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Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016



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ISSN 1328-8091

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BILLS DIGEST NO. 74, 2016-17 15 MARCH 2017

Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 Claire Petrie Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 3

Structure of the Bill ............................................................. 3

Background ......................................................................... 3

Migration codes of procedure ................................................. 3

Tribunal amalgamation ......................................................... 3

Key features of the codes ...................................................... 4

Administrative Review Council report................................... 5

Committee consideration .................................................... 6

Senate Legal and Constitutional Affairs Committee................ 6

Senate Standing Committee for the Scrutiny of Bills .............. 6

Policy position of non-government parties/independents ..... 7

Position of major interest groups ......................................... 7

Financial implications .......................................................... 7

Statement of Compatibility with Human Rights .................... 7

Parliamentary Joint Committee on Human Rights .................. 7

Key issues and provisions..................................................... 7

Code of Procedure harmonisation .......................................... 7

Procedural differences preserved by the Bill ........................ 8

Changes to review rights and procedures ............................. 8

Access to written material before the Tribunal .................. 8

Right to representation at hearing ...................................... 9

Right to request interpreter .............................................. 10

Natural justice provisions .................................................. 10

Requesting evidence ......................................................... 11

Right to appeal dismissal of application ............................ 12

Date introduced: 30 November 2016

House: House of Representatives

Portfolio: Immigration and Border Protection

Commencement: On Proclamation, or six months after Royal Assent, whichever occurs first.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at

March 2017.

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Consequential and savings provisions ................................. 12

Responding to information .................................................... 13

Fast track reviewable decisions ............................................. 14

Officers of the Tribunal .......................................................... 14

Concluding comments ....................................................... 15

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Purpose of the Bill The purpose of the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 (the Bill) is to amend the Migration Act 1958 (Cth) (the Act) to:

• merge the codes of procedure in Parts 5 and 7 of the Act for review of decisions by the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT), in light of the changes to the migration review process following the 2015 tribunals amalgamation

• clarify the operation of the Act in relation to certain aspects of review and

• make technical amendments regarding the review of decisions by the Immigration Assessment Authority (IAA) in relation to family groups.

The Bill also makes consequential amendments to the Administrative Appeals Tribunal Act 1975 (AAT Act).

Structure of the Bill Schedule 1 of the Bill harmonises the code of procedure for migration reviews under the Act:

• Part 1 contains the main amendments to the Act, including the repeal of Part 7 and consolidation of review provisions under Part 5 of the Act

• Part 2 makes consequential amendments to the terminology in Part 5 of the Act

• Part 3 makes two consequential amendments to the AAT Act

• Part 4 contains application, saving and transitional provisions.

Schedule 2 provides for other amendments to the Act:

• Part 1 amends provisions of the Act relating to responses to a written invitation of the Tribunal

• Part 2 updates terminology in the Act relating to staff members of the AAT

• Part 3 amends provisions relating to fast track reviewable decisions and the IAA.

Background Migration codes of procedure Parts 5 and 7 of the Migration Act currently contain the codes of procedure which govern the merits review of certain decisions made under the Act. Specifically:

• Part 7 applies to the review of certain decisions about the grant or cancellation of protection visas, and before the 2015 tribunal amalgamation it primarily governed the procedures of the Refugee Review Tribunal (RRT)1 and

• Part 5 applies to the review of most other decisions relating to the grant or cancellation of visas, and before the amalgamation it governed the procedures of the Migration Review Tribunal (MRT)2.

Tribunal amalgamation On 1 July 2015, the RRT, MRT and the Social Security Appeals Tribunal (SSAT) merged with the AAT to form a single tribunal for the merits review of a wide range of federal government decisions. As a result of the amalgamation, decisions which were previously reviewed by the RRT and MRT are now reviewed by the Migration and Refugee Division (MRD) of the AAT.3 Despite the creation of a single review body in place of the two which previously existed, the Tribunals Amalgamation Act 2015 (Cth) preserved the separate Parts 5 and 7 of the Migration Act. In reviewing migration and refugee decisions, the MRD is therefore presently governed by the two different codes of procedure, depending on the type of decision under review.

1. The decisions reviewable under Part 7 are set out at section 411 of the Act. 2. The decisions reviewable under Part 5 are set out at section 338 of the Act. 3. Administrative Appeals Tribunal (AAT), ‘Amalgamation of tribunals’, AAT website, 2016; M Coombs, C Petrie and D Spooner, Tribunals Amalgamation Bill 2014, Bills digest, 83, 2014-15, Parliamentary Library, Canberra, 2015.

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In the second reading speech for the Bill, Minister for Immigration and Border Protection, Peter Dutton, stated that in light of the amalgamation of the MRT and RRT’s functions into the MRD:

… it is sensible and appropriate for Part 5 and Part 7 to be harmonised and streamlined into a consolidated Part.

