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Migration Legislation Amendment (Judicial Review) Bill 2001

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1998 - 1999 - 2000 - 2001

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL 1998

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

(Government)

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister

for Immigration and Multicultural Affairs,

the Hon. Philip Ruddock MP)

 

 



MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL 1998

 

 

OUTLINE

 

1.       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.

 

2.       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 (“the Migration Act”) relating to the ability of non-citizens to enter and remain in Australia.

 

3.       The proposed amendments to the Bill 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 will not be reviewable by the Federal Court where that decision is able to be reviewed by a merits review Tribunal or has been reviewed by a merits review Tribunal; and

·      the privative clause decision of a merits review Tribunal is reviewable by the Federal Court in accordance with the grounds permitted by the privative clause.

 

4.       It is also proposed to make a number amendments to the Bill to ensure that the amendments of the Migration Act are effective and consistent with:

 

·         amendments that have been made to the Migration Act since the Bill was introduced in Parliament on 2 December 1998; and

·         the proposed amendments to the Migration Act contained in the Migration Legislation Amendment Bill (No. 1) 2001.

 

5.       These amendments are technical in nature and do not change the policy parameters of this Bill or the Migration Legislation Amendment Bill (No. 1) 2001.

 

 

FINANCIAL IMPACT STATEMENT

 

6.       The amendments to the Migration Act 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 AMENDMENTS

 

Amendment (1)                      

 

1.       This amendment omits proposed subsection 474(6) (including the note) which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

2.       Proposed subsection 474(6) is deleted by this amendment to make it clear 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.

 

3.       In other words, they are the grounds of review that are available by interpreting the privative clause in proposed subsection 474(1), which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill, as if subsection 39B(1) of the Judiciary Act 1903 were equivalent to subsection 75(v) of the Commonwealth Constitution.

 

Amendment (2)

 

4.       This amendment inserts new section 475A to replace proposed subsection 476(3) which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

Section 475A              Section 476 not to affect the jurisdiction of the Federal Court in certain cases

 

5.       New section 475A makes it clear that the Federal Court has jurisdiction to review decisions of the Migration Review Tribunal, the Refugee Review Tribunal and the Administrative Appeals Tribunal, and any other decision not excluded by proposed section 476 (that is, certain visa decisions which attract no merits review rights under Part 5 or Part 7 or section 500 of the Migration Act).

 

Amendment (3)

 

6.       This amendment replaces proposed subsection 476(1), which is inserted into the Migration Act by item 7 of Schedule 1 to the Bill, with a new subsection 476(1).

 

7.       New subsection 476(1), in combination with the proposed new definition of “primary decision” (see amendment (8)), makes it clear that the Federal Court does not have any jurisdiction in relation to a primary decision, 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; 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.

 

Amendment (4)

 

8.       This amendment amends proposed subsection 476(2) which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

9.       Proposed subsection 476(2) sets out certain decisions of the Minister in respect of which the Federal Court does not have any jurisdiction.  This is the case despite any other law including sections 39B and 44 of the Judiciary Act 1903 .

 

10.   This amendment ensures that the Federal Court also does not have any jurisdiction in respect of a decision of a Minister not to exercise, or not consider the exercise of, the Minister’s power under subsection 37A(2) or 37A(3) or section 91L or 91Q of the Migration Act.

 

11.   These new Ministerial powers were inserted into the Migration Act after the introduction of this Bill into Parliament and are not judicially-reviewable decisions under existing Part 8 of the Act.

 

12.   This amendment ensures that this continues to be the case under new Part 8 which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

Amendment (5)

 

13.   This amendment inserts new subsections 476(2A) and 476(2B) into proposed section 476 which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

14.   New subsection 476(2A) provides that the Federal Court does not have any jurisdiction in respect of:

 

·         a decision of the Principal Member of the Migration Review Tribunal or of the Principal Member of the Refugee Review Tribunal to refer a matter to the Administrative Appeals Tribunal; and

·         a decision of the President of the Administrative Appeals Tribunal to accept, or not to accept, the referral of a decision under section 382 and 444 of the Migration Act.

 

15.   This is the case despite any other law, including sections 39B and 44 of the Judiciary Act 1903 .

 

 

16.   These decisions are not judicially-reviewable decisions under existing Part 8 of the Migration Act.  New subsection 476(2A) ensures that this continues to be the case under new Part 8 which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

17.   New subsection 476(2B) provides that the Federal Court does not have any jurisdiction in respect of a decision of the Minister under Division 13A of Part 2 of the Migration Act to order that a thing is not to be condemned as forfeited.  This is the case despite any other law including section 39B or 44 of the Judiciary Act 1903 .

