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Migration Amendment (Review Provisions) Bill 2006 [2007]

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2004 - 2005 - 2006

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

 

 

 

MIGRATION AMENDMENT (REVIEW PROVISIONS) BILL 2006

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

Senator the Hon Amanda Vanstone)

 

 



MIGRATION AMENDMENT (REVIEW PROVISIONS) BILL 2006

 

 

OUTLINE

 

1.       The Migration Amendment (Review Provisions) Bill 2006 (“the Bill”) amends the Migration Act 1958 (“the Act”) to:

 

a)       allow the Migration Review Tribunal (“the MRT”) and the Refugee Review Tribunal (“the RRT”) to give procedural fairness to review applicants, during a hearing, by allowing the Tribunals to orally give clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and invite the applicant to comment on or respond to the information;

 

b)       provide that the obligation to give an applicant information and invite comment on or a response to the information does not extend to information already provided by the applicant to the Department of Immigration and Multicultural Affairs (“the Department”), as part of the process leading to the decision under review, other than information that the applicant has given orally to the Department;

c)       provide that if the Tribunals give, orally or in writing, clear particulars of the information that the Tribunals consider would be the reason or part of the reason for affirming the decision under review, then the Tribunals must ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review and the consequences of the information being relied on in affirming the decision; 

d)      provide that if an applicant is given information at the hearing, the Tribunals must advise that he or she may seek additional time to comment on or respond to the information; and

e)       provide that if an applicant seeks more time to comment on the information and the Tribunals consider that the applicant reasonably needs additional time, the Tribunals must adjourn the review and provide the applicant with that opportunity.

 

1.       The bill also includes new provisions that ensure that in carrying out the procedures and requirements regarding the natural justice hearing rule set out in the Act (which continue to be an exhaustive statement of the natural justice hearing rule), the Tribunals must do so in a way which is fair and just. This complements subsections 353(1) and 420(1) of the Act, which provides that in carrying out their functions under the Act, the Tribunals must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

 



2.       Under existing subsections 359A(1) and 424A(1) of the Act, the MRT and RRT have an obligation to provide review applicants with procedural fairness.  The Tribunals must:

 

·          give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review;

·          ensure, as far as reasonably practicable, that the applicant understands why the information is relevant to the review; and

·          invite the applicant to comment on the information.

 

1.       There are certain exceptions to these requirements, provided in subsections 359A(4) and 424A(3) of the Act.  One of these exceptions is that the Tribunal is not required to give to the applicant information that has already been given by the applicant for the purposes of the application.

 

2.       The full Federal Court decision of MIMA v Al Shamry [2001] FCA 919 (“ Al Shamry ”) in July 2001 made it clear that adverse information provided by an applicant to the Department as part of their visa application or in response to a possible visa cancellation decision was not covered by the exemption provisions in subsections359A(4) and  424A(3). Accordingly, the Tribunals are required to put that information to the applicant and invite them to comment.

 

3.       Following Al Shamry , the Tribunals complied with this decision by orally providing any such adverse information to the applicant for comment during the hearing.

 

4.       In February 2006, the full Federal Court handed down its decision in SZEEU v MIMIA [2006] FCAFC 2.  The Court found that Al Shamry was not plainly wrong and that it should be followed.

 

5.       In May 2005, in SAAP v MIMIA [2005] HCA 23, the High Court made it clear that the requirement in sections 359A and 424A to provide the information in writing was not procedural and had to be strictly complied with by the Tribunals.

 

6.       The cumulative effect of these decisions is that the Tribunals have needed to adopt a very literal approach to providing applicants with procedural fairness, and this is having considerable practical ramifications on their operations.  For example:

 

·          delays are being caused by matters that have already been covered exhaustively at the Tribunal hearings, having to be put to the applicants again in writing following the hearing;  and

·          information such as passport details, family composition and statutory declarations provided by the applicant during the process leading to the decision under review, if the Tribunals are to rely on the information, must be put to the applicant in writing for comment.

 

1.       Subsequent judicial comment on the effect of this very literal interpretation has been that it has led to a highly technical application of the law in circumstances where little or no practical injustice can be found in the way the Tribunals have dealt with a matter (for example, Justice Allsop in SZEWL v MIMIA [2006] FCA 968 ).

