly
created external review body, the Migration Review Tribunal,
and
-
- provides a range of new procedures for the Migration Review
Tribunal and the Refugee Review Tribunal, including empowering the
Principal Member of the Refugee Review Tribunal to issue general
directions to Tribunal members and granting both Principal Members
the power to reconstitute a Tribunal during a hearing in specific
circumstances.
Previous History of the Bill
Migration Legislation Amendment Bill (No. 4)
1997 was introduced into the 39th Parliament on 26 May 1997 by the
Minister for Immigration and Multicultural Affairs, the Hon.
Phillip Ruddock MP. That Bill reflected the majority of the
provisions in the current Bill. It also provided for a 'privative
clause' in relation to immigration decisions, aimed at narrowing
the possibility of judicial review of relevant Tribunal decisions
by the Federal Court and High Court. On 3 September 1997, the
Government moved several amendments to the 1997 Bill, including the
excision of the provisions concerning the privative clause, which
were introduced in a separate Bill on the same day, Migration
Legislation Amendment Bill (No. 5) 1997. Although both Bills were
passed by the House of Representatives and introduced in the
Senate, the second reading debate was not completed before the
Parliament was prorogued.
On 4 September 1997, both Bills were referred to
the Senate Legal and Constitutional Legislation Committee for
inquiry. The Committee reported on 30 October 1997. The Majority
Report recommended that both Bills be accepted without amendment,
whilst the Minority Report recommended that consideration be give
to amendments to Bill No. 4 and that Bill No. 5 be completely
rejected. A discussion of the Committee's Report is provided
below.
Australia's Immigration Program
Australia's immigration program is made up of
two main components, the Migration (Non-Humanitarian) Program and
the Humanitarian Program. The Non-Humanitarian Program caters for
the majority of immigrants and consists of the skilled stream,
preferential family, concessional family and special eligibility
programs. The Humanitarian Program comprises the refugee, special
humanitarian and special assistance categories.
The rate of immigration has been steadily
decreasing during the past two years. In terms of the migration
(Non-Humanitarian) program, 73 000 visas were granted during
1996-97 whereas 76 100 visas were granted during 1997-98, a drop of
9.2 per cent. The most significant of these drops was represented
by the parental visa category, which decreased by 86 per cent. The
overall drop in the family stream was 16 per cent whilst the
business stream remained steady.(1)
There has been a slight rise in visas granted
under the Humanitarian Program, with 11 903 being granted in
1996-97 and 12 055 in 1997-98. Although there is some public
perception that refugees from Asia dominate Australia's
Humanitarian Program this is unfounded with refugees from Asia
accounting for around only 5 per cent of Australia's intake. As
with the 1996-97 program the Minister announced three regions as
priority for resettlement places - the former Yugoslavia, the
Middle East and Africa, and offshore visas were distributed as
follows.(2)
-
- Europe 5 307
-
- Middle East 2 952
-
- Africa 1 473
-
- Asia 685
-
- Americas 50
Australia's Humanitarian Program is divided
between refugees, Special Humanitarian Program and Special
Assistance Category. The refugee category is available to people
who meet the United Nations definition of refugee, contained in the
1951 United Nations Convention Relating to the Status of
Refugees and is a person who:
owing to a well-founded fear of being persecuted
for reasons of race, religion, nationality, membership of a
particular social group or political opinion, is outside the
country of his nationality and is unable or, due to such a fear, is
unwilling to avail himself of the protection of that country; or
who, not having a nationality and being outside the country of his
former habitual residence as a result of such events, is unable, or
owing to such a fear, is unwilling to return to it.
The Special Humanitarian category is open to
those who have suffered discrimination or other violations of their
human rights but are not refugees. The Special Assistance category
is available to people who are in vulnerable positions overseas and
who have close links with Australia.
While considerable media and other attention is
given to people who arrive in Australia on boats without any
authorisation (ie. boat people), the actual effect such people have
on overall programs is relatively minor. Between the start of
1989-90 and the end of 1995-96, 2 508 boat people arrived in
Australia without authorisation. Of these, 1 755 have been removed
from Australia. During 1995-96, 589 boat people arrived in 14
boats. Of these, 413 have been removed, with an average time before
removal of 17 days. In 1997-98, thirteen boats carrying 159 people
arrived in Australia without authorisation.
