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Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001

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1998 - 1999 - 2000 - 2001

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (ELECTRONIC TRANSACTIONS AND METHODS OF NOTIFICATION) BILL 2001

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

The Hon. Philip Ruddock MP)

 

 



MIGRATION LEGISLATION AMENDMENT (ELECTRONIC TRANSACTIONS AND METHODS OF NOTIFICATION) BILL 2001

 

OUTLINE

 

1.         The Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (“the Bill”) makes a number of amendments to the Migration Act 1958 (“the Migration Act”) and the Australian Citizenship Act 1948 (“the Citizenship Act”).

 

2.         The main purpose of the Bill is to bring the Migration Act and the Citizenship Act into line with the Electronic Transactions Act 1999 (“the ET Act”), and allow implementation of the Government’s commitment to have appropriate services available on-line by July 2001.

 

3.         The Bill will:

 

·          facilitate electronic communications by removing existing impediments that may prevent the use of electronic transactions (Schedule 1 refers);

 

·          establish a legislative framework to enable the Minister to arrange for the use of computer programs to make decisions (Schedule 2 refers);

 

·          provide the manner in which the Minister, the Migration Review Tribunal (“the MRT”) and the Refugee Review Tribunal (“the RRT”) may give documents to persons.  These amendments also determine the time when a document is taken to have been received and allow for the transmission of documents electronically via facsimile, e-mail or other electronic means (Schedule 3 refers); and

 

·          correct some minor technical errors and misdescribed amendments in the Migration Act (Schedule 4 refers).

 

Facilitating electronic transactions

 

4.         The ET Act establishes the basic rule that a transaction is not invalid because it took place by means of an electronic communication.  It states that a requirement or permission under a law of the Commonwealth for a person to provide information in writing, to sign a document, to produce a document or to retain information or a document, can be satisfied by an electronic communication, subject to certain minimum criteria being satisfied.

 

5.         From 1 July 2001, the ET Act will apply to all laws of the Commonwealth, unless specifically exempted, and will permit applications made under the Migration Act and the Citizenship Act to be lodged electronically.

 

6.         The amendments contained in Schedule 1 to the Bill will remove inconsistencies between the operation of the ET Act and various provisions of the Migration Act and the Citizenship Act.  The objective is to ensure that no legislative impediments exist to inhibit the use of electronic transactions where appropriate.

Computer-based decision making

 

7.         The amendments contained in Schedule 2 to the Bill allow for the use of computerised decision making in the migration and citizenship context.  The legislative framework proposes that computer programs, under the control of the Minister, will be able to make certain decisions under the Migration Act and the Citizenship Act.  These decisions will be taken to be those of the Minister.

 

8.         In the migration context, a computer program will only be making decisions on certain visa applications where the criteria for grant are simple and objective.  There is no intention for complex decisions, requiring any assessment of discretionary criteria, to be made by computer programs.  Those complex decisions will continue to be made by persons who are delegates of the Minister.

 

9.         To illustrate this, it may never be appropriate for computer programs to make decisions on visa cancellations.  Computer-based processing is not suitable in these circumstances because these decisions require an assessment of discretionary factors which do not lend themselves to automated assessment.

 

10.       The most notable example of a visa which may be subject to automated assessment is a Resident Return visa.  The grant of most Resident Return visas is generally determined through calculation of the length of time a non-citizen has spent in Australia as the holder of a permanent visa - criteria which lend themselves to an automated decision making process.

 

11.       The introduction of computer-based decision making in these circumstances is expected to provide increased processing efficiencies, as decisions will be made more quickly without human intervention.

 

12.       However, it is important to note that the proposed scheme does not exclude the Minister, or the Minister’s delegate, from intervening at any stage during the computer-based processing of a visa application and choosing to make the decision personally.

 

13.                   In addition, the Minister’s power to arrange for the use of computerised decision making will only apply to primary decision-making and not to merits review processes.  Merits review, therefore, is not affected by these amendments.

 

14.       The Minister will also have the power to substitute a more favourable decision for one made by the computer program where the computer program functions incorrectly.  This will ensure that the Minister can correct adverse decisions without the need for an applicant to first seek external merits review.

 

15.       The introduction of computer-based decision making in the citizenship context is intended to have a limited field of operation and will not occur immediately.  Nonetheless, the provisions establish a flexible legislative regime that will support future developments in information technology and business processing.

 

Giving and receiving of documents

 

16.       The amendments contained in Schedule 3 to the Bill consolidate into the Migration Act provisions dealing with the giving and deemed receipt of documents.  Most of these provisions are presently found in either the Migration Act or the Migration Regulations 1994 (“the Migration Regulations”) and essentially retain the status quo.

 

17.       However, the amendments also add an electronic method for the giving of documents, which further ensures compliance with the ET Act.

 

FINANCIAL IMPACT STATEMENT

 

18.       The amendments contained in the Bill will have no direct financial impact.



MIGRATION LEGISLATION AMENDMENT (ELECTRONIC TRANSACTIONS AND METHODS OF NOTIFICATION) BILL 2001

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1             Short title

 

1.         The short title by which this Act may be cited is the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 .

 

Clause 2             Commencement

 

2.         Subclause 2(1) provides that subject to this section, this Act commences on a day to be fixed by Proclamation.

 

3.         Subclause 2(2) provides that subject to subsections (3) to (6), if this Act does not commence under subsection 2(1) within 6 months of this Act receiving the Royal Assent, then it will commence on the first day after the end of that period.

 

4.         Subclause 2(3) provides that if Schedule 14 to the Administrative Review Tribunal (Consequential and Transitional Provisions) Act 2001 commences before the commencement of item 1 of Schedule 1 to this Act, Schedule 3 to this Act does not commence.

 

5.         Subclause 2(4) provides that item 1 of Schedule 4 to this Act commences at the same time as item 3 of Schedule 2 to the Migration Legislation Amendment Act (No. 1) 2000 .

 

6.         Subclause 2(5) provides that item 2 of Schedule 4 to this Act commences immediately after the commencement of item 2 of Schedule 2 to the Migration Legislation Amendment (Overseas Students) Act 2000 .

 

7.         Subclause 2(6) provides that item 3 of Schedule 4 to this Act commences immediately after the commencement of item 12 of Schedule 3 to the Migration Legislation Amendment Act (No. 1) 1998 .

 

Clause 3            Schedule(s)

 

8.         This clause provides that subject to section 2, each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 



SCHEDULE 1 - Amendments to facilitate electronic communications

 

 

Australian Citizenship Act 1948

 

Item 1               Subsection 5(1)

 

9.         This item inserts a definition for the term “electronic communication” in subsection 5(1) of the Citizenship Act.  This definition is the same as that contained in subsection 5(1) of the ET Act, and is intended to have the same meaning as set out in its Explanatory Memorandum.