 

2.       It has also led to delays in finalising reviews and operational difficulties in the conduct of reviews impairing the ability of the Tribunals to conduct reviews that are fair, just, economical, informal and quick.

 

3.       These amendments are designed to ensure that applicants are still provided with procedural fairness while providing flexibility to the Tribunals in how they meet their obligations.  If the Tribunals do not orally, at the hearing, give applicants clear particulars of the relevant adverse information and invite them to comment or respond, the Tribunals will be required to do so in writing. The provisions ensure that an applicant will not be taken by surprise in this process and will have a reasonable time to comment or respond (including a requirement for the Tribunal to adjourn the review if the Tribunal considers the applicant reasonably needs additional time), and that they will be treated fairly and justly.

 

 

 

 

 

FINANCIAL IMPACT STATEMENT

 

There are no new costs. The amendments are likely to result in potential savings for the Tribunals as unnecessary processes will be avoided.

 

 

 

 



MIGRATION AMENDMENT (REVIEW PROVISIONS) BILL 2006

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1           Short title

 

1.       The short title by which this Act may be cited is the Migration Amendment (Review Provisions) Act 2006 .

 

Clause 2           Commencement

 

2.       Clause 2 provides that the Act will commence on the day after it receives the Royal Assent.

 

Clause 3          Schedule(s)

 

3.       This clause provides that 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 - Review Processes of the Migration Review Tribunal and the Refugee Review Tribunal

 

 

Migration Act 1958

 

 

Item 1                                     At the end of section 357A

 

1.       This item inserts new subsection 357A(3) at the end of section 357A.

 

2.       New subsection 357A(3) provides that in applying Division 5 of Part 5 of the Act, the Migration Review Tribunal (“the MRT”) must act in a way that is fair and just.

 

3.       Division 5 relates to the MRT’s conduct of its reviews. Subsection 357A(1) provides that Division 5 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. New subsection 357A(3) ensures that in carrying out the procedures and requirements set out in Division 5, which continue to be an exhaustive statement of the natural justice hearing rule, the MRT must do so in a way which is fair and just. This complements subsection 353(1) of the Act, which provides that in carrying out its functions under the Act, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

 

Item 2                                     After section 359

 

4.       Currently, section 359A provides that the Migration Review Tribunal (“the MRT”) must give applicants for review particulars of any information that the MRT considers would be the reason, or a part of the reason, for affirming the decision under review. This must be done either by a prescribed method for an applicant in detention or by one of the methods specified in section 379A. As a consequence of the High Court decision in SAAP , section 359A requires that the MRT must always provide the particulars of the information and the invitation to comment to the applicant in writing even if the information has already been covered at hearing.

 

5.       New section 359AA provides a new discretion for the MRT to orally give particulars of information and invite the applicant to comment on or respond at the time that the applicant is appearing before the MRT in response to an invitation issued under section 360. This will complement the MRT’s existing obligation under section 359A, in that, if the MRT does not orally give information and seek comments or a response from an applicant under section 359AA, it must do so in writing, under section 359A. The corollary is that if the MRT does give clear particulars of the information and seek comments or a response from an applicant under section 359AA, it is not required to give the particulars under section 359A.

 

6.       Where a review applicant is appearing before the MRT pursuant to an invitation issued under section 360, new paragraph 359AA(a) provides the MRT with a discretion to give to the review applicant orally, clear particulars of the information that the MRT considers would be the reason, or part of the reason, for affirming the decision under review.

 

7.       Section 360 provides that, unless the MRT considers that it will find in the applicant’s favour or the applicant consents to not appear before the MRT, the MRT must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 366 provides that the MRT may allow the applicant to appear or to give oral evidence before it by telephone, closed-circuit television or any other means of communication. The MRT is required to appoint an interpreter if the applicant is not sufficiently proficient in English.