Procedures and Review
Migration (Non-Humanitarian) Program
Currently an unsuccessful applicant for a
migration visa has right of access to a two tier review process: an
internal review on the merits by the Migration Internal Review
Office (MIRO) within the Department of Immigration and
Multicultural Affairs and, if that is unsuccessful, a review on the
merits by the independent Immigration Review Tribunal (IRT). Some
non-humanitarian decisions relating to bridging visas and visa
cancellation are not reviewable by MIRO but are directly reviewable
by the IRT.
MIRO is authorised to seek new evidence or
information in conducting reviews of primary decisions. MIRO aims
to ensure clients seeking merits review of primary decisions on
visa applications receive lawful and preferable immigration
decisions which are fair, just, easily understandable, quick and
cost efficient.
The IRT has right of review of decisions made by
MIRO. As well, certain primary decisions made by the Department in
relation to bridging visas and visa cancellation are not reviewable
by MIRO but are directly reviewable by the IRT. IRT members have
the power to affirm, vary or set-aside decisions made by the
Department or MIRO and remit cases back to the Department for
reconsideration. The IRT consists of a Principal Member, and
full-time and part time members.
In 1997-98, the Tribunal set-aside or remitted
in 49 per cent of all cases, as compared with 39 per cent in
1997-97. There were 95 appeals lodged in the Federal Court against
decisions of the Tribunal, a decrease of 45 per cent compared with
1996-97 (attributable to a decrease in appeals from matters
concerning a 1993 Ministerial decision to allow certain Chinese
students to remain indefinitely). The Minister was an applicant in
7 of the 95 matters. 132 appeals were disposed of by the Federal
Court in 1997-98: 44 were withdrawn; 35 were dismissed; 17 were
upheld and remitted to the Tribunal; 35 were settled and remitted
to the Tribunal; 1 was settled.(3)
Humanitarian Program
The process for review of decisions depends on
whether a person is applying for a visa as an unauthorised entrant
into Australia or outside of Australia.
When a person enters Australia without
authorisation, their first step is to apply for a protection visa
(which is issued under the Humanitarian Program). Under section 36
of the Migration Act 1958 (the Principal Act) such a visa
is available for a person who has protection under the U.N. Refugee
Convention (see above). The Principal Act also contains provisions
that limit the ability of people covered by the Comprehensive Plan
of Action agreed to by the International Conference on Indo-China
Refugees to make a claim where they came from a safe third country
(this agreement was made in 1989 to address the situation of
Indo-Chinese refugees who left their country after the Indo-China
war and is of less relevance today).
Whether the applicant is inside or outside
Australia, an application for the visa is then determined by the
Department and if it is not in favour of the applicant review
procedures will apply.
Initial review regarding decisions related to
protection visas is conducted by the Refugee Review Tribunal (RRT)
which was established in 1993 to provide an independent merits
review of such decisions. In 1997, the Government legislated for a
$1 000 post-decision application fee payable for unsuccessful
applications to the RRT. The regulations establishing the fee were
subject to an unsuccessful Senate disallowance motion on 1
September 1997. Following negotiations with the ALP, the fee was
made reviewable by the Joint Standing Committee on Migration within
two years of operation.
In 1996-97, 88 per cent of cases to the RRT were
affirmed and 12 per cent were set aside. Following judicial review,
11 per cent of cases were set aside, remitted or remitted by
consent.
Judicial Review
The next stage in the review process is that
decisions of both the RRT and the IRT may be subject to appeal in
the Federal Court for judicial review (rather than merits review).
Under section 476 of the Principal Act, the Federal Court may
review such decisions on the grounds that the required procedures
were not complied with, there was no jurisdiction to make the
decision, the decision was an improper excise of power, there was
an error of law, the decision was induced by fraud or bias, or that
there was no evidence to support the decision (the exact grounds
for review are listed and qualified in the section).
A final avenue of review will be to the High
Court for judicial review, if the Court grants leave for the
appeal. The High Court would also hear any Constitutional challenge
to the validity of legislation which affects the applicant.
A detailed analysis of judicial review is set
out below.
Ministerial Review
Finally, there is an option for review by the
Minister for Immigration and Multicultural Affairs. The Minister
holds discretionary powers over decisions made by MIRO, the IRT and
the RRT pursuant to sections 345, 351 and 391 of the Principal Act
, which allow the Minister to substitute decisions in favour of the
applicant if this is considered in the public interest.
