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Migration Legislation Amendment Bill (No. 1) 1998
Bills Digest No. 44 1998-99
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 lega l status. Other sources should be consulted to determine the subsequent official status of the Bill.
Migration Legislation Amendment Bill (No. 1) 1998
Date Introduced: 12 November 1998
â¢ merges the two tier review process for non-refugee visa decisions (Departmental review and review by the independent Im migration Review Tribunal) into a single review by the newly created external review body, the Migration Review Tribunal, and
â¢ provides a range of new procedures for the Migration Review Tribunal and the Refugee Review Tribunal, including empowering the Principal Member of the Refugee Review Tribunal to issue general directions to Tribunal members and granting both Principal Members the power to reconstitute a Tribunal during a hearing in specific circumstances.
Migr ation Legislation Amendment Bill (No. 4) 1997 was introduced into the 39th Parliament on 26 May 1997 by the Minister for Immigration and Multicultural Affairs, the Hon. Phillip Ruddock MP. That Bill reflected the majority of the provisions in the current Bill. It also provided for a ‘privative clause’ in relation to immigration decisions, aimed at narrowing the possibility of judicial review of relevant Tribunal decisions by the Federal Court and High Court. On 3 September 1997, the Government moved several amendments to the 1997 Bill, including the excision of the provisions concerning the privative clause, which were introduced in a separate Bill on the same day, Migration Legislation Amendment Bill (No. 5) 1997. Although both Bills were passed by the House of Representatives and introduced in the Senate, the second reading debate was not completed before the Parliament was prorogued.
On 4 September 1997, both Bills were referred to the Senate Legal and Constitutional Legislation Committee for inquiry. The Committee reported on 30 October 1997. The Majority Report recommended that both Bills be accepted without amendment, whilst the Minority Report recommended that consideration be give to amendments to Bill No. 4 and that Bill No. 5 be completely rejected. A discussion of the Committee’s Report is provided below.
Australia's immigration program is made up of two main components, the Migration (Non-Humanitarian) Program and the Humanitarian Program. The Non-Humanitarian Program caters for the majority of immigrants and consists of the skilled stream, preferential family, concessional family and special eligibility programs. The Humanitarian Program comprises the refugee, special humanitarian and special assistance categories.
The rate of immigration has been steadily decreasing during the past two years. In terms of the migration (Non-Humanitarian) program, 73 000 visas were granted during 1996-97 whereas 76 100 visas were granted during 1997-98, a drop of 9.2 per cent. The mos t significant of these drops was represented by the parental visa category, which decreased by 86 per cent. The overall drop in the family stream was 16 per cent whilst the business stream remained steady.(1)
There has been a slight rise in visas granted under the Humanitarian Program, with 11 903 being granted in 1996-97 and 12 055 in 1997-98. Although there is some public perception that refugees from Asia dominate Australia’s Humanitarian Program this is unfounded with refugees from Asia accounting for around only 5 per cent of Australia’s intake. As with the 1996-97 program the Minister announced three regions as priority for resettlement places - the former Yugoslavia, the Middle East and Africa, and offshore visas were distributed as follows.(2)
â¢ Europe 5 307
â¢ Middle East 2 952
â¢ Africa 1 473
â¢ Asia 685
â¢ Americas 50
Australia’s Humanitarian Program is divided between refugees, Special Humanitarian Program and Special Assistance Category. The refugee category is available to people who meet the United Nations definition of refugee, contained in the 1951 United Nations Convention Relating to the Status of Refugees and is a person who:
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, due to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable, or owing to such a fear, is unwilling to return to it.
The Special Humanitarian category is open to those who have suffered discrimination or other violations of their human rights but are not refu gees. The Special Assistance category is available to people who are in vulnerable positions overseas and who have close links with Australia.
While considerable media and other attention is given to people who arrive in Australia on boats without any authorisation (ie. boat people), the actual effect such people have on overall programs is relatively minor. Between the start of 1989-90 and the end of 1995-96, 2 508 boat people arrived in Australia without authorisation. Of these, 1 755 have been removed from Australia. During 1995-96, 589 boat people arrived in 14 boats. Of these, 413 have been removed, with an average time before removal of 17 days. In 1997-98, thirteen boats carrying 159 people arrived in Australia without authorisation.