 

8.       New paragraph 359AA(b) provides that if the MRT exercises its discretion to orally provide clear particulars of the information that it considers would be the reason, or part of the reason, for affirming the decision under review, then the MRT is obliged to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision. The MRT is also obliged to orally invite the applicant to comment on or respond to the information and to advise the applicant that he or she may seek additional time to comment or respond. If the applicant seeks additional time to comment or respond, the MRT must adjourn the review, if it considers that the applicant reasonably needs additional time to comment or respond.

 

9.       In inviting the applicant to comment on or respond to information while the applicant is appearing before it, the MRT must clearly set out the particulars of information is and why it is relevant. The applicant can seek clarification and make additional comments. It will enable the MRT to give clear particulars of information orally at a hearing without also being required, as is presently the case, to give the same particulars in writing to the applicant after the hearing. The amendment will facilitate the more efficient conduct of reviews by improving their quality, timeliness and will reduce the cost of reviews.

 

10.     The amendments will also ensure that applicants are not taken by surprise and are given time, if necessary, to provide their comments or response.

 

Item 3                                     Subsection 359A(1)

 

11.     This item omits the words “subsection (2)” to substitute “subsections (2) and (3)” in subsection 359A(1).

 

12.     This item provides that subsection 359A(1) is subject to the provisions in subsection 359A(2) and new subsection 359A(3) (inserted by item 7 below). Previously, subsection 359A(1) was only subject to subsection 359A(2).  

 

13.     This item also includes a note which provides that the current heading to section 359A (which reads “Applicant must be given certain information”) is omitted and substituted with the heading “Information and invitation given in writing by Tribunal”.

 

14.     The note to item 3 altering the heading to section 359A reinforces the distinction that the procedures and requirements contained in section 359A only apply to particulars of the information and invitations to comment that the MRT gives to the applicant in writing.

 



Item 4                                     Paragraph 359A(1)(a)

 

15.     Subsection 359A(1) currently provides that the MRT is required to give to the applicant particulars of the information that it considers would be the reason, or part of the reason, for affirming the decision under review and ensure, as far as reasonably practicable, that the applicant understands why the particulars are relevant to the review and invite the applicant to comment on the information.

 

16.     This item inserts the word ‘clear’ before ‘particulars’ in paragraph 359A(1)(a). It is a consequential amendment to mirror the wording in new paragraph 359AA(a).

 

Item 5                                     Paragraph 359A(1)(b)

 

17.     This item repeals paragraph 359A(1)(b) and replaces it with new paragraph 359A(1)(b) that mirrors new subparagraph 359AA(b)(i). That is, if the MRT provides particulars of information to the applicant pursuant to subsection 359A(1), the MRT is obliged to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision.

 

Item 6                                     Paragraph 359A(1)(c)

 

18.     This item adds the words “or respond to” after “comment on” in paragraph 359A(1)(c).

 

19.     Paragraph 359A(1)(c) provides that the MRT must, when providing information to an applicant in writing, invite the applicant to comment on the information. The amendment will provide that the MRT’s invitation must be not only to comment on, but also to respond to, the information. This is consistent with new subparagraph 359AA(1)(b)(ii), inserted by item 2.

 

Item 7                                                 After subsection 359A(2)

 

20.     This item inserts new subsection 359A(3).

 

21.     New subsection 359A(3) complements new section 359AA which provides a discretion for the MRT to give procedural fairness orally to the applicant at the time that the applicant is appearing before the MRT.

 

22.     Subsection 359A(1) (as amended by items 3, 4, 5 and 6) provides that the MRT is required to give to the applicant clear particulars of the information that the MRT considers would be the reason, or part of the reason, for affirming the decision under review; ensure, as far as reasonably practicable, that the applicant understands why it is relevant to the review and the consequences of it being relied on; and invite the applicant to comment on or respond to the information. Subsection 359A(2) sets out how the information and invitation are to be given.

 

23.     New subsection 359A(3) provides that the MRT is not obliged, under section 359A, to give particulars of the information to an applicant, nor invite the applicant to comment on or respond to the information if, at the time the applicant appeared before it, the MRT exercised its discretion under new section 359AA (inserted by item 2) to orally give clear particulars of the information and orally invited the applicant to comment on or respond to the information.

