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Thursday, 12 February 2009
Page: 1222


Dr STONE (6:19 PM) —I support the Migration Legislation Amendment Bill (No. 2) 2008 [2009] because, as the Parliamentary Secretary for Multicultural Affairs and Settlement Services has just said, it aims to streamline the process of making appeals as a result of particular migration decisions and at the same time delivers a just outcome for those who are seeking those reviews. The objective of the Migration Legislation Amendment Bill (No.2) 2008 [2009] is to amend the Migration Act 1958 to clarify and enhance communication provisions in the act that relate to merit and judicial reviews of migration decisions and in particular to ensure that in the future there is no attempt made to use process as a means to delay departure from Australia when the decision has been taken that a person’s application for, for example, asylum seeker status has been rejected.

In particular, this bill allows the Migration Review Tribunal and the Refugee Review Tribunal to invite either orally or in writing review applicants or third parties to give them information. Currently the tribunals and the full Federal Court can only request or require information from a person in writing. Enabling the tribunals to obtain information from review applicants and third parties orally, including by telephone, will obviously help ensure that reviews of migration decisions can be conducted efficiently and much more quickly. It also brings the communication options into the 21st century. It will lessen the problem for those who only have, for example, a mobile phone number as a means of contact and therefore with the capacity of the tribunals to communicate by telephone there can be an expectation that the applicants and third parties will have a much more effective and efficient system of understanding where they are up to and what is going on.

The bill also establishes uniform time limits for applying for a judicial review of a migration decision in the Federal Magistrates Court, Federal Court and High Court. These amendments relate to time limits and address the problem where there is currently an incentive for unsuccessful visa applicants to take advantage of the delays litigation can cause by waiting until their removal from Australia is imminent before lodging an application for review. These amendments also provide the courts with broad discretion to vary the time period for applying for a review of a migration decision where the courts consider such a time frame is necessary in the interests of the administration of justice. Therefore, the setting of time limits cannot be seen in any way to restrict the rights of the applicant.

The third broad area addressed by this bill is where the appeals against judgement by the Federal Magistrates Court and the Federal Court will be limited when they make an order or refuse to make an order in relation to extending time to apply for a judicial review of migration decisions. The limitation of appeals against extension of time decisions will help ensure the effectiveness of the new time limits for applying for judicial review of a migration decision, as inserted in the bill.

The current wording of the act is, in places, ambiguous and in the past has allowed appeals of migration decisions based on lack of clarity about notification, dates of decisions and communication processes. As the parliamentary secretary identified, there have been numbers of cases in the Federal Court and High Court which made the original intentions of the act less clear, but where the aim was also to have an efficient, just and timely process. The amendments seek to clarify the intention of the act and to streamline the appeal process.

To give some further details, the bill will amend section 359(2) of the act to provide that communications can be made ‘either orally (including by telephone) or in writing’. Section 359(1) of the act provides the Migration Review Tribunal with the power to ‘get any information that it considers relevant’. Importantly, it provides that once the Migration Review Tribunal has that information it ‘must have regard to that information in making the decision on the review’. The amendments of section 359(2) outline that the Migration Review Tribunal has the power to seek information orally by whichever method it chooses, ‘including’—but not limited to—‘by telephone’. The MRT will still be able to invite a person by written invitation to provide information, and these powers are a subset of the MRT’s broad powers under subsection 359(1). The power to seek information orally or in writing applies at any stage in the review.

As I said, the amendment will also ensure that the MRT is able to obtain relevant information where the only way of contacting a person is by oral means—for example, where a telephone number is the only contact provided. In all circumstances where information is collected, including by telephone, that is adverse to the applicant and that the MRT 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 in writing. The applicant would then have an opportunity to comment on such adverse information within a prescribed period before a decision on the review is made. The removal of the word ‘additional’ from the heading in section 359 makes it clear that the MRT’s power to seek information orally, including by telephone, or by written invitation applies to all information and seeks to deal with the uncertainties surrounding what information is covered by section 359.

Vesting the High Court with the broad discretion to extend time where it is necessary in the interests of the administration of justice aims to protect applicants from possible injustice while also ensuring extensions are granted only where there is a compelling reason to do so—of course, these are extensions on appeals. A new section, 486A(3), provides a definition of ‘date of the migration decision’, which will serve the purpose of setting the time limits for applying to the High Court for review of the migration decision. This is a very important part of this bill, in that, in the past, there has been an acceptance of the date of notification as the beginning of the time for appeal.

Section 486A(1), as amended by proposed section 5 of schedule 2 of the bill, provides that the 35-day period for applying for review of a migration decision starts to run from the date of the migration decision. One of the effects of this proposed section will be to ensure that, where a written statement for the decision does not comply with all the requirements set out in section 368(1) for the MRT and section 430(1) for the Refugee Review Tribunal, this will not affect the time limit starting to run. These sections seek to ensure that the High Court is not required to examine whether there is a jurisdictional error in the migration decision before determining whether the application for review is within time.

I support this bill. It aims to make the process of review of immigration decisions more efficient and effective within reasonable time frames while at the same time ensuring that the rights of the person making the applications are still firmly upheld. We commend the bill to the House. I think it is an important evolution of our immigration legislation in this country.