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Tuesday, 14 October 2008
Page: 9

Senator FIERRAVANTI-WELLS (1:35 PM) —I rise to speak on the Migration Amendment (Notification Review) Bill 2008, and I am very pleased to be doing so as the new shadow parliamentary secretary for immigration and citizenship. I can indicate that the coalition will be supporting this bill. The bill addresses notification issues that have arisen as a result of decisions of the courts in migration matters. The bill amends the Migration Act by introducing a series of changes that will operate to clarify the way the Department of Immigration and Citizenship, the Migration Review Tribunal and the Refugee Review Tribunal notify clients of decisions. The Migration Act 1958 and the Migration Regulations 1994 contain the requirements for notifying clients about decisions on visa applications and visa cancellation. Applicants seeking to find a way to delay the resolution of their cases regularly mount court challenges based on technical errors in the notification process. Indeed, as a former lawyer with the Australian Government Solicitor, I have seen firsthand how, regrettably, unscrupulous immigration lawyers exploit such technicalities in a futile attempt to delay their clients’ cases.

There has been a series of cases over the past several years where the courts have identified technical defects in notification. In November 2007, the then Minister for Immigration and Citizenship, Kevin Andrews, described the notification problem as ‘legal process gone mad’ when a 2003 ruling in the case of Vean v Minister for Immigration was found to apply to the case of Shah in September 2007. The Vean decision found that the envelope containing a notification letter had to be addressed to the applicant’s authorised recipient, not to the applicant ‘care of the authorised recipient’. The Shah ruling found it was not sufficient just to address the envelope to the agent exclusively but that the enclosed letter must also be addressed to the agent.

The then Minister for Immigration and Citizenship, Kevin Andrews, requested immediate legal advice on possible amendments to the Migration Act 1958 that would clarify notification procedures to reduce the scope for appeals. In November 2007, then Minister Andrews ordered an investigation into the nature of the difficulties associated with notification in immigration administration. The Weekend Australian of 17 November 2007 quotes him as follows:

It makes the administration of the immigration program extremely difficult because you can find yourself in a situation where the department has acted in good faith according to the law as they understood it at the time and then find that a subsequent court decision could have a retrospective application.

The coalition welcomes the bill as a sensible measure to address problems that can arise with the notification requirements under the Migration Act. Indeed, this was a measure foreshadowed by then Minister Andrews prior to the last federal election. I am pleased to see that this coalition commitment is being addressed by the Rudd government. The coalition understands the precise nature of the problem and what factors need to be considered when defining notification requirements.

As has been the case, the content of communications between the Department of Immigration and Citizenship, the Migration Review Tribunal, the Refugee Review Tribunal and their clients may be to do with visa applications or the clients’ future legal status, so clearly these communications are of critical importance. It is often the case that these notices require a response or particular action within a tightly specified time frame. Moreover, as the Commonwealth Ombudsman pointed out in the 2007 report into referred immigration cases, when an applicant receives notice it can activate certain legal rights and obligations, and the consequences for their action or inaction can lawfully follow.

Unfortunately, there have been cases in the past where a very small deviation from the prescribed process has given a client recourse to challenge the legality of the notice itself, even though the communication was received and perfectly understood. Some clients have been able to delay the resolution of their cases by mounting court challenges based on a minor technical error in the notification. There has been a series of cases over the last few years where the courts have determined that small technical defects in notifications amounted to the client not, in effect, being officially and appropriately notified.

This bill will ensure that clients continue to be treated with fairness and that standard procedures will be followed, but with less opportunity to use a wrong postcode or some other small hitch as an excuse to rule the communication as not having been received or not requiring the specified response—that is, of course, if the communication has delivered to the client in the proper time frame. Put simply, this bill amends the Migration Act 1958 by introducing changes that will clarify the way in which the department and the relevant tribunals can properly notify clients of decisions. This legislation will, at the same time, ensure that the notification system remains a fair and reasonable process for all of the parties involved.

The amendments contained within the bill seek to achieve three key changes. Firstly, in cases where other notification provisions would not apply to a minor and where the minister or the relevant tribunal forms a reasonable belief that an individual has care and responsibility for a minor, the bill provides that the minister, for primary decisions, or the relevant tribunal may communicate with that person, instead of the minor, to notify that individual of a decision of the minister or the tribunal about the minor. Unless certain specific provisions apply—which deal with a client appointing an authorised recipient or the notification of clients that make combined applications—the Migration Act currently requires correspondence or notices be sent to the individual client for notification to be effective where the client would be too young to understand what the notification is about. This is a sensible measure that will ensure a more appropriate handling of applications when an underage person is not part of a combined application, especially when he or she is too young to understand what the notification is about.

Secondly, the bill provides that substantial compliance with the required contents of a notification document is sufficient unless the visa applicant is able to show that the error or omission in the document causes them substantial prejudice. Strict compliance with arguably insignificant details regarding the content of notification required by the courts has caused the department to concede or lose a number of court cases on minor technicalities. The Vean and Shah cases, as previously mentioned, are examples—and there are other similar cases. The bill seeks to clarify this issue and put beyond doubt the possibility of further related appeals on similar factual scenarios. Minor technical errors in the content of the notice will not render the notification ineffective unless the applicant can show that the error or omission substantially prejudices him or her.

Thirdly, the bill provides that the deemed time of notification provisions will operate despite noncompliance with a procedural requirement for giving a document to an individual. Where the individual has actually received the document, unless the individual is able to show that they received the document at a later date they will be taken to have received the document at that date. In short, where the individual is able to show that they received the document at a later date then that later date will be taken as the date of receipt.