 

Item 2               Subsection 10C(6)

 

10.       This item amends subsection 10C(6) of the Citizenship Act to ensure that the Minister may electronically serve a notice of a decision not to register an applicant as an Australian citizen.  The Minister may also serve the notice personally or by post.

 

11.       The ET Act provides that where information is required or permitted to be given to a person who is not a Commonwealth entity, that person must consent to the information being given by way of an electronic communication (paragraphs 9(1)(d) and 9(2)(d), for example, refer).  This provision is based on the Government’s general policy that a person should not be compelled to use an electronic communication to conduct a transaction in order to satisfy requirements or permissions to give information in writing under Commonwealth law.

 

12.       To remain consistent with the ET Act, the Department will institute an administrative regime that requires applicants to provide their written consent before the Minister may communicate with them electronically.  Policy instructions and application forms have been amended to reflect the need to have an applicant’s written consent prior to any electronic communication occurring.

 

Item 3               Subsection 11(5)

 

13.       This item omits the words “either personally or by post” from subsection 11(5) of the Citizenship Act.

 

Item 4               At the end of subsection 11(5)

 

14.       This item amends subsection 11(5) of the Citizenship Act as a consequence of item 3.  This amendment ensures that the Minister may electronically serve a notice of a decision not to register an applicant as an Australian citizen.  The Minister may also serve the notice personally or by post.

 

15.       As outlined under item 2, applicants will be required to provide their written consent prior to being communicated with electronically.

 

Item 5               Subsection 13(12)

 

16.       This item omits the words “either personally or by post” from subsection 13(12) of the Citizenship Act.

 

Item 6               At the end of subsection 13(12)

 

17.       This item amends subsection 13(12) of the Citizenship Act as a consequence of

item 5.  This amendment ensures that the Minister may electronically serve a notice of a decision not to grant Australian citizenship.  The Minister may also serve the notice personally or by post.

 

18.       As outlined under item 2, applicants will be required to provide their written consent prior to being communicated with electronically.

 

Item 7               Paragraph 14(3)(a)

 

19.       This item omits the words “either personally or by post” from paragraph 14(3)(a) of the Citizenship Act.

 

Item 8               At the end of subsection 14(3)

 

20.       This item amends subsection 14(3) of the Citizenship Act as a consequence of item 7.  This amendment ensures that the Minister may electronically serve a notice of a decision to defer consideration of an application for Australian citizenship.  The Minister may also serve the notice personally or by post.

 

21.       As outlined under item 2, applicants will be required to provide their written consent prior to being communicated with electronically.

 

Item 9               At the end of subsection 14A(3)

 

22.       This item amends subsection 14A(3) of the Citizenship Act to ensure that the Minister may electronically serve a notice of a decision to defer consideration of an application for Australian citizenship.  The Minister may also serve the notice personally or by post.

 

23.       As outlined under item 2, applicants will be required to provide their written consent prior to being communicated with electronically.

 

Item 10             Subsection 21(3)

 

24.       This item omits the words “either personally or by post” from subsection 21(3) of the Citizenship Act.



Item 11           At the end of subsection 21(3)

 

25.       This item amends subsection 21(3) of the Citizenship Act as a consequence of

item 10.  This amendment ensures that the Minister may serve an electronic copy of an order depriving a person of Australian citizenship.  The Minister may also serve a copy of the order personally or by post.

 

26.       As outlined under item 2, persons will be required to provide their written consent prior to being communicated with electronically.

 

Item 12             Subsection 23(4)

 

27.       This item omits the words “either personally or by post” from subsection 23(4) of the Citizenship Act.

 

Item 13             At the end of subsection 23(4)

 

28.       This item amends subsection 23(4) of the Citizenship Act as a consequence of

item 12.  This amendment ensures that the Minister may serve an electronic copy of an order directing that a child cease to be an Australian citizen.  The Minister may also serve a copy of the order personally or by post.

 

29.       Where a child ceases to be an Australian citizen under section 23, a copy of the order is served on the responsible parent of the child, as defined in subsection 5(2) of the Citizenship Act.  As outlined under item 2, persons will be required to provide their written consent prior to being communicated with electronically.

 

Item 14             Subsection 23D(2)

 

30.       This item omits the words “either personally or by post” from subsection 23D(2) of the Citizenship Act.

 

Item 15             At the end of subsection 23D(2)

 

31.       This item amends subsection 23D(2) of the Citizenship Act as a consequence of

item 14.  This amendment ensures that the Minister may electronically serve a notice of a decision not to grant Australian citizenship.  The Minister may also serve the notice personally or by post.

 

32.       As outlined under item 2, applicants will be required to provide their written consent prior to being communicated with electronically.



Migration Act 1958

 

Item 16             Subsection 104(1)

 

33.       This item omits the words “on an approved form” from subsection 104(1) of the Migration Act and substitutes the words “in writing”.

 

34.       Subsection 104(1) currently provides that if circumstances change so that an answer to a question on a non-citizen’s application form is incorrect, the non-citizen must inform an officer on “an approved form” of the new circumstances and of the correct answer.  In practice, this information is normally provided, and accepted, in writing.

 

35.       This amendment brings subsection 104(1) into line with current practice, by requiring this information to be provided in writing rather than on an approved form.  Section 9 of the ET Act will apply to this requirement to ensure that non-citizens may give this information by means of an electronic communication, providing they adhere to the Department’s specified information technology requirements.  The Department’s information technology requirements will be contained in application and information forms, and will be published on the departmental website.

 

Item 17             Subsection 104(2)

 

36.       This item repeals existing subsection 104(2) of the Migration Act and substitutes new subsection 104(2), to ensure that its operation no longer depends on where the visa application is made, but rather on where the applicant is at the time the visa is granted.  This amendment is necessary because of the difficulty in determining, in the case of electronic transactions, where a visa application is made (that is, in or outside Australia).

 

Item 18             Subsection 104(3)

 

37.       This item amends existing subsection 104(3) of the Migration Act so that its operation no longer depends on where the visa application is made, but rather on where the applicant is at the time the visa is granted.  This amendment is necessary because of the difficulty in determining, in the case of electronic transactions, where a visa application is made (that is, in or outside Australia).

 

Item 19             Subsection 105(1)

 

38.       This item omits the words “on an approved form” from subsection 105(1) of the Migration Act and substitutes the words “in writing”.