Government Position
The Government's Immigration Policy released
prior to the 1996 general election contained a promise to review
the efficiency and effectiveness of immigration decision making,
including the role and performance of the IRT and the RRT.
Regarding the IRT and RRT, in May 1996 the Minister called for
submissions regarding the review of immigration decision making
and, in particular, the role of the IRT and RRT. The result of the
review was released by the Minister on 20 March 1997 and involved
the introduction of a two tier merit review process for all
immigration decisions. The Minister announced that this would
involve the amalgamation of the internal review (MIRO), that
reviews non-refugee decisions, with the IRT, 'while the RRT will
remain a separate body dealing exclusively with the review of
refugee applications'.(4) The IRT and RRT will also be subject to
the Government's plans to amalgamate review tribunals into a single
body. The Coalition's 1998 election immigration policy,
Immigration: Building on Integrity and Compassion,
confirmed this legislative agenda, stating that it would continue
to emphasise accountability and procedural reform to maintain
community confidence in the administration of the immigration
program.
Proposals to Restrict Judicial
Review
As noted above, during the 38th
Parliament the government introduced the Migration Legislation
Amendment Bill (No. 5) 1997 which proposed to introduce a
'privative clause' that would restrict the ability of both the
Federal and High Court to review decisions of the IRT and the RRT.
The Coalition's 1998 election policy on immigration states that
these proposals will be reintroduced in order to curb the number of
applicants who seek to abuse the review process, simply to prolong
their stay in Australia. It is important to consider the current
Bill's reform of merits review processes within the context of the
proposed narrowing of judicial review.
Judicial review is the power exercised by
superior courts (in the context of immigration decisions by the
High Court and the Federal Court) to scrutinise the legality of
administrative decisions made by elected representatives or
officers of the Commonwealth, States or Territories. Such judicial
scrutiny is not concerned with the merits of a particular
administrative decision, but whether the donee of administrative
power is doing something more than was authorised by that power, or
is doing an authorised thing in an unauthorised way. Consequently,
judicial review is primarily concerned with establishing whether
the repository of public power has breached the limits placed upon
that power by the Constitution, the common law or by Parliament.
The underpinning assumption of judicial review is that it is the
duty of superior courts to ensure that public power is exercised
according to law, an assumption founded in the classical
enlightenment doctrine of the separation of powers. The separation
of the judiciary from the executive and the legislature has
generally been strictly enforced by judiciaries including the
Australian High Court. Commenting on this refiguring of the
separation of powers, the former Chief Justice of the High Court,
Sir Gerard Brennan has stated that:
the courts alone retain their original function
of standing between the government and the governed ... Inevitably,
there are cases where the rights and aspirations of individuals and
minorities are disregarded [by the executive or the
legislature].(5)
For a successful applicant, the outcome of
judicial review is that an impugned action is treated as not having
occurred and is remitted to the decision-maker to exercise the
power within their legal authority.
An in-depth consideration of these proposals is
provided in Bill Digest No. 46 1997-98.
Senate Legal and Constitutional
Legislation Committee Inquiry
As noted above, on 4 September 1997 this Bill's
predecessor was referred to the Senate Legal and Constitutional
Legislation Committee for inquiry. The Committee reported on 30
October 1997. The Majority Report recommended that both Bills be
accepted without amendment, whilst the minority report recommended
that consideration be give to amendments to Bill No. 4.
Arguments Supporting the Bill
The primary argument presented to the Committee
in favour of the Bill was the need to reduce the delays and costs
in the current system which would result in improvement to the
merits review system. In relation to migration decisions, it was
argued that the abolition of MIRO would:
-
- reduce the review process by 12 months;
-
- would result in resource efficiency as the MRT would have the
benefit of all the resources previously split between MIRO and the
IRT; and
-
- would enhance the credibility of merits review by eliminating
the perception of Departmental bias in MIRO's review
processes.