 

18.   Division 13A was inserted into Part 2 of the Migration Act after the introduction of this Bill into Parliament and decisions made under it are not judicially-reviewable decisions under existing Part 8 of the Act.

 

19.   New subsection 476(2B) ensures that this continues to be the case under new Part 8 which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

Amendment (6)                      

 

20.   This amendment omits proposed subsection 476(3), which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill, because it has been replaced by proposed new section 475A (see amendment (2)).

 

Amendment (7)

 

21.   This amendment makes a technical amendment to proposed subsection 476(4) which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

Amendment (8)                      

 

22.   This amendment inserts new subsections 476(5) and 476(6) into proposed section 476 which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

23.    New subsection 476(5) provides that the reference in proposed subsection 476(2) to section 345 is a reference to section 345 of the Migration Act before the commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998 .

 

24.   This latter Act omitted section 345 from the Migration Act and new subsection 476(5) makes it clear which version of section 345 is referred to in proposed subsection 476(2).

 

25.   New subsection 476(6) provides a definition of “primary decision” for the purposes of proposed section 476.  It is consequential to the amendment made by amendment (3).

 

 

 

26.   A “primary decision” is defined to mean a privative clause decision:

 

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

·         that is still subject to merits review processes under Part 5 or Part 7 or section 500 of the Migration Act 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

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

 

27.   The definition of “primary decision” no longer includes a decision made by a review officer on an internal review because such internal review is no longer available under the Migration Act.

 

Amendment (9)

 

28.   This amendment makes a technical amendment to proposed subsection 477(1) which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill. 

 

29.   The effect of the amendment is that an application to the Federal Court for judicial review of certain decisions must be made to the Federal Court rather than the Registry of the Federal Court.

 

30.   This brings proposed subsection 477(1) into line with a similar provision relating to the High Court which is contained in the Migration Legislation Amendment Bill (No. 1) 2001.

 

Amendment (10)

 

31.   This amendment omits proposed subsections 477(2) to 477(4), which are inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill, and replaces them with new subsections 477(2) and 477(3).

 

32.   New subsections 477(2) and 477(3) no longer deal with the time limit on applications to the High Court in its original jurisdiction under the Commonwealth Constitution for judicial review of certain decisions.  This is because this matter is dealt with in the Migration Legislation Amendment Bill (No. 1) 2001

 

33.   These new provisions are consistent with those provisions relating to the High Court contained in the Migration Legislation Amendment Bill (No. 1) 2001.

 

34.   New subsection 477(2) prohibits the Federal Court from making an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in proposed subsection 477(1) outside the 28 day time limit.

 

35.   New subsection 477(3) provides that the Migration Regulations 1994 (“the Regulations”) may prescribe the way of notifying a person of a decision for the purposes of new section 477.

 

Amendment (11)

 

36.   This amendment inserts new paragraph 478(c) into proposed section 478 which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

37.   The effect of new paragraph 478(c) is that an application to the Federal Court for judicial review under proposed subsection 477(1) can also be made by a person prescribed by the Regulations.

 

38.   For example, it would be possible to prescribe in the Regulations that the “next friend” of a minor or mentally disabled person can make an application to the Federal Court for judicial review under proposed subsection 477(1) on behalf of the person mentioned in proposed paragraphs 478(a) and 478(b), as appropriate. 

 

39.   This ensures that proposed section 478 is consistent with provisions contained in the Migration Legislation Amendment Bill (No. 1) 2001 (see proposed paragraph 486C(2)(c)).

 

Amendment (12)

 

40.   This amendment inserts new paragraph 479(c) into proposed section 479 which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill.

 

41.   The effect of new paragraph 479(c) is that a person prescribed by the Regulations may also be a party to a review of a privative clause decision resulting from an application to the Federal Court under proposed subsection 477(1).

 

42.   This ensures that proposed section 479 is consistent with provisions contained in the Migration Legislation Amendment Bill (No. 1) 2001 (see proposed paragraph 486C(2)(c)).

 

Amendment (13)

Amendment (14)

 

43.   These amendments make technical amendments to proposed section 480, which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill, and are consequential to amendments (10) and (16).

 

44.   The effect of the amendments is that proposed section 480 now only deals with the intervention of the Commonwealth Attorney-General in a proceeding resulting from an application to the Federal Court for judicial review under proposed subsection 477(1).