 

39.       Subsection 105(1) currently requires non-citizens to notify an officer on “an approved form” should they become aware that any of the following information was incorrect at the time it was given:

 

·       an answer in their application form or passenger card;



·       information under section 104 (Changes in circumstances to be notified); or

 

·       a response under section 107 (Notice of incorrect applications).

 

In practice, this information is normally provided, and accepted, in writing.

 

40.       As outlined under item 16, this amendment brings subsection 105(1) into line with current practice, by requiring this information to be provided in writing rather than on an approved form.  Section 9 of the ET Act will equally apply to this requirement.

 

Item 20             Transitional - pending acts

 

41.       This item provides that where an act is done under the Migration Act before the commencement of this item, and that act is done under a provision of the Migration Act that is subsequently amended by this Schedule, that act is taken on and after the commencement of this item to be an act done under the Migration Act as amended by Schedule 1 to this Bill.

 



SCHEDULE 2 - Amendments to facilitate computer-based decision making

 

 

Australian Citizenship Act 1948

 

Item 1               Before section 37

 

42.       This item inserts new sections 36A and 36B into the Citizenship Act.  New sections 36A and 36B establish the legislative framework to enable the Minister to arrange for the use of computer programs, under his or her control, to make decisions under the Citizenship Act.

 

New section 36A          Minister may arrange for use of computer programs to make

                                      decisions etc.

 

43.       New subsection 36A(1) provides that the Minister may arrange for the use of computer programs to make a decision, exercise a power or obligation, or do anything else relating to a decision, power or obligation, under the Citizenship Act or the Australian Citizenship Regulations (“the Citizenship Regulations”).  Nothing in subsection (1) compels the Minister to arrange for such use of computer programs.

 

44.       New subsection 36A(2) deems a decision made, or any power or obligation exercised, by a computer program to be that of the Minister.

 

45.       The introduction of computer-based decision making in the citizenship context will not occur immediately.  Nonetheless, section 36A establishes a flexible legislative regime that will support advancements in information technology and future developments in business processing.  In addition, where automated processing does occur, computer programs will be carefully designed to guard against fraud.

 

New section 36B          Minister may substitute more favourable decisions for certain

                                      computer-based decisions

 

46.       New subsection 36B(1) provides that the Minister may substitute a more favourable decision for that of the computer program.  This power is intended to operate as a “safety mechanism” to enable the Minister to address any injustices caused to applicants, as a result of computer-related errors.  However, nothing in this provision is intended to affect any merits review entitlements that an applicant may have.

 

47.       The power in subsection 36B(1) may be used where a certificate under new section 46B relating to the computer program and decision has been issued, and the certificate states that the computer program was not functioning correctly.  This will ensure that the Minister can correct adverse decisions without the need for applicants to seek external review, where it is the computer program itself that has made an error.  This power will be used, for example, where a computer program has incorrectly refused to grant Australian citizenship.

 

48.       The Minister may only substitute a more favourable decision if it could have been made under the Citizenship Act or the Citizenship Regulations.  For example, an applicant must continue to meet all of the criteria for the grant of Australian citizenship before the Minister exercises this power.

 

49.       Under new subsection 36B(2), the Minister is not obliged to consider whether to exercise the power to substitute a more favourable decision.  However, the Minister may exercise this power despite any law of the Commonwealth, or any rule of common law, to the contrary effect (new subsection 36B(3) refers).  This is intended to expressly displace the operation of the functus officio principle.  That is, as the decision of the computer is deemed to be that of the Minister, the Minister would not normally be able to reconsider the decision.

 

Item 2               After section 46A

 

New section 46B          Evidence of whether computer program is functioning

                                      correctly

 

50.       This item inserts new section 46B into the Citizenship Act.  New subsection 46B(l) provides that, in citizenship proceedings, a certificate signed by an officer stating whether a computer program was functioning correctly at a specified time or during a specified period, and in relation to specified outcomes, is prima facie evidence of those matters.  A person who disagrees with the matters stated in a certificate bears the onus of proving otherwise.

 

51.       In addition, a certificate issued under this provision stating that a computer program was not functioning correctly, serves as a trigger for use of the power to substitute a more favourable decision under new section 36B.

 

52.       New subsection 46B(2) defines the term “functioning correctly” for the purposes of new subsection 46B(l).  A computer program is “functioning correctly” if outcomes from its operation comply with the Citizenship Act and Citizenship Regulations, and those outcomes would be valid if they were made by the Minister.

 

53.       New subsection 46B(3) defines the terms “citizenship proceedings” and “officer”, for the purposes of section 46B.

 

Migration Act 1958

 

Item 3               At the end of subsection 52(2)

 

54.       This item amends existing section 52(2) of the Migration Act to ensure that a prescribed way of communicating with the Minister may include any process for authenticating a visa applicant’s identity.

 

55.       With electronic lodgement and processing of visa applications, it may be necessary in certain circumstances for visa applicants to authenticate their identity.  This amendment will enable the future introduction of any identity authentication processes that may become necessary for on-line or other electronic access to visa applications or visa processing systems (for example, via the internet).

 

Item 4               Subsection 84(2)

 

56.       This amendment is consequential to the insertion of new section 495A into the Migration Act and will ensure that subsection 84(2) operates to cover powers or obligations exercised by a computer program.

 

Item 5               Subsection 84(4)

 

57.       This amendment is consequential to the insertion of new section 495A into the Migration Act and will ensure that subsection 84(4) operates to cover powers or obligations exercised by a computer program.

 

Item 6               Subsection 84(6)

 

58.       This item repeals existing subsection 84(6) of the Migration Act and substitutes new subsection 84(6) to define the word “act” for the purposes of section 84.  This amendment is consequential to the amendments made by items 4 and 5.

 

Item 7               At the end of subsection 271(1)

 

59.       This item inserts new paragraph 271(1)(l) at the end of subsection 271(1) of the Migration Act, and is equivalent to item 2 which makes amendments to the Citizenship Act.  New paragraph 271(1)(l) provides that, in migration proceedings, a certificate signed by an officer stating whether a computer program was functioning correctly at a specified time or during a specified period, and in relation to specified outcomes, is prima facie evidence of those matters.  A person who disagrees with the matters stated in a certificate bears the onus of proving otherwise.  The term. “functioning correctly” is defined in new subsection 271(5).

 

60.       In addition, a certificate issued under this provision stating that a computer program was not functioning correctly, serves as a trigger for use of the power to substitute a more favourable decision under new section 495B.

 

Item 8               At the end of section 271

 

61.       This item inserts new subsection 271(5) at the end of section 271 of the Migration Act.  New subsection 271(5) defines the term “functioning correctly” for the purposes of new paragraph 271(1)(l).  A computer program is “functioning correctly” if outcomes from its operation comply with the Migration Act and the Migration Regulations, and those outcomes would be valid if they were made by the Minister.