However, evidence before the Committee indicated
that the greatest increase in review applications came not from the
migration stream but from the humanitarian stream. For example, it
was stated that in 1996-97, approximately 8 213 people applied for
protection visas in Sydney and Melbourne alone, compared with a
total number of 5 145 in 1995-96. Similarly, applications for
review to the RRT doubled in 1996-97 from the previous year. The
Government stated in evidence that a key explanation for this rise
was an abusive form of delaying tactics.`(6) As no structural
changes are proposed to the review of humanitarian decisions, it
appears that efficiencies are to be gained from procedural changes
to the operation of the RRT. The key procedural changes identified
in the Committee's report were:
-
- the new power of the Principal Member of the RRT to give
general directions on the operation of the Tribunal and the conduct
of reviews and clarification of the Principal Member of the IRT's
powers in this regard (current Item 20 Schedule 1 and Item
1 Schedule 3);
-
- the new power to the Principal Member to reconstitute a
Tribunal in particular circumstances (current Item 21
Schedule 1 and Item 2 Schedule 3).
In evidence before the Committee, the Department
of Immigration and Multicultural Affairs argued that these powers
would introduce important efficiency measures.
Arguments Critical of the Bill
Many witnesses to the Committee presented
evidence against the Bill. The five key concerns were:
-
- erosion of the independence of the MRT and RRT;
-
- no requirement to provide adverse information to
applicants;
-
- personal appearances before the RRT by telephone or
television;
-
- changed discretion regarding publication of decisions; and
-
- non reviewability of conclusive certificates.
Erosion of the Independence of the MRT and the RRT
The Committee's report notes that it received
considerable evidence indicating concern 'amongst practitioners,
academics and non-government organisations that the Bill,
interfered with the perceived independence of both the MRT and the
RRT.'(7) Part of the context of these concerns was public criticism
by two RRT members that they were subjected to pressure by the
Principal Member to not consider specific refugee cases dealing
with East Timorese asylum seekers, consequent to the Minister's
office requesting a halt on such cases pending formulation of
Government policy. The two members involved, who were not
reappointed to the RRT, have publicly criticised such pressure as
highly improper for independent tribunal members. Legal advice was
sought from the Tribunal as to the Principal Member's right to make
such directions on a case, and advice was received that the
Principal Member had no such power under the Migration Act.(8)
Similarly, in December 1996 the Minister had publicly criticised
members of a Tribunal that granted refugee status to a woman on the
ground of domestic violence.
Particular concerns related to the proposed
power of the Principal Member of the RRT to give general directions
on the operation of the Tribunal and the conduct of reviews (noted
above). (The Principal member of the IRT already has this power by
virtue of section 353A of the Principal Act). Submissions and
witnesses were concerned that regardless of the Minister's
intention that these powers be only used for administrative
reasons, they were dangerously vague as there was nothing
prohibiting the Principal Member from giving directions on merit
related issues. The example of the East Timorese refugee cases was
noted in this context. The acting co-ordinator of the Refugee
Advice and Casework Service in Melbourne gave evidence that:
it is a public policy issue. We certainly do not
want to be putting into place laws which have the potential to be
used for purposes which they were not intended.(9)
Similar concerns were raised in relation to the
Principal Members' new power to reconstitute Tribunals in
particular circumstances. Although there are particular safeguards
in this provision in relation to consultation and the timeframe in
which such directions can be given, witnesses before the Committee
expressed considerable concern regarding the possible use of this
power to influence the outcome of particular cases.(10) Notably, Mr
Max Howlett, a solicitor with Victorian Legal Aid specifically
raised the attempt by the Principal Member of the RRT to
deconstitute the hearings concerning certain East Timor refugees.
Mr Howlett referred to a statement by the President of the Law
Institute of Victoria relating to the 'pressure to be felt by
individual members to 'fall into line in their decision-making'.
This would clearly compromise the independence of the
Tribunal.'(11)
Finally, concerns were raised at the minimalist
description that members of the MRT are to be appointed by the
Governor-General, with no other standard principles of procedures
for merit selection.
No Requirement to Provide all Adverse Information to
Applicants
The Committee noted that some witnesses
expressed concern about the provisions relating to information to
be provided to applicants by the Tribunal, in relation to the
limitation that such information must be specifically about the
applicant (see Item 22 Schedule 1 and Item 3 Schedule
3). Witnesses stated that particularly in relation to the
RRT, such a limitation would exclude critical information relating
to an applicant's country situation that is significant in relation
to determining refugee status. Mr Robert Gotterson QC's submission
to the Committee noted that:
it may well be that information before the
Tribunal about an association's or group's conduct, practices etc.
is slanted, biased or quite wrong in fact. If the exception in
paragraph (a) stands, three will be limited, and perhaps no,
opportunity for the applicant to correct errors of fact or to
provide a balance.(12)
The Department stated that the provisions were
intended to provide reasonable limitations, and that the Tribunal
has a discretion to give other information as they see fit
(although access to such information would not be judicially
reviewable).(13)
(It is notable that Item 28
provides that, subject to the Privacy Act 1988, the
applicant and any assistant are entitled to have access to any
written material given or produced to the MRT for the purposes of
the review. It is unclear if this remedies the concerns raised as
to access to adverse information. It appears that this provision is
not available in relation to the RRT.)
