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Migration Legislation Amendment Bill (No. 2) 1999



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Bills Digest No. 171  1998-99

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Migration Legislation Amendment Bill (No. 2) 1999

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official leg al status. Other sources should be consulted to determine the subsequent official status of the Bill.

Contents

 

Passage History

Migration Legislation Amendment Bill (No. 2 ) 1999

Date Introduced:  31 March 1999

House:  Senate

Portfolio:  Immigration and Multicultural Affairs

Commencement: On Royal Assent, subject to the qualifications below. 

Schedules 1, 2, 3, 4, 6, 7 and 8 are expressed to commence on Proclamation.  Subclause 2(3) provides that if these Schedules are not proclaimed within 6 months after the day of Royal Assent, they will commence on the first day after the end of that period. 

The commencement of Parts 1 and 2 Schedule 5 is contingent on whether the Act receives Royal Assent before or after the commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998 [see subclauses 2(5) - 2(8)].  Schedule 1 is to commence on 1 June 1999.(1)

Subclauses 2(9) and 2(10) provide that Schedule 9 is expressed to commence on 1 June 1999, unless the Migration Legislation Amendment (Judicial Review) Act 1999 has commenced on or before that date.  Should that occur, then Schedule 9 is taken not to have been enacted, and will not commence. 

Subclause 2(11) provides that where this Act receives the Royal Assent after 1 June 1999, Schedule 9 is taken to h ave commenced on 1 June 1999. 

Purpose

The Bill proposes to amend the Migration Act 1958 (the Principal Act) to:

  • implement procedures for the monitoring and c ancellation of temporary entry business sponsorships;
  • prevent potential visa applicants from making applications for visas that would be refused under current migration policy;
  • implement a more flexible method of authorising persons, and classes of persons, to be ‘officers’ for the purposes of the Act;
  • empower State and Territory corrective services authorities to detain (for the purposes of removal from Australia) non-citizens who are liable for deportation at the end of their prison sentence;
  • provide for merits review of decisions to refuse applications for permanent migrant spouse or interdependency visas;
  • provide for (in certain circumstances) the granting of visas to applicants who would otherwise be adversely affected by the visa capping provisions;
  • extend to two years the period in which a points tested visa applicant who meets the pool mark for the grant of a visa may have their visa application held in reserve; and
  • remove the age limitation on the appointment of full-time members of the Refugee Review Tribunal.

Schedule 9 to the Bill proposes amendments to the Principal Act to reflect the creation of the Migration Review Tribunal.  The Schedule also proposes transitional provisions to ensure that decisions of the (soon to be former) Immigration Review Tribunal are treated as if they are decisions of the Migration Review Tribunal for the purposes of applications for judicial review of such decisions under Part 8 of the Principal Act. 

Background

As there is no central theme to this Bill, the background to each major amendment will be explained where relevant in the Main Provisions section below.

Main Provisions

Schedule 1 - Business temporary entry and business sponsorships

In the present context, ‘business temporary entry’ refers to the entry of employees and executives for temporary purposes.  Before July 1996, there were approximately 17 visa subclasses that governed the entry of these categories of people.(2) These visa subclasses governed entry into Australia for business, cultural/social, and temporary purposes.  Each of these visa subclasses had its own application procedures and prescribed criteria for their grant.  In particular, the procedures and criteria set out in the Employer Nomination Scheme (visa subclass 121) were particularly cumbersome and uncertain.  In particular, the criterion that the visa applicant be a ‘highly skilled person’ generated much litigation.(3)

In October 1994, in response to these and other concerns about the then system of business temporary entry, the former Labor Government established the Committee of Inquiry into the Temporary Entry of Business People and Highly Skilled Specialists (the Roach Committee).  The task of the Roach Committee was to review the provisions of the Principal Act and Migration Regulations governing business temporary entry.  In August 1995, the Roach Committee published Business Temporary Entry - Future Directions, the report of its review. 

The report recommended the streamlining of the system for admission for business temporary entrants, including:

  • the replacement of the various temporary residence and visa classes with a single visa class for all business temporary entrants(4), and the  criteria to be co mbined into one set of criteria within the new visa class;(5);
  • streamlined processing for long-term temporary entry (between three months and four years) for companies operating in Australia, including fast track processing of an application where the nominated employee will be involved in a ‘key activity’(6); 
  • the introduction of streamlined health assessment procedures for applicants; and
  • the establishment of monitoring systems to ensure that the streamlined entry provisions are not used for criminal activities or for purposes contrary to Government policy(7). 

Although the Roach Committee suggested sanctions that could be imposed for breaches of visa conditions or breaches of sponsorship undertakings (eg cancellation of a nominee’s visa, or imposing fin es on nominating employers), it did not want to recommend particular sanctions.  Instead, the Committee recommended:

‘[A] discretionary system of assessment and sanction.  This allows for wider consideration to be given to the circumstances of the breach of condition, the interests of the employer’s workforce, and the national interest.’ (8)

Amendments to the Migration Regulations implementing recommendations of the Roach Committee’s report commenced on 1 August 1996.(9)

Visa subclass 457 - Business (Long Stay)

Visa subclass 457 provides for the temporary admission into Australia, for periods between three months and four years, of the following categories of people:

  • a person who is sponsored by an Australian employer to work in a key or non-key activity(10) of that employer; and
  • a person who is sponsored by an overseas employer to establish that employer’s business in Australia.