 

24.     If the MRT has exercised its discretion under new section 359AA to provide  clear particulars of the information to the applicant orally, it may still choose to provide the particulars, or part of the particulars, and the invitation to comment on or respond to the information, to the applicant in writing, under section 359A.

 

Item 8                                     Paragraph 359A(4)(b)

 

25.      This item inserts the words “for review” after the word “application” in paragraph 359A(4)(b) so that that paragraph now reads “that the applicant gave for the purpose of the application for review”.

 

26.     This item clarifies that the MRT is not bound to give to the applicant information that the applicant themself already gave for the purposes of their application for review by the MRT.

 

27.     This item reinforces the distinction between information covered under paragraph 359A(4)(b) and information that is covered by new paragraph 359(4)(ba) inserted by item 9 of this bill.

 

Item 9                                     After paragraph 359A(4)(b)

 

28.     This item inserts new paragraph 359A(4)(ba) into subsection 359A(4).

 

29.     Subsection 359A(1) (as amended by items 3, 4, 5 and 6) provides that the MRT is required to give to the applicant clear particulars of the information that the MRT considers would be the reason, or part of the reason, for affirming the decision under review; ensure, as far as reasonably practicable, that the applicant understands why the particulars are relevant to the review and the consequences of it being relied on; and invite the applicant to comment on or respond to the information. Subsection 359A(2) sets out how the information and invitation are to be given.

 

30.     Subsection 359A(4) provides that certain classes of information are excepted from the requirement in subsection 359A(1).

 

31.     New paragraph 359A(4)(ba) provides for a new class of information that is excepted from the requirements of subsection 359A(1). The MRT will not be required to give to the applicant information that the applicant has given during the process that led to the decision that is under review, unless it was information provided orally by the applicant to the Department.

 

32.     This includes, for example, written information provided to the Department by the applicant as part of their visa application (where it is the decision to refuse that application which is under review by the MRT), or in response to a notice of intended visa cancellation (where the subsequent visa cancellation is under review).

 

33.     For example, an applicant might have provided a copy of their passport to the Department in support of a visa application but not to the MRT in support of their review application. Because the MRT receives the applicant’s file from the Department, the MRT will have the copy of the passport. If there is information in that passport that would be a part of the reason for the MRT to affirm the decision under review, the MRT is not required to inform the applicant of the particulars of the information in the passport, because the applicant had already provided that passport.

 

34.     The exception provided by new paragraph 359A(4)(ba) does not extend to information that the applicant has provided orally to the Department. This would include information provided by the applicant as part of interviews with the Department for the purposes of applying for a visa or in response to a possible visa cancellation decision or information provided to the Department as part of some other process (for example, an interview with a Departmental officer at an airport about the applicant’s entry into Australia). Such information is typically not recorded verbatim.

 

Item 10                                   Paragraph 359B(1)(b)

 

35.     This item adds the words “or respond to” after “comment on” in paragraph 359B(1)(b). This is a technical amendment, consequential to the amendment made by item 6 to paragraph 359A(1)(c).

 

36.     The note to this item provides that the heading to section 359B, which reads “Invitation to give additional information or comments”, is omitted and replaced by the heading “Requirements for written invitation etc”.

 

Item 11                                   Subsection 359B(1)

 

37.     This item adds the words “or the response,” after “or the comments” in subsection 359B(1). This is a technical amendment, consequential to the amendment made by item 10 to paragraph 359B(1)(b).

 

Item 12                                   Subsection 359B(2)

 

38.     This item adds the words “or a response” after “or comments” (first occurring) in subsection 359B(2). This is a technical amendment, consequential to the amendment made by item 6 to paragraph 359A(1)(c).

 

Item 13                                   Subsection 359B(2)

 

39.     This item omits the words “or comments” (second occurring) in subsection 359B(2), and substitutes the words “or the comments or the response”. This is a technical amendment, consequential to the amendment made by item 12 to subsection 359B(2).

 

Item 14                                   Subsection 359B(3)

 

40.     This item adds the words “or a response” after “or comments” in subsection 359(3). This is a technical amendment, consequential to the amendment made by item 6 to paragraph 359A(1)(c).