Migration (Non-Humanitarian) Program
Currently an unsuccessful applicant for a migration visa has right of access to a two tier review process: an internal review on the merits by the Migration Internal Review Office (MIRO) within the Department of I mmigration and Multicultural Affairs and, if that is unsuccessful, a review on the merits by the independent Immigration Review Tribunal (IRT). Some non-humanitarian decisions relating to bridging visas and visa cancellation are not reviewable by MIRO but are directly reviewable by the IRT.
MIRO is authorised to seek new evidence or information in conducting reviews of primary decisions. MIRO aims to ensure clients seeking merits review of primary decisions on visa applications receive lawful and preferable immigration decisions which are fair, just, easily understandable, quick and cost efficient.
The IRT has right of review of decisions made by MIRO. As well, certain primary decisions made by the Department in relation to bridging visas and visa cancellation are not reviewable by MIRO but are directly reviewable by the IRT. IRT members have the power to affirm, vary or set-aside decisions made by the Department or MIRO and remit cases back to the Department for reconsideration. The IRT consists of a Principal Member, and full-time and part time members.
In 1997-98, the Tribunal set-aside or remitted in 49 per cent of all cases, as compared with 39 per cent in 1997-97. There were 95 appeals lodged in the Federal Court against decisions of the Tribunal, a decrease of 45 per cent compared with 1996-97 (attri butable to a decrease in appeals from matters concerning a 1993 Ministerial decision to allow certain Chinese students to remain indefinitely). The Minister was an applicant in 7 of the 95 matters. 132 appeals were disposed of by the Federal Court in 1997-98: 44 were withdrawn; 35 were dismissed; 17 were upheld and remitted to the Tribunal; 35 were settled and remitted to the Tribunal; 1 was settled.(3)
The process for review of decisions depends on whether a person is applying for a vi sa as an unauthorised entrant into Australia or outside of Australia.
When a person enters Australia without authorisation, their first step is to apply for a protection visa (which is issued under the Humanitarian Program). Under section 36 of the Migration Act 1958 (the Principal Act) such a visa is available for a person who has protection under the U.N. Refugee Convention (see above). The Principal Act also contains provisions that limit the ability of people covered by the Comprehensive Plan of Action agreed to by the International Conference on Indo-China Refugees to make a claim where they came from a safe third country (this agreement was made in 1989 to address the situation of Indo-Chinese refugees who left their country after the Indo-China war and is of less relevance today).
Whether the applicant is inside or outside Australia, an application for the visa is then determined by the Department and if it is not in favour of the applicant review procedures will apply.
Initial review regarding decisions related to protection visas is conducted by the Refugee Review Tribunal (RRT) which was established in 1993 to provide an independent merits review of such decisions. In 1997, the Government legislated for a $1 000 post-decision application fee payable for unsuccessful applications to the RRT. The regulations establishing the fee were subject to an unsuccessful Senate disallowance motion on 1 September 1997. Following negotiations with the ALP, the fee was made reviewable by the Joint Standing Committee on Migration within two years of operation.
In 1996-97, 88 per cent of cases to the RRT were affirmed and 12 per cent were set aside. Following judicial review, 11 per cent of cases were set aside, remitted or remitted by consent.
The next stage in the review process is that decisions of both the RRT and the IRT may be subject to appeal in the Federal Court for judicial review (rather than merits review). Under section 476 of the Principal Act, the Federal Court may review such decisions on the grounds that the required procedures were not complied with, there was no jurisdiction to make the decision, the decision was an improper excise of power, there was an error of law, the decision was induced by fraud or bias, or that there was no evidence to support the decision (the exact grounds for review are listed and qualified in the section).
A final avenue of review will be to the High Court for judicial review, if the Court grants leave for the appeal. The High Court would also hear any Constitutional challenge to the validity of legislation which affects the applicant.
A detailed analysis of judicial review is set out below.
Finally, there is an option for review by the Minister for Immigration and Multicultural Affairs. The Minister holds discretionary powers over decisions made by MIRO, the IRT and the RRT pursuant to sections 345, 351 and 391 of the Principal Act , which allow the Minister to substitute decisions in favour of the applicant if this is considered in the public interest.