Personal Appearance Before the RRT by Telephone or
Television
Another concern before the Committee was the
proposal to allow appearance by an applicant before the RRT by
telephone, closed circuit television or any other means of
communication (proposed Item 10 Schedule 3). Several witnesses
expressed grave reservation at such proposals. Ms Robin Creyke, a
senior lecturer in law at the Australian National University, gave
evidence that such alternative forms of communication in relation
to on-shore refugee applications are:
not ideal when veracity is at issue, where there
are language difficulties, or where interpreters need to be
employed. (14)
The Refugee Advice and Casework Service further
noted that such procedures will probably necessarily exclude the
involvement of representatives.(15) The Service proposed an
amendment to the provision that required such use of
telecommunication was permitted provided that it would not be
unreasonable to expect the applicant or the witness to appear in
person and the applicant or the witness consents to giving evidence
in this way.
Changed Discretion Regarding Publication of Decisions
A fourth concern raised in the Committee's
report was the provision granting the Principal Member a discretion
to publish a decision they consider are of particular interest,
rather than the current requirement to publish all decisions.
Although it was argued that this proposal was aimed at resource
efficiency, witnesses before the Committee raised concerns that
such a discretion impaired the perception of the integrity of
decision-making, in that it could suggest that controversial
decisions would not be published. Further, witnesses stated that
publication of all decisions encourages consistency in
decision-making, contributes to a developing jurisprudence as well
as enabling people to make informed choices about taking matters
before a Tribunal. Australian Lawyers for Human Rights noted that
the proposals may place Australia in breach of its obligations
under the International Covenant on Civil and Political
Rights.
It is notable that although the current Bill has
not altered these proposals, Items 33-34 of Schedule 1 and
Items 8-9 of Schedule 3 provide for new requirements of
attendance at the handing down of Tribunal decisions.
Non-Reviewability of Conclusive Certificates
Finally, concerns were raised as to the
Minister's power to issue a conclusive certificate which would
prevent the MRT reviewing a decision where the Minister thinks it
would be contrary to the public interest for the review to be
conducted. Given the proposals concerning limitation on judicial
review, this could mean that the scope for effective review was
precluded. The Department of Immigration and Multicultural Affairs
stated that the power was very rarely used.
Minority Report
The Minority Report to the Committee's inquiry
by Senators Bolkus, McKiernan and Murray agreed with the five key
concerns raised by submissions to the Committee and recommended
that consideration be given to deleting the provisions or amending
the provision concerning appearance via television or telephone as
proposed by the Refugee Advice and Casework Service (see
above).
The Minority report also noted that the
proposals for cancellation of a visa in regard to possible
non-compliance with specifications on a previous visa
(current Item 7 Schedule 6). Evidence to the
Committee stated that such a proposal was 'harsh and unwarranted'
as it extended to non-compliance due to non-intentional error by
third parties. The Minority Report recommended that consideration
be given to deletion of this provision.
Schedule 1-MRT-reviewable
decisions
Schedule 1 of the Bill will
amend the Principal Act to reflect the amalgamation of the internal
review mechanism (MIRO) and the IRT. To give effect to this change,
definitions relating to reviewable decisions by the various bodies
will be inserted, and a new Division 2 substituted into Part 5 of
the Principal Act.