It will also assist applicants intending to lodge a review application, or who currently have a review on hand, with the Migration and Refugee Division of the AAT to have one consolidated Part in the Migration Act to refer to for the code of procedure governing review. 4

Primarily because of these statutory procedural codes, the MRD operates differently to other Divisions of the AAT. Part IV of the AAT Act, which sets out the rights, powers and procedures which apply to the Tribunal’s review of decisions, is expressly stated not to apply to the MRD.5 Not all migration decisions fall within the scope of Parts 5 and 7 (and therefore the MRD)—certain decisions relating to business visas, migration agents, deportation, protection visas and the refusal or cancellation of visas on character grounds may be reviewed by the AAT in its General Division.6

Key features of the codes Statutory codes of procedure were first introduced for the MRT and RRT under the Migration Legislation Amendment Act (No 1) 1998 (Cth). Before this, the RRT and then-Immigration Review Tribunal were subject to few express procedural obligations, other than the obligation to offer the applicant a hearing if the tribunal could not make a positive decision ‘on the papers’.7 In his second reading speech to the 1998 Bill, then-Minister for Immigration and Multicultural Affairs, Philip Ruddock, stated:

The bill also includes certain safeguards for applicants by introducing a code of procedure for both the Migration Review Tribunal and the Refugee Review Tribunal which is similar to that already applying to decisions made by the department. 8

The codes under Parts 5 and 7 are substantially similar, with a few important differences. Each sets out procedures governing the conduct of the review, the Tribunal’s obligations and powers, and the rights of the applicant. Key to both is the mandatory obligation of the Tribunal to invite the review applicant to comment on information adverse to their case, and invite the applicant to attend a hearing if the Tribunal is unable to make a favourable decision on the papers.9

Both codes are expressed to be an exhaustive statement of the natural justice hearing rule requirements which decision-makers must meet, supplanting common law natural justice principles.10 This means that, at least in theory, a decision-maker who follows the procedures set out in the relevant Part will not be found to have denied the applicant procedural fairness. The issue has been more complex in practice. Dennis Pearce has explained:

On its face, this type of provision appears to be directed to excluding the common law rules of procedural fairness. However, it has not been so interpreted. The initial consideration of the operation of the [exhaustive statement of natural justice provisions] by the High Court was in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 … The court read the limitation on the natural justice hearing rule as restricted to the matters specifically dealt with in the sections to which the limitation applied and not to the operation of that rule at large. So if a provision does not fully cover a requirement that would be applicable to the hearing under the common law natural justice rule or there is no relevant provision, that requirement remains applicable to the tribunal hearing.

4. P Dutton, ‘Second reading speech: Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016’, House of Representatives, Debates, 30 November 2016, p. 4879. 5. AAT Act, section 24Z—within Part IV, only sections 25 (Tribunal’s power to review certain decisions) and 42 (resolving disagreements where Tribunal is constituted by multiple members) apply to the MRD. 6. AAT, Administrative Appeals Tribunal: decisions subject to review (jurisdiction as at 31 December 2016), AAT, Canberra, pp. 172-174,

31 December 2016. 7. A Freckelton, Administrative decision-making in Australian migration law, Australian National University, Canberra, ch. 4, 2015. 8. P Ruddock, ‘Second reading speech: Migration Legislation Amendment Bill (No. 1) 1998’, House of Representatives, Debates,

2 December 1998, p. 1122. 9. R Germov, ‘Fairness under threat: procedures at the migration and refugee review tribunals’, Law Institute Journal, November 2012, p. 45. 10. Migration Act 1958 (Cth), sections 357A and 422B. These provisions were inserted into the Act by the Migration Legislation Amendment

(Procedural Fairness) Act 2002 (Cth).

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… The effect of this has been to retain the significance of compliance with the common law hearing rule in migration appeals. 11

Key differences between Parts 5 and 7 include a requirement that Part 7 hearings be held in private, and restrictions on the publication of information which may identify a Part 7 applicant, their relatives or dependants.12 In contrast, oral evidence taken by a Tribunal in connection with a Part 5 matter must be public, unless the Tribunal is satisfied that this is impracticable, or that it is in the public interest for the evidence to be taken in private.13 Part 7 also contains provisions guiding the Tribunal’s treatment of previous decisions relating to the same applicant, and new evidence provided by an applicant at the review stage, which are not replicated in Part 5.14 A number of provisions, including in relation to interpreters and representation at hearing, are drafted differently in the two Parts. This is explained in more detail below.

Administrative Review Council report A 2012 Administrative Review Council (ARC) review into federal judicial review in Australia highlighted some of the issues surrounding the use of statutory codes of procedure, particularly in the Migration Act.15 The ARC found that while setting out procedural requirements in legislation could assist decision makers to make valid decisions, codes could also leave little room for discretion and could potentially result in unfairness to applicants.16 It recommended the development of clear guidance for policy makers on the circumstances in which statutory codes of procedure are appropriate, and the form they should take.17 However, the ARC was abolished in May 2015 and no further steps appear to have been taken on this issue.18

In a joint submission to the ARC review, the MRT and the RRT argued that the code had been the subject of significant litigation yet had not improved the quality of decision making, and:

… the experience in the migration jurisdiction has been that codification aimed at supplanting the natural justice hearing rule has distinct limitations. Although the codification of procedure may have the advantage of setting out a framework for the parties, experience shows that it leads to unexpected interpretation, uncertainty and extensive litigation… Statutory codes of procedure, whilst providing a framework for the parties, cannot replicate the adaptiveness of common law procedural fairness.