Item 9               After section 495

 

62.       This item inserts new sections 495A and 495B into the Migration Act.  This item is broadly equivalent to item 1, which inserts new sections 36A and 36B into the Citizenship Act.

 

63.       New section 495A and 495B establish the legislative framework to enable the Minister to arrange for the use of computer programs, under his or her control, to make decisions under the Migration Act.

 

New section 495A        Minister may arrange for use of computer programs to make

                                      decisions etc.

 

64.       New subsection 495A(1) provides that the Minister may arrange for the use of computer programs to make a decision, exercise a power or obligation, or do anything else relating to a decision, power or obligation, under “designated migration law”.  The term “designated migration law” is defined in new subsection 495A(3).  Nothing in subsection (1) compels the Minister to arrange for such use of computer programs.

 

65.       New subsection 495A(2) deems a decision made, or any power or obligation exercised, by a computer program to be that of the Minister.

 

66.       New subsection 495A(3) defines the term “designated migration law” to include Subdivisions A, AA, AB and AC of Division 3 of Part 2 (other than section 48B) of the Migration Act.  These provisions essentially relate to the processing of applications for visa grants.

 

67.       Section 48B has been exempted from computer-based decision making because it is a power that may only be exercised personally by the Minister.  Section 48B provides the Minister with the power to determine that a non-citizen refused a protection visa may make a further application for a protection visa while in the migration zone.

 

68.       In addition, the Minister may determine, in writing, any additional provision of the Migration Act or the Migration Regulations to be part of the “designated migration law”.  However, new subsection 495A(4) provides that such a determination, is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .  Any additions would, therefore, be subject to parliamentary scrutiny.

 

69.       Currently, computer-based decision making is intended to have a limited field of operation.  In the migration context, a computer program will only be making decisions on applications for classes of visas where the criteria for grant may be subject to automated assessment.  Nonetheless, section 495A establishes a flexible legislative regime that will support future developments in business processing and information technology.



New section 495B        Minister may substitute more favourable decisions for

                                      certain computer-based decisions

 

70.       New subsection 495B(1) provides that the Minister may substitute a more favourable decision for that of the computer program.  This power is intended to operate as a “safety mechanism” to enable the Minister to address any injustices caused to applicants, as a result of computer-related errors.

 

71.       Subsection 495B(1) may be used where a certificate under paragraph 271(1)(l) relating to the computer program and decision has been issued, and the certificate states that the computer program was not functioning correctly.  This will ensure that the Minister can correct adverse decisions without the need for applicants to seek external review, where it is the computer program itself that has made an error.  However, nothing in this provision is intended to affect any merits review entitlements that an applicant may have.

 

72.       This power will be used, for example, where a computer program has incorrectly refused to grant a visa or has granted the wrong visa subclass.  However, where the computer program incorrectly grants a visa, visa cancellation powers will be relied on to correct the error.

 

73.       The Minister may only substitute a more favourable decision if it could have been made under the “designated migration law” as defined in new subsection 495A(3).  For example, a visa applicant must continue to meet all of the criteria for the grant of a visa before the Minister exercises this power.

 

74.       Under new subsection 495B(2), the Minister is not obliged to consider whether to exercise the power to substitute a more favourable decision.  However, the Minister may exercise this power despite any law of the Commonwealth, or any rule of common law, to the contrary effect (new subsection 495B(3) refers).  This is intended to expressly displace the operation of the functus officio principle.  That is, as the decision of the computer is deemed to be that of the Minister, the Minister would not normally be able to reconsider the decision.

 



SCHEDULE 3 - Amendments about giving and receiving documents

 

 

75.       The amendments contained in Schedule 3 consolidate into the Migration Act various provisions of the Migration Act and the Migration Regulations dealing with:

 

·          the manner of giving documents to persons by the Minister, the MRT and the RRT; and

 

·          the deemed receipt provisions which might apply where one of those methods of giving is used, to determine the time when a particular document is taken to have been received (items 10, 11, 18, 19 and 20 refer).

 

76.       The new provisions essentially retain the status quo currently located in sections 53, 379A and 441A of the Migration Act, and regulation 5.03 of the Migration Regulations.  The amendments also add an electronic method for the giving of documents, and the deemed receipt provision which applies where that method is used, to comply with the requirements of the ET Act.

 

Migration Act 1958

 

Item 1               After subsection 52(3)

 

77.       This item inserts new subsections (3A), (3B) and (3C) into section 52 of the Migration Act as a consequence of the repeal of section 53 by item 2.  Section 52 currently deals with the way a visa applicant or “interested person” is to communicate with the Minister.

 

78.       This item brings existing provisions from section 53, concerning communication with the Minister while the visa application is being dealt with, into section 52 of the Migration Act.  Section 52 now generally deals with the subject of communicating with the Minister.

 

79.       New subsection 52(3A) effectively restates subsection 53(1) of the Migration Act (repealed by item 2); it requires a visa applicant to tell the Minister the address at which the applicant intends to live while the application is being dealt with.

 

80.       New subsection 52(3B) effectively restates subsection 53(2) of the Migration Act (repealed by item 2); it requires a visa applicant who proposes to change the address at which he or she intends to live for a period of 14 days or more to tell the Minister the address and the period of proposed residence.

 

81.       New subsection 52(3C) restates subsection 53(8) of the Migration Act (repealed by item 2); it provides that where two or more non-citizens apply for visas together (in accordance with the Migration Regulations), notifications given to any of them about the application are taken to be given to each of them.

 

Item 2               Section 53

 

82.       This item repeals section 53 of the Migration Act.  The content of existing subsections (1), (2) and (8) of section 53 are now contained in new subsections 52(3A), 52(3B) and 52(3C) (item 1 refers).  The remainder of the content of section 53 has been translated into new sections 494A to 494D (item 20 refers).

 

Item 3               Subsection 69(1)

 

83.       This item makes a technical amendment to subsection 69(1) of the Migration Act as a consequence of the repeal of section 53 and the translation of its elements into new section 494D (item 20 refers).

 

Item 4               Subsections 359(3) and (4)

 

84.       This item replaces existing subsections 359(3) and (4) of the Migration Act with new subsections 359(3) and (4).

 

85.       New subsection 359(3) incorporates the content of existing subsections 359(3) and (4), detailing how the MRT gives an invitation for a person to give information in connection with a review.

 

86.       It does this by providing that an invitation by the MRT for a person to give information must be given to that person by one of the methods specified in new section 379A (inserted by item 11).  However, if the person is in immigration detention, the invitation must be given by a method prescribed in the Migration Regulations.