The following categories of non-sponsored people can also enter under subclass 457: people entering to work in Australia pursuant t o a labour agreement(11); or a Regional Headquarters Agreement(12), independent executives proposing to develop businesses in Australia, people acting as representatives of overseas suppliers of services to Australia, and members of overseas missions or delegations.

Where an employer proposes to sponsor the entry of an applicant under subclass 457, the employer must first seek approval as a sponsor, and lodge a nomination that describes the activities to be performed by the applicant or applicants.  An employer can seek approval either as a ‘standard’ or ‘pre-qualified’ business sponsor.(13)

To gain approval as a sponsor, the sponsor must give an undertaking in relation to particular matters.  In particular, the sponsor must undertake to ensure the applicant is employed in accordance with any applicable award, agreement or employment legislation; accept responsibility for all financial obligations incurred by the applicant (other than personal debts), and contact the Department of Immigration and Multicultural Affairs if the applicant fails to comply with any condition relating to the visa. 

Once the sponsorship has been approved, the nominee then applies for the subclass 457 visa, on the basis of the employer’s sponsorship and nomination.  The grant of the visa to the applicant is subject to him or her meeting requirements in relation to health, character and special return (ie restrictions on re-entry into Australia) criteria. 

A subclass 457 visa may be granted subject to conditions.  The most notable limitation is that the visa holder must perform work in Australia that is relevant to the conduct or activities of the business specified in the application.  Breach of visa conditions may result in the cancellation of the visa.

The regulations (regulation 1. 20F) give the Minister power to revoke the approval of a sponsor for failure to comply with undertakings, or for failure to continue to meet the criteria for approval as a sponsor.  An employer that has its sponsorship revoked can seek judicial review of the Minister’s decision in the Federal Court.

However, neither the Principal Act nor the Regulations expressly provide for Departmental or Ministerial monitoring of business sponsors to determine whether they are meeting their obligations.

Item 1 of Schedule 1 inserts a new Subdivision GA of Division 3 of Part 2 of the Principal Act ( new sections 137A - 137H ).  The new provisions introduce a statutory scheme for the monitoring and cancellation of business sponsorships. The provisions are expressed to apply in respect of approval or renewals of approval of business sponsors as a result of applications made on or after 1 August 1996 (that is, when the streamlined business temporary entry provisions commenced). 

New section 137B confers power on the Minister to cancel an approval as a business sponsor if the Minister is satisfied that a ‘prescribed ground’ for cancelling the approval applies to that sponsor.  New subsection 137B(2) provides that the Minister, in determining whether a prescribed ground for cancellation is met, can take into account information provided by the sponsor, and can also rely on inferences drawn from the conduct of the sponsor. 

Where the regulations provide that a sponsorship approval must be cancelled in prescribed circumstances, new subsection 137(B)(3) removes the discretion of the Minister - he or she must cancel the approval.

New section 137C provides that a non-cancellation of a sponsorship approval despite a particular ground being met will not prevent its cancellation on another ground. The aim of this provision is to ensure that the Minister, in exercising his or her discretion not to cancel a sponsorship approval, is not prevented in future from cancelling the approval for another reason.

New section 137D sets out requirements for the form of the notice of the Minister’s decision to cancel an approval and requirements for service of that approval on the business sponsor.  However, new subsection 137D(5) provides that a failure to give notice of the decision will not affect the validity of the decision.  New section 137E sets out what constitutes an appropriate address for delivery of such a notice. 

New subsection 137G(1) provides that if the Federal Court sets aside a decision to cancel an approval, then the approval is taken never to have been cancelled.  In this circumstance, new subsection 137G(2) excludes applications for compensation against the Commonwealth or any officer involved in the cancellation decision.

New subsection 137H empowers the Secretary of the Department of Immigration and Multicultural Affairs to issue a written notice to a business sponsor seeking information relating to:

  • the person’s application for approval as a sponsor;
  • any approval of the person as a business sponsor; or
  • anything done as a result of the application or as a result of such approval.

The notice may provide that the information is to be provided within a specified period, or, if no period is set, a reasonable period. 

Schedule 2 - Requirements for a valid visa application

Schedule 2 proposes amendments to sections 45 and 46 of the Act, to address the implications of the decision of the Federal Court of Australia in Arnulfo Capistrano v Minister for State for Immigration and Multicultural Affairs.(14) The Court’s judgment is discussed in further detail, after the discussion of relevant legislative provisions.

Section 40 of the Migration Act states that regulations may be made which provide that a visa or visas of a specified class may only be granted in specified circumstances.  Some of these circumstances are listed in subsection 40(2).

