Chapter 2Key issues
2.1Most of the evidence in this inquiry related to proposed amendments to the Migration Act 1958 (Migration Act). This chapter examines key concerns in evidence relating to applications to the Administrative Review Tribunal (ART) for review of a reviewable migration or protection decision, then turns to the evidence from government officials on those issues. The chapter then briefly reviews other key issues raised in evidence before presenting the committee’s view. It should be noted that many of the concerns raised in evidence are about matters which are not within the scope of the bill under consideration.
Concerns relating to review of migration and protection decisions
2.2This section examines inquiry participants’ key concerns relating to:
application fee requirements;
information to be included with an application;
timeframes for making an application;
requirement for a properly made application, including evidence regarding a recent High Court decision; and
the now abolished Immigration Assessment Authority.
Application fee
2.3The Immigration Advice and Rights Centre advised that the fee associated with seeking review of a migration decision is $3,496, or $1,748 with a reduction in cases of financial hardship. It described this as ‘a significant obstacle to lodging a “properly made” application for many’, particularly those in immigration detention who are unable to work and victim survivors of domestic, family and sexual violence. It supported the availability of a complete waiver in cases of significant financial hardship.
2.4The Refugee and Immigration National Community Law Coalition (RAINCLC) and Asylum Seeker Resource Centre both described the fees as ‘exorbitant’ and submitted that ‘[t]his provision will effectively prevent all migration review applications (and potentially protection review applications) from people in immigration detention’.
2.5The fee payable for an application for review of a migration decision is not set or changed by the bill. Nor is the availability of a fee waiver.
2.6Refugee Legal submitted that proposed subsection 347(3) of the Migration Actwould ‘require that the full fee for non-protection decisions be paid within 28days after the day the applicant is notified of the decision to be reviewed’. It described this as ‘an impossible hurdle for many vulnerable people’. In proposing that there be a discretion to extend the time in which fees are payable, Refugee Legal submitted:
The requirement to provide full payment upfront from people who may be destitute works against the objective of an accessible Tribunal and will prevent people with meritorious applications from being able to seek review.
2.7The Kaldor Centre for International Refugee Law (Kaldor Centre) acknowledged that current regulations require the fee for reviewable protection decisions to be paid seven days after the applicant is notified of the decision, and only if the review is unsuccessful, though expressed concern that the bill ‘open[s] the door for changes to the regulations in the future that could require the payment of fees upfront, with the failure to pay potentially rendering applications invalid’.
2.8The Kaldor Centre further submitted that the proposed amendments ‘are ambiguous as to whether the failure to pay the prescribed fee within the prescribed period would render an application for the review of a protection decision invalid’. It recommended this be addressed by removing paragraph347(3)(b) from the bill, or alternatively, amending that paragraph to:
…explicitly state that in the case of reviewable protection decisions, any prescribed fee will only be required to be paid after the review of the decision, and only if the matter is not remitted, leaving the prescription of the exact fee and time period for payment following the decision to be specified in the regulations.
Information to be included with an application
2.9The requirement that an application be accompanied by ‘prescribed information’ and ‘prescribed documents’ was not created by the bill. It was inserted by the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Consequential Act 1). The requirement in the bill that prescribed information and prescribed documents accompany an application is not new.
2.10Nonetheless, the Asylum Seeker Resource Centre submitted that the bill and explanatory memorandum ‘are silent on what “prescribed information” and “prescribed documents” will be required by applicants to lodge a valid review application under proposed sections 347 and 348’. It advanced that ‘[c]ontrary to the Explanatory Memorandum, these provisions do not “promote clarity and certainty for applicants”’. It is also ‘foreseeable that these requirements will impose onerous barriers for people seeking asylum, refugees and migrants to access merits review, especially for people in immigration detention’.
2.11The Asylum Seeker Resource Centre’s Principal Solicitor and Head of Legal, MsHannah Dickinson, further suggested that ‘the purpose of this requirement is unclear’, ‘[t]here doesn't appear to be justification for it, and it is undefined’. She described it as ‘a new requirement’, and elaborated:
At the moment an application is completed by providing a form. That's appropriate. There are key details that are needed from an applicant to proceed with an application for review. But this requirement is unjustified, reduces accessibility significantly and does not seem to have any perceptible advantage in terms of efficiency or the other objectives of the tribunal.