 

87.       New subsection 359(4) provides that an invitation to the Secretary to provide information to the MRT in connection with a review must be given by one of the methods specified in new section 379B (inserted by item 11).

 

Item 5               Subsections 359A(2) and (3)

 

88.       This item repeals subsections 359A(2) and (3) of the Migration Act and substitutes new subsection 359A(2).

 

89.       New subsection 359A(2) incorporates the content of existing subsections 359A(2) and (3), detailing how an invitation by the MRT for an applicant to comment on information in connection with a review is to be given to that applicant.

 

90.       It does this by providing that the information, and the invitation to comment on that information, must be given to the applicant by one of the methods specified in new section 379A (inserted by item 11).  However, if the applicant is in immigration detention, the information and invitation must be given by a method prescribed in the Migration Regulations.

 

Item 6               Subsections 360A(2) and (3)

 

91.       This item repeals and condenses subsections 360A(2) and (3) of the Migration Act into new subsection 360A(2), which sets out the same requirements for the serving of a notice on an applicant to appear before the MRT as are provided in item 5.

 

Item 7               At the end of section 368A

 

92.       This item adds new subsection 368A(5) to the end of section 368A of the Migration Act.  The amendment requires the MRT to give notice to the Secretary of the day on which, and the time and place at which, an MRT decision is to be handed down, in accordance with one of the methods in section 379B (item 11 refers).  This effectively repeats the current requirement in section 379A of the Migration Act.

 

Item 8               Subsection 368B(7)

 

93.       This item omits all the words after the reference to “368(1)” in subsection 368B(7) of the Migration Act.  The content of the existing subsection is now contained in the proposed new subsection 368B(7), as outlined in item 9.

 

Item 9               At the end of subsection 368B(7)

 

94.       This item adds, at the end of subsection 368B(7) of the Migration Act, the requirement to give the Secretary a copy of the written statement setting out the MRT’s decision.  This must be done within 14 days of the MRT handing down its decision and by one of the methods specified in section 379B (item 11 refers).

 

Item 10             Section 379A

 

95.       This item repeals existing section 379A of the Migration Act (methods of dispatch of certain documents).  The giving and receiving of MRT review documents is dealt with in new Division 8A of Part 5, inserted by item 11.

 

Item 11             After Division 8 of Part 5

 

       New Division 8A          Giving and receiving review documents

 

96.       This item inserts new Division 8A into the Migration Act.  This Division consolidates into one discrete part the various legislative provisions which currently appear in the Migration Act and the Migration Regulations, dealing with how the MRT might give documents to persons and the corresponding deemed receipt provisions.  The deemed receipt provisions determine the time when a particular document is taken to have been received by a person.

 

97.       An electronic method for the giving of documents has also been added, together with the deemed receipt provision which applies where that method is used.  This complies with the requirements of the ET Act.

 

New section 379AA     Giving documents by Tribunal where no requirement to do so by section 379A or 379B method

 

98.       New section 379AA authorises the MRT to use any method that it considers to be appropriate to give a document to a person in circumstances where the method for giving the document has not been specified by the Migration Act or the Migration Regulations.  This section does not prevent the MRT from opting to use one of the methods specified in new section 379A or 379B, or which may have been prescribed by the Migration Regulations.

 

99.       While only certain documents (notices, invitations, written statements etc.) are required to be given by one of the methods specified in section 379A or 379B, other documents might be given in these ways and, if they are, the provisions of new sections 379C and 379D may be invoked to determine the time when the document is taken to have been received.

 

       New section 379A        Methods by which Tribunal gives documents to a person

                                             other than the Secretary

 

100.                                      New section 379A specifies alternative methods that control the ways in which the MRT is authorised to give documents to any person (other than the Secretary) for the purposes of Part 5 of the Migration Act (dealing with the merits review by the MRT of general visa decisions) or the Migration Regulations.  One of these methods must be used whenever a provision of Part 5 or the Migration Regulations requires the document to be given in conformity with this section.  However, the MRT is left free to determine which method to use in any given case.

 

101.                 A member, the Registrar, a Deputy Registrar or another officer of the MRT is authorised to give documents in any of four alternative ways, namely:

 

·          by handing the document to the recipient (subsection (2)); or

 

·          by handing the document to another person who appears to be at least 16 years of age and who appears to be living at the last residential address provided to the MRT by the intended recipient, or who appears to be working at the last business address provided to the MRT by the intended recipient (subsection (3)); or

 

·          by dating the document and sending it to the recipient by prepaid post, or by any other prepaid method (for example, by courier service), within 3 working days.  The document may be sent to any of 3 addresses provided by the recipient to the MRT, namely the most recent address for service, the last residential address or the last business address notified to the MRT for the purposes of the review (subsection (4)); or



·          by fax, e-mail or other electronic means to the most recently provided fax number,

e-mail address or other electronic address provided to the MRT by the recipient for the purposes of the review (subsection (5)).  These methods are not intended to operate independently.  For example, the MRT is authorised to use the most recent fax number even though it might have been given an even more recent e-mail address. 

 

102.     Subsection 379A(5), which provides an electronic method for the giving of documents by the MRT, represents a new dispatch method from that which currently appears in the legislation.  As outlined under Schedule 1 of the Explanatory Memorandum, to remain consistent with the ET Act, an administrative regime will be instituted whereby persons will be required to provide their written consent before the MRT may communicate with them electronically.

 

103.     In the first two of the four alternatives, a person authorised in writing by the Registrar may also give documents.  This will enable the MRT to authorise, for example, process servers to give documents.

 

New section 379B        Methods by which Tribunal gives documents to the Secretary

 

104.                 New section 379B specifies alternative methods that control the ways in which the MRT is authorised to give documents to the Secretary for the purposes of Part 5 or the Migration Regulations.  One of these methods must be used where a provision in Part 5 or the Migration Regulations requires the document to be given in conformity with this section.  However, the MRT is left free to determine which method to use.  The methods are the same as those for the giving of documents to a person (new section 379A refers), except that there is no need for a separate provision dealing with giving documents to a person at the Secretary’s notified address.

 

       New section 379C        When a person other than the Secretary is taken to have received a document from the Tribunal

 

105.                 New section 379C provides rules for determining the time when a person is taken to have received a document.  The section incorporates the deemed receipt elements of current section 379A, together with regulation 5.03 of the Migration Regulations.  The section also incorporates the deemed receipt equivalent, where the electronic method of giving a document is employed.

 

106.                 The rules will only apply if the MRT uses one of the methods specified in new section 379A, even where it was not required to do so by the legislation.