19

In contrast, the then-Department of Immigration and Citizenship spoke in favour of the code of procedure, stating that it was designed to eliminate the legal uncertainties flowing from non-codified common law principles of natural justice, and that despite significant litigation surrounding the migration procedural code, interpretation had subsequently become ‘fairly settled’.20 The Department further noted that removal of the code could result in ‘the potential loss of efficiencies gained through established and tested processes, a short term spike in litigation and increased costs’, and would require the introduction of an alternative form of guidance for decision makers.21

More recently, President of the AAT, Justice Duncan Kerr, has referred to the migration code of procedure as an example of a legacy issue which may need further consideration following the amalgamation, noting in particular the concerns previously raised by the MRT and RRT.22

11. D Pearce, Administrative Appeals Tribunal, 4th edn, LexisNexis Butterworths, Australia, 2015, pp. 115-116. 12. Migration Act, sections 417, 429 and 431. 13. Ibid., section 365. 14. Ibid., sections 416 and 423A. 15. Administrative Review Council (ARC), Federal judicial review in Australia, September 2012, pp. 142-145. 16. Ibid., p. 145. 17. Ibid., recommendation 9. 18. M Coombs, ‘Abolition of the Administrative Review Council’, Budget review 2015-16, Research paper, 2014-15, Parliamentary Library,

Canberra, May 2015, p. 110. 19. Migration Review Tribunal (MRT)—Refugee Review Tribunal (RRT), Submission to the Administrative Review Council, Consultation Paper on Judicial Review in Australia, 5 July 2011, p. 3; ARC, Federal judicial review in Australia, op. cit., p. 120. 20. Department of Immigration and Citizenship (DIAC), Submission to the Administrative Review Council, Consultation Paper on Judicial Review in

Australia, July 2011, p. 7. 21. Ibid.; also see ARC, Federal judicial review in Australia, op. cit., p. 144. 22. D Kerr, Reviewing the reviewer: the Administrative Appeals Tribunal, Administrative Review Council and the road ahead, Ethos, 238, Canberra,

December 2015.

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Committee consideration Senate Legal and Constitutional Affairs Committee The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report. Details can be found at the inquiry homepage.23 The Committee tabled its report on 14 February 2017, with the majority report recommending that the Bill be passed.24 The report found that amending the Act to reflect the abolition of the MRT and RRT ‘is both timely and necessary’. Although noting concerns raised by submitters that the proposed amendments may compromise the functions and integrity of MRD decisions, the Committee was satisfied that there were sufficient protections within the Act to ensure that natural and substantial justice ‘remains a core obligation of the AAT’.25 It further noted the potential for proposed amendments to ‘bundle’ together certain IAA cases to improve outcomes for families applying for visas together.26

The Australian Greens and Labor Senators on the Committee issued separate dissenting reports, both recommending that the Senate reject the Bill in its current form. The Labor Senators stated that the proposed changes, in particular amendments reducing the rights of applicants to access all material before the Tribunal, and removing the right to request an interpreter:

… could make it substantially more difficult for applicants to understand Tribunal processes. They could potentially create a barrier for many applicants looking to engage fully with the assessment of their cases, and compromise how they are able to argue their case before the Tribunal. In this, it is clear that the proposed amendments would significantly compromise the current rights of applicants to be assessed by the Tribunal in a just and fair manner.

27

The Australian Greens opposed the Bill on the basis that it would reduce the rights of applicants to receive a fair and just hearing before the Tribunal, and would not achieve its stated goals of making the Tribunal more efficient. Their dissenting report noted that the proposed amendments may limit access to substantive justice for applicants, and therefore increase the number of cases for which judicial review is sought.28

Senate Standing Committee for the Scrutiny of Bills In its first Scrutiny Digest of 2017, the Senate Standing Committee for the Scrutiny of Bills requested the Minister’s response to a number of concerns it raised regarding the Bill.29 These included:

• the exclusion of certain types of decisions from merits review (though the Committee noted that this largely mirrors the exclusions in the existing Act)

• the removal of an applicant’s right to access written material given to the Tribunal

• the discrepancy between time limits applying to applicants and the Minister when requesting that an oral statement of the Tribunal be provided in writing and

• provisions requiring the Tribunal to draw an unfavourable inference in regards to the credibility of claims or evidence not previously placed before the original decision-maker in relation to an application for review of a reviewable refugee decision.30

The Committee had not published a response from the Minister at the time of writing.

23. Inquiry homepage, Senate Legal and Constitutional Affairs Legislation Committee, ‘Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 [Provisions]’. 24. Senate Legal and Constitutional Affairs Legislation Committee, Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 [Provisions], The Senate, Canberra, February 2017. 25. Ibid., p. 20. 26. Ibid., p. 21. 27. Labor Senators, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Migration Legislation Amendment (Code of

Procedure Harmonisation) Bill 2016 [Provisions], The Senate, Canberra, February 2017. 28. Australian Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 [Provisions], The Senate, Canberra, February 2017. 29. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 1, 2017, The Senate, 8 February 2017, pp. 20-26. 30. Ibid., pp. 24-26. The Committee noted that proposed section 358A substantially mirrors existing section 423A of the Act, and therefore

restated concerns it had raised previously.

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Policy position of non-government parties/independents As noted above, the Australian Greens and Labor Senators on the Senate Legal and Constitutional Affairs Legislation Committee recommended that the Bill not be passed. Other non-government parties and independents had not commented on the Bill at the time of writing.

