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Migration Amendment (Protection and Other Measures) Bill 2014

Schedule 4 Migration Review Tribunal and Refugee Review Tribunal

Part 1 Amendments

Migration Act 1958

1  Subsection 5(9)

After “For the purposes of this Act,”, insert “subject to subsection (9A),”.

2  Subsection 5(9A)

Omit “Without limiting subsection (9), if”, substitute “If”.

3  Section 337

Insert:

decision on a review means any of the following decisions of the Tribunal in relation to an application for review of an MRT-reviewable decision:

                     (a)  a decision to affirm the MRT-reviewable decision;

                     (b)  a decision to vary the MRT-reviewable decision;

                     (c)  a decision under paragraph 349(2)(c) to remit a matter in relation to the MRT-reviewable decision for reconsideration;

                     (d)  a decision to set the MRT-reviewable decision aside and substitute a new decision;

                     (e)  a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm a decision to dismiss the application.

4  At the end of subsection 349(2)

Add:

               ; or (e)  if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

5  Subsection 353A(2)

Repeal the subsection, substitute:

             (2)  Without limiting subsection (1), the directions may:

                     (a)  relate to the application of efficient processing practices in the conduct of reviews by the Tribunal; or

                     (b)  set out procedures to be followed by applicants and their representatives in relation to proceedings before the Tribunal.

6  Subsection 353A(3)

After “review”, insert “(or a decision under paragraph 362B(1A)(b) or (1C)(a))”.

7  After section 353A

Insert:

353B   Guidance decisions

             (1)  The Principal Member may, in writing, direct that a decision (the guidance decision ) of the Tribunal specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of an MRT-reviewable decision of a kind specified in the direction.

             (2)  In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

             (3)  However, non-compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.

8  Section 359AA

Before “If”, insert “(1)”.

9  At the end of section 359AA

Add:

             (2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

10  At the end of section 359A

Add:

             (5)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

11  Subsection 362B(1)

Repeal the subsection, substitute:

Scope

             (1)  This section applies if the applicant:

                     (a)  is invited under section 360 to appear before the Tribunal; but

                     (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

          (1A)  The Tribunal may:

                     (a)  by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

                     (b)  by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:       Under section 368A, the Tribunal must notify the applicant of a decision on the review.

Note 2:       Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

          (1B)  If the Tribunal dismisses the application, the applicant may, within 7 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.

Note:          Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

          (1C)  On application for reinstatement in accordance with subsection (1B), the Tribunal must:

                     (a)  if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or

                     (b)  confirm the decision to dismiss the application, by written statement under section 368.

Note 1:       Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:       Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

          (1D)  If the Tribunal reinstates the application:

                     (a)  the application is taken never to have been dismissed; and

                     (b)  the Tribunal must conduct (or continue to conduct) the review accordingly.

          (1E)  If the applicant fails to apply for reinstatement within the 7-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.

Note:          Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

           (1F)  If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

          (1G)  To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

12  After section 362B

Insert:

362C   Failure to appear—Tribunal’s decisions, written statements and notifying the applicant

Decisions to which this section applies

             (1)  This section applies in relation to the following decisions (each of which is a non-appearance decision ):

                     (a)  a decision to dismiss an application under paragraph 362B(1A)(b);

                     (b)  a decision to reinstate an application under paragraph 362B(1C)(a) and to give directions (if any) under that paragraph.

Note:          For similar provisions applying to a decision to confirm the dismissal of an application under section 362B, see sections 368 and 368A.

Written statement of decision

             (2)  If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that:

                     (a)  sets out the decision; and

                     (b)  sets out the reasons for the decision; and

                     (c)  in the case of a decision to reinstate an application:

                              (i)  sets out the findings on any material questions of fact; and

                             (ii)  refers to the evidence or any other material on which the findings of fact were based; and

                     (d)  records the day and time the statement is made.

             (3)  A non-appearance decision is taken to have been made:

                     (a)  by the making of the written statement; and

                     (b)  on the day, and at the time, the written statement is made.

             (4)  The Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.

Note:          However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 362B(1D)).

Notice to applicant

             (5)  The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 379A.

             (6)  In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F).

Notice to Secretary

             (7)  A copy of the written statement made under subsection (2) must also be given to the Secretary:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 379B.

Validity etc. not affected by procedural irregularities

             (8)  The validity of a non-appearance decision, and the operation of subsection (4), are not affected by:

                     (a)  a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or

                     (b)  a failure to comply with subsection (5), (6) or (7).

13  Subsection 368(1)

After “decision on a review”, insert “(other than an oral decision)”.

14  Paragraphs 368(1)(e) and (f)

Repeal the paragraphs, substitute:

                     (e)  in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and

                      (f)  records the day and time the statement is made.