The scope of the decisions that are reviewable
by the MRT is detailed in proposed Division 2. Subject to the
provisions described below, reviewable decisions will be those
relating to:
-
- a refusal to grant a visa to a non-citizen if such a visa could
be granted while the person is in Australia and the decision was
not made while the person was in immigration clearance or had been
refused immigration clearance (proposed subsection
338(2))
-
- the cancellation of a visa while a person is in Australia other
than a cancellation made while the person was in immigration
clearance (proposed subsection 338(3));
-
- a decision not to grant, or cancel, a bridging visa while the
person is in detention because of that decision (proposed
subsection 338(4))
-
- a visa that could not be granted while the person was in
Australia, but as part of the application for the visa the person
was sponsored or nominated by a citizen, a company or partnership
that operates in Australia, a holder of a permanent visa, or a New
Zealand citizen who holds a special category visa (proposed
subsection 338(5))
-
- a visa that can only be granted outside Australia where the
applicant is a former permanent resident and has a parent, spouse,
child, brother or sister who is a citizen or permanent resident
(proposed subsection 338(6))
-
- a visa that can only be granted outside Australia and relates
to a visit to a parent, spouse etc. who is an Australian citizen or
permanent resident, and the application gives particulars of the
parent, spouse etc. (proposed subsection 338(7)),
or
-
- a decision relating to the number of points that an applicant
for a visa receives (under the points system an applicant must
acquire a certain number of points to be eligible for a visa in a
particular category) if the visa can only be granted outside
Australia and the application was sponsored by a citizen, the
holder of a permanent visa, or a New Zealand citizen who holds a
special category visa, and the application is refused
(proposed subsection 338(8)).
Decisions excluded from review by the MRT will
be those relating to:
-
- a decision made by the Minister under proposed section 339
which will be introduced by this Bill (see below)
-
- a decision that is subject to review by the RRT
-
- a decision made by the Minister under section 134 (which allows
the Minister to cancel a business visa if certain conditions are
not met when the person is to enter Australia), and
-
- decisions made by the Minister under section 501 of the
Principal Act, which allows the Minister to refuse or cancel a visa
on certain grounds, including that the person is likely to vilify a
segment of the Australian community, incite discord or who, because
of past conduct, the Minister is of the opinion that the person is
not of good character. (The legislative scheme in relation to 'good
character' is the subject of current Parliamentary consideration
through the Migration Legislation Amendment (Strengthening of
Provisions relating to Character and Conduct) Bill 1998.)
Proposed section 339 provides
that the Minister may issue a conclusive certificate in relation to
a decision if the Minister thinks that it would be contrary to
Australian interests to change the decision as it would result in
prejudice to Australia's security, defence or international
relations; or where the Minister thinks (rather than is of the
reasonable opinion) that such a review would be contrary to the
public interest as it would require the Tribunal to consider
decisions made by the Cabinet or a Cabinet Committee. A similar
power currently exists in relation to MIRO and IRT reviews.
Item 20 provides that the
Principal Member's powers to give directions on the operation of
the Tribunal and the conduct of Tribunal reviews under section 353A
of the Migration Act 1958 are clarified so
that:
-
- the directions may relate to the application of efficient
processing practices, and
-
- the Tribunal should, as far as practicable comply with the
direction, however non-compliance does not invalidate a Tribunal
decision.
Item 21 (proposed section 355A)
provides that a Principal Member may direct that a particular
Tribunal be reconstituted by adding or removing one or more member
of the Tribunal if the Principal Member thinks it is in the
interests of achieving the efficient conduct of the review. The
Principal Member must not give such a direction unless:
-
- the Tribunal decision has not been recorded in writing or given
orally
-
- the Principal Member has consulted each member of the Tribunal
and a Senior Member who is not the only member of the Tribunal,
and
-
- the Principal Member is satisfied that there is insufficient
material before the Tribunal to make a decision or a period
prescribed for making the decision has elapsed.
Item 22 (proposed section 359)
provides that in conducting the review, the Tribunal may get
information that it considers relevant and must have regard to that
information if it is obtained.
Item 22 (proposed section 359A)
provides that the Tribunal must give to an applicant particulars of
any information adverse to the application, reasonably ensure the
applicant understands the information's relevance and invite the
applicant to comment. However, this does not apply to information
that is not specifically about the applicant and is just about a
class of persons of which the applicant is a member or that is
non-disclosable information. (However, see Item 28
below).
Item 22 (proposed sections 359B and
359C) provides that if invited to give additional
information or comment on other information, the applicant must do
so within a prescribed period, and if the applicant fails to do so,
a Tribunal may make a decision without taking further action to
obtain the applicant's views.
Item 22 (proposed section 360)
provides that the Tribunal must invite the applicant to appear
before the Tribunal to give evidence and present arguments relating
to the matter, unless:
-
- the Tribunal considers that it should decide the review in the
applicants favour on the papers
-
- the applicant consents to the Tribunal deciding the matter
without her appearance or
-
- the applicant has failed to provide requested information in
the prescribed timeframe.