Position of major interest groups The Law Council of Australia, Victoria Legal Aid and Refugee Advice and Casework Service made submissions to the Senate Committee Inquiry objecting to certain provisions of the Bill. The Law Council argued that harmonisation of AAT procedures needs to occur across all divisions of the Tribunal, so that review of migration decisions by the MRD is harmonised with the review of (migration and non-migration) decisions in the General Division. It states that under the Bill:

… the role and functions of the MRD remain distinctly separate from the role and functions of the General Division and, in many instances, the proposed changes erode the rights of review applicants to fair hearings and continue to isolate the MRD distinct from—as opposed to harmonised with—the remainder of the Tribunal with which it amalgamated.

31

Victoria Legal Aid expressed concern that certain changes made by the Bill:

… would water down substantive rights without any compelling ‘harmonisation’ rationale. Some of the changes are also likely to increase the risk of successful legal challenge with decisions being subject to judicial review and then remitted back to the Tribunal, creating inefficiency and delay. 32

The Refugee Advice and Casework Service similarly raised concerns that a number of the substantive changes within the Bill would adversely impact on its clients and compromise existing procedural fairness safeguards.33

Objections to specific provisions are discussed under the ‘Key issues and provisions’ heading below.

Financial implications The Explanatory Memorandum states that the Bill will have low financial impact.34

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.35

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights had not commented on the Bill at the time of writing.

Key issues and provisions Code of Procedure harmonisation Part 1 of Schedule 1 contains the main amendments to the procedural code. Item 94 repeals Part 7 of the Act, which governs the review of certain Protection Visa decisions. Part 5 of the Act will now apply to both the review

31. Law Council of Australia (LCA), Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, 20 January 2017, p. 4. 32. Victoria Legal Aid (VLA), Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, 13 January 2017, p. 1. 33. Refugee Advice and Casework Service (RACS), Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration

Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, 25 January 2017, p. 1. 34. Explanatory Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, p. 1. 35. The Statement of Compatibility with Human Rights can be found at pages 42 to 48 of the Explanatory Memorandum to the Bill.

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of these decisions (referred to under the Bill as reviewable refugee decisions36) as well as the migration decisions that it already covers (referred to as reviewable migration decisions37).

Procedural differences preserved by the Bill As discussed above, the procedures for review under current Parts 5 and 7 are substantially similar. Most of the existing procedural differences in Part 7 are preserved under the following amendments proposed by the Bill. For example:

• the application requirements for reviewable refugee decisions, which item 39 inserts at proposed subsection 347A, remain the same as those currently set out at section 412

• where a non-citizen has had a previous reviewable refugee decision determined by the Tribunal or RRT, and makes a further application, the Tribunal is not required to consider any information considered in the earlier application, and may have regard to, and take to be correct, any decision the review body made about, or because of, that information. Item 44 inserts this provision at proposed section 350A, replicating existing section 416 and

• where an applicant for a reviewable refugee decision (refugee applicant) raises a claim or evidence not previously raised in the Protection Visa application, the Tribunal is to draw an unfavourable inference about the credibility of the claim or evidence if satisfied the applicant has no reasonable explanation about why it was not raised before the original decision was made. This is inserted by item 53 at proposed subsection 358A, and is the same as the existing section 423A.

The privacy protections currently in place for the review of Part 7 decisions are also retained for reviewable refugee decisions within the merged Part 5. In particular:

• hearings in relation to reviewable refugee decisions must be held in private—item 66 inserts proposed section 365A to specify this, replicating existing section 429. In contrast, oral evidence taken by the Tribunal in relation to a reviewable migration decision must be taken in public, unless it is impracticable or against the public interest to do so38

• if the Minister substitutes the Tribunal’s decision with a more favourable decision, and accordingly is required to provide to Parliament a statement setting out the reasons for this decision, the statement must not include any information that may identify a refugee applicant, or where the Minister thinks it would not be in the public interest to do so, any information about another person connected with a reviewable refugee decision39 and

• the Tribunal must not publish a decision in relation to a reviewable refugee decision where it could identify an applicant or any relative or other dependant of an applicant.40

Changes to review rights and procedures Although the key procedural features and differences between Part 5 and Part 7 have been preserved, the Bill makes some important changes to Tribunal procedures and the substantive rights of applicants.

Access to written material before the Tribunal Section 362A currently provides that a Part 5 applicant (migration applicant) is entitled to have access to any written material given or produced to the Tribunal for the purposes of the review.41 There is no equivalent provision under existing Part 7. Item 61 proposes the repeal of this section.

The Explanatory Memorandum notes that other provisions place obligations on the Tribunal to provide information to the applicant. Section 359A requires the Tribunal to provide clear particulars of any information

36. Item 34 inserts proposed section 338A, which provides a definition of reviewable refugee decision. This covers the same decisions as the term Part 7—reviewable decision under current section 411. 37. Items 32 and 33 amend section 338 to replace the term Part 5—reviewable decision with the term reviewable migration decision. They do not make substantive changes to the types of decisions covered by this term. 38. Item 66 repeals and substitutes proposed section 365 which relates to the public review of reviewable migration decisions. However, it does

not change the substantive effect of the section. 39. This is inserted into proposed paragraphs 351(5)(b) and (c) by item 45, and replicates existing subsection 417(5) under Part 7 of the Act. 40. Proposed section 369, inserted by item 77. This preserves the substance of existing section 431 of the Act. 41. Subsection 362A(2) provides that this right is subject to requirements of the Privacy Act 1988 (Cth).