15  At the end of subsection 368(1)

Add:

Note:          Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

16  Paragraph 368(4)(a)

Repeal the paragraph, substitute:

                     (a)  a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or

17  Section 368D

Repeal the section, substitute:

368D   Tribunal’s decisions given orally

How and when oral decisions are taken to have been made

             (1)  A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.

Statement in relation to oral decision

             (2)  If a decision on a review is given orally, the Tribunal must:

                     (a)  make an oral statement that:

                              (i)  describes the decision of the Tribunal on the review; and

                             (ii)  describes the reasons for the decision; and

                            (iii)  describes the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  identifies the day and time the decision is given orally; or

                     (b)  make a written statement that:

                              (i)  sets out the decision of the Tribunal on the review; and

                             (ii)  sets out the reasons for the decision; and

                            (iii)  sets out the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  records the day and time the decision is given orally.

             (3)  The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.

Written statement to be provided on request of applicant

             (4)  If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the applicant by one of the methods specified in section 379A; and

                             (ii)  to the Secretary by one of the methods specified in section 379B.

Written statement to be provided on request of Minister

             (5)  If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the Secretary by one of the methods specified in section 379B; and

                             (ii)  to the applicant by one of the methods specified in section 379A.

Return of documents etc.

             (6)  After the Tribunal makes a statement under subsection (2), the Tribunal must:

                     (a)  return to the Secretary any document that the Secretary has provided in relation to the review; and

                     (b)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

             (7)  The validity of a decision on a review, and the operation of subsection (3), are not affected by:

                     (a)  a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or

                     (b)  a failure to comply with subsection (4), (5) or (6).

Note:          Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under section 368. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

18  Section 410

Insert:

decision on a review means any of the following decisions of the Tribunal in relation to an application for review of an RRT-reviewable decision:

                     (a)  a decision to affirm the RRT-reviewable decision;

                     (b)  a decision to vary the RRT-reviewable decision;

                     (c)  a decision under paragraph 415(2)(c) to remit a matter in relation to the RRT-reviewable decision for reconsideration;

                     (d)  a decision to set the RRT-reviewable decision aside and substitute a new decision;

                     (e)  a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm a decision to dismiss the application.

19  At the end of subsection 415(2)

Add:

               ; or (e)  if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.

20  Subsection 420A(2)

Repeal the subsection, substitute:

             (2)  Without limiting subsection (1), the directions may:

                     (a)  relate to the application of efficient processing practices in the conduct of reviews by the Tribunal; or

                     (b)  set out procedures to be followed by applicants and their representatives in relation to proceedings before the Tribunal.

21  Subsection 420A(3)

After “review”, insert “(or a decision under paragraph 426A(1A)(b) or (1C)(a))”.

22  After section 420A

Insert:

420B   Guidance decisions

             (1)  The Principal Member may, in writing, direct that a decision (the guidance decision ) of the Tribunal specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of an RRT-reviewable decision of a kind specified in the direction.

             (2)  In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

             (3)  However, non-compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.

23  Section 424AA

Before “If”, insert “(1)”.

24  At the end of section 424AA

Add:

             (2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

25  At the end of section 424A

Add:

             (4)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

26  Subsection 426A(1)

Repeal the subsection, substitute:

Scope

             (1)  This section applies if the applicant:

                     (a)  is invited under section 425 to appear before the Tribunal; but

                     (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

          (1A)  The Tribunal may:

                     (a)  by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

                     (b)  by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:       Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2:       Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

          (1B)  If the Tribunal dismisses the application, the applicant may, within 7 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

Note:          Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

          (1C)  On application for reinstatement in accordance with subsection (1B), the Tribunal must:

                     (a)  if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

                     (b)  confirm the decision to dismiss the application, by written statement under section 430.

Note 1:       Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:       Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

          (1D)  If the Tribunal reinstates the application:

                     (a)  the application is taken never to have been dismissed; and

                     (b)  the Tribunal must conduct (or continue to conduct) the review accordingly.

          (1E)  If the applicant fails to apply for reinstatement within the 7-day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note:          Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

           (1F)  If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

          (1G)  To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

27  After section 426A

Insert:

426B   Failure to appear—Tribunal’s decisions, written statements and notifying the applicant

Decisions to which this section applies

             (1)  This section applies in relation to the following decisions (each of which is a non-appearance decision ):

                     (a)  a decision to dismiss an application under paragraph 426A(1A)(b);

                     (b)  a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph.

Note:          For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.