 

107.                 The following rules determine the time when a document given under new section 379A is taken to have been received:

 

·          where the document is given by hand under new subsection 379A(2), the document is taken to be received at the time that it is handed to the person specified in new subsection 379A(2);



·          where the document is given by hand under new subsection 379(3) to another person, the document is taken to be received by the first person at the time that it is handed to the other person specified in new subsection 379A(3);

 

·          where the document is given by post or other means under new subsection 379A(4), the document is taken to be received 7 working days after the date of the document if the document is sent to an address in Australia, or 21 days after the date of the document in all other cases.  This effectively transfers regulation 5.03 into the Migration Act;

 

·          where the document is given by fax, e-mail or other electronic means under new subsection 379A(5), the document is taken to be received at the end of the day on which the document was transmitted.

 

108.     New subsection 379C(6) provides that subsection 379C(5) applies despite section 14 of the ET Act.  The effect of this provision is to disapply the deemed receipt provisions of the ET Act in favour of the deemed receipt provision in subsection 379C(5), as this is more certain than the model in section 14.

 

109.                 In general terms, section 14 of the ET Act provides that the time for receipt is when the electronic communication enters the information system of the addressee.  This might never be known by the originator of the communication.  There is a need in the migration context for receipt to be easily determinable for the purposes of establishing the date from which the time for making an MRT review application begins to run.  Given this, it was preferable to expressly provide for deemed receipt in Schedule 3 to the Bill and not rely on the default provisions in section 14 of the ET Act.

 

New section 379D        When the Secretary is taken to have received a document from the Tribunal

 

110.                 New section 379D provides rules for determining the time when the Secretary is taken to have received a document.

 

111.                 The rules will only apply if the MRT uses one of the methods specified in new section 379B, even where it was not required to do so by the legislation .  The rules are the same as those for determining the time when a document is taken to have been received by a person (new section 379C refers), except that there is no need for a separate provision dealing with giving documents to a person at the Secretary’s notified address.

 

112.     Subsection 379D(5) provides that subsection 379D(4) applies despite section 14 of the ET Act, for the same reasons noted above.

New section 379E        Tribunal may give copies of documents

 

113.                 New section 379E authorises the MRT to give a copy of any document to a person instead of the original.



       New section 379F           Giving documents etc. to the Tribunal

 

114.                 New section 379F provides the ways in which a person must give documents to the MRT.  Three methods are specified, namely:

 

·          by giving the document to the Registrar, a Deputy Registrar or another officer of the MRT;

 

·          by following a method set out in directions that have been given under section 353A (relating to directions given by the Principal Member of the MRT); or

 

·          if the Migration Regulations set out a method for doing so - by that method.

 

New section 379G        Authorised recipient

 

115.     New subsection 379G(1) authorises the review applicant to notify the MRT in writing that the applicant has authorised another person (the “authorised recipient”) to receive documents in connection with the review, or to do things that include the receiving of such documents.  In these cases, the MRT must give such documents to the authorised recipient.

 

116.     New subsection 379G(2) provides that the MRT discharges its obligation to give a document to the applicant if it gives the document to the authorised recipient.

 

117.     New subsection 379G(3) permits the applicant to vary or withdraw the authorisation, and prevents the applicant from having more than one authorised recipient at the same time.

 

118.     New subsection 379G(4) permits the MRT to communicate directly with the applicant but requires the MRT to give the authorised recipient notice of any such direct communication.

 

119.     New subsection 379G(5) removes a possible source of confusion by providing that new section 379G does not apply to the giving of documents directly to the applicant when the applicant is appearing before the MRT.

 

120.     This new section effectively restates most of section 53 of the Migration Act.  Former subsections 53(4), (5), (6) and (7) have been subsumed into this new provision (item 2 which repeals section 53 refers).

 

Item 12             Subsection 424(3)

 

121.                 This item repeals and replaces subsection 424(3) of the Migration Act.  New subsection 424(3) provides that an invitation for a person to give additional information to the RRT must be given to the person by one of the methods specified in section 441A unless the person is in immigration detention.  Persons in detention must be given an invitation by a method prescribed in the Migration Regulations.  This effectively reflects the existing requirements.



Item 13             Subsection 424A(2)

 

122.                   This item repeals and replaces subsection 424A(2) of the Migration Act.  New subsection 424A(2) prescribes that information, and an invitation to comment on that information, must be given to an applicant by the RRT by one of the methods specified in section 441A unless the applicant is in immigration detention.  Applicants in detention must be given the information and invitation by a method prescribed in the Migration Regulations.  This effectively restates the existing requirements.

 

Item 14             Subsection 425A(2)

 

123.                 This item repeals and replaces subsection 425A(2) of the Migration Act.  New subsection 425A(2) provides that if an applicant is invited to appear before the RRT, the applicant must be given notice of such appearance by one of the methods specified in section 441A unless the applicant is in immigration detention.  Applicants in detention must be given the invitation by a method prescribed in the Migration Regulations.  This effectively restates the existing requirements.

 

Item 15             At the end of section 430A

 

124.                 This item adds the requirement that the Secretary must be given notice of the RRT’s handing down of a decision in accordance with one of the methods specified in section 441B (item 19 refers).  This effectively repeats the existing requirements in section 441A.

 

Item 16             Subsection 430B(7)

 

125.                 This item omits all of the words after “430(1)” in subsection 430B(7) of the Migration Act, as the subsection is amended by item 17.

 

Item 17             At the end of subsection 430B(7)

 

126.                 This item adds new paragraphs 430B(7)(a) and (b) at the end of subsection 430B(7) of the Migration Act.  New paragraphs 430B(7)(a) and (b) provide that a copy of the RRT’s decision is to be given to the Secretary within 14 days after the handing down of the decision, and by one of the methods specified in section 441B.  This effectively repeats the current requirement in section 441A.

 

Item 18             Section 441A

 

127.                 This item repeals section 441A of the Migration Act.  Matters dealt with by that provision are proposed to be covered by new Division 7A, inserted by item 19.



Item 19           After Division 7 of Part 7

 

       New Division 7A          Giving and receiving review documents

 

128.       This item inserts new Division 7A into the Migration Act.  This Division consolidates into one discrete part the various legislative provisions which currently appear in the Migration Act and the Migration Regulations, dealing with how the RRT might give documents to persons and the corresponding deemed receipt provisions.  The deemed receipt provisions determine the time when a particular document is taken to have been received by a person.

 

129.     An electronic method for the giving of documents has also been added, together with the deemed receipt provision which applies where that method is used.  This complies with the requirements of the ET Act.