2.12Mr David Manne, Executive Director at Refugee Legal, expressed concern about the level of detail, suggesting that:
…under the current regime it [the requirement] is a very simple, bare-bones application that doesn't require any substantive information to be provided by the applicant. All it requires is basic details—biodata, effectively. So, without further detail, one must work on the presumption that what the government has in mind here is for an applicant to provide more detail of a substantive nature. At the moment, as has been mentioned by other witnesses, that substantive information is generally provided by the department to the tribunal, to the extent it's provided.
2.13Mr Ahmad Sawan, Supervising Senior Solicitor at the Refugee Advice and Casework Service, suggested that the information and document requirement could possibly be made ‘more onerous’ than at present via delegated legislation. The Asylum Seeker Resource Centre advised that a legislative instrument defining ‘prescribed documents’ or ‘prescribed information’ under proposed subsection 347(2) of the Migration Act would be disallowable. However, it said this ‘is an inadequate protection, in particular where there is reduced opportunity for expert scrutiny, and creates unnecessary uncertainty’.
Timeframes to make an application
2.14The Refugee Council of Australia highlighted that for a person in immigration detention, an application for review of a migration or protection decision must be made within seven days of the applicant being notified of the decision. For those not in immigration detention, the timeframe is 28 days. It said there ‘appears to be no sound policy rationale for this disparity in time limits between detained and non-detained applicants’. It further submitted that ‘individuals in detention face significantly greater challenges in preparing and submitting an application for review’, which could include limited access to legal representation, insufficient access to resources, restricted access to documents, language barriers, and lack of understanding of legal processes.
2.15The RAINCLC said it raised concerns about the seven day timeframe in evidence to the committee’s inquiry into the previous ART bills, and submitted:
In our experience, this is a wholly insufficient timeframe for an applicant to:
read a complex legal decision that is often in a language they are not fluent in;
understand the contents of the decision;
recognise the timeframe to lodge an appeal; and
contact a legal service provider for advice or assistance.
2.16The RAINCLC also responded to a previous rationale for the timeframe:
The Explanatory Memorandum for the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) suggested that shorter lodgement deadlines and review timeframes for people in detention are required to reduce their time spent in detention. However, in practice these short deadlines result in people missing out on their opportunity to seek merits review, and consequently being detained indefinitely for years while they attempt to access judicial review or Ministerial intervention.
2.17The Immigration Advice and Rights Centre suggested that the ‘practical outcome’ of the seven day timeframe is that:
…people in immigration detention will be more likely to miss the review deadline and be compelled to seek judicial review of a decision or make an unmeritorious visa application – both of which will unnecessarily add to the existing backlog of cases before the Courts and Tribunal.
2.18Another risk was presented by the Refugee Council of Australia:
People in detention are at a heightened risk of deportation without a thorough review of their protection claims. Missing the statutory 7-day time limit can result in immediate removal to a country where they may face persecution, torture, or even death. This outcome contravenes Australia's obligations under international human rights law, including the principle of nonrefoulement enshrined in the 1951 Refugee Convention.
2.19A range of inquiry participants supported increasing the seven day timeframe for those in immigration detention.
2.20The seven day timeframe was set by Parliament prior to the introduction of the bill. The bill makes no change to this timeframe.
Requirement for a properly made application
2.21The Refugee Council of Australia submitted that the ‘proposed restrictions on the ART's ability to review decisions, as outlined in Section 348(2), risk undermining the fundamental principles of justice by prioritising procedural compliance over substantive fairness’. It argued that ‘[t]his rigid approach fails to account for genuine mistakes or misunderstandings that may occur, particularly among applicants unfamiliar with complex legal processes’.
2.22The Refugee Council of Australia recommended, among other things, that the bill be amended to ‘provide the ART with the discretion to accept and review applications that may not fully comply with procedural requirements if it is in the interests of justice to do so’. The Kaldor Centre endorsed this recommendation.