Subsection 45(1) of the Migration Act states that, subject to the Act, a non-citizen who wants a visa must apply for a visa of a particular class.  Subsection 45(2) of the Act provides for the making of regulations that prescribe the method for making of an application:

  • in specified circumstances;
  • for a visa of a specified class; or
  • in specified circumstances for a visa of a specified class.

Subsec tion 45(3) states that regulations made under subsection 45(2) can provide that, when an application for a specified visa class is made, the applicant must meet one or more of the criteria listed in the section (eg the applicant must be outside Australia at the time of application).

Section 46 of the Act states when a visa application is taken to be a valid application.  One of the criteria for a valid application is that the application must be made in the way required by subsection 45(2), including any way required by subsection 45(3).  If an application is not a valid application, the Minister is not to consider it [subsection 47(3)].  Subsection 47(4) provides that a decision by the Minister that a visa application is invalid does not constitute a decision to reject the visa (and is therefore not subject to merits review - although it may be subject to judicial review). 

Capistrano concerned the validity of certain amendments made in 1996 to the Migration Regulations.  These amendments purportedly prescribed, for the purposes of section 45,  the method for making an application for a certain class of Bridging Visa. 

The regulations specified, as part of the criteria for making a valid application for a Bridging Visa A, that the applicant must have made, in Australia, a valid application for another visa which has not yet been determined.  Alternatively, the applicant had to have applied (within the statutory time limit) for judicial review of a decision to refuse a substantive visa, and such proceedings had not been completed.

The plaintiffs successfully argued that these regulations exceeded the regulation-making power in section 45.  This was because the regulation did not relate to the method in which a valid application could be made, but with the circumstances that had to exist in order for the visa application to be valid.  Accordingly, the applicants had made valid visa application, and the Minister was required to consider them. 

However, the Court declined to find that the regulations were invalid.  Emmett J, relying on the Explanatory Memorandum to the regulations, noted that they had apparently been made in reliance on other regulation making powers in the Principal Act (ie, sections 31 and 40 - these sections provide for the making of regulations specifying, respectively, the criteria for the grant of a particular visa, and the circumstances which must exist before a visa can be granted). 

As at the time of writing, Capistrano has resulted in approximately 80 applications to the IRT for merits review of decisions refusing to grant bridging visas(15), and one further application for judicial review to the Federal Court of Australia.(16) The Minister’s decision not to grant the bridging visa was upheld in all cases.

Item 1 of Schedule 2 repeals existing subsections 45(2) and 45(3).

Item 2 repeals existing paragraph 46(1)(b) [which refers to subsections 45(2) and 45(3)] and replaces it with a new paragraph.  New paragraph 46(1)(b) will provide that a valid visa application is one that meets the criteria and requirements prescribed under section 46. 

Item 3 adds new subsections 46(3) and 46(4) after existing subsection 46(2).  New subsection 46(3) provides that regulations made under it can prescribe criteria that must be satisfied for an application of a visa of a specified class to be a valid application. 

New subsection 46(4) provides that regulations made under new subsection 46(3) may also prescribe:

  • the circumstances that must exist for a visa application to be valid;
  • the method by which a visa application must be made;
  • where an application must be made (eg in Australia, or outside Australia);
  • where an applicant must be when an application for a visa is made.

Item 4 is a savings provision - it ensures that any regulations in force, or purportedly in force, under section 45 and which could have been validly made under section 46 as amended by this Schedule will have effect after the commencement of the Schedule 2 as if they had been made under section 46 of the Principal Act (as amended).  In other words, the regulations will operate prospectively.  Item 4 has been inserted so that the Government is not forced to remake, under section 46, the regulations that it had previously made under section 45.

There may be an issue about whether this provision operates to preserve the operation of regulations that exceeded the regulation-making power in section 45.  Normally, a regulation that is found to be beyond power is invalid (and therefore of no effect) from the time it was made.  Accordingly, such regulations would not be capable of having their operation preserved by Item 4 .  However, as noted above, the Court in Capistrano found that the regulations under challenge were valid, as they were supported by other regulation-making powers in the Principal Act. 

Schedule 3 - Authorisation of officers under the Migration Act

The amendments proposed by Schedule 3 of the Bill will allow the Minister to authorise a wider range of people as ‘officers’ under the Migration Act.  ‘Officer’ is defined in subsection 5(1) of the Act, and includes DIMA officers, Customs officers, officers of the Australian Protective Service , officers of the Australian Federal Police and State and Territory police forces.  In addition, existing paragraph 5(1)(f) allows the Minister to authorise (by notice published in the Gazette ) any other person to be an officer for the purposes of the Act.

Item 1 of Schedule 3 proposes to repeal existing paragraph 5(1)(f), and substitute new paragraphs 5(1)(f) and (g) .  As a result of these amendments, ‘officer’ will include:

  • a person who is authorised in writing by the Minister to be an officer for the purposes of the Act [ paragraph 5(1)(f) ]; and
  • any person who is a member of a class of persons authorised in writing by the Minister to be officers for the purposes of the Act.  This includes people who become members of the class after the authorisation has been given [ paragraph 5(1)(g) ]. 