 

New section 441AA     Giving documents by Tribunal where no requirement to do so by section 441A or 441B method

 

130.     New section 441AA authorises the RRT to use any method that it considers to be appropriate in order to give a document to a person in circumstances where the method for giving the document has not been specified by the Migration Act or the Migration Regulations.  This new section does not prevent the RRT from opting to use one of the methods specified in new section 441A or 441B, or which may have been prescribed by the Migration Regulations.

 

131.     While only certain documents (notices, invitations, written statements etc.) are required to be given by one of the methods specified in section 441A or 441B, other documents might be given in these ways and, if they are, the provisions of new sections 441C and 441D may be invoked to determine the time when the document is taken to have been received.

 

New section 441A        Methods by which Tribunal gives documents to a person other than the Secretary

 

132.     New section 441A specifies alternative methods that control the ways in which the RRT is authorised to give documents to any person (other than the Secretary) for the purposes of Part 7 of the Migration Act (dealing with the merits review by the RRT of protection visa decisions) or the Migration Regulations.  One of these methods must be used whenever a provision of Part 7 or the Migration Regulations requires the document to be given in conformity with this section.  However, the RRT is left free to determine which method to use in any given case.

 

133.     A member, the Registrar or an officer of the RRT is authorised to give documents in any of four alternative ways, namely:

 

·          by handing the document to the recipient (subsection (2)); or



·          by handing the document to another person who appears to be at least 16 years of age and who appears to be living at the last residential address that was provided to the RRT by the intended recipient, or who appears to be working at the last business address provided to the RRT by the intended recipient (subsection (3)); or

 

·          by dating the document and sending it to the recipient by prepaid post, or by any other prepaid method (for example, by courier service), within 3 working days.  The document may be sent to any of 3 addresses provided by the recipient to the RRT, namely the most recent address for service of review-related documents, the last residential address or the last business address notified to the RRT for the purposes of the review (subsection (4)); or

 

·          by fax, e-mail or other electronic means to the most recently provided fax number,

e-mail address or other electronic address provided to the RRT by the recipient for the purposes of the review (subsection (5)).  These methods are not intended to operate independently.  For example, the RRT is authorised to use the most recent fax number even though it might have been given an even more recent e-mail address. 

 

134.     Subsection 441A(5), which provides an electronic method for the giving of documents by the RRT, represents a new dispatch method from that which currently appears in the legislation.  As outlined under Schedule 1 of the Explanatory Memorandum, to remain consistent with the ET Act, an administrative regime will be instituted whereby persons will be required to provide their written consent before the RRT may communicate with them electronically.

 

135.     In the first two of the four alternatives, a person authorised in writing by the Registrar may also give documents.  This will enable the RRT to authorise, for example, process servers to give documents.

 

New section 441B         Methods by which Tribunal gives documents to the Secretary

 

136.                 New section 441B specifies alternative methods that control the ways in which the RRT is authorised to give documents to the Secretary for the purposes of Part 7 or the Migration Regulations.  One of these methods must be used where a provision in Part 7 or the Migration Regulations requires the document to be given in conformity with this section.  However, the RRT is left free to determine which method to use.  The methods are the same as those for the giving of documents to a person (new section 441A refers), except that there is no need for a separate provision dealing with giving documents to a person at the Secretary’s notified address.

 

New section 441C        When a person other than the Secretary is taken to have received a document from the Tribunal

 

137.                 New section 441C provides rules for determining the time when a person is taken to have received a document.  The section incorporates the deemed receipt elements of current section 441A, together with regulation 5.03 of the Migration Regulations.  The section also incorporates the deemed receipt equivalent, where the electronic method of giving a document is employed.

 

138.                 The rules will only apply if the RRT uses one of the methods specified in new section 441A, even where it was not required to do so by the legislation.

 

139.                 The following rules determine the time when a document given under new section 441A is taken to have been received:

 

·          where the document is given by hand under new subsection 441A(2), the document is taken to be received at the time that it is handed to the person specified in new subsection 441A(2);

 

·          where the document is given by hand under new subsection 441A(3) to another person, the document is taken to be received by the first person at the time that it is handed to the other person specified in new subsection 441A(3);

 

·          where the document is given by post or other means under new subsection 441A(4), the document is taken to be received 7 working days after the date of the document if the document is sent to an address in Australia, or 21 days after the date of the document in all other cases.  This effectively transfers regulation 5.03 into the Migration Act;

 

·          where the document is given by fax, e-mail or other electronic means under new subsection 441A(5), the document is taken to be received at the end of the day on which the document was transmitted.

 

140.     New subsection 441C(6) provides that subsection 441C(5) applies despite section 14 of the ET Act.  The effect of this provision is to disapply the deemed receipt provisions of the ET Act in favour of the deemed receipt provision 441C(5), as this is more certain than the model in section 14.

 

141.     In general terms, section 14 of the ET Act provides that the time for receipt is when the electronic communication enters the information system of the addressee.  This might never be known by the originator of the communication.  There is a need in the migration context for receipt to be easily determinable for the purposes of establishing the date from which the time for making a review application to the RRT begins to run.  Given this, it was preferable to expressly provide for deemed receipt in Schedule 3 to the Bill and not rely on the default provisions of section 14 of the ET Act.

 

New section 441D        When the Secretary is taken to have received a document from the Tribunal

 

142.                 New section 441D provides rules for determining the time when the Secretary is taken to have received a document from the RRT.

 

143.                 The rules will only apply if the RRT uses one of the methods specified in new section 441B, even where it is not required to do so by the legislation.  The rules are the same as those for determining the time when a document is taken to have been received by a person (new section 441C), except that there is no need for a separate provision dealing with giving documents to a person at the Secretary’s notified address.

 

144.     Subsection 441D(5) provides that subsection 441D(4) applies despite section 14 of the ET Act, for the same reasons noted above.

New section 441E        Tribunal may give copies of documents

 

145.                 New section 441E authorises the RRT to give a copy of any document to a person instead of the original.

       New section 441F        Giving documents etc. to the Tribunal

 

146.                 New section 441F provides the ways in which a person must give documents to the RRT.  Three methods are specified, namely:

 

·          by giving the document directly to the Registrar or an officer of the RRT; or

 

·          by following a method set out in directions that have been given under section 420A (relating to directions given by the Principal member of the RRT); or

 

·          if the Migration Regulations set out a method for doing so - by that method.

 

       New section 441G        Authorised recipient

 

147.                 New subsection 441G(1) authorises the review applicant to notify the RRT in writing that the applicant has authorised another person (the “authorised recipient”) to receive documents in connection with the review, or to do things that include the receiving of such documents.  In these cases, the RRT must give such documents to the authorised recipient. 