The Government's Immigration Policy released prior to the 1996 general election contained a promise to review the efficiency and effectiveness of immigration decision making, including the role and performance of the IRT an d the RRT. Regarding the IRT and RRT, in May 1996 the Minister called for submissions regarding the review of immigration decision making and, in particular, the role of the IRT and RRT. The result of the review was released by the Minister on 20 March 1997 and involved the introduction of a two tier merit review process for all immigration decisions. The Minister announced that this would involve the amalgamation of the internal review (MIRO), that reviews non-refugee decisions, with the IRT, 'while the RRT will remain a separate body dealing exclusively with the review of refugee applications'.(4) The IRT and RRT will also be subject to the Government's plans to amalgamate review tribunals into a single body. The Coalition’s 1998 election immigration policy, Immigration: Building on Integrity and Compassion , confirmed this legislative agenda, stating that it would continue to emphasise accountability and procedural reform to maintain community confidence in the administration of the immigration program.
As noted above, during the 38 th Parliament the government introduced the Migration Legislation Amendment Bill (No. 5) 1997 which proposed to introduce a ‘privative clause’ that would restrict the ability of both the Federal and High Court to review decisions of the IRT and the RRT. The Coalition’s 1998 election policy on immigration states that these proposals will be reintroduced in order to curb the number of applicants who seek to abuse the review process, simply to prolong their stay in Australia. It is important to consider the current Bill’s reform of merits review processes within the context of the proposed narrowing of judicial review.
Judicial review is the power exercised by superior courts (in the context of immigration decisions by the High Court and the Federal Court) to scrutinise the legality of administrative decisions made by elected representatives or officers of the Commonwealth, States or Territories. Such judicial scrutiny is not concerned with the merits of a particular administrative decision, but whether the donee of administrative power is doing something more than was authorised by that power, or is doing an authorised thing in an unauthorised way. Consequently, judicial review is primarily concerned with establishing whether the repository of public power has breached the limits placed upon that power by the Constitution, the common law or by Parliament. The underpinning assumption of judicial review is that it is the duty of superior courts to ensure that public power is exercised according to law, an assumption founded in the classical enlightenment doctrine of the separation of powers. The separation of the judiciary from the executive and the legislature has generally been strictly enforced by judiciaries including the Australian High Court. Commenting on this refiguring of the separation of powers, the former Chief Justice of the High Court, Sir Gerard Brennan has stated that:
the courts alone retain their original function of standing between the government and the governed ... Inevitably, there are cases where the rights and aspirations of individuals and minorities are disregarded [by the executive or the legislature].(5)
For a successful applicant, the outcome of judicial review is that an impugned action is treated as not having occurred and is remitted to the decision-maker to exercise the power within their legal authority.
An in-depth consideration of these proposals is provided in Bill Digest No. 46 1997-98.
As noted above, on 4 September 1997 this Bill’s predecessor was referred to the Senate Legal and Constitutional Legislation Committee for inquiry. The Committee reported on 30 October 1997. The Majority Report recommended that both Bills be accepted without amendment, whilst the minority report recommended that consideration be give to amendments to Bill No. 4.
Arguments Supporting the Bill
The primary argument presented to the Committee in favour of the Bill was the need to reduce the delays and costs in the current system which would result in improvement to the merits review system. In relation to migration decisions, it was argued that the abolition of MIRO would:
â¢ reduce the review process by 12 months;
â¢ would result in resource efficiency as the MRT would have the benefit of all the resources previously split between MIRO and the IRT; and
â¢ would enhance the credibility of merits review by eliminating the perception of Departmental bias in MIRO’s review processes.