 

45.    A similar provision in relation to the High Court is to be inserted into the Migration Act by amendment (16).

 

 

 

 

Amendment (15)

 

46.   This amendment makes a technical amendment to proposed section 481, which is inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to the Bill, and is consequential to amendment (10).

 

47.   The effect of the amendment is that proposed section 481 now only deals with the operation of a decision where an application to the Federal Court for judicial review has been made under proposed subsection 477(1).

 

48.   A similar provision in relation to the High Court is to be inserted into the Migration Act by amendment (16).

 

Amendment (16)

 

49.   This amendment inserts new items 7A to 7D after item 7 of Part 1 of Schedule 1 to the Bill.

 

50.    These items contain amendments relating to the amendments made by the Migration Legislation Amendment Bill (No. 1) 2001.  They are intended to ensure that the amendments to the Migration Act made by this Bill and the Migration Legislation Amendment Bill (No. 1) 2001 are consistent and effective.

 

Item 7A           Subsection 486A(1)

 

51.   Item 7A makes a technical amendment to proposed subsection 486A(1), which is to be inserted into the Migration Act by item 4 of Part 1 of Schedule 1 of the Migration Legislation Amendment Bill (No. 1) 2001.

 

52.   The purpose of the amendment is to ensure that proposed subsection 486A will operate as intended after the commencement of this Bill.

 

53.   The effect of the amendment is that an application to the High Court in its original jurisdiction under the Commonwealth Constitution in respect of a privative clause decision must be made within 35 days of the actual notification of the decision.

 

Item 7B           After section 486A

 

54.   Item 7B inserts new sections 486AA and 486AB after proposed section 486A of the Migration Act.  This is consequential to the amendments made by amendments (13), (14) and (15).

 

55.   New sections 486AA and 486AB mirror proposed sections 480 and 481 which are inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to this Bill.

 

 

 

 

 

Section 486AA           Intervention by Attorney-General

 

56.   New subsection 486AA(1) allows the Commonwealth Attorney-General to intervene in a proceeding resulting from an application to the High Court for judicial review of a privative clause decision under proposed subsection 486A(1).

 

57.   New subsection 486AA(2) allows the High Court to make cost orders against the Commonwealth if the Attorney-General intervenes in a proceeding.

 

58.   New subsection 486AA(3) provides that if the Attorney-General intervenes in a proceeding, he or she is taken to be a party to the proceeding.

 

Section 486AB           Operation etc. of decision

 

59.   New section 486AB provides that the making of an application to the High Court for judicial review of a privative clause decision does not:

 

·         affect the operation of the decision; or

·         prevent the taking of action to implement the decision; or

·         prevent the taking of action in reliance on the making of the decision.

 

Item 7C           Subsection 486C(1)

 

60.   Item 7C makes a technical amendment to proposed subsection 486C(1) which is to be inserted into the Migration Act by item 6 of Part 2 of Schedule 1 of the Migration Legislation Amendment Bill (No. 1) 2001. The amendment is consequential to the amendment made by item 7D.

 

Item 7D          Subsection 486C(2)

 

61.   Item 7D repeals proposed subsection 486C(2), which is to be inserted into the Migration Act by item 6 of Part 2 of Schedule 1 of the Migration Legislation Amendment Bill (No. 1) 2001, and substitutes a new subsection 486C(2).

 

62.   Proposed section 486C imposes standing requirements in relation to the persons who may commence or continue a proceeding in the Federal Court that raises an issue specified in proposed subsection 486C(1).

 

63.   It does not affect the standing requirements in new Part 8 of the Migration Act in relation to the review of a privative clause decision by the Federal Court. 

 

64.   Under new subsection 486C(2), the persons who have standing to commence or continue a proceeding that raises an issue specified in proposed subsection 486C(1) are:

 

·         a party to a review mentioned in proposed section 479 which is to be inserted into the Migration Act by item 7 of Part 1 of Schedule 1 to this Bill; or

·         the Attorney-General of the Commonwealth or a State or Territory; or

·         a person who commences or continues the proceeding in performing the person’s statutory functions; or

·         any other person prescribed in the Regulations.

 

Amendment (17)

 

65.   This amendment omits sub-items 8(4) and 8(5) in Part 2 of Schedule 1 to the Bill, as they are no longer necessary.  It also inserts new sub-items 8(4) and 8(5) which deal with the application of the amendments made by items 7A to 7D (see amendment (16)).

 

66.   New sub-item 8(4) provides that the amendments made by items 7A and 7B apply to decisions made after the commencement of those items.

 

67.   New sub-item 8(5) provides that the amendments made by items 7C and 7D apply to proceedings that are commencement after the commencement of those items.