2.23The RAINCLC reported that its members ‘regularly assist protection visa applicants who have missed their AAT [Administrative Appeals Tribunal] deadline to seek review for very legitimate and unforeseen circumstances, and suffer the unjust consequences of losing the right to seek merits review’. It also presented the following response to the statement of compatibility with human rights:
The Government has stated that the Bill’s amendments are “necessary to have certainty as to when a valid application has been made, as this triggers the entitlement to a bridging visa”. However, people can apply for a bridging visa when they have unlawful status, including where they have applied for judicial review before the Courts of a Tribunal no-jurisdiction decision regarding late lodgement. Therefore, this justification is not a compelling rationale to exclude protection and migration applicants from seeking an extension of their deadlines.
2.24The Office of the United Nations High Commissioner for Refugees (UNHCR) submitted that the requirements for migration and protection applications:
…are a departure from the generally applicable timeframes and available exceptions applied to other jurisdictional areas of the Tribunal. Under the Administrative Review Tribunal Act 2024 there is greater uniformity (28 days being the standard), and the Tribunal can extend the timeframe for lodgement if it considers it reasonable to do so, even after the timeframe has expired. This limited scope of discretion is stated to be in recognition of the fact that for some people, a 28-day timeframe may be insufficient to secure legal assistance and other necessary support services, or personal circumstances might prevent the making of an application. UNHCR emphasises that this is equally true for applicants seeking review of migration or protection decisions.
2.25The UNHCR said that it ‘remains concerned by a bifurcated system whereby applicants seeking review of migration and protection decisions are afforded diminished procedural standards’. It further submitted that the bill may not be consistent with the objectives of the ART:
While recalling the stated objective of the reform is to establish a new administrative review body that is user-focused, efficient, accessible, independent, and fair, UNHCR considers that measures proposed in the Bill that exclude access, impose onerous requirements and inflexible timeframes, if adopted, would be contrary to the government’s overall objective. Moreover, such measures can have dire consequences for those we serve, especially if deprived of their liberty and/or at risk of removal.
Connection to recent High Court decision
2.26Some inquiry participants were asked to comment on whether the bill related to a recent High Court decision in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13 (Miller). In brief, the High Court held that non-compliance with s 29(1)(c) of the Administrative Appeals Tribunal Act 1975—that an application to the AAT for review of a decision ‘must contain a statement of the reasons for the application’—does not result in invalidity of an application for review such that the jurisdiction of the Tribunal is not engaged.
2.27Regarding any connection between Miller and the bill, the Asylum Seeker Resource Centre submitted:
While Miller is regarding the interpretation of certain AAT Act provisions, the High Court's reasoning is helpful in considering how provisions in the Migration Act 1958 (Cth) (Migration Act) and the Administrative Review Tribunal Act 2024 (Cth) should be understood in relation to Tribunal application lodgement requirements and when an application would be deemed as invalid. Similar to the Administrative Appeals Tribunal (AAT), the Administrative Review Tribunal's (ART) objectives include providing an independent mechanism of review that is fair, just, accessible and responsive to the diverse needs of parties to proceedings. The High Court's consideration of the legislative purpose of the AAT is highly relevant to how provisions regarding access to review before the ART are interpreted.
However, proposed section 348 to the Migration Act circumvents the High Court's logical and beneficial interpretation by preventing the ART from reviewing any applications that do not comply with the requirements in proposed section 347, including the provision of prescribed information and documents and payment of a prescribed fee. Permitting this section would be "wholly at odds" with the objectives of the ART, and should be removed from [the bill].
2.28Mr Manne of Refugee Legal and Mr Sawan of the Refugee Advice and Casework Service each broadly agreed that the requirements under the bill would prevent the interpretation in Miller being applied.