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that it considers would be the reason, or part of the reason, for affirming the decision under review, and section 359AA permits the Tribunal to orally give an applicant particulars of relevant information.42 The effect of repealing section 362A is that the Tribunal is not required to provide to the applicant all the material before it, including non-adverse information which may or may not have been provided by the applicant. Victoria Legal Aid has opposed the change, arguing that it would:

… undermine the transparency of the Tribunal’s decision-making generally and impede an Applicant’s awareness of whether or not they have been denied procedural fairness in relation to a document before the Tribunal at the time of the review. 43

The Law Council of Australia has also strongly argued against repealing the section, stating that an applicant should have access to all material before the Tribunal, including that which is non-adverse, to assist with the process of seeking advice and preparing for hearing. It notes:

In order to put their best case forward, the applicant must be able to consider all information that may be used in a decision which affects them.

… As a starting point, s 362A enables a person to seek advice about their case, its prospects of success and what is needed to improve prospects of success… This involves consideration as to the weight of evidence and the extent of evidence in a particular matter. It also enables correction of oversights and misunderstandings at the primary stage.

44

In response to the Law Council’s concerns, the Department has noted the absence of a provision equivalent to section 362A under existing Part 7 of the Act, and stated that despite this, Part 7 review applicants ‘have not been hindered in their ability to prepare and present their case’.45

The Tribunal’s obligation to provide particulars of adverse information is further limited under the Bill, as item 56 amends section 359A by inserting proposed paragraph 359(4)(aa), to provide that the Tribunal is not required to give to an applicant information that was included, or referred to, in the written statement of the decision that is under review.46 The Explanatory Memorandum states that the applicant should already know of such information, and that it would hinder the efficient conduct of the review if the Tribunal were required to provide, and to seek comment from the applicant on, information of which they should already be aware.47

The Refugee Advice and Casework Service (RACS) has raised concerns with this proposed amendment, arguing that an applicant—particularly one who is self-represented and non-English speaking—may not at the time of the Tribunal hearing have knowledge of all the reasons for the initial decision, nor access to the relevant information referred to in the initial decision.48 It has suggested that it would be contrary to natural justice and procedural fairness principles for the Tribunal to refuse an application based on information from the initial decision, without having to first raise these concerns with the applicant.49

Right to representation at hearing There are currently very limited rights to representation for applicants appearing at hearings before the MRD. This is in contrast to applicants appearing in the General Division of the AAT, who are entitled to representation

42. Explanatory Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, op. cit., p. 14. 43. VLA, Submission to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 2. 44. LCA, Submission to the Senate Legal and Constitutional Affairs Committee, op. cit., pp. 6-8. 45. DIBP, ‘Answers to written questions on notice’, Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Legislation

Amendment (Code of Procedure Harmonisation) Bill 2016, received 7 February 2017, p. 3. 46. This is in addition to existing exceptions, set out under subsection 359A(4), which include information: not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; that the applicant gave for the

purpose of the application for review; that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or non-disclosable information. 47. Explanatory Memorandum, p. 12. 48. RACS, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, op. cit., p. 2. 49. Ibid.

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at hearings.50 The issue of representation is dealt with differently under Parts 5 and 7. Under section 366A, a Part 5 applicant is not entitled to be represented when appearing before the Tribunal, though may have another person present to assist them. Previously, this restriction applied to proceedings before the MRT, although it has been said that ‘in practice’, it was ‘not uncommon for an adviser to make submissions at MRT hearings, although proceedings are tightly controlled by the member’.51

In relation to Part 7 decisions, subsection 427(6) states that a person appearing before the Tribunal to give evidence is not entitled to representation. The provision is silent on the issue of representation in other circumstances, and the MRT-RRT has previously noted that, when the provision applied in the RRT proceedings:

… this has been interpreted as leaving a discretion for the member to permit representation, and a consideration being whether in the circumstances of a case procedural fairness requires it. 52

By repealing Part 7 (and therefore subsection 427(6)), the current Bill applies section 366A to all refugee and migration applicants appearing before the MRD. It appears that a practical consequence of this will be to remove what has been interpreted as a discretion to allow refugee applicants representation in certain circumstances.