Item 2 of Schedule 3 inserts new subsection 5(1A) .  This section will provide that the Minister is to publish notice of the authorisation in the Gazette .  However, an authorisation of an officer will take effect when it is given (irrespective of the date of notification in the Gazette ), and failure to notify the authorisation in the Gazette will not affect its validity. 

Item 3 is a savings provision, preserving authorisations made under paragraph 5(1)(f) before its amendment by Schedule 3 .

Schedule 4 - Detention, deportation and removal of persons in non-immigration custody

The Migra tion Act distinguishes between ‘deportees’ and ‘removees’. 

A deportee is a person in respect of whom the Minister has made a deportation order under section 200 of the Act.  The Minister can make orders for deportation against a non-citizen present in Australia for less than 10 years who has either:

  • been convicted in Australia of an offence and sentenced to a term of imprisonment of at twelve months or more; or
  • appears to the Minister to have been, or to be, a threat to national security, and is the subject of an adverse security assessment by the Aus tralian Security Intelligence Organisation.

A deportation order can also be made against a person who is convicted of certain offences under the Crimes Act 1914 (Cth), provided that the person was a non-citizen at the time of the commission of the offences.  In this circumstance, the length of the non-citizen’s residence in Australia at the time of the offence is immaterial.  A person who is subject to a deportation order can apply to the Administrative Appeals Tribunal (under section 500 of the Principal Act) to seek a review of the order, except where the Minister has declared the person to be an ‘excluded person’, in the national interest (section 502).

A removee is an ‘unlawful non-citizen’ who has been removed or is liable to be removed from Australia. In simple terms, an unlawful non-citizen is a non-citizen who is present on the landmass of Australia or its external Territories, or in a port, and who does not hold a valid visa.  By virtue of section 189 of the Principal Act, a person becomes liable for removal as soon as he or she becomes, or is found to be, an unlawful non-citizen.  This is irrespective of whether the person has a visa application on foot (other than an application for a bridging visa).  As the liability to removal automatically arises by operation of law, there is no ‘decision’ that can be the subject of review.

Section 254 of the Principal Act deals with the continued detention of deportees and removees who are in custody (eg in a State or Territory prison), but not in immigration detention.  At present, the Secretary of the Department of Immigration and Multicultural Affairs (or his or her delegate) notifies [pursuant to subsection 254(2)] the deportee or removee, informing him or her that, from the date of release from custody, he or she is to be deported or removed. 

The notice must state that the removee or deportee will be kept in immigration detention from the date that he or she would have been released from custody (the ‘custody transfer time’) to the time of deportation or removal.  Where such a notice is given to a deportee, existing subsection 254(3) provides for the application of the Migration Act in relation to that person as if the deportee had been placed in immigration detention at the time of their release from non-immigration custody.

It should be noted that the policy of the Department of Immigration and Multicultural Affairs is to wait until a removee or deportee has served their prison sentence before taking steps to remove or deport him or her.(17)

Item 1 of Schedule 4 repeals existing subsection 254(3), and its replacement with new subsections 254(2A) and 254(3)

New subsection 254(2A) concerns the situation where a removee is given a notice under subsection 254(2).  Where this occurs, the authority which has custody of that person immediately before the ‘custody transfer time’ is taken to be an ‘officer’ for the purposes of Division 7 of Part 2 of the Act.  Division 7 of Part 2 requires an officer to detain a person in the migration zone who he or she knows or reasonably suspects is an unlawful non-citizen (section 189).  The person must be kept in immigration detention until he or she is removed from Australia, deported, or granted a visa (section 196).

Accordingly, the amendment effectively compels the State or Territory prison or other custodial authority to keep the removee in custody (that is, immigration detention) beyond the date on which he or she would have otherwise been released. 

New subsection 254(3) deals with the situation where a deportee is given a notice under subsection 254(2). Where this occurs, the authority which has custody of that person immediately before the ‘custody transfer time’ is taken to be an ‘officer’ for the purposes of subsection 253(1) of the Act.  Subsection 253(1) provides that where a deportation order is in force against a person, an officer may, without a warrant, detain a person who he or she suspects is the subject of the deportation order.  A person who is detained may be kept in immigration or other detention pending deportation [subsection 253(8)]. 

The effect of this amendment would be to give the State or Territory custodial authority the discretion to keep a potential deportee in custody pending deportation, or release following successful review of the deportation order in the Administrative Appea ls Tribunal. 

New subsection 254(3) states that subsection 253(3) (the obligation to provide to the detained person reasons for the detention and a copy of the deportation order) does not apply to a deportee given a notice under subsection 254(2)

Schedule 5 - Review of certain decisions refusing to grant permanent visas to non-citizens

Schedule 5 to the Bill proposes certain amendments relating to the external merits review of decisions refusing to grant permanent visas to non-citizens.  Part 1 of Schedule 5 contains provisions that will come into effect after the commencement of Schedule 1 to the Migration Legislation Amendment Act (No.1) 1998(18) (‘the Amendment Act’).  This is because the amendments proposed by Part 1 are amendments to provisions contained in the Amendment Act. 

