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Wednesday, 4 February 2009
Page: 255

Senator FIERRAVANTI-WELLS (12:21 PM) —I rise to speak on the Migration Legislation Amendment Bill (No. 2) 2008 [2009] which amends the Migration Act to clarify and enhance provisions in the act that relate to merits and judicial review of migration decisions.

These amendments aim to rectify the shortcomings of the Migration Legislation Amendment Bill (No. 1) 2008 by creating conditions conducive to the expeditious and efficient administration of justice for those seeking review. These principles were first introduced as part of the previous bill before they were withdrawn in August 2008 amid some concerns over their unintended consequences. The coalition supported the principle behind these changes when they were first introduced. Consequently, we are in support of these amendments in their revised and improved form.

As the then shadow minister for immigration and citizenship, Senator Ellison, indicated in his speech on the second reading on 27 August 2008, it is fair to say that the coalition, while in government, was looking at amendments of a similar nature to the ones we see currently in this bill. These amendments provide for a number of much-needed improvements in process—in particular, allowing oral communication of requests for further or initial information, the setting of time limits for appeals, and the commencement dates of the times within which appeals can be made. Most notably, this bill seeks to amend the current 28-day period for lodging an application to the High Court for judicial review of a migration decision, which will be changed to 35 days. In order to remove concerns, a new 35-day period will commence to run from the date of the migration decision rather than from the time of the actual notification of the decision.

The case of Minister for Immigration and Citizenship v SZKKC highlighted concerns associated with the concept of notification for the purposes of lodging an application for judicial review in the Federal Magistrates Court. Section 477 of the Migration Act as it currently stands provides that the time period for initiating proceedings in the Federal Magistrates Court commences from the date an applicant is actually notified of a decision. This provision creates a large degree of uncertainty as it is often difficult for a court to ascertain when an applicant is actually notified of a decision. The Senate recently moved to rectify many of the problems associated with notification of migration decisions when it passed the  Migration Amendment (Notification Review) Bill 2008 last year. I spoke on behalf of the coalition in support of that bill as I saw it as a practical measure to prevent unnecessary legal recourse based on minor technical deficiencies in the process of notification by the department.

The amendments prescribed in the notification review bill have removed opportunities for unnecessary legal challenges which intended to delay and overturn migration decisions. In a similar fashion, this bill calls for a range of measures aimed to prevent such action before the courts while also improving effective administration of justice. Indeed, as a former lawyer with the Australian Government Solicitor, I have seen in my own experience how, regrettably, unscrupulous immigration lawyers and migration agents can exploit such technicalities in a futile attempt to delay their clients’ cases.

Together with the notification review bill, these amendments solidify changes which improve the notification process between migration applicants, the department and the relevant tribunals. These pieces of legislation will, at the same time, ensure that the notification system remains fair and reasonable for all of the parties involved. The objective of the Migration Legislation Amendment Bill (No. 2) is to amend the Migration Act to clarify and enhance communication provisions in the act that relate to merit and judicial review of migration decisions. In particular, this bill clarifies that the Migration Review Tribunal, the MRT, and the Refugee Review Tribunal, the RRT, may invite either orally or in writing review applicants or third parties to give them information. It establishes uniform time limits for applying for a judicial review of a migration decision in the Federal Magistrates Court, the Federal Court and the High Court and it limits appeals against judgments by the Federal Magistrates Court and the Federal Court when they make an order or refuse to make an order in relation to extending time to apply for judicial review of migration decisions.

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 over the telephone, will help ensure that reviews of migration decisions can be conducted more efficiently and quickly. In many instances the only available method for contacting an applicant is by oral means. While acknowledging the issues surrounding procedural fairness which arise from the acquisition of information orally, it is often the case that the tribunal registry only has access to telephone numbers. These amendments, allowing the tribunal greater power in obtaining information orally, will ease delays in the judicial process without necessarily compromising procedural fairness.

The amendments relating to time limits 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 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. The limitation on appeals against extension of time decisions will help ensure the effectiveness of the new time limits for applying for judicial review of migration decisions as inserted by the bill.

The current wording in the act is, in places, ambiguous and has allowed appeals to migration decisions based on lack of clarity concerning dates of decisions and communication processes. These amendments seek to clarify the intention of the act and to streamline the appeal processes. Under these amendments, various changes will occur. Section 359(2) inserts the words ‘either orally including by telephone or in writing’ after ‘may invite’ in section 359(2) of the act. Section 359(1) of the act provides the Migration Review Tribunal with the power to get any information it considers relevant. Importantly, it provides that once the MRT has such information it may have regard to this information in making its decision on the review.

The amendments to section 359(2) outline that the MRT 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, in writing, a person to provide information. These powers are a subset of the MRT’s broad powers under section 359(1). The power to seek information orally or in writing applies at any stage in the review. As previously mentioned, these amendments 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 only the telephone number has been provided.

In all circumstances, including over the telephone, where information is collected that is adverse to the applicant and which 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 will 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 over the telephone, or by written invitation applies to all information and seeks to deal with the uncertainty 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. A prime reason for an extension of time being necessary is evidenced in the 2007-08 annual report of the High Court of Australia, which illustrates that 93 per cent of the immigration applications filed in 2007 were filed by self-represented litigants. The Human Rights and Equal Opportunity Commission’s submission to the Senate Legal and Constitutional Legislation Committee in 2004 stated:

It must be remembered that persons making claims under the Migration Act may have little familiarity with Australian legal processes, and may face linguistic and cultural barriers to effectively managing their application and advocating on their own behalf.

Furthermore, where the services of a migration agent are employed not all problems are overcome, as it is often the case that the actions or rather inaction of an agent can adversely affect the prospects of an individual wishing to appeal their decision.

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 a migration decision. Section 486A(1) as amended by section 5 of the schedule provides that the 35-day period for applying for a review of a migration decision starts to run from the date of the migration decision. One of the effects of this section will be to ensure that where a written statement for the decision does not comply with all of the requirements set out in section 368(1) for the MRT and section 430(1) for the RRT the time limits starting to run will not be affected. 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.

In short, these amendments will ensure improvements to the Migration Act in order to build upon the shortcomings of the Migration Legislation Amendment Bill (No. 1) 2008. These provisions aim to do so by creating conditions conducive to the expeditious and efficient administration of justice for those seeking review. The coalition supports such positive changes. In the past applicants have been afforded opportunities to abuse the tribunal and appeals process based on shortcomings of the process, particularly those originating from the notification process. These amendments, together with those outlined in previous amendments supported by the coalition such as the Migration Amendment (Notification Review) Bill, will help ensure more efficient and effective judicial review of migration cases in Australia.