 

148.                 New subsection 441G(2) provides that the RRT discharges its obligation to give a document to the applicant if it gives the document to the authorised recipient.

 

149.                 New subsection 441G(3) permits the applicant to vary or withdraw the authorisation, and prevents the applicant from having more than one authorised recipient at the same time.

 

150.                 New subsection 441G(4) permits the RRT to communicate directly with the applicant but requires the RRT give the authorised recipient a notice of any such direct communication. 

 

151.                 New subsection 441G(5) removes a possible source of confusion by providing that new section 441G does not apply to the giving of documents directly to the applicant when the applicant is appearing before the RRT.



Item 20           After section 494

 

152.                 Item 20 inserts new sections 494A, 494B, 494C and 494D into the Migration Act, which provide for certainty of dispatch and receipt where the Minister gives documents.

 

New section 494A        Giving documents by Minister where no requirement to do so by section 494B method

 

153.                 New section 494A authorises the Minister to use any method that he or she considers to be appropriate to give a document to a person in circumstances where the method for giving the document has not been specified by the Migration Act or the Migration Regulations.  This section does not prevent the Minister from opting to use one of the methods specified in new section 494B or prescribed by the Migration Regulations.  However, where the Minister does use a method in section 494B, the provisions of new section 494C may be invoked to determine when the document is taken to have been received.

 

New section 494B        Methods by which Minister gives documents to a person

 

154.                 New section 494B specifies alternative methods that control the ways in which the Minister is authorised to give documents to any person for the purposes of the Migration Act or the Migration Regulations.  One of these methods must be used whenever a provision in the Migration Act or the Migration Regulations requires the document to be given in conformity with this section.  However, the Minister is left free to determine which method to use in any given case.

 

155.                 This provision mirrors the methods in new section 379A and 441A by which the MRT and RRT give documents.

 

156.                 The Minister is authorised to give documents in any of four alternative ways, namely:

 

·          by handing the document to the recipient (subsection (2)); or

 

·          by handing the document to another person who appears to be at least 16 years of age and who appears to be living at the last residential address provided by the intended recipient to the Minister, or who appears to be working at the last business address provided by the intended recipient to the Minister (subsection (3)); or

 

·          by dating the document and sending it to the recipient by prepaid post, or by any other prepaid method (for example, by courier service), within 3 working days.  The document may be sent to any of 3 addresses provided by the recipient to the Minister, namely the most recent address for service of documents, the last notified residential address or the last notified business address (subsection (4)); or

 

·          by fax, e-mail or other electronic means to the most recently provided fax number,

e-mail address or other electronic address provided to the Minister by the recipient for the purposes of receiving documents (subsection (5)).  These methods are not intended to operate independently.  For example, the Minister is authorised to use the most recent fax number even though he or she has been given an even more recent e-mail address. 

 

157.     Subsection 494B(5), which provides an electronic method for the giving of documents by the Minister, represents a new dispatch method from that which currently appears in the legislation.  As outlined under Schedule 1 of the Explanatory Memorandum, to remain consistent with the ET Act, an administrative regime will be instituted whereby persons will be required to provide their written consent before the Minister may communicate with them electronically.

 

158.     In the first two of the four alternatives, an authorised officer may also give certain documents.  This will enable, for example, process servers to give documents.  In addition, for the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes a reference to an act of the Minister by way of an authorised officer.

 

New section 494C         When a person is taken to have received a document from the Minister

 

159.                 New section 494C provides rules for determining the time when a person is taken to have received a document.  The section incorporates the deemed receipt elements of current subsections 53(3) and 53(6), together with regulation 5.03 of the Migration Regulations.

 

160.                 These rules will only apply if the Minister uses one of the methods specified in new section 494B, even where the Minister was not required to do so by the legislation.

 

161.                 The following rules determine the time when a document given under new section 494B is taken to have been received:

 

·          where the document is given by hand under new subsection 494B(2), the document is taken to be received at the time that it is handed to the person specified in new subsection 494B(2);

 

·          where the document is given by hand under new subsection 494B(3), the document is taken to be received at the time that it is handed to the person specified in new subsection 494B(3);

 

·          where the document is given by post or other means under new subsection 494B(4), the document is taken to be received 7 working days after the date of the document if the document is sent to an address in Australia, or 21 days after the date of the document in all other cases;

 

·          where the document is given by fax, e-mail or other electronic means under new subsection 494(5), the document is taken to be received at the end of the day on which the document was transmitted.



162.                 New subsection 494C(6) provides that subsection 494C(5) applies despite section 14 of the ET Act.  The effect of this provision is to disapply the deemed receipt provisions of the ET Act in favour of the deemed receipt provision in subsection 494C(5), as this is more certain than the model in section 14.

 

163.                 In general terms, section 14 of the ET Act provides that the time for receipt is when the electronic communication enters the information system of the addressee.  This might never be known by the originator of the communication.  There is a need in the migration context for receipt to be easily determinable for the purposes of establishing the date from which the time for making a review application begins to run.  Given this, it was preferable to expressly provide for deemed receipt in Schedule 3 to the Bill and not rely on the default provisions in section 14 of the ET Act.

 

New section 494D         Authorised recipient

 

164.     New subsection 494D(1) authorises a person (the “first person”) to notify the Minister in writing that the first person has authorised another person (the “authorised recipient”) to receive documents in connection with matters arising under the Migration Act or the Migration Regulations, or to do things that include the receiving of such documents.  In these cases, the Minister must give such documents to the authorised recipient. 

 

165.     New subsection 494D(2) provides that the Minister discharges his or her obligation to give a document to the first person if the Minister gives the document to the authorised recipient. 

 

166.     New subsection 494D(3) permits the first person to vary or withdraw the authorisation, and prevents the first person from having more than one authorised recipient at the same time.

 

167.     New subsection 494D(4) permits the Minister to communicate directly with the first person, but requires the Minister give the authorised recipient a notice of any such direct communication.

 



SCHEDULE 4 - Technical amendments

 

 

Migration Act 1958

 

Item 1               Section 97 (definition of application form )

 

168.     This item makes a technical amendment to the definition of “application form” in section 97 of the Migration Act.  This amendment is made because the Migration Legislation Amendment Act (No. 1) 2000 repealed subsection 45(2) of the Migration Act, and transferred its contents to section 46.

 

Item 2               Paragraph 268BP(2)(b)

 

169.     This item makes a technical correction to paragraph 268BP(2)(b) of the Migration Act.

 

Migration Legislation Amendment Act (No. 1) 1998

 

Item 3               Item 12 of Schedule 3

 

170.     This item makes a technical correction to item 12 of Schedule 3 to the Migration Legislation Amendment Act (No. 1) 1998 .