 

Item 15                                   Paragraph 359C(2)(a)

 

41.     This item adds the words “or respond to” after “comment on” in paragraph 359C(2)(a). This is a technical amendment, consequential to the amendment made by item 6 to paragraph 359A(1)(c).

 

42.     The note to this item provides that the heading to section 359C, which reads “Failure to give additional information or comments”, is changed to “Failure to give additional information or comments or response in response to written invitation”.

 

Item 16                                   Paragraph 359C(2)(b)

 

43.     This item adds the words “or the response” after “the comments” in paragraph 359C(2)(b). This is a technical amendment, consequential to the amendment made by item 15 to paragraph 359C(2)(a).

 

Item 17                                   At the end of section 422B

 

44.     This item inserts new subsection 422B(3) at the end of section 422.

 

45.     New subsection 422B(3) provides that in applying Division 4 of Part 7 of the Act, the Refugee Review Tribunal (“the RRT”) must act in a way that is fair and just.

 

46.     Division 4 relates to the RRT’s conduct of its reviews. Subsection 422B(1) provides that Division 4 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. New subsection 422B(3) ensures that in carrying out the procedures and requirements set out in Division 4, which continue to be an exhaustive statement of the natural justice hearing rule, the RRT must do so in a way which is fair and just. This complements subsection 420(1) of the Act, which provides that in carrying out its functions under the Act, the RRT must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

 

Item 18                                               After section 424

 

47.     Currently, section 424A provides that the Refugee Review Tribunal (“the RRT”) must give applicants for review particulars of any information that the RRT considers would be the reason, or a part of the reason, for affirming the decision under review. This must be done either by a prescribed method for an applicant in detention or by one of the methods specified in section 379A. As a consequence of the High Court decision in SAAP , section 424A requires that the RRT must always provide the particulars of the information and the invitation to comment to the applicant in writing even if the information has already been covered at hearing.

 

48.     New section 424AA provides a new discretion for the RRT to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the RRT in response to an invitation issued under section 425. This will complement the RRT’s existing obligation under section 424A, in that, if the RRT does not orally give information and seek comments or a response from an applicant under section 424AA, it must do so in writing, under section 424A. The corollary is that if the RRT does give clear particulars of the  information and seek comments or a response from an applicant under section 424AA, it is not required to give the particulars under section 424A.

 

49.     Where a review applicant is appearing before the RRT pursuant to an invitation issued under section 425, new paragraph 424AA(a) provides the RRT with a discretion to give to the review applicant orally, clear particulars of the information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review.

 

50.     Section 425 provides that, unless the RRT considers that it will find in the applicant’s favour or the applicant consents to not appear before the RRT, the RRT must invite the applicant to appear before the RRT to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 429A provides that the RRT may allow the applicant to appear or to give oral evidence before it by telephone, closed-circuit television or any other means of communication. The RRT is required to appoint an interpreter if the applicant is not sufficiently proficient in English.

 

51.     New paragraph 424AA(b) provides that if the RRT exercises its discretion to orally provide clear particulars of the information that it considers would be the reason, or part of the reason, for affirming the decision under review, then the RRT is obliged to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision. The RRT is also obliged to orally invite the applicant to comment on or respond to the information and to advise the applicant that he or she may seek additional time to comment or respond. If the applicant seeks additional time to comment or respond, the RRT must adjourn the review, if it considers that the applicant reasonably needs additional time to comment or respond.

 

52.     In inviting the applicant to comment on or respond to information while the applicant is appearing before it, the RRT must clearly set out what the information is and why it is relevant. The applicant can seek clarification and make additional comments. It will enable the RRT to give clear particulars of information orally at a hearing without also being required, as is presently the case, to give the same particulars in writing to the applicant after the hearing. The amendment will facilitate the more efficient conduct of reviews by improving their quality, timeliness and will reduce the cost of reviews.

 

The amendments will also ensure that applicants are not taken by surprise and are given time, if necessary, to provide their comments or response.