This amendment relates to the communication by the department and the relevant tribunals when notifying clients. Currently, the courts require strict compliance with the statutory notification procedures in order to rely on the deemed notification provisions. Where there is an error in the notification procedures, clients may argue that the deemed receipt provisions do not apply, even when there is evidence that they have actually received the correspondence or notice. In short, this has led to delays and costly legal proceedings despite the fact that the client may have received the notice in a timely manner. The amendment will provide that where there has been an error in notification such that the deeming provision will not apply, but there is evidence that the client actually received the document—for example, they responded to the notice—then notification will be taken to have occurred in accordance with the deeming provisions or at a later date if the client can show the notice was actually received at that later date.

In summary, the legislation should restore more common sense and give a greater degree of certainty to the notification procedures as provided for in the Migration Act 1958 and the Migration Regulations 1994. With ongoing monitoring, there will no doubt be further evolution of these processes and procedures to ensure they are the most efficient, effective and just and cannot be exploited as a stalling opportunity.

I am pleased that this government has realised that the bill as originally presented in the Senate needs an amendment in this House to eliminate what could have caused new complications and the potential for more inefficiency and time wasting. The original bill as introduced contained a rather nebulous provision that ‘substantial compliance’ with the required contents of a notification document was sufficient unless the visa applicant or other applicant was able to show the error or omission in the document had caused them ‘substantial prejudice’. Proving what constituted ‘substantial’ compliance or prejudice would have been complicated and, of course, highly subjective. The government has recognised that, rather than tightening interpretations or closing loopholes, this provision may have caused us more opportunities for unintended consequences. The coalition is therefore pleased to support the further amendment.

While this is a technical bill which does not fundamentally change Australian immigration policy, it does refer to the business of effectively administering appeals and assuring compliance with our immigration policy. It is therefore a significant and important matter. There are some 46,000 visitors who are currently overstayers in our country. There are another 2,000 or so onshore protection visa applicants waiting to be processed. Clearly our systems of application processing must be transparent, efficient, just and humane.

The Howard government left a legacy of immigration law, regulation and practice that has delivered one of the best controlled and managed immigration programs in the world, where the government decides who comes to our country, who is most in need and who is best served by our ongoing protection. However, I would like to take this opportunity to say that the coalition is very concerned that the Rudd government’s softening of its border protection policy has put the people smugglers back in business. The recent arrivals of unlawful noncitizens strongly indicate that the people smugglers are fully testing the water in response to the Rudd government’s recent weakening of border protection rules. The Minister for Immigration and Citizenship, Senator Chris Evans, stated in a budget media release on 13 May:

… from early 2008-09, people found to be refugees will receive a permanent visa, regardless of their mode of arrival.

Prior to this, unauthorised arrivals could expect to be given only temporary visas in the first instance. Now, Minister Evans’s weak words may have been interpreted by international people smugglers to mean that Australia’s borders are again porous. Unfortunately there are hundreds, if not thousands, who have the contacts and funds to pay the $20,000 to $40,000 it may cost to fly to Indonesia and then be pushed off from her shores in a leaky boat headed for Ashmore Reef.

The Howard government’s changes to border protection policy, including the excising of offshore islands from immigration zones, caused the number of unlawful entrants to Australia to dwindle from some 12,000 in the 30 months to January 2002 to just 250 in the years since then. The people smugglers were basically put out of business. Senator Evans must publicly reinstate border protection and immigration controls and the continuation of the excised immigration zones. The coalition urges Minister Evans to immediately re-engage with Indonesian border security officials, who worked cooperatively and efficiently with the former coalition government. But, more importantly, Minister Evans must insist that Prime Minister Rudd put back the $67.4 million stripped out of the critical area of border security and immigration processing. At least 221 departmental officers have been lost from key roles. The coalition urges the Rudd government to stop this departmental cost cutting and the demoralisation it has caused. The Rudd government should also carefully consider how border protection has been impacted by this substantially reduced funding.

The coalition urges Minister Evans to take urgent and decisive action to communicate that the Labor government intends to retain key elements of coalition policy to help thwart the people smugglers. Unfortunately, Minister Evans may have given a very good impression to the criminals that the Labor government has reopened the borders to whoever has the cash or contacts to make the trip from Indonesia to the nearest parts of Australia. For example, Minister Evans made much of the closing of the detention and processing centres at Nauru and Manus Island but failed to mention that these facilities were being replaced with the just-completed detention and processing facility at Christmas Island.

Minister Evans has also made much of the Labor Party’s abolition of temporary protection visas for unlawful arrivals, stating that from August this year refugees will receive a permanent visa, regardless of how they get here. What sort of message is that sending? The coalition is concerned that the criminal networks who annually smuggle thousands of desperate people through international borders may have been encouraged to again ‘test Australian waters’.

Australia has just committed to one of the biggest refugee intakes ever, including an additional 500 Iraqis who assisted the coalition of the willing in the overthrow of Saddam Hussein. The coalition supports this commitment, but we are very concerned that the Rudd government’s slashing of funding for immigration processing may mean that refugees and those seeking family reunion will wait much longer for selection and settlement in Australia.

In conclusion, these technical amendments are timely, in that the recent change in immigration direction by the Rudd government may well lead to an increase in appeals, and it is important that we effectively administer appeals and assure compliance with our immigration policy.