2.29Regarding Miller and the bill, the Migration Institute of Australia submitted that:
…extensive references to the Miller case in this context may detract from the substantive issues at hand. There has been no alteration in the new legislation to the seven-day mandatory lodgement requirement for noncitizens in immigration detention, nor to the fundamental language of the Migration Act. Evidence provided by the Attorney-General's Department indicates that the ART process has been designed to address issues identified in the Miller case by introducing more flexible application requirements at the outset, thus avoiding the procedural pitfalls highlighted in that case.
2.30The Migration Institute of Australia also discussed the information required with applications, and said that ‘[g]iven the reduced complexity of the required information, it is highly unlikely that applicants would encounter procedural challenges similar to those in the Miller case’. The Institute said it does not concur with the ‘interpretation that the new provisions unduly constrain the Tribunal’s discretion in the absence of the Miller precedent’.
Immigration Assessment Authority
2.31Some submitters raised concerns about decisions made by the Immigration Assessment Authority (IAA), which was part of the former Administrative Appeals Tribunal and has now been abolished. The UNHCR said it:
…has consistently expressed significant concern that certain efficiencies created by the IAA have come at the expense of key procedural safeguards. The lack of those safeguards ultimately undermined the reliability and accuracy of its decisions and failed to guarantee key rights including protection from refoulement under the Refugee Convention.
2.32The UNHCR urged ‘the government to address the situation of those who may require re-adjudication or access to alternative solutions’. In addition, the NSW Council for Civil Liberties suggested that ‘the Government must take measures to correct the potentially unfair outcomes decided by the IAA cases’. It proposed that the bill ‘should include an amendment allowing people still in Australia who have had their cases upheld by the IAA to be heard again’.
Government evidence regarding migration and protection matters
2.33The Attorney-General’s Department (AGD) explained that the purpose of the amendments to sections 347 and 348 of the Migration Act is ‘to ensure that it is very clear on the face of legislation what is required to make a “properly made” application’. AGD confirmed this ‘is not a change to the substance of the requirements, but rather to the clarity of their expression’. Mr Michael Burke, First Assistant Secretary at the Department of Home Affairs, further advised:
This bill doesn't change the timeframes. This bill doesn't change the fees. This bill doesn't change the need for the prescribed information or documents. Those already exist under an earlier act for the consequentials and transitionals. In terms of the migration space, this bill is just about providing greater certainty and clarity of when a valid application has been made.
2.34AGD submitted that clear requirements ensure all parties understand what is required to seek merits review. It also emphasised:
In the context of reviews of migration and protection decisions, it must be clearly and objectively apparent whether a valid application has been made. This is because:
applicants for review are entitled to a bridging visa for the period of review
the system currently operates consistent with the clarified provisions - having ambiguous drafting impedes the effective operation of the Tribunal and leads to uncertainty for applicants, and
noting the very sizeable backlogs and delays in this jurisdiction, the Tribunal is assisted by clear parameters for the validity of application and a clear pathway to assess applications it has no jurisdiction to consider.
2.35Mr Burke emphasised the need for clarity to inform visa arrangements:
We need to know that someone has made an application, and we need to know that that application is valid. If we have an amorphous 'maybe they have, maybe they haven't', it's very hard for the immigration department to know whether or not they are now entitled to that bridging visa.
Timeframes, fees, and information to be included with an application
2.36Regarding timeframes for lodging an application, AGD submitted that the recent Consequential Act 1 standardised timeframes to apply for review (to seven days where a person is in immigration detention, and 28 days in other cases). The bill does not change this.
2.37Regarding the timeframes for payment of fees, AGD submitted that the bill contains the same requirement as existing legislation ‘but more clearly explains that the fee must be paid in the time limit for making the application for reviewable migration decisions’. AGD also said proposed paragraph 347(3)(b) of the Migration Act would ‘ensure that it is clear that protection applicants do not have to pay the fee to have a valid review application’, and noted that the regulations ‘prescribe that protection applicants must pay the fee within 7 days of being notified of the Tribunal’s decision, and only if the refusal of a protection visa is affirmed’.