Ho wever, evidence before the Committee indicated that the greatest increase in review applications came not from the migration stream but from the humanitarian stream. For example, it was stated that in 1996-97, approximately 8 213 people applied for protection visas in Sydney and Melbourne alone, compared with a total number of 5 145 in 1995-96. Similarly, applications for review to the RRT doubled in 1996-97 from the previous year. The Government stated in evidence that a key explanation for this rise was an abusive form of delaying tactics.`(6) As no structural changes are proposed to the review of humanitarian decisions, it appears that efficiencies are to be gained from procedural changes to the operation of the RRT. The key procedural changes identified in the Committee’s report were:
â¢ the new power of the Principal Member of the RRT to give general directions on the operation of the Tribunal and the conduct of reviews and clarification of the Principal Member of the IRT’s powers in this regard (current Item 20 Schedule 1 and Item 1 Schedule 3) ;
â¢ the new power to the Principal Member to reconstitute a Tribunal in particular circumstances (current Item 21 Schedule 1 and Item 2 Schedule 3) .
In evidence before the Committee, the Department of Immigration and Multicultural Affairs argued t hat these powers would introduce important efficiency measures.
Arguments Critical of the Bill
Many witnesses to the Committee presented evidence against the Bill. The five key concerns were:
â¢ erosion of the independence of the MRT and RRT;
â¢ no requireme nt to provide adverse information to applicants;
â¢ personal appearances before the RRT by telephone or television;
â¢ changed discretion regarding publication of decisions; and
â¢ non reviewability of conclusive certificates.
Erosion of the Independence of the MRT and the RRT
The Committee’s report notes that it received considerable evidence indicating concern ‘amongst practitioners, academics and non-government organisations that the Bill, interfered with the perceived independence of both the MRT and the R RT.’(7) Part of the context of these concerns was public criticism by two RRT members that they were subjected to pressure by the Principal Member to not consider specific refugee cases dealing with East Timorese asylum seekers, consequent to the Minister's office requesting a halt on such cases pending formulation of Government policy. The two members involved, who were not reappointed to the RRT, have publicly criticised such pressure as highly improper for independent tribunal members. Legal advice was sought from the Tribunal as to the Principal Member's right to make such directions on a case, and advice was received that the Principal Member had no such power under the Migration Act.(8) Similarly, in December 1996 the Minister had publicly criticised members of a Tribunal that granted refugee status to a woman on the ground of domestic violence.
Particular concerns related to the proposed power of the Principal Member of the RRT to give general directions on the operation of the Tribunal and the conduct of reviews (noted above). (The Principal member of the IRT already has this power by virtue of section 353A of the Principal Act). Submissions and witnesses were concerned that regardless of the Minister’s intention that these powers be only used for administrative reasons, they were dangerously vague as there was nothing prohibiting the Principal Member from giving directions on merit related issues. The example of the East Timorese refugee cases was noted in this context. The acting co-ordinator of the Refugee Advice and Casework Service in Melbourne gave evidence that:
it is a public policy issue. We certainly do not want to be putting into place laws which have the potential to be used for purposes which they were not intended.(9)
Similar concerns were raised in relation to the Principal Members’ new power to reconstitute Tribunals in particular circumstances. Although there are particular safeguards in this provision in relation to consultation and the timeframe in which such directions can be given, witnesses before the Committee expressed considerable concern regarding the possible use of this power to influence the outcome of particular cases.(10) Notably, Mr Max Howlett, a solicitor with Victorian Legal Aid specifically raised the attempt by the Principal Member of the RRT to deconstitute the hearings concerning certain East Timor refugees. Mr Howlett referred to a statement by the President of the Law Institute of Victoria relating to the ‘pressure to be felt by individual members to ‘fall into line in their decision-making’. This would clearly compromise the independence of the Tribunal.’(11)
Finally, concerns were raised at the minimalist description that members of the MRT are to be appointed by the Governor-General, with no other standard principles of procedures for merit selection.
No Requirement to Provide all Adverse Information to Applicants
The Committee noted that some witnesses expressed concern about the provisions relating to information to be provided to applicants by the Tribunal, in relation to the limitation that such inf ormation must be specifically about the applicant (see Item 22 Schedule 1 and Item 3 Schedule 3) . Witnesses stated that particularly in relation to the RRT, such a limitation would exclude critical information relating to an applicant’s country situation that is significant in relation to determining refugee status. Mr Robert Gotterson QC’s submission to the Committee noted that:
it may well be that information before the Tribunal about an association’s or group’s conduct, practices etc. is slanted, biased or quite wrong in fact. If the exception in paragraph (a) stands, three will be limited, and perhaps no, opportunity for the applicant to correct errors of fact or to provide a balance.(12)
The Department stated that the provisions were intended to provide reasonable limitations, and that the Tribunal has a discretion to give other information as they see fit (although access to such information would not be judicially reviewable).(13)
(It is notable that Item 28 provides that, subject to the Privacy Act 1988 , the applicant and any assistant are entitled to have access to any written material given or produced to the MRT for the purposes of the review. It is unclear if this remedies the concerns raised as to access to adverse information. It appears that this provision is not available in relation to the RRT.)