When it commences, Schedule 1 to the Amendment Act will replace the existing two tiers of merits review of non-refugee migration decisions (the Migration Internal Review Office and the Immigration Review Tribunal) with the Migration Review Tribunal (MRT).  A more detailed discussion of the current merits review system can be found below, in the discussion of the amendments proposed by Schedule 9 to the Bill. 

Item 1 inserts subsection 338(7A) in section 338 (as inserted by the Amendment Act).  It will provide a right of review by the MRT of a decision by the Minister to refuse to grant a non-citizen a permanent visa where: the non-citizen was outside the migration zone at the time of application, and the visa was of a class that could be granted whilst the non-citizen was either in or outside the migration zone.  At present, an applicant who is refused a visa in these circumstances is not eligible to seek merits review of that decision. 

Items 2 and 3 make consequential amendments to subparagraph 347(1)(b)(i) and paragraph 347(2)(a).  When Schedule 1 of the Amendment Act commences, subsections 347(1) and 347(2) will set out, respectively, the time limits for making an application for merits review, and the persons who are eligible to make such an application.  The amendments proposed by items 2 and 3 provide that only the person who is refused a visa in the circumstances referred to in proposed subsection 338(7A) is eligible to apply to the MRT for review of that decision, and he or she must do so within 28 days of notification of the decision. 

Item 4 limits the ability of a person who is refused a visa in the circumstances referred to in new subsection 338(7A) to seek merits review of that decision.  A person in that situation will only be able to seek merits review where he or she was physically present in the migration zone both at the time the decision was made, and at the time the application for review is made. 

Part 2 of Schedule 5 proposes temporary amendments to the provisions relating to the review of decisions - these amendments will come into effect only if the present Bill commences before Schedule 1 to the Amendment Act.  Should that occur, the temporary amendments would cease to have effect once Schedule 1 of the Amendment Act commences.  The temporary provisions propose amendments to the Principal Act as currently in force, to achieve the same effect as the proposed permanent provisions. 

Item 5 of Part 2 proposes the addition of new paragraph 337(ga) in the definition of ‘Part 5 reviewable decision’.  The amendment will provide that an applicant will be able to seek internal merits review of a decision by the Minister to refuse to grant a non-citizen a permanent visa where: the non-citizen was outside the migration zone at the time of application, and the visa was of a class that could be granted whilst the non-citizen was either in or outside the migration zone.

Items 6 and 7 make consequential amendments to subparagraph 339(1)(b)(i) and paragraph 2(a) to provide that only the person who is refused a visa in the circumstances referred to in paragraph subsection 337(ga) can apply for internal merits review of the decision, and must do so within 28 days after the notification of the decision.

Item 8 inserts new subsection 339(3A) , to provide that an application for internal merits review of a decision referred to in new paragraph 337(ga) can only be made by a person who was physically present in the migration zone both at the time the decision was made, and at the time the application for review is made. 

Items 9 and 10 amend subparagraph 347(1)(b)(i) and paragraph 347(2)(a), with the effect that an application for review by the Immigration Review Tribunal (IRT) must be made within 28 days after notification of the internal review decision, and can only be made by the person whose visa application has been refused. 

Item 11 inserts new subsection 347(3A) , to limit standing to make an application for review by the IRT to a person who was physically present in the migration zone both at the time the decision was made, and at the time that the application for review is made. 

Schedule 6 - ‘Capping’ of visas

Section 85 of the Principal Act empowers the Minister to determine, by notice published in the Gazette(19) , the maximum number of visas for a specified class or classes that are to be granted in a specified financial year. Section 86 provides that once the maximum number of visas in a specified class or classes has been granted, no more visas of that class or classes may be granted in that financial year.

Section 87 provides that section 86 does not prevent a visa being granted to a person who applies for it on the ground that he or she is the spouse or dependent child of an Australian citizen or lawful permanent resident of Australia.(20)

Where the maximum number of visas for a particular class have been granted, the processing of other applications for visas of that class is suspended until the next financial year.  The Minister has issued General Directions under section 499 of the Migration Act specifying the order in which such applications are to be disposed of in the following financial year.(21)

Schedule 6 inserts a new provision (section 87A) , to allow the granting of visas in certain circumstances, despite the fact that the maximum number of visas in the relevant class has been granted in that financial year. 

For the exemption to apply, the following circumstances must exist:

  • a person has applied for a visa, and it has not been grante d because the cap on the number of visas had been reached for that financial year;
  • subsequent to this, the decision maker requests the person to satisfy the health and/or character requirements for the grant of the visa;
  • the applicant satisfies these requirements during the next financial year, but, by the time these requirements are satisfied, the cap on the number of visas to be given in that financial year had also been reached; and
  • the applicant convinces the decision-maker that his or her inability to satisfy the criteria before the cap was reached was due to circumstances beyond his or her control. 