Right to request interpreter The Bill amends the procedure surrounding the use of an interpreter in Tribunal proceedings. Currently, a person appearing before the Tribunal to give evidence in a Part 5 matter may request the Tribunal appoint an interpreter. The Tribunal must comply with such a request unless it considers that the person is sufficiently proficient in English, and it can also appoint an interpreter despite a request not having been made.53 In contrast, Part 7 does not give a refugee applicant a similar power to request an interpreter, but provides that the Tribunal may direct that one be used where the person is not proficient in English.54

Item 71 repeals and substitutes proposed section 366C to provide that the Tribunal may direct that an interpreter be used if a person appearing before the Tribunal to give evidence is not proficient in English. This means that the Tribunal has no obligation to appoint an interpreter on request from a migration or refugee applicant, but has significant discretion on this issue. The Explanatory Memorandum does not explain why the right to request an interpreter has been removed, but states that in considering and deciding whether to appoint an interpreter the Tribunal will:

… also take into account the Tribunal’s existing responsibility under section 2A of the AAT Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. 55

Victoria Legal Aid has raised concerns with this statement, suggesting that the proposed amendment will increase the risk that a person appearing before the Tribunal will have their ‘fundamental rights to be heard undermined in order to save money or time in the performance of the Tribunal’s functions’, and that it may lead to confusion for the Tribunal about how to exercise its discretion.56 RACS has also opposed the change, noting that it would give rise to procedural fairness issues, particularly in circumstances where it is not immediately clear to the Tribunal that the applicant is not sufficiently proficient in English.57

Natural justice provisions The Bill removes some existing provisions which state the natural justice obligations of the Tribunal. In particular, item 51 amends the ‘exhaustive statement of natural justice hearing rule’ at section 357A by repealing subsection 357A(3), which requires the Tribunal to act in a way that is ‘fair and just’ in conducting its

50. AAT Act, section 32. Note that there are some limitations on the right to representation to applicants within the Social Services and Child Support Division, although the Tribunal may grant permission for an applicant to be represented. 51. MRT and RRT, Submission to the Productivity Commission, Access to Justice Arrangements Inquiry, 31 October 2013, p. 3. 52. Ibid.

53. Section 366C. 54. Subsection 427(7). 55. Explanatory Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, op. cit., p. 17. 56. VLA, Submission to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 3. 57. RACS, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Legislation Amendment (Code of

Procedure Harmonisation) Bill 2016, op. cit., p. 5.

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review. The Explanatory Memorandum states that this subsection is redundant, as in reviewing decisions the MRD is already bound by paragraph 2A(b) of the AAT Act which provides:

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

… (b) is fair, just, economical, informal and quick;

This objects statement was inserted into the AAT Act by the Administrative Appeals Tribunal Amendment Act 2005 (Cth). The Explanatory Memorandum to the Bill stated that the objects statement was not intended to be a basis on which a person may seek judicial review of a decision made by the AAT, but that it would ‘serve as an accountability measure by which the AAT can assess its own performance and the AAT’s performance may be measured by the Government’.58

RACS has expressed concerns with the proposed change, arguing that the objects statement under the AAT Act is not the same as the requirements imposed on the Tribunal by subsection 357A(3):

… section 357A(3) imposes a higher threshold on the Tribunal, in that it requires the Tribunal to act in a way that is fair and just, whereas section 2A requires that the Tribunal merely pursue the objective of providing a review mechanism that is fair and just. 59

Item 47 repeals Division 4 of Part 5, which contains provisions about the Tribunal’s way of operating and guidance decisions. The substance of these provisions is inserted elsewhere in Part 5, except for paragraph 353(b) which is not preserved.60 Paragraph 353(b) currently provides that the Tribunal, in reviewing a Part 5 reviewable decision, ‘shall act according to substantial justice and the merits of the case’.61 It is mirrored by paragraph 420(b) under Part 7, which is also repealed. The Explanatory Memorandum provides that the paragraph is unnecessary, again due to the operation of paragraph 2A(b) of the AAT Act.62

Victoria Legal Aid has opposed this change and argues that paragraph 2A(b) of the AAT Act does not replicate the repealed paragraphs:

… although there is some overlap between the two phrases, the balance of [paragraphs] 353(b) and 420(b) is on justice, while s 2A(b) reflects a greater efficiency motive.

… The change in focus and language in respect of the Tribunal’s conduct may materially affect the safeguards currently provided to Applicants including by ensuring that the Tribunal conducts its review focused on the substantial justice of the case. 63

Requesting evidence Item 59 repeals and substitutes proposed section 361, which sets out the applicant’s rights to request the Tribunal call witnesses or obtain evidence. Existing section 361 allows a migration applicant to provide written notice, within seven days of receiving notice of a hearing, requesting the Tribunal to obtain particular oral or written evidence or other written material. This is somewhat different to the Part 7 provision, which provides that a refugee applicant may provide a written notice requesting oral evidence from a specific person or persons (but not written materials), within the same seven day timeframe.64 In both cases, the Tribunal must have regard to the applicant’s notice but is not required to comply with it.65

58. Explanatory Memorandum, Administrative Appeals Tribunal Amendment Bill 2005, p. 2. 59. RACS, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, op. cit., p. 5. 60. Paragraph 353(a) currently provides that the Tribunal is not bound by technicalities, legal forms or rules of evidence. This provision is

preserved in proposed 357B, which is inserted by item 52. 61. The same requirement as applying to review of Part 7 reviewable decisions is included at paragraph 420(b), which is repealed alongside the rest of Part 7. 62. Explanatory Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, op. cit., p. 10. 63. VLA, Submission to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 2. 64. Section 426. 65. Subsections 361(3) and 426(3).

