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Migration
Legislation Amendment Regulation 2013 (No. 1)
FRLI ID: F2013L00490
Portfolio: Immigration and
Citizenship
Summary of committee view
2.143
The committee
seeks clarification as to whether amendments to the methods and time period for
lodgement with the Migration Review Tribunal (MRT) and Refugee Review Tribunal
(RRT) are compatible with the right of access to justice. It also seeks
clarification as to why immigration detainees and non-detainees are treated
differently in relation to the applicable tribunal procedures and how this is
compatible with the right to equality and non-discrimination.
Overview
2.144
This instrument
makes a number of amendments to the Migration Regulations 1994 and the Migration
Agents Regulations 1998.
Schedule
1 – Indexation of Tribunal fees
2.145
Schedule 1 of
the instrument provides that fees for making applications to the MRT and RRT be
automatically indexed every two years on 1 July, based on the consumer price
index.
Schedule
4 – Alignment of MRT and RRT procedures
2.146
Schedule 4 of
the instrument is designed to:
- align the MRT
and RRT procedures for the lodgement of review applications;
- remove redundant
provisions relating to the tribunals currently in the Principal Regulations;
and
- align the
prescribed time periods given to review applicants to attend hearings or to
provide comments or additional information to the Tribunals.
2.147
In some cases
these amendments in Schedule 4 appear to remove currently available methods of
lodgement. For example, it will no longer be possible for applicants in
detention to lodge an application for an MRT-reviewable decision with an
immigration officer at a detention centre.[1]
2.148
Other amendments
provide for reductions in the time available for various tribunal processes.
For example, applicants who are not in detention and who are seeking review by
the MRT of a decision (other than a decision to cancel or a decision not to
revoke the cancellation of a visa) will be given 14 days (instead of the
current 28 days) to provide comments or additional information in response to a
request from the MRT.[2]
2.149
Subsection
424B(4) of the Migration Act 1958 provides that the RRT may extend the
period for providing further information (in response to an invitation from the
RRT) for a prescribed further period. Previously, if the information was to be
provided from a place within Australia, the period by which the RRT may extend
the prescribed period started when the person received notice of the extended
period and ended at the end of 28 days after the day on which the notice is
received. If the information was to be provided from a place outside of
Australia, the period by which the RRT may extend the prescribed period started
when the person received notice of the extended period and ended at the end of
70 days after the day on which the notice is received. The amendments in this
instrument reduce the prescribed time period for all applicants to 14 days.[3]
2.150
In addition, the
new procedures continue to distinguish in a number of areas between applicants
who are in immigration detention and those who are not. For example, review
applicants who are in detention have seven days to provide information in
response to an invitation from the RRT, whereas those review applicants who are
not in detention have 14 days to provide information.[4]
Compatibility with human
rights
Schedule
1 – Indexation of Tribunal fees
2.151
The statement of
compatibility asserts that Schedule 1 is compatible with human rights. However,
the committee notes that any increase in Tribunal fees should be addressed in
the statement of compatibility as such increases have the potential to limit
access to justice and therefore engage article 14 of the International Covenant
on Civil and Political Rights (ICCPR).
Schedule
4 – Alignment of MRT and RRT procedures
2.152
The statement of
compatibility states that Schedule 4 of the instrument does not engage any
human rights.
2.153
However, it
appears that many of the amendments in the instrument may engage the right to a
fair hearing in article 14(1) of the ICCPR. This includes the right of access
to courts and tribunals, and if costs or procedural matters impede a person's
access to review, this may limit the rights in article 14(1). Removing
currently available methods of lodging review applications or substantially
shortening the period of time in which review applicants may lodge information
with the tribunal gives rise to these concerns.
2.154
In addition, by
continuing to distinguish between review applicants who are in immigration
detention and those who are not the new procedures may also impact on the right
of equality and non-discrimination in articles 26 of the ICCPR. Article 26
prohibits discrimination on a number of grounds, including 'other status'. The
status of whether a person is in detention or not would appear to fall within
this category. Any differential treatment will not constitute discrimination where it
is aimed at achieving a legitimate objective and is based on reasonable and
objective criteria and is proportionate to the objective to be achieved. It is
unclear what the objective is in distinguishing between detainees and
non-detainees as to the processes that apply for review to the MRT or RRT.
1.155
The
committee intends to write to the Minister for Immigration and Citizenship to
seek clarification as to:
- what methods
of lodgement are no longer available to review applicants as a result of these
amendments and whether removal of this is compatible with the right of access
to justice under article 14(1) of the ICCPR;
- whether
reducing the time period for lodgement of documents with the MRT and RRT is
compatible with the right of access to justice under article 14(1) of the
ICCPR; and
- why
immigration detainees and non-detainees are treated differently in relation to
the applicable tribunal procedure and how this is compatible with the right to
equality and non-discrimination in articles 26 of the ICCPR.
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