 

Item 19                                               Subsection 424A(1)

 

53.     This item omits the words “subsection (3)” to substitute “subsections (2A) and (3)” in subsection 424A(1).

 

54.     This item provides that subsection 424A(1) is subject to the provisions in subsection 424A(3) and new subsection 424A(2A) (inserted by item 23 below). Previously, subsection 424A(1) was only subject to subsection 424A(2).  

 

55.     This item also includes a note which provides that the current heading to section 424A (which reads “Applicant must be given certain information”) is omitted and substituted with the heading “Information and invitation given in writing by Tribunal”.

 

56.     The note to item 19 altering the heading to section 424A reinforces the distinction that the procedures and requirements contained in section 424A only apply to particulars of the information and invitations to comment that the RRT gives to the applicant in writing.

 

Item 20                                   Paragraph 424A(1)(a)

 

57.     Subsection 424A(1) currently provides that the RRT is required to give to the applicant particulars of the information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review and ensure, as far as reasonably practicable, that the applicant understands why the particulars are relevant to the review and invite the applicant to comment on the information.

 

58.     This item inserts the word ‘clear’ before ‘particulars’ in paragraph 424A(1)(a). It is a consequential amendment to mirror the wording in new paragraph 424AA(a).

 

Item 21                                   Paragraph 424A(1)(b)

 

59.     This item repeals paragraph 424A(1)(b) and replaces it with new paragraph 424A(1)(b) that mirrors new subparagraph 424AA(b)(i). That is, if the RRT provides particulars of information to the applicant pursuant to subsection 424A(1), the RRT is obliged to ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision.

 

Item 22                                    Paragraph 424A(1)(c)

 

60.     This item adds the words “or respond to” after “comment on” in paragraph 424A(1)(c).

 

61.     Paragraph 424A(1)(c) provides that the RRT must, when providing particulars of information to an applicant in writing, invite the applicant to comment on the information. The amendment will provide that the RRT’s invitation must be not only to comment on, but also to respond to, the information. This is consistent with new subparagraph 424AA(b)(ii), inserted by item 18.

 

Item 23                                    After subsection 424A(2)

 

62.     This item inserts new subsection 424A(2A).

 

63.     New subsection 424A(2A) complements new section 424AA which provides a discretion for the RRT to give procedural fairness orally to the applicant at the time that the applicant is appearing before it.

 

64.     Subsection 424A(1) (as amended by items 19, 20, 21 and 22) provides that the RRT is required to give to the applicant clear particulars of the information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review; ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and the consequences of it being relied upon; and invite the applicant to comment on or respond to the information. Subsection 424A(2) sets out how the information and invitation are to be given..

 

65.     New subsection 424A(2A) provides that the RRT is not obliged, under section 424A, to give particulars of the information to an applicant, nor invite the applicant to comment on or respond to the information if, at the time the applicant appeared before it, the RRT exercised its discretion under new section 424AA (inserted by item 18) to orally give clear particulars of the information and orally invited the applicant to comment on or respond to the information.

 

66.     If the RRT has exercised its discretion under new section 424AA to provide  clear particulars of the information to the applicant orally, the RRT may still choose to provide the particulars, or part of the particulars, and the invitation to comment on or respond to them,  to the applicant in writing, under section 424A.

 

Item 24                                   Paragraph 424A(3)(b)

 

67.      This item inserts the words “for review” after the word “application” in paragraph 424A(3)(b) so that that paragraph now reads “that the applicant gave for the purpose of the application for review”.

 

68.     This item clarifies that the RRT is not bound to give to the applicant information that the applicant themself already gave for the purposes of their application for review by the RRT.

 

69.     This item reinforces the distinction between information covered under paragraph 424A(3)(b) and information that is covered by new paragraph 424(3)(ba) inserted by item 25 of this bill.

 

Item 25                                   After paragraph 424A(3)(b)

 

70.     This item inserts new paragraph 424A(3)(ba) into subsection 424A(3).

 

71.     Subsection 424A(1) (as amended by items 19, 20, 21 and 22) provides that the RRT is required to give to the applicant clear particulars of the information that the RRT considers would be the reason, or part of the reason, for affirming the decision under review; ensure, as far as reasonably practicable, that the applicant understands why the particulars are relevant to the review and the consequences of it being relied upon; and invite the applicant to comment on or respond to the information. Subsection 424A(2) sets out how the information and invitation are to be given.