Personal Appearance Before the RRT by Telephone or Television
Another concern before the Committee was the proposal to allow appearance by an applicant before the RRT by telephone, closed circuit televi sion or any other means of communication (proposed Item 10 Schedule 3). Several witnesses expressed grave reservation at such proposals. Ms Robin Creyke, a senior lecturer in law at the Australian National University, gave evidence that such alternative forms of communication in relation to on-shore refugee applications are:
not ideal when veracity is at issue, where there are language difficulties, or where interpreters need to be employed. (14)
The Refugee Advice and Casework Service further noted that su ch procedures will probably necessarily exclude the involvement of representatives.(15) The Service proposed an amendment to the provision that required such use of telecommunication was permitted provided that it would not be unreasonable to expect the applicant or the witness to appear in person and the applicant or the witness consents to giving evidence in this way.
Changed Discretion Regarding Publication of Decisions
A fourth concern raised in the Committee’s report was the provision granting the Prin cipal Member a discretion to publish a decision they consider are of particular interest, rather than the current requirement to publish all decisions. Although it was argued that this proposal was aimed at resource efficiency, witnesses before the Committee raised concerns that such a discretion impaired the perception of the integrity of decision-making, in that it could suggest that controversial decisions would not be published. Further, witnesses stated that publication of all decisions encourages consistency in decision-making, contributes to a developing jurisprudence as well as enabling people to make informed choices about taking matters before a Tribunal. Australian Lawyers for Human Rights noted that the proposals may place Australia in breach of its obligations under the International Covenant on Civil and Political Rights .
It is notable that although the current Bill has not altered these proposals, Items 33-34 of Schedule 1 and Items 8-9 of Schedule 3 provide for new requirements of attendance at the handing down of Tribunal decisions.
Non-Reviewability of Conclusive Certificates
Finally, concerns were raised as to the Minister’s power to issue a conclusive certificate which would prevent the MRT reviewing a decision where the Minister thinks it would be contrary to the public interest for the review to be conducted. Given the proposals concerning limitation on judicial review, this could mean that the scope for effective review was precluded. The Department of Immigration and Multicultural Affairs stated that the power was very rarely used.
The Minority Report to the Committee’s inquiry by Senators Bolkus, McKiernan and Murray agreed with the five key concerns raised by submissions to the Committee and recommended that consideration be given to deleting the provisions or amend ing the provision concerning appearance via television or telephone as proposed by the Refugee Advice and Casework Service (see above).
The Minority report also noted that the proposals for cancellation of a visa in regard to possible non-compliance with specifications on a previous visa ( current Item 7 Schedule 6 ). Evidence to the Committee stated that such a proposal was ‘harsh and unwarranted’ as it extended to non-compliance due to non-intentional error by third parties. The Minority Report recommended that consideration be given to deletion of this provision.
Schedule 1 of the Bill will amend the Principal Act to reflect the amalgamation of the internal review mechanism (MIRO) and the IRT. To give effect to this change, definitions relating to reviewable decisions by the various bodies will be inserted, and a new Division 2 substituted into Part 5 of the Principal Act.