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By repealing Part 7, the Bill brings both migration and refugee applicants within the scope of proposed section 361, which allows an applicant to request the Tribunal to obtain oral or written evidence or other written material. Rather than a seven-day timeframe, the applicant has until the start of the day of the hearing to provide the written notice.66 As with the existing provisions, the Tribunal must have regard to the request but is not required to comply with it.67

The Law Council has raised concerns with the provision, arguing that the requirement can be onerous and complex for applicants, and that failure to provide written notice within the specified time may lead to the Tribunal ignoring the notice.68 However, the amendments proposed by the Bill do not significantly depart from existing procedure, and provide the applicant with a longer timeframe (rather than seven days from receiving notice of the hearing) in which to make the written request.

Right to appeal dismissal of application Item 101 inserts proposed paragraph 476(2)(e), to specify that the Federal Circuit Court does not have jurisdiction to review a decision by the Tribunal to dismiss an application where the applicant fails to appear before the Tribunal at the scheduled time and place.69

Where the Tribunal dismisses an application for failure to appear, the applicant may, within 14 days of receiving notice of the dismissal apply to the Tribunal for reinstatement.70 If the applicant does so the Tribunal must consider whether to reinstate the application or confirm the decision to dismiss.71 If the applicant does not apply for reinstatement within 14 days, the Act directs that the Tribunal must issue a written statement confirming the decision to dismiss.72 The Explanatory Memorandum notes:

In each case a decision under paragraph 362B(1A)(b) does not finalise the Tribunal’s decision on the review … if the Tribunal does reinstate the application, the fact that it was dismissed does not prejudice the outcome of the review. It would be an inappropriate use of the Federal Circuit Court’s time and resources to determine whether the dismissal decision had been correctly made … prior to one of the three possible outcomes above and the applicant having no further recourse to the Tribunal.

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Where the Tribunal subsequently confirms the decision to dismiss the application, either following an application for reinstatement or due to the applicant’s failure to apply for reinstatement, this decision will itself be reviewable.74

Consequential and savings provisions The majority of other items in Schedule 1, Parts 1 and 2 make minor, consequential amendments to the terminology in the Act, such as by:

• omitting references to Part 7 of the Act

• replacing references to a ‘Part 5-reviewable decision’ with ‘reviewable migration decision’, and references to a ‘Part 7-reviewable decision’ with ‘reviewable refugee decision’ and

• repealing and substituting headings for Parts, Divisions and sections.

Part 3 of Schedule 1 makes consequential amendments to two provisions of the AAT Act to remove references to Part 7 of the Migration Act.

66. Schedule 1, item 59, proposed subsection 361(2). 67. Schedule 1, item 59, proposed subsection 361(3). 68. LCA, Submission to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 9. 69. The Tribunal’s power to dismiss for a failure to appear is set out under paragraph 362B(1A)(b) of the Act. 70. Subsection 362B(1B). 71. Subsection 362B(1C). 72. Subsection 362B(1E). 73. Explanatory Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, op. cit., p. 24. The Explanatory

Memorandum further notes that the applicant can still seek review of the dismissal decision in the High Court of Australia in its original jurisdiction. 74. A decision to confirm the decision to dismiss an application must be made by a written statement under section 368 and cannot be made orally (paragraph 362B(1C)(b) and section 362B(1E)). Paragraph 368(1)(e) provides that such a written statement must indicate that the

decision under review is taken to be affirmed. The Act does not restrict the right to appeal such a decision.

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Part 4 of Schedule 1 contains application, saving and transitional provisions. The majority of Schedule 1 amendments will apply to review of a decision for which an application has been made before, on or after the date of commencement, unless the application has been finalised.75 The Bill’s amendments will not apply to certain actions taken prior to commencement. For example, where the Tribunal has issued the applicant with an invitation to appear under existing sections 360A or 425A, prior to the date of commencement, the existing provisions relating to this notice and requests for evidence continue to apply.76

Responding to information Part 1 of Schedule 2 amends provisions of the Act which deal with the Tribunal’s obligation to give an applicant certain information and an opportunity to respond. Under existing subsection 359A(1) the Tribunal must provide to an applicant clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision under review, and invite the applicant to ‘comment on or respond to’ the information. If the applicant does provide a comment or response, and the Tribunal cannot make a favourable decision on the papers, it must invite the applicant to attend a hearing before the Tribunal.77 If the applicant does not provide comments or a response as invited, the Tribunal has no obligation to invite the applicant to a hearing and may proceed to make a decision.78

Item 2 removes the phrase ‘or respond to’ from paragraph 359A(1)(c), so that the Tribunal’s obligation is to invite the applicant only to comment on the information. Items 1 and 3 to 11 make consequential amendments under proposed Subdivision D of Division 4, Part 5 to remove further references to an applicant ‘responding’ to information as invited by the Tribunal.79

The term ‘comment on’ is not defined under the Act, either in its current form or as amended by the Bill. The Explanatory Memorandum provides:

The purpose of this amendment is to ensure that an applicant must provide a substantive comment in response to an invitation given by the Tribunal. This addresses the decisions of the Federal Court in Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd [2011] FCA 233, where it was found that a response does not require substantive remarks or observations, but requires merely an answer or reply of any sort to the information in the invitation.

The amendment will ensure the Tribunal may proceed, pursuant to subsection 359C(2), to make a decision on the review without inviting the applicant to a hearing if the applicant chooses to reply in a way that does not substantively engage or grapple with the issues contained in the information put to them in the invitation … Omitting the words “or respond to” will ensure that applicants cannot preserve their entitlement to appear before the Tribunal under section 360 where they have merely acknowledged receipt of the information, or provided any answer or reply that does not indicate the applicant’s position in relation to the information.