 

72.     Subsection 424A(3) provides that certain classes of information are excepted from the requirement in subsection 424A(1).

 

73.     New paragraph 424A(3)(ba) provides for a new class of information that is excepted from the requirements of subsection 424A(1). The RRT will not be required to give to the applicant information that the applicant has given during the process that led to the decision that is under review, unless it was information provided orally by the applicant to the Department.

 

74.     This includes, for example, written information provided to the Department by the applicant as part of their visa application (where it is the decision to refuse that application which is under review by the RRT), or in response to a notice of intended visa cancellation (where the subsequent visa cancellation is under review).

 

75.     For example, an applicant might have provided a copy of their passport to the Department in support of a visa application but not to the RRT in support of their review application. Because the RRT receives the applicant’s file from the Department, the RRT will have the copy of the passport. If there is information in that passport that would be a part of the reason for the RRT to affirm the decision under review, the RRT is not required to inform the applicant of the particulars of the information in the passport, because the applicant had already provided that passport.

 

76.     The exception provided by new paragraph 424A(3)(ba) does not extend to information that the applicant has provided orally to the Department. This would include information provided by the applicant as part of interviews with the Department for the purposes of applying for a visa or in response to a possible visa cancellation decision or information provided to the Department as part of some other process (for example, an interview with a Departmental officer at an airport about the applicant’s entry into Australia). Such information is typically not recorded verbatim.

 

Item 26                                   Paragraph 424B(1)(b)

 

77.     This item adds the words “or respond to” after “comment on” in paragraph 424B(1)(b). This is a technical amendment, consequential to the amendment made by item 22 to paragraph 424A(1)(c).

 

78.     The note to this item provides that the heading to section 424B, which reads “Invitation to give additional information or comments”, is omitted and replaced by the heading “Requirements for written invitation etc”.

 

Item 27                                   Subsection 424B(1)

 

79.     This item adds the words “or the response,” after “or the comments” in subsection 424B(1). This is a technical amendment, consequential to the amendment made by item 26 to paragraph 424B(1)(b).

 

Item 28                                   Subsection 424B(2)

 

80.     This item adds the words “or a response” after “or comments” (first occurring) in subsection 424B(2). This is a technical amendment, consequential to the amendment made by item 22 to paragraph 424A(1)(c).

 

Item 29                                   Subsection 424B(2)

 

81.     This item omits the words “or comments” (second occurring) in subsection 424B(2), and substitutes the words “or the comments or the response”. This is a technical amendment, consequential to the amendment made by item 28 to subsection 424B(2).

 



Item 30                                   Subsection 424B(3)

 

82.     This item adds the words “or a response” after “or comments” in subsection 424B(3). This is a technical amendment, consequential to the amendment made by item 22 to paragraph 424A(1)(c).

 

Item 31                                   Paragraph 424C(2)(a)

 

83.     This item adds the words “or respond to” after “comment on” in paragraph 424C(2)(a). This is a technical amendment, consequential to the amendment made by item 22 to paragraph 424A(1)(c).

 

84.     The note to this item provides that the heading to section 424C, which reads “Failure to give additional information or comments”, is changed to “Failure to give additional information or comments or response in response to written invitation”.

 

Item 32                                   Paragraph 424C(2)(b)

 

85.     This item adds the words “or the response” after “the comments” in paragraph 424C(2)(b). This is a technical amendment, consequential to the amendment made by item 31 to paragraph 424C(2)(a).

 

Item 33                                   Application

 

86.     This item provides for the application of the amendments in Schedule 1.

 

87.     Paragraph 33(a) provides that the amendments made by this Act apply to an application for review of an MRT-reviewable decision made under section 347 of the Act which is made after item 33 commences.

 

88.     Paragraph 33(b) provides that the amendments made by this Act apply to an application for review of an RRT-reviewable decision made under section 412 of the Act which is made after item 33 commences.

 

89.     Clause 2 provides that this Act (which includes item 33) commences on the day after the Act receives the Royal Assent.