Schedule 7 - Pass marks and pool marks

To be eligible for the grant of certain categories of visa, applicants are required to amass sufficient points to m eet the ‘pool mark’ and the ‘pass mark’ pertaining to the particular visa.(22)

The Minister specifies pool and pass marks in respect of particular categories of visas, by notice published in the Gazette [under section 96].  Although the pool mark is normally lower than the pass mark, the Minister may determine the same mark for both.

The pass mark is the mark required to satisfy the points test set in respect of the particular  visa.  A visa applicant who amasses sufficient points to meet the pass mark is taken to have attained the ‘qualifying score’ [subsection 94(1)].  Where a visa applicant attains a score equal to or greater than the pool mark, but less than the pass mark, the decision-maker is required to put the application into a pool for twelve months. 

If, within that twelve months, the Minister gazettes a new pass mark and/or pool mark in respect of that particular visa, section 95 of the Principal Act compels the decision-maker to compare the applicant’s score with the new marks.  If the applicant’s score is equal to or higher than the new pass mark, the applicant is taken to have achieved the qualifying score.  If the applicant’s score is less than the new pool mark, the visa application is removed from the pool.  In the case where the applicant attains a score between the two marks, the application remains in the pool until the end of the 12 month period. 

The points tables are set out in Schedules 6 (General Points Test) and 7 (Business Skills Points Test) of the Migration Regulations.  Points are awarded in respect of the applicant’s employment and qualifications, age, level of English proficiency, and the citizenship and financial status of sponsors (where relevant for a particular class of visa).  For business-related visas, points are awarded in respect of such criteria as size and turnover of the applicant’s business, and the value of assets held by the applicant.

Items 1 and 2 of Schedule 7 insert new section 95A , and amend existing section 95 to provide that it has effect subject to the new provision.  The effect of the amendments will be to extend the period that applications remain in the pool from 12 months to 2 years.  New section 95A will apply to applications in the pool at the time the provision commences, and to applications put in the pool after commencement of the section. 

Schedules 8 and 9 - Amendments associated with the establishment of the Migration Review Tribunal

Item 1 of Schedule 8 repeals subsections 461(2) and 461(3) of the Principal Act.  The effect of the amendment is to remove the age limit (presently sixty-five years) applicable to the appointment of full-time members of the Refugee Review Tribunal (RRT).  The amendments are to ensure consistency between the RRT and the MRT, given that the legislation establishing the MRT does not impose age limits on the appointment of full-time members. 

Part 1 of Schedule 9 makes a number of amendments to section 475 of the Principal Act, consequent upon the creation of the Migration Review Tribunal, and the merger of the Department’s internal mechanism for review of non-refugee migration decisions.  To understand the effect of these amendments, it is necessary to understand the current structure for merits review of these decisions.

Merits review of migration decisions

At present, an unsuccessful applicant for a non-refugee migration visa has the right to access a two-tier merits review pro cess.  The first tier of review is merits review by the Migration Internal Review Office (MIRO).  The MIRO is situated within the Department of Immigration and Multicultural Affairs.  A MIRO review officer may:

  • affirm the original decision;
  • vary the original decision;
  • set aside the decision and substitute a new decision; or
  • remit the decision back to the original decision-maker for reconsideration. 

If the decision of MIRO is adverse to the applicant, the applicant can apply to an external administrative review body, the Immigration Review Tribunal (IRT).  Like the MIRO, the  IRT is a merits review body. 

There are some decisions that are not reviewable by the MIRO, but are reviewable by the IRT.  These include decisions made by the Minister personally, and decisions to refuse to grant, or to cancel, bridging visas of people who are in immigration detention as a result.

When it commences on 1 June 1999, Schedule 1 to the Migration Legislation Amendment Act (No.1) 1998 will repeal those parts of the Principal Act relating to the MIRO and amend those provisions relating to the IRT to create a single merits review body - the Migration Review Tribunal . (23)

Subsection 475(1) lists the types of decision made under the Principal Act that are capable of judicial review by the Federal Court of Australia.  The types of decision that the Federal Court can review include decisions of the Migration Review Tribunal.

At present, subsection 475(2) provides that the Federal Court of Australia can not judicially review certain decisions.  These include:

  • a decision that can be reviewed by the Department under section 338 (eg a initial decision to refuse a grant of a visa) - existing paragraph 475(2)(b);
  • an ‘IRT-reviewable decision’ - existing paragraph 475(2)(c);
  • in the case where a decision has been internally reviewed by the Department - a decision by the Minister under existing section 345 to substitute a more favourable decision for the decision of the review officer - existing paragraph 475(2)(e); and
  • a decision by the Principal Member of the IRT to refer a matter to the Administrative Appeals Tribunal - existing paragraph 475(2)(f). 

Item 2 of Part 1 of Schedule 9 repeals paragraph 475(2)(b).  This is to reflect the fact that there will no longer be a system of internal Departmental review of decisions under the Migration Act once the Migration Review Tribunal commences operation.