The scope of the decisions that are reviewable by the MRT is detailed in proposed Division 2. Subject to the provisions described below, reviewable decisions will be those relating to:
â¢ a refusal to grant a visa to a non-citizen if such a visa could be granted while the person is in Australia and the decision was not made while the perso n was in immigration clearance or had been refused immigration clearance ( proposed subsection 338(2) )
â¢ the cancellation of a visa while a person is in Australia other than a cancellation made while the person was in immigration clearance ( proposed subsection 338(3) );
â¢ a decision not to grant, or cancel, a bridging visa while the person is in detention because of that decision ( proposed subsection 338(4) )
â¢ a visa that could not be granted while the person was in Australia, but as part of the application for the visa the person was sponsored or nominated by a citizen, a company or partnership that operates in Australia, a holder of a permanent visa, or a New Zealand citizen who holds a special category visa ( proposed subsection 338(5) )
â¢ a visa that can only be granted outside Australia where the applicant is a former permanent resident and has a parent, spouse, child, brother or sister who is a citizen or permanent resident ( proposed subsection 338(6) )
â¢ a visa that can only be granted outside Australia and relates to a visit to a parent, spouse etc. who is an Australian citizen or permanent resident, and the application gives particulars of the parent, spouse etc. ( proposed subsection 338(7) ), or
â¢ a decision relating to the number of points that an applicant for a visa receives (under the points system an applicant must acquire a certain number of points to be eligible for a visa in a particular category) if the visa can only be granted outside Australia and the application was sponsored by a citizen, the holder of a permanent visa, or a New Zealand citizen who holds a special category visa, and the application is refused ( proposed subsection 338(8) ).
Decisions excluded from review by the MRT will be those relating to:
â¢ a decision made by the Minister unde r proposed section 339 which will be introduced by this Bill (see below)
â¢ a decision that is subject to review by the RRT
â¢ a decision made by the Minister under section 134 (which allows the Minister to cancel a business visa if certain conditions are no t met when the person is to enter Australia), and
â¢ decisions made by the Minister under section 501 of the Principal Act, which allows the Minister to refuse or cancel a visa on certain grounds, including that the person is likely to vilify a segment of the Australian community, incite discord or who, because of past conduct, the Minister is of the opinion that the person is not of good character. (The legislative scheme in relation to ‘good character’ is the subject of current Parliamentary consideration through the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998.)
Proposed section 339 provides that the Minister may issue a conclusive certificate in relation to a decision if the Minister thinks that it would be contrary to Australian interests to change the decision as it would result in prejudice to Australia's security, defence or international relations; or where the Minister thinks (rather than is of the reasonable opinion) that such a review would be contrary to the public interest as it would require the Tribunal to consider decisions made by the Cabinet or a Cabinet Committee. A similar power currently exists in relation to MIRO and IRT reviews.
Item 20 provides that the Principal Member’s powers to give directions on the operation of the Tribunal and the conduct of Tribunal reviews under section 353A of the Migration Act 1958 are clarified so that:
â¢ the directions may relate to the application of efficient processing practices, and
â¢ the Tribunal should, as far as practicable comply with the direction, however non-compliance does not invalidate a Tribunal deci sion.
Item 21 (proposed section 355A) provides that a Principal Member may direct that a particular Tribunal be reconstituted by adding or removing one or more member of the Tribunal if the Principal Member thinks it is in the interests of achieving the efficient conduct of the review. The Principal Member must not give such a direction unless:
â¢ the Tribunal decision has not been recorded in writing or given orally
â¢ the Principal Member has consulted each member of the Tribunal and a Senior Member who is not the only member of the Tribunal, and
â¢ the Principal Member is satisfied that there is insufficient material before the Tribunal to make a decision or a period prescribed for making the decision has elapsed.
Item 22 (proposed section 359) provides that in conducting the review, the Tribunal may get information that it considers relevant and must have regard to that information if it is obtained.
Item 22 (proposed section 359A) provides that the Tribunal must give to an applicant particulars of any information adverse to the application, reasonably ensure the applicant understands the information’s relevance and invite the applicant to comment. However, this does not apply to information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member or that is non-disclosable information. (However, see Item 28 below).
Item 22 (proposed sections 359B and 359C) provides that if invited to give additional information or comment on other information, the applicant must do so within a prescribed period, and if the applicant fails to do so, a Tribunal may make a decision without taking further action to obtain the applicant’s views.
Item 22 (proposed section 360) provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the matter, unless:
â¢ the Tribunal considers that it should decide the review in the applicants favour on the papers
â¢ the applicant consents to the Tribunal deciding th e matter without her appearance or
â¢ the applicant has failed to provide requested information in the prescribed timeframe.