Item 28 (proposed section 362B)
further provides that if the applicant does not appear, the
Tribunal may make a decision without taking further action to allow
the applicant to appear. However, the Tribunal does have the
discretion to reschedule an appearance.
(The Migration Legislation Amendment Bill (No.4)
1997 originally granted the Tribunal a discretion to invite the
applicant to appear. This was changed through Government amendments
during the House of Representatives debate.)
Item 28 provides that, subject
to the Privacy Act 1988, the applicant and any assistant
are entitled to have access to any written material given or
produced to the Tribunal for the purposes of the review. (Note
Item 22, proposed section 359A above)
Item 34 is a new series of
provisions not included in the 1997 Bill and sets out when a
Tribunal must invite parties to a handing down of a decision.
Proposed sections 368A - 368C provide that, in
most circumstances, the Tribunal must invite the applicant and the
Secretary (or their delegate) to be present in person when a
decision is handed down and must provide them with a copy of the
decision. If the applicant or the Secretary are not present in
person, then the Tribunal must notify both parties of the decision
by providing each with a copy of the decision.
These provisions do not apply if the decision is
to be given orally or the applicant is in immigration detention
because of a decision to refuse to grant or cancel a bridging
visa.
Item 24 (proposed section 368D)
provides that if the Tribunal gives an oral decision, or if the
applicant is in immigration detention because of a decision to
refuse to grant or cancel a bridging visa, the Tribunal must
forward the applicant and the Secretary a copy of the decision
within 14 days.
Item 35 provides that the
Registrar must ensure the publication of any statements that the
Principal Member thinks are of particular interest.
Item 37 contains new provisions
not provided for in the 1997 Bill. It provides for a specification
as to the methods of dispatch of documents from the Tribunal.
Part 2 of Schedule 1 contains
transitional provisions. In relation to the internal review of
decisions, if an application was lodged for internal review prior
to the commencement of this Bill, the application will be treated
as an application for review by the MRT. Similar rules apply for
applications for IRT review on hand at the time of commencement so
that they will be treated as applications for MRT review. A
conclusive certificate issued before the commencement of this Bill
by the Minister in respect of an internal review will be taken to
be issued under proposed section 339 as amended by this Bill.
Schedule 2-Migration Review
Tribunal
Part 6 of Schedule 2 deals with
the establishment and membership of the MRT. Proposed Part 6
contains a large number of largely administrative provisions,
relating to matters such as acting appointments, the creation of
registries and the employment of officers of the MRT. More
important provisions are contained in Item 9 and
relate to:
-
- the formal establishment of the MRT by proposed section
394
-
- the membership of the MRT, which is to consist of a Principal
Member, Senior members and other members. Members of the MRT are to
be appointed by the Governor-General (proposed sections 395
and 396). There are no standard qualification requirements
for appointment
-
- members are to be appointed for a maximum for 5 years
(proposed section 398) and are to disclose any
conflict of interest they may have in a matter subject to review
(proposed section 402) and
-
- removal of a member from office, which must be done by the
Governor-General on the grounds contained in proposed section 403,
which include proved misbehaviour, physical or mental incapacity,
bankruptcy or similar agreements with creditors, unapproved absence
for 14 consecutive days or 28 days in a year, if the member is a
full time member - accepting other paid employment without the
Minister's approval, and failure to disclose a conflict of interest
(proposed section 403).
Schedule 3-Refugee Review
Tribunal
Schedule 3 makes amendments to
the operation of the RRT, which generally reflect those provisions
listed in relation to the future MRT. For clarity, these provisions
are re-listed here with relevant technical changes.
Item 1 (proposed section 420A)
provides that a Principal Member may give directions as to the
operation of the Tribunal and the conduct of reviews by the
Tribunal. In particular the directions may relate to the
application of efficient processing practices. The Tribunal should,
as far as practicable comply with the direction, however
non-compliance does not invalidate a Tribunal decision.
Item 2 (proposed section 422A)
provides that a Principal Member may direct that a particular
Tribunal be reconstituted by adding or removing a member of the
Tribunal if the Principal Member thinks it is in the interests of
achieving the efficient conduct of the review. The Principal Member
must not give such a direction unless:
-
- the Tribunal decision has not been recorded in writing or given
orally and
-
- the Principal Member has consulted each member of the Tribunal
and a Senior Member who is not the only member of the Tribunal
and
-
- the Principal Member is satisfied that there is insufficient
material before the Tribunal to make a decision or a period
prescribed for making the decision has elapsed.
