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Migration Legislation Amendment (Judicial Review) Bill 2001

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1998 - 99

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL 1998

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Multicultural Affairs, the Hon. Philip Ruddock MP)

 



 

MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL 1998 - AMENDMENTS AND NEW CLAUSES

 

OUTLINE

 

The Migration Legislation Amendment (Judicial Review) Bill 1998 implements a number of Government initiatives in relation to judicial review of decisions in the Immigration and Multicultural Affairs portfolio.

 

The amendments contained in the Bill will introduce a new judicial review scheme, by introducing a privative clause to cover decisions made under the Migration Act 1958 relating to the ability of non-citizens to enter and remain in Australia.

 

The Government has decided to move amendments to the Bill to clarify that:

 

-                                                                                  The Federal Court has jurisdiction to review privative clause decisions made by an independent merits review Tribunal;

 

-                                                                                  Privative clause decisions made by a primary decision-maker and decisions of the Migration Internal Review Office will not be reviewable by the Federal Court where that decision is able to be reviewed by a merits tribunal or has been reviewed by a merits tribunal;

 

-                                                                                  The privative clause decision of the tribunal is reviewable by the Federal Court in accordance with the grounds permitted by the privative clause.

 

FINANCIAL IMPACT STATEMENT

 

The amendments to the Migration Act 1958 in relation to judicial review of immigration decision-making will, if they operate as predicted by reducing the issues to be addressed and allowing cases to be resolved more quickly, deliver substantial savings.  It will take some time before the scheme is fully effective given a backlog of cases to which it will not apply and for any initial court challenges to it to be resolved.



MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL 1998

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1         

 

Proposed subsection 474(6) inserted by item 7 of Part 1 of Schedule 1 of the Bill is deleted to make it clearer, that where the Federal Court has jurisdiction to review privative clause decisions, it is on the same grounds of review that would be available before the High Court in its original jurisdiction under subsection 75(v) of the Commonwealth Constitution.  That is, they are the grounds of review that are available by interpreting the privative clause at proposed subsection 474(1) inserted by item 7 of Part 1 of Schedule 1 of the Bill, as if subsection 39B(1) of the Judiciary Act 1903 were equivalent to subsection 75(v) of the Commonwealth Constitution.  

 

Clause 2          Section 475A

 

This proposed new section replaces proposed subsection 476(3) inserted by item 7 of Part 1 of Schedule 1 of the Bill and makes it clearer that the Federal Court has jurisdiction to review decisions of the Immigration Review Tribunal (and its successor, the Migration Review Tribunal), the Refugee Review Tribunal and the Administrative Appeals Tribunal, and any other decision not excluded by proposed section 476 of Part 1 of Schedule 1 of the Bill (that is, certain visa decisions which attract no merits review rights under Part 5 or Part 7 or section 500 of the Migration Act 1958 ).                                                                

 

Clause 3          Subsection 476(1)

 

This proposed new subsection, in combination with the proposed new definition of “primary decision”, replaces proposed subsection 476(1) inserted by item 7 of Part 1 of Schedule 1 of the Bill to make it clearer that the Federal Court does not have any jurisdiction in relation to a primary decision or any decision by a review officer on an internal review, where:

 

·         the decision has been the subject of a merits review decision by a Tribunal under Part 5 or 7 or section 500 of the Migration Act 1958 ; or

 

·         the decision is still subject to the merits review processes under Part 5 or 7 or section 500 whether because it is still going through those processes or an application for merits review has not yet been made and the time specified for such an application has not expired; or

 

·         the decision would have been merits reviewable had a merits review application been made within the time specified for such an application.

 

Clause 4

 

Proposed subsection 476(3) inserted by item 7 of Part 1 of Schedule 1 of the Bill is deleted because it has been replaced by proposed new section 475A.

 

Clause 5

 

This change is consequential to the amendments made by clauses 3 and 4.

 

Clause 6          Definition of “primary decision”

 

See under clause 3 above.