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Wednesday, 12 February 2014
Page: 155


Mr THISTLETHWAITE (Kingsford Smith) (09:26): I speak in support of this bill, the Migration Amendment Bill 2013. The amendments made by this bill are essentially administrative but do provide important clarity particularly for the courts in assessing protection visa applications. Schedule 1 of the bill puts beyond doubt that a decision on review or a visa refusal, cancellation or revocation decision by the minister or his delegate is taken to be made at a time when a record of it is made and not when the decision is notified or communicated to the review applicant, visa applicant or former visa holder. The second schedule clarifies the operation of the statutory bar on making a further protection visa application. The amendments also make it a criterion for the grant of a protection visa in section 36 of the Migration Act that the application is not assessed by the Australian Security Intelligence Organisation to be a risk to security within the meaning of section 4 of the ASIO Act and associated measures.

The bill is aimed at providing certainty to what has been seen as the intention of the legislation and making the protection visa process much more stringent and clear. Schedule 1 of the bill amends the Migration Act to put beyond doubt that a decision of the Refugee Review Tribunal or the Migration Review Tribunal on application for review is taken to be made on the day and at the time the written or oral statement is made. This amendment comes on the back of two important matters before the Federal Court. One was the judgement in 2012 in the Minister for Immigration and Citizenship and SZQOY in which the court held that a decision by the Refugee Review Tribunal on an application for review under part 7 of the Migration Act did not become final until the review decision was notified outside the Refugee Review Tribunal, externally and irrevocably. On 11 September 2013 the full court delivered its judgement in the Minister for Immigration and Multicultural Affairs and Citizenship and SZRNY. Again, the court held that a notification of a review decision by the review tribunal forms part of the core function of review and until both the review applicant and the Secretary of the Department of Immigration and Border Protection are notified of the review decision according to law the decision of the relevant applicant remains subject to review and not finally determined within the meaning of section 5(9) of the Migration Act.

So this amendment clarifies that a decision on review or a visa decision by the minister is taken to be made on the day and at the time when the record of it is made. That finalisation is not dependent upon when the decision is notified or communicated, which provides important clarity for applicants and indeed for the court. Labor accepts that it is important that decision makers and applicants have that clarity regarding the timing of final decisions, but we are also satisfied that these changes to the Migration Act do not impeach the procedural fairness obligations of the government or, indeed, of the court. Labor broadly supports this bill as it clarifies the current positions of the courts and removes some of the uncertainty around protection visa procedures and processes. It is appropriate that recent decisions of the courts are clarified to ensure consistency in decision making.

Schedule 2 of the bill amends the Migration Act to clarify that section 48A of the act prevents a noncitizen who has been refused a protection visa, or had a protection visa cancelled, from applying for a further protection visa while in the migration zone. This amendment was precipitated by the judgement of the Federal Court in SZGIZ v the Minister for Immigration and Citizenship, a decision of that court in 2013 which held that the act does not preclude a noncitizen seeking a further protection visa application based on criteria which did not form the basis of a previous unsuccessful protection visa application. The amendment will mean that the department, the Refugee Review Tribunal and the courts will no longer have to dedicate the resources to repeat protection visa applications.

Labor accepts that the decision of the court that an applicant with an unmeritorious claim may seek to delay the procedure has the potential to create a burdensome ongoing workload for the department, associated bodies such as the Refugee Review Tribunal and the courts generally. However, the process should still be handled in accordance with affording applicants procedural fairness. Schedule 3 of the bill amends the Migration Act to insert a criterion for the granting of a protection visa subclass 866 that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. Again, this is a provision that Labor supports, and I commend the bill to the House.

Debate adjourned.