Item 3 replaces the reference to ‘IRT-reviewable decision’ in paragraph 475(2)(c) with ‘MRT-reviewable decision’.  The definition of ‘MRT-reviewable decision’ will be contained in new section 338 , which comes into effect on 1 June 1999.

Item 4 substitutes a reference to ‘Migration Review Tribunal’ for ‘Immigration Review Tribunal’ in paragraph 475(2)(f).

Item 5 inserts a new subsection 475(3), which provides that the reference to section 345 in paragraph 475(2)(e) is a reference to that section as in force before the commencement of Schedule 1 to the Amendment Act .   Schedule 1 will repeal Division 2 of Part 5 of the Principal Act, which contains section 345. 

Transitional provisions

Part 2 of Schedule 9 inserts a range of transitional provisions to deal with applications for judicial review by the Federal Court of decisions of the soon-to-be-former IRT.  These transitional provisions are designed to ensure that certain decisions of the (soon to be former) IRT are capable of being judicially reviewed by the Federal Court after 1 June 1999. 

Item 6 deals with applications for judicial review of a decision of the IRT that have been made under section 476 of the Principal Act, but not yet determined by the Federal Court, at the time of the commencement of Schedule 9 .  It provides that such an application is taken to be an application for judicial review of the decision as if it were a decision of the MRT.

Item 7 deals with the situation where a person has not yet made an application for judicial review, and the time limit for making such an application (as prescribed in section 478) has not yet expired on commencement of Schedule 9 .  In that case, an application may be made under section 476 for judicial review of the decision of the IRT as if it were a decision of the MRT.  The time limit for making an application runs from the date that the applicant was notified of the IRT decision.

Item 8 deals with the situation where a decision of the IRT was judicially reviewed, and the Federal Court, either before or after the commencement of Schedule 9 , quashed or set aside the decision and referred the matter back to the tribunal for further consideration, and the tribunal has not yet made a decision on that further consideration.

Subitems 8(1) and 8(2) provide that the decision of the IRT (ie the original decision that was the subject of judicial review) is taken to be an MRT-reviewable decision in respect of which an application was made under section 347 at the date of commencement.  The effect of this amendment is that an applicant is not able to seek further judicial review while the MRT is reconsidering the earlier decision. 

Item 9 deals with the situation where the IRT made a decision before the commencement of Schedule 9 , the applicant sought judicial review of that decision by the Federal Court, and, before determination of the application, and the Minister, in writing (either before or after commencement of Schedule 9 ) agreed to reconsider the IRT’s decision.  In that case, the decision that is to be reconsidered by the Minister under section 351 of the Principal Act (the tribunal decision that was going to be subject of judicial review) is taken to be an ‘MRT-reviewable decision’ for the purposes of Part 8 of the Principal Act.  The effect of this amendment is to prevent an applicant proceeding with an application for judicial review of the decision pending the Minister’s consideration of it. 

Section 351 of the Principal Act provides that the Minister may substitute a Tribunal decision for one that is more favourable to the applicant if he or she considers that it is in the public interest to do so.

Migration Legislation Amendment (Judicial Review) Bill 1998

It should be noted that the amendments proposed by Schedule 9 are to the existing judicial review provisions in Part 8 of the Principal Act.  On 2 December 1998, the Government introduced the Migration Legislation Amendment (Judicial Review) Bill 1998 (the ‘Judicial Review Bill’) into the Senate. 

Among other things, the Judicial Review Bill proposes to repeal and replace existing Part 8 of the Principal Act. New Part 8 will also contain a privative clause, which will limit the ability of the Federal Court and the High Court to judicially review decisions made under the Act.  In simple terms, a privative clause is a statutory provision that purports to exclude judicial review of a decision or regulation made pursuant to that statute.  Given such clauses purport to prevent courts (including the High Court) from examining the actions of the Executive, courts have tended to give them a restrictive interpretation.(24)

Readers who want further information about the Judicial Review Bill, the history of privative clauses and the approach of the High Court to them are referred to Bills Digest No. 90 of 1998-99 .

On 9 December 1998, the Judicial Review Bill was referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report.  The Committee tabled its report on 21 April 1999.  The majority report of Coalition Senators supported the passage of the Bill.  ALP and Australian Democrat Senators issued separate reports (on party lines) opposing the passage of the Bill. 

If the Judicial Review Bill is passed by the Parliament and commences on or before 1 June 1999, then Schedule 9 is taken never to have been enacted.