Item 28 (proposed section 362B) further provides that if the applicant does not appear, the Tribunal may make a decision without taking further action to allow the applicant to appear. However, the Tribunal does have the discretion to reschedule an appearance.
(The Migration Legislation Amendment Bill (No.4) 1997 originally granted the Tribunal a discretion to invite the applicant to appear. This was changed through Government amendments during the House of Representatives debate.)
Item 28 provides that, subject to the Privacy Act 1988 , the applicant and any assistant are entitled to have access to any written material given or produced to the Tribunal for the purposes of the review. (Note Item 22, proposed section 359A above)
Item 34 is a new series of provisions not included in the 1997 Bill and sets out when a Tribunal must invite parties to a handing down of a decision. Proposed sections 368A - 368C provide that, in most circumstances, the Tribunal must invite the applicant and the Secretary (or their delegate) to be present in person when a decision is handed down and must provide them with a copy of the decision. If the applicant or the Secretary are not present in person, then the Tribunal must notify both parties of the decision by providing each with a copy of the decision.
These provisions do not apply if the decision is to be given orally or the applicant is in immigration detention because of a decision to refuse to grant or cancel a bridging visa.
Item 24 (proposed section 368D) provides that if the Tribunal gives an oral decision, or if the applicant is in immigration detention because of a decision to refuse to grant or cancel a bridging visa, the Tribunal must forward the applicant and the Secretary a copy of the decision within 14 days.
Item 35 provides that the Registrar must ensure the publication of any statements that the Principal Member thinks are of particular interest.
Item 37 contains new provisions not provided for in the 1997 Bill. It provides for a specification as to the methods of dispatch of documents from the Tribunal.
Part 2 of Schedule 1 contains transitional provisions. In relation to the internal review of decisions, if an application was lodged for internal review prior to the commencement of this Bill, the application will be treated as an application for review by the MRT. Similar rules apply for applications for IRT review on hand at the time of commencement so that they will be treated as applications for MRT review. A conclusive certificate issued before the commencement of this Bill by the Minister in respect of an internal review will be taken to be issued under proposed section 339 as amended by this Bill.
Part 6 of Schedule 2 deals with the establishment and membership of the MRT. Proposed Part 6 contains a large number of largely administrative provisions, relating to matters such as acting appointments, the creation of registries and the employment of officers of the MRT. More important provisions are contained in Item 9 and relate to:
â¢ the formal establishment of the MRT by proposed section 394
â¢ the membership of the MRT, which is to consist of a Principal Member, Senior members and other members. Members of the MRT are to be appointed by the Governor-General ( proposed sections 395 and 396 ). There are no standard qualification requirements for appointment
â¢ members are to be appointed for a maximum for 5 years ( proposed section 398 ) and are to disclose any conflict of interest they may have in a matter subject to review ( proposed section 402 ) and
â¢ removal of a member from office, which must be done by the Governor-General on the grounds contained in proposed section 403, which include proved misbehaviour, physical or mental incapacity, bankruptcy or similar agreements with creditors, unapproved absence for 14 consecutive days or 28 days in a year, if the member is a full time member - accepting other paid employment without the Minister's approval, and failure to disclose a conflict of interest ( proposed section 403 ).
Sc hedule 3 makes amendments to the operation of the RRT, which generally reflect those provisions listed in relation to the future MRT. For clarity, these provisions are re-listed here with relevant technical changes.
Item 1 (proposed section 420A) provides that a Principal Member may give directions as to the operation of the Tribunal and the conduct of reviews by the Tribunal. In particular the directions may relate to the application of efficient processing practices. The Tribunal should, as far as practicable comply with the direction, however non-compliance does not invalidate a Tribunal decision.
Item 2 (proposed section 422A) provides that a Principal Member may direct that a particular Tribunal be reconstituted by adding or removing a member of the Tribunal if the Principal Member thinks it is in the interests of achieving the efficient conduct of the review. The Principal Member must not give such a direction unless:
â¢ the Tribunal decision has not been recorded in writing or given orally and
â¢ the Pri ncipal Member has consulted each member of the Tribunal and a Senior Member who is not the only member of the Tribunal and
â¢ the Principal Member is satisfied that there is insufficient material before the Tribunal to make a decision or a period prescribed for making the decision has elapsed.