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The proposed amendments have been criticised by Victoria Legal Aid as having the potential to significantly disadvantage self-represented, non-English speaking applicants who may find it difficult to understand the content of the adverse information and the obligation to comment, as well as to provide a comment that demonstrates substantive engagement or grappling with the adverse information. It has argued:

… this reform is ill-adapted to its intention. Moreover, if the intention is achieved, it will adversely impact the most disadvantaged cohort of applicants seeking review before the Tribunal on important matters; potentially locking them out of the one forum (oral hearing) in which (subject to adequate provision of an interpreter) they will be able to best advance their application for review.

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75. Schedule 1, items 117 and 118. 76. Schedule 1, item 122. 77. Section 360. 78. Subsection 359C(2). 79. Item 12 provides that the amendments made by this Part apply to written invitations given by the AAT under section 359A on or after

commencement. 80. Explanatory Memorandum, Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016, op. cit., p. 34. 81. VLA, Submission to the Senate Legal and Constitutional Affairs Committee, op. cit., p. 4.

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Fast track reviewable decisions Part 3 of Schedule 2 amends provisions relating to the Immigration Assessment Authority (IAA) to permit it to review together decisions relating to members of the same family unit. The IAA was established in April 2015 as a separate office within the RRT, and following the tribunal amalgamation became an independent authority within the Migration & Refugee Division of the AAT.82 The IAA conducts fast track reviews of Protection Visa decisions for fast track applicants—people who arrived in Australia by boat without a valid visa on or after 13 August 2012, and before 1 January 2014, and who have been permitted by the Minister to make an application for a protection visa in Australia.83 A fast track applicant does not make an application to the IAA directly; instead, the case is referred to the IAA by the Minister.

Item 27 inserts proposed subsection 473CA(2) to provide that in referring a fast track reviewable decision to the IAA, the Minister may refer together decisions which relate to applicants in the same family unit. Item 28 inserts proposed section 473DG which states that the IAA may review two or more fast track reviewable decisions together, whether or not they have been referred together to the Authority. However, the Authority is not required to review decisions together, even if they have been referred together under section 473CA.84 The Refugee Advice and Casework Service has raised concerns with the wording of proposed section 473DG, noting that the provision does not make it clear whether the two or more decisions would have to be related to the same family unit in order for the IAA to review them together.85

The other amendments in this Part clarify the procedure of the IAA when reviewing applications together. Item 33 inserts proposed section 473HEA which states that if the Minister refers decisions together to the IAA, and the IAA reviews those decisions together, documents given to any of the applicants in connection with the review are taken to be given to each of them. A note is also inserted into subsection 473HA(1) to this effect.86

Subsections 473HA(2) and 473HB(2) currently deal with the giving of documents by the IAA to a minor, and specify that the IAA may instead give a document to an individual who is at least 18 years of age if the Authority reasonably believes that the individual has (or works for an organisation which has) day-to-day care and responsibility for the minor. Items 31 and 32 insert proposed subsections 473HA(2A) and 473HB(2A) respectively, to provide that these provisions do not apply where the Authority is reviewing applications together under proposed section 473HEA. RACS has opposed these changes, stating that they could result in important documents being given to a minor who is a member of a family unit whose decisions are being considered together, and that this would constitute receipt of the documents by each member of the family unit.87

Officers of the Tribunal Part 2 of Schedule 2 removes references in the Act to an ‘officer of the Tribunal’. Item 14 repeals the definition of officer of the Tribunal from section 337. Item 13 inserts into subsection 5(1) a definition of staff member of the Tribunal, meaning a member of the staff of the Tribunal. All references in the Act to an officer of the Tribunal are replaced with a reference to the Registrar or a staff member of the Tribunal.

The term ‘officer of the Tribunal’ currently has the same meaning under the Act as under the AAT Act, where it is defined as meaning the Registrar, or a person appointed as an officer of the Tribunal under section 24PA.88 The amendments will therefore remove the requirement for a person to be appointed as an officer of the Tribunal, and allow for the Registrar or any staff member of the Tribunal to do things such as receive applications and other documents, and provide administrative assistance to the IAA.

82. Immigration Assessment Authority (IAA), ‘About’, IAA website, 10 May 2016. 83. IAA, ‘What you need to know about the Immigration Assessment Authority’, IAA website, May 2016. 84. Schedule 2, item 28, proposed subsection 473DG(3). 85. RACS, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Legislation Amendment (Code of

Procedure Harmonisation) Bill 2016, op. cit., p. 7. 86. Schedule 2, item 29. 87. RACS, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Legislation Amendment (Code of

Procedure Harmonisation) Bill 2016, op. cit., p. 7. 88. AAT Act, section 3.

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Concluding comments The changes proposed by the Bill ensure that the review functions of the Migration & Refugee Division of the AAT—and the rights of applicants appearing before it—are covered by a single code of procedure, contained in Part 5 of the Act. However, it is important to note that in merging the two existing procedural codes, the Bill makes important changes to certain Tribunal procedures and the rights of applicants.

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