Endnotes

 

  1. The Notice of Proclamation (in Special Gazette No. 51 of 1999) states that Schedule 1 commences on 1 June 1999.
  2. Report by the Committee of Inquiry into the Temporary Entry of Business People and Highly Skilled Specialists, Business Temporary Entry: Future Directions, AGPS, August 1995, p. 92.
  3. For instance, in Singh v Immigration Review Tribunal (1993) 44 FCR 495, Wilcox J overturned the IRT’s decision to affirm the Minister’s decision to refuse to grant the applicant a visa.  The applicant had been nominated by her employer on the basis of her skills as a classical Indian dancer - however, the majority of her working day was to be spent doing administrative tasks, which required no particular skill  The IRT, looking at her duties of employment, held that the applicant should not be granted a visa.  Wilcox J disagreed, finding that so long as the applicant was ‘highly skilled’, the fact that she would be only be using those skills for part of the day was irrelevant.
  4. op cit, p. 28.
  5. ibid, p. 29.
  6. ibid, p. 41
  7. ibid, pp. 44 - 46.
  8. ibid, p. 45.
  9. SR 76 of 1996;  The Hon Philip Ruddock MP, ‘Streamlined temporary business entry sponsorship starts’, Press release , 1 August 1996.
  10. A ‘key activity’ ( Migration Regulations , regulation 1.20B) is an activity that is essential to the business of the employer, and requires specialist or professional skills, or specialised knowledge of the business operations of the employer.
  11. Migration Regulati ons , regulation 1.03.  A labour agreement is defined as:

‘(a) a formal agreement entered into between the Minister, or the Education Minister, and a person or organisation in Australia under which an employer is authorised to recruit persons (other than th e holders of permanent visas) to be employed by that employer in Australia; or

(b) a formal agreement entered into between the Minister and a sporting organisation under which the sporting organisation is authorised to recruit persons (other than the holders of permanent visas) to take part in the sporting activities of the sporting organisation, whether as employees or otherwise.’ 

  1. Migration Regulations, regulation 1.16A.  A Regional Headquarters Agreement (RHA) is an agreement between the Minister and an overseas-based organisation that wants to establish a regional headquarters in Australia.  An RHA provides for the entry and stay in Australia of staff members for the purpose of the regional headquarters. 
  2. A ‘standard’ business sponsor indicates, at the time of the application for sponsorship, the number of employees that it proposes to nominate.  If the sponsorship is approved, it is valid for the specified number of nominations, or for 12 months from the date of approval, or revocation of the sponsorship by the Minister, whichever occurs first.  A ‘pre-qualified’ business sponsor (a PQBS) seeks approval as a sponsor before nominating employees - once approval is obtained, a PQBS can nominate any number of employees for a period of 24 months from the date of approval, or on revocation of the sponsorship by the Minister.  A PQBS can, at the end of the 24 month period, apply for the renewal of its approval (regulation 1.20E). 
  3. Emmett J, 18 April 1997.
  4. In all of these cases, the IRT, although it found that the visa application was valid, affirmed the decision of the Minister to refuse the grant of the bridging visa. 
  5. Ramos v Minister for Immigration and Multicultural Affairs; Ga ire v Minister for Immigration and Multicultural Affairs (unreported, Hely J, 30 November 1998).  The Court dismissed the applications for judicial review. 
  6. Migration Series Instructions No. 168, Non Citizens held in Prison Liable for Enforced Departure, 2 May 1997.
  7. The Notice of Proclamation for the Migration Legislation Amendment Act (No. 1) 1998 is contained in Special Gazette No. 51 of 1999.  Signed by the Governor-General on 4 February 1999, it states that Schedule 1 will commence on 1 June 1999.
  8. For example, on 17 February 1999, the Minister published two notices in the Gazette under section 85, determining the maximum number of Subclass 806 (Family) and Subclass 104 (Preferential Family) visas to be granted in the 1998-1999 financial year.  The maximum numbers determined for each class were, respectively, 500, and 1,200. 
  9. It should be noted that the Minister may determine limits on the number of visas to be granted in a particular class in a particular financial year under s.39(1) of the Principal Act.  The Minister’s power under this provision is known as the ‘cap and kill’ power.  This is because s.39(2) provides that that any visa application beyond the maximum number made during that financial year (rather than be suspended) is taken not to have been made.
  10. General Directions No. 6 (of 5 May 1998) and No. 7 (of 18 June 1998). 
  11. The visa categories which prescribe a points test include the concessional family and business skills visa categories. 
  12. The Migration Legislation Amendment Act (No.1) 1998 received Royal Assent on 11 December 1998. The Notice of Proclamation (in Special Gazette No. 51 of 1999) states that Schedule 1 commences on 1 June 1999.
  13. A privative clause is also known as a ‘Hickman clause’, after the case of R v Hickman: Ex parte Fox and Clinton (1945) 70 CLR 598.  In that case, the High Court considered the operation of a provision of the National Security Coal Mining Industry Employment Regulations which purported to exclude judicial review of awards made by Local Reference Boards in settlement of disputes in the coal mining industry.  The relevant regulation stated that a decision of a Local Reference Board ‘…shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever.’  The High Court held that, by virtue of s.75(v) of the Constitution, it had the power to judicially review a decision of a Local Reference Board based on an erroneous finding that the matter was within the ambit of the coal industry. 

Contact Officer

Elen Perdikogiannis

4 May 1999

Bills Digest Service

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