Item 3 (proposed section 424) provides that in conducting the review, the Tribunal may get information that it considers relevant and must have regard to that information if it obtains it.
Item 3 (proposed section 424A) provides that the Tribunal must give to an applicant particulars of any information adverse to the application, reasonably ensure the applicant understands the information’s relevance and invite the applicant to comment. However, this does not apply to information that is not specifically about the applicant and is just about a class of persons of which the applicant is a member or that is non-disclosable information.
Item 3 (proposed sections 424B and 424C) provide that if invited to give additional information or comment on other information, the applicant must do so within a prescribed period, and if the applicant fails to do so, then a Tribunal may make a decision without taking further action to obtain the applicant’s views.
Item 3 (proposed section 425) provides that the Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the matter, unless:
â¢ the Tribunal considers that it should decide the review in the applicants favour on the papers
â¢ the applicant consents to the Tribuna l deciding the matter without her appearance, o
â¢ the applicant has failed to provide requested information in prescribed timeframe.
Item 6 (proposed section 426A) further provides that if the applicant does not appear, the Tribunal may make a decision without taking further action to allow the applicant to appear. However, the Tribunal does have the discretion to reschedule an appearance.
(The Migration Legislation Amendment Bill (No. 4) 1997 originally granted the Tribunal a discretion to invite the applicant to appear. This was changed through Government amendments during the House of Representatives debate.)
Item 9 is a new series of provisions not included in the 1997 Bill and sets out when a Tribunal must invite parties to a handing down of a decision. Proposed sections 430A - 430C provide that in most circumstances, the Tribunal must invite the applicant and the Secretary to be present in person when a decision is handed down and must provide them with a copy of the decision. If the applicant or the Secretary are not present in person, then the Tribunal must notify both parties of the decision by providing each with a copy of the decision.
These provisions do not apply if the decision is to be given orally or the applicant is in immigration detention.
Item 9 (proposed section 430D) provides that if the Tribunal gives an oral decision, or if the applicant is in immigration detention, the Tribunal must forward the applicant and the Secretary a copy of the decision within 14 days.
Item 10 (proposed subsection 431(1) provides that the Registrar must ensure the publication of any statements that the Principal Member thinks are of particular interest.
Item 12 contains new provisions not present in the 1997 Bill. It provides for a specification as the methods of dispatch of documents from the Tribunal.
Schedules 4-8 contain a range of miscellaneous amendments to migration matters. Of note is Schedule 6, Item 7 (proposed section 107A) which deals with possible cancellation of a current visa on the ground of non-compliance in connection with a previous visa. The new provision is extremely broad and provides for ‘non-compliance that occurred at any time, including non-compliance in respect of any previous visa held by the person.’ This would include an unintended error by a third person. The power to cancel a visa on this ground is discretionary.
For a discussion of specific issues raised in relation to the Bill, the reader is referred to the above commentary of evidence presented to the Senate Le gal and Constitutional Legislation Committee’s inquiry into the 1997 Bill.
1. Department of Immigration and Multicultural Affairs, 1997-98 Annual Report , p. 24.
2. Ibid., pp. 61-62.
3. Immigration Review Tribunal, 1997-98 Annual Report , pp. 12-13.
4. Minister for Immigration and Multicultural Affairs, Press Release , 20 March 1997.
5. Sir Gerard Brennan, ‘Courts, Democracy and the Law’, (1991) 65 Australian Law Journal 32: 36.
6. Senate Legal and Constitutional Legislation Committee, Migration Legislation Amendment Bill (No. 4) 199 7, Migration Legislation Amendment Bill (No. 5) 1997 , October 1997, p. 7.
7. Ibid, p. 12.
8. The Australian , 3/7/1997.
9. Senate Legal and Constitutional Legislation Committee, p. 14.
10. Ibid, p. 16.
11. Ibid, p. 52.
12. Ibid, p. 53.
13. Ibid, p. 20.
14. Ibid, p. 21.
2 December 1998
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