Item 3 (proposed section 424)
provides that in conducting the review, the Tribunal may get
information that it considers relevant and must have regard to that
information if it obtains it.
Item 3 (proposed section 424A)
provides that the Tribunal must give to an applicant particulars of
any information adverse to the application, reasonably ensure the
applicant understands the information's relevance and invite the
applicant to comment. However, this does not apply to information
that is not specifically about the applicant and is just about a
class of persons of which the applicant is a member or that is
non-disclosable information.
Item 3 (proposed sections 424B and
424C) provide that if invited to give additional
information or comment on other information, the applicant must do
so within a prescribed period, and if the applicant fails to do so,
then a Tribunal may make a decision without taking further action
to obtain the applicant's views.
Item 3 (proposed section 425)
provides that the Tribunal must invite the applicant to appear
before the Tribunal to give evidence and present arguments relating
to the matter, unless:
-
- the Tribunal considers that it should decide the review in the
applicants favour on the papers
-
- the applicant consents to the Tribunal deciding the matter
without her appearance, o
-
- the applicant has failed to provide requested information in
prescribed timeframe.
Item 6 (proposed section 426A)
further provides that if the applicant does not appear, the
Tribunal may make a decision without taking further action to allow
the applicant to appear. However, the Tribunal does have the
discretion to reschedule an appearance.
(The Migration Legislation Amendment Bill (No.
4) 1997 originally granted the Tribunal a discretion to invite the
applicant to appear. This was changed through Government amendments
during the House of Representatives debate.)
Item 9 is a new series of
provisions not included in the 1997 Bill and sets out when a
Tribunal must invite parties to a handing down of a decision.
Proposed sections 430A - 430C provide that in most
circumstances, the Tribunal must invite the applicant and the
Secretary to be present in person when a decision is handed down
and must provide them with a copy of the decision. If the applicant
or the Secretary are not present in person, then the Tribunal must
notify both parties of the decision by providing each with a copy
of the decision.
These provisions do not apply if the decision is
to be given orally or the applicant is in immigration
detention.
Item 9 (proposed section 430D)
provides that if the Tribunal gives an oral decision, or if the
applicant is in immigration detention, the Tribunal must forward
the applicant and the Secretary a copy of the decision within 14
days.
Item 10 (proposed subsection
431(1) provides that the Registrar must ensure the
publication of any statements that the Principal Member thinks are
of particular interest.
Item 12 contains new provisions
not present in the 1997 Bill. It provides for a specification as
the methods of dispatch of documents from the Tribunal.
Schedules 4-8 contain a range
of miscellaneous amendments to migration matters. Of note is
Schedule 6, Item 7 (proposed section 107A) which
deals with possible cancellation of a current visa on the ground of
non-compliance in connection with a previous visa. The new
provision is extremely broad and provides for 'non-compliance that
occurred at any time, including non-compliance in respect of any
previous visa held by the person.' This would include an unintended
error by a third person. The power to cancel a visa on this ground
is discretionary.
For a discussion of specific issues raised in
relation to the Bill, the reader is referred to the above
commentary of evidence presented to the Senate Legal and
Constitutional Legislation Committee's inquiry into the 1997
Bill.
-
- Department of Immigration and Multicultural Affairs,
1997-98 Annual Report, p. 24.
- Ibid., pp. 61-62.
- Immigration Review Tribunal, 1997-98 Annual Report,
pp. 12-13.
- Minister for Immigration and Multicultural Affairs, Press
Release, 20 March 1997.
- Sir Gerard Brennan, 'Courts, Democracy and the Law', (1991) 65
Australian Law Journal 32: 36.
- Senate Legal and Constitutional Legislation Committee,
Migration Legislation Amendment Bill (No. 4) 1997,
Migration Legislation Amendment Bill (No. 5) 1997, October
1997, p. 7.
- Ibid, p. 12.
- The Australian, 3/7/1997.
- Senate Legal and Constitutional Legislation Committee, p. 14.
- Ibid, p. 16.
- Ibid, p. 52.
- Ibid, p. 53.
- Ibid, p. 20.
- Ibid, p. 21.
- Ibid.
Krysti Guest
2 December 1998
Bills Digest Service
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ISSN 1328-8091
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