2.38Regarding the information to be included with an application, Ms Sara Samios, First Assistant Secretary at AGD, confirmed that the requirement to use an approved form has been removed. AGD advised that this change occurred via the Consequential Act 1, and also described the approved forms that were previously required:
Form M2, which is the current approved form for persons in immigration detention, is 16 pages long and contains upwards of 15 interrelated and conditional questions, which are accompanied by notes, caveats and disclaimers. Applicants are instructed to complete all fields. The form’s complexity is evidenced by the inclusion of a checklist at the end of the form that attempts to assist applicants with ensuring they have included all required information and attachments. For other types of review applicants, there are three different types of forms that are respectively all upwards of eight pages long. They are similarly detailed and assume a level of literacy.
2.39AGD further explained that under the new requirements in the Migration Regulations 1994, ‘providing the notice of decision (accompanied by any applicable fee, if it is not a review of a protection visa decision, in the timeframe required) is all that is required for applications for review of a reviewable migration or protection decision’. Moreover, ‘[i]f the person does not have a copy of the notice of decision, they can instead provide the ART with some minimal identifying information and a description of the decision’. Ms Samios observed that under the new arrangements:
There is still a form you can use, and, if you use that form, you would comfortably meet the requirements under the regulations. But it's no longer the case that it has to be on that form.
2.40Mr Michael Hawkins AM, then Registrar of the Administrative Appeals Tribunal, suggested that ‘if you're providing a letter that merely identifies you and provides contact details and a brief outline of what you're appealing against or seeking relief or review of, I would think that that is somewhat more simplified than the form that's prescribed at the moment’. The ART also advised that the AAT ‘has procedures to guide registry officers to assist prospective applicants to apply for review of a decision’.
2.41Mr Burke confirmed that if the regulations were amended to provide for more onerous obligations, the regulation would be disallowable. Ms Samios highlighted that this is a distinction from arrangements using an approved form: ‘[i]f there were a change to the form to make it more onerous, there would be no disallowance mechanism’.
Requirements for a valid application
2.42Noting media reporting about the bill and Miller, AGD confirmed that the Miller decision ‘did not consider the requirements to make a valid application under the Migration Act’, and the bill ‘does not affect the substance of the Miller decision’. Regarding the effect of the bill, AGD advised:
The Bill amends the Migration Act to remove potential ambiguity about the requirements to make a valid application for review of reviewable migration and protection decisions, in response to the Miller decision. Under the Bill, the requirements for making an application are the same as under the law as amended by the ART Act and Consequential Act 1. The timeframes, fee arrangements and information to be included are unchanged.
2.43Ms Joanna Virtue, Assistant Secretary at AGD, responded to a question about the Miller decision and provided some detail about the bill’s provisions:
I think that Miller is concerned not so much with the consequence of not meeting a requirement as with what the requirements are. The effect of the decision is that the statement of reasons is not an essential requirement of an application, not that an invalid application does not invoke the jurisdiction of the tribunal, if that makes sense. So it's about what the requirement is rather than the consequence. This bill does not change the consequence of not making a valid application under the Migration Act. As Ms Samios said, if you refer to section 348 of the Migration Act as amended in the consequential and transitional provisions No. 1 act, there is a note there that says:
The ART has no jurisdiction to review a decision if the application for review is not properly made.
Section 348 refers to the requirements under 347 and 347A, which are exactly the same requirements as under this bill, in relation to standing, the payment of the fee, the information and documents to be provided—which we've talked about—and the timeframe.
2.44Asked about the connection between Miller and the bill, Ms Sobet Haddad, then Chief Lawyer at the AAT, submitted:
…as far as I understand it, Miller is distinguishable in these circumstances, because it's within the particular context of the AAT Act as it stands, and it's currently distinguishable from the Migration Act because of the provisions like section 348(1), and that provision hasn't changed. So I guess what it does, in that sense, makes clear that it doesn't apply, but it doesn't apply as it's currently drafted, as I read it.
Other key issues raised in evidence
2.45Economic Justice Australia supported the proposed changes to the Student Assistance Act 1973 ‘to remove the time limit for seeking review of ABSTUDY debts and making the rules for these debts the same as any other social security debt’. It recommended these amendments be passed.
