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Thursday, 12 February 2009
Page: 1220


Mr LAURIE FERGUSON (Parliamentary Secretary for Multicultural Affairs and Settlement Services) (6:11 PM) —I present the explanatory memorandum and a correction to the explanatory memorandum to this bill and I move:

That this bill be now read a second time.

The Migration Legislation Amendment Bill (No. 2) 2008 amends the Migration Act 1958 to clarify and enhance provisions relating to merits and judicial review of migration decisions.

The bill has three sets of amendments.

Firstly, the bill clarifies that, when the Migration Review Tribunal or the Refugee Review Tribunal seek information from review applicants or third parties, this may be done either orally or by written invitation.

Secondly, the bill reinstates effective and uniform time limits for applying for judicial review of migration decisions in the Federal Magistrates Court, Federal Court and High Court. The courts will have a broad discretion to extend that time where they consider an extension necessary in the interests of the administration of justice.

Thirdly, the bill limits appeals against judgments by the Federal Magistrates Court and the Federal Court that make an order or refuse to make an order to extend time to apply for judicial review of migration decisions.

These amendments will ensure a more efficient migration review system, while maintaining the rights of applicants to procedural fairness.

The first set of amendments seek to address a series of recent decisions of the full Federal Court where the court held that the tribunals may only seek additional information from review applicants or third parties if they do so by written invitation—that is, they cannot seek information orally.

In particular, the case of SZKTI v the Minister for Immigration and Citizenship [2008] FCAFC 83 found that the parliament did not authorise the tribunals to get additional information from a person pursuant to its general power to obtain information, without complying with the specified procedures set out in sections 424, 424A, 424B and 424C of the Migration Act for obtaining such information. This effectively means that the tribunals are not able to seek information orally from an applicant.

Requiring the tribunals to seek information only by written invitation is problematic when the only available means to communicate with a person is orally, for example, where only a telephone number is provided, which was the case in SZKTI.

Conducting investigations only in writing can also cause considerable delay without necessarily improving procedural fairness to the applicant.

It is important to note that these amendments will not impact on procedural fairness afforded to an applicant. Where information is collected that is adverse to the applicant and which the tribunal considers would be the reason or part of the reason for affirming the decision under review, clear particulars of that information will be put to the applicant. The applicant would then have an opportunity to comment on such adverse information within a prescribed period before a decision on review is made.

The second set of amendments will reinstate effective time limits for applying to the courts for judicial review of migration decisions.

Without effective time limits there is an incentive for unsuccessful visa applicants to take advantage of the delays that litigation may cause, for example, by waiting until their removal from Australia is imminent before lodging an application for review.

The current time limits in the Migration Act are largely ineffective as a result of the April 2007 High Court decision of Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 and the July 2007 full Federal Court decision of the Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105.

In Bodruddaza the High Court held that the time limits imposed on the court were constitutionally invalid because there was no discretion to extend time.

In SZKKC the full Federal Court held that the time period for seeking judicial review of a tribunal decision will begin to run only if the applicant is personally served with the written statement of reasons of the tribunal by a person authorised by the registrar of the tribunal.

It would be expensive and impractical for the tribunals to implement the practice of personally serving a written statement of the reasons for the decision. As such, the time limits for seeking judicial review of a migration decision to the Federal Court and Federal Magistrates Court are now largely ineffective.

This bill reinstates effective time limits in three main ways.

Firstly, it extends the time for lodging an application for judicial review of a migration decision from the current 28 days to 35 days.

The bill also seeks to address the problems identified in SZKKC and Bodruddaza. The time period for seeking judicial review of a migration decision will start to run from the time the migration decision is taken to have been made rather than from the time of actual notification, which the act currently requires. This addresses the practical difficulties associated with personally serving a written statement of reasons. To provide certainty, the bill defines ‘date of decision’.

The bill provides the courts with broad discretion to extend time where they consider it necessary in the interests of the administration of justice. This seeks to address the constitutional issues identified by the High Court in Bodruddaza and enables the courts to protect applicants from possible injustice caused by the time limits.

Applicants will be required to state in their applications for an extension of time why they consider it necessary in the interests of the administration of justice for the order to extend time to be made. This will assist the courts to deal with requests for extensions of time more quickly and assist in more efficient use of court resources.

The third set of amendments in the bill will limit all appeals against judgements by the Federal Magistrates Court and the Federal Court that make an order or refuse to make an order to extend time to apply for judicial review of migration decisions.

This measure will strengthen and enhance the new time limits for applying for judicial review of a migration decision as inserted by the bill by encouraging applicants to seek timely resolution of their cases.

It may also in effect help to prevent applicants from engaging in strategic litigation to deliberately delay their removal from Australia.

The limitation on appeals does not affect any rights the applicant may have to seek review in the High Court’s original jurisdiction because such a limitation would be unconstitutional. The amendments do, however, limit appeals of decisions to make an order or refuse to make an order to extend time to apply for judicial review of migration decisions to the High Court in its appellate jurisdiction.

In conclusion, these amendments bring about key reforms that will lead to a more streamlined migration review process but one that still delivers fair and reasonable outcomes to clients of the Department of Immigration and Citizenship.

The bill deserves the support of all members of the House.

I commend the bill to the House.