Written statement of decision

             (2)  If the Tribunal makes a non-appearance decision, the Tribunal must make a written statement that:

                     (a)  sets out the decision; and

                     (b)  sets out the reasons for the decision; and

                     (c)  in the case of a decision to reinstate an application:

                              (i)  sets out the findings on any material questions of fact; and

                             (ii)  refers to the evidence or any other material on which the findings of fact were based; and

                     (d)  records the day and time the statement is made.

             (3)  A non-appearance decision is taken to have been made:

                     (a)  by the making of the written statement; and

                     (b)  on the day, and at the time, the written statement is made.

             (4)  The Tribunal has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.

Note:          However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 426A(1D)).

Notice to applicant

             (5)  The Tribunal must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 441A.

             (6)  In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).

Notice to Secretary

             (7)  A copy of the written statement made under subsection (2) must also be given to the Secretary:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 441B.

Validity etc. not affected by procedural irregularities

             (8)  The validity of a non-appearance decision, and the operation of subsection (4), are not affected by:

                     (a)  a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or

                     (b)  a failure to comply with subsection (5), (6) or (7).

28  Subsection 430(1)

After “decision on a review”, insert “(other than an oral decision)”.

29  Paragraphs 430(1)(e) and (f)

Repeal the paragraphs, substitute:

                     (e)  in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

                      (f)  records the day and time the statement is made.

30  At the end of subsection 430(1)

Add:

Note:          Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

31  Paragraph 430(4)(a)

Repeal the paragraph, substitute:

                     (a)  a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or

32  Section 430D

Repeal the section, substitute:

430D   Refugee Review Tribunal’s oral decision and oral statement

How and when oral decisions are taken to have been made

             (1)  A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.

Statement in relation to oral decision

             (2)  If the Tribunal makes an oral decision on a review, the Tribunal must:

                     (a)  make an oral statement that:

                              (i)  describes the decision of the Tribunal on the review; and

                             (ii)  describes the reasons for the decision; and

                            (iii)  describes the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  identifies the day and time the decision is given orally; or

                     (b)  make a written statement that:

                              (i)  sets out the decision of the Tribunal on the review; and

                             (ii)  sets out the reasons for the decision; and

                            (iii)  sets out the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  records the day and time the decision is given orally.

             (3)  The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.

Written statement to be provided on request of applicant

             (4)  If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the oral statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the applicant by one of the methods specified in section 441A; and

                             (ii)  to the Secretary by one of the methods specified in section 441B.

Written statement to be provided on request of Minister

             (5)  If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the Secretary by one of the methods specified in section 441B; and

                             (ii)  to the applicant by one of the methods specified in section 441A.

Return of documents etc.

             (6)  After the Tribunal makes a statement under subsection (2), the Tribunal must:

                     (a)  return to the Secretary any document that the Secretary has provided in relation to the review; and

                     (b)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

             (7)  The validity of a decision on a review, and the operation of subsection (3), are not affected by:

                     (a)  a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or

                     (b)  a failure to comply with subsection (4), (5) or (6).

Note:          Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under section 430. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

33  Subsection 477(3) (paragraphs (b) and (c) of the definition of date of the migration decision )

Repeal the paragraphs, substitute:

                     (b)  in the case of a migration decision made by the Migration Review Tribunal—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

                     (c)  in the case of a migration decision made by the Refugee Review Tribunal—the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

Part 2 Application

 34  Application of amendments

General rule

(1)       Subject to subitem (2), the amendments of the Migration Act 1958 made by Part 1 apply in relation to an application to the Migration Review Tribunal or the Refugee Review Tribunal for review of a decision if:

                     (a)  the application is made on or after the commencement of this Schedule; or

                     (b)  the application was made before the commencement of this Schedule, but a decision on the review had not been made as at the commencement of this Schedule.

Amendments relating to dismissal of Tribunal applications

(2)       The amendments of the Migration Act 1958 made by Part 1 that are covered by subitem (3) apply in relation to an application to the Migration Review Tribunal or the Refugee Review Tribunal for review of a decision if:

                     (a)  the application is made on or after the commencement of this Schedule; or

                     (b)  both:

                              (i)  the application was made before the commencement of this Schedule, but a decision on the review had not been made as at the commencement of this Schedule; and

                             (ii)  on or after the commencement of this Schedule, the applicant is invited to appear before the Migration Review Tribunal under section 360 of that Act, or the Refugee Review Tribunal under section 425 of that Act, as the case may be, for the purposes of the review.

(3)       The following amendments of the Migration Act 1958 made by Part 1 of this Schedule are covered by this subitem:

                     (a)  amendments of sections 337, 349, 359AA, 359A, 362B, 410, 415, 424AA, 424A and 426A;

                     (b)  the insertion of new sections 362C and 426B.