2.46The NSW Council for Civil Liberties posited that ‘several key proposals’ in its April 2024 submission on the provisions of the Administrative Review Tribunal Bill 2023 and related bills ‘were not adequately addressed in the Acts’ subsequently passed by Parliament. These proposals included that the ART be appropriately resourced ‘to ensure that decisions are made within 6 months of filing an application’, and certain measures intended to ensure that ART appointees do not have ‘governmental affiliations’. The Council urged Parliament ‘to incorporate these as further amendments’ to the bill currently being considered.
2.47The NSW Council for Civil Liberties also expressed support for ‘many of the proposed amendments’ in the bill, including:
(i)Making the timeframes to apply for a review of a deemed decision (i.e. decision taken to be made due to the passage of time) consistent across legislation;
(ii)Allowing a decision-maker to substitute a decision with a more favourable outcome once the matter is referred to the guidance and appeal panel;
(iii)Providing immunity for nominated Tribunal members issuing post-entry and delayed notification search warrants insofar as this harmonises drafting with other similar functions; and
(iv)Removing the three-month time limit to apply for internal and Tribunal review of certain the Social Services decisions.
2.48A submission from Mr Bob Buckley raised broader concerns about the handling of National Disability Insurance Scheme matters in the AAT, and submitted that ‘[f]or the ART to succeed in relation to matters that affect autistic children, it needs to radically improve on the performance of the AAT’.
2.49Regarding the bill overall, Ms Samios of the Attorney-General’s Department advised that the bill would make technical amendments to 52 Acts across 14portfolios, and provided some detail:
If I were to draw out some specific matters that are particularly substantive, one change is to pause the timeframe for appeal from a decision of the ART to the Federal Court, over the Christmas-New Year period, to extend that review time. Another is to ensure that powers and functions in the intelligence and security jurisdictional area may only be exercised by ART members who are determining the matter. Another is to ensure that where a proceeding is before the guidance and appeals panel the original decision-maker may not alter the decision under review, except in accordance with the requirements under the ART Act. A final one is to remove time limits for seeking internal and tribunal review for the Aboriginal study grants scheme and assistance for isolated children debt decisions, to align those with other social security decisions and avoid disadvantage to those applicants.
Committee view
2.50The recent reforms to Australia’s system of administrative review are momentous. Much of the legislative package to enable these reforms has already been passed. Indeed, as of 14 October 2024 the AAT has been abolished and the ART has commenced.
2.51The bill before the committee is an important part of the legislative package underpinning the new ART. As AGD advised, the bill ‘makes minor, technical amendments to Commonwealth legislation to ensure that the ART legislative package operates as intended’. Perhaps accordingly, inquiry participants did not raise any issues with the vast bulk of the bill.
2.52Some elements of the bill received explicit support from submitters, such as the removal of time limits to apply for review of debt decisions in relation to Abstudy.
2.53The committee acknowledges the genuinely held concerns among some inquiry participants regarding proposed amendments to the Migration Act. These included concerns about application fee requirements, information to be included with an application, and the timeframes for making an application.
2.54However, the committee is assured by advice from government officials that the bill does not change the substance of the requirements for an application, rather, it clarifies their expression by putting beyond doubt what is required for an application to be ‘validly made’. In doing so, it provides important certainty for applicants, whose visa status can be affected by the validity of an application.
2.55It also appears that many of the concerns raised in this inquiry relate to reforms that were implemented under previous legislation, including those directed at the timeframes to apply for review, the fee payable and the form in which an application must be made. For example, officials advised that the requirement to provide any prescribed information or documents was introduced by Consequential Act 1, and the requirement to use an approved form was removed in legislation that has previously passed Parliament.
2.56The committee is mindful that, as confirmed in evidence, any changes to key regulations would be subject to a disallowance process. This provides an opportunity for parliamentary oversight, which didn't exist prior to the passage of the ART reforms.
2.57The bill currently before the committee is an important component of the reform to Australia’s administrative review system and should be passed by the Senate.
2.58The committee recommends that the Senate pass the bill.
Senator Nita Green
Chair