2008

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 2008

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Citizenship,

Senator the Hon. Chris Evans)

 

MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 2008

 

OUTLINE

 

The Migration Legislation Amendment Bill (No. 2) 2008 (‘the Bill’) amends the Migration Act 1958 (‘the Act’) to clarify and enhance provisions in the Act that relate to merits and judicial review of migration decisions.  In particular, the Bill:

 

• clarifies that the Migration Review Tribunal and the Refugee Review Tribunal (‘the Tribunals’) may invite either orally (including by telephone) or in writing, review applicants or third parties to give information;
• reinstates effective and uniform time limits for applying for judicial review of a migration decision in the Federal Magistrates Court, Federal Court and High Court (‘the Courts’); and
• limits appeals against judgments by the Federal Magistrates Court and the Federal Court that make an order or refuse to make an order to extend time to apply for judicial review of migration decisions.

 

The amendments relating to the Tribunals seek to address decisions of the Full Federal Court which held that whenever the Tribunals require information from a person; this must be done by written invitation.  Enabling the Tribunals to obtain information from review applicants and third parties orally (including, for example, by telephone) will ensure that review of migration decisions can be conducted more efficiently and may result in an applicant’s status being resolved more quickly.

 

The amendments relating to time limits are important as without effective time limits, there is an incentive for unsuccessful visa applicants to take advantage of the delays litigation can cause by waiting until their removal from Australia is imminent before lodging an application for review.  These amendments also provide the Courts with broad discretion to extend the time period for applying for review of a migration decision where the Courts consider an extension is necessary in the interests of the administration of justice.  Vesting the Courts with such broad discretion will protect applicants from possible injustice.

 

The limitation on appeals against extension of time decisions will help ensure the effectiveness of the new time limits for applying for judicial review of a migration decision as inserted by the Bill. 

 

financial impact statement

 

The financial impact of these amendments will be negligible.  These measures may in fact represent a cost saving to the Department of Immigration and Citizenship, the Tribunals and the Courts.

Migration Legislation amendment Bill (No. 2) 2008

 

notes on individual clauses

 

Clause 1          Short title

 

1.       Clause 1 provides that the short title by which the Act may be cited is the Migration Legislation Amendment Act (No. 2) 2008 .

 

Clause 2          Commencement

 

2.        Subclause 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.

 

3.       Table Item 1 provides that sections 1 to 3 of the Act and anything in the Act not elsewhere covered by the table will commence on the day on which the Act receives the Royal Assent.

 

4.       Table Item 2 provides that Schedules 1, 2 and 3 to the Act commence on a single day to be fixed by Proclamation.  However, it also provides that if any provision(s) do not commence within the period of 6 months beginning on the day on which the Act receives the Royal Assent, they commence on the first day after the end of that period.

 

5.       Subclause 2(2) explains that column 3 of the table contains additional information that is not part of this Act.  It specifies that information in this column may be added to or edited in any published version of this Act.

 

6.       An explanatory note is provided to assist the reader at the end of this table.  It specifies that the table relates only to the provisions of this Act as originally passed by both Houses of Parliament and assented to.  It states clearly that the table will not be expanded to deal with provisions inserted in this Act after it receives the Royal Assent.

 

Clause 3          Schedule(s)

 

7.       This clause provides that each Act specified in a Schedule to the Migration Legislation Amendment Act (No. 2) 2008 is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to the Migration Legislation Amendment Act (No. 2) 2008 has effect according to its terms.

 

SCHEDULE 1 - Amendments relating to merits review

 

Migration Act 1958

 

Item 1             Subsection 359(2)

 

8.       This item inserts “, either orally (including by telephone) or in writing” after “may invite” in subsection 359(2) of the Act.  This item also includes a note to provide that the heading to section 359 is altered by omitting the word “additional”.

 

9.       Subsection 359(1) of the Act provides the Migration Review Tribunal (MRT) with the power to get any information it considers relevant. Importantly, it provides that once the MRT has such information, it must have regard to this information in making its decision on the review.

 

10.   Currently, subsection 359(2) provides that without limiting subsection (1), the MRT may invite a person to give additional information.  In addition, subsection 359(3) provides that if an invitation is given to a person other than the Secretary, the invitation must be given by one of the methods in section 379A.  In general, section 379A provides that the MRT must give documents to a person, other than the Secretary, by hand, handing it to another person who is at the last residential or business address of the recipient, dispatching by prepaid post or other prepaid means or transmitting by fax, e-mail or other electronic means.

 

11.   The amendments to subsection 359(2) outline that the MRT has the power to seek information orally, by whichever method it chooses, including, but not limited to, by telephone. The MRT will still be able to invite a person by written invitation to provide information. These powers are a subset of the MRT’s broad powers under subsection 359(1). The power to seek information orally or in writing applies at any stage in the review.

 

12.   The amendment seeks to address several Full Federal Court decisions including SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 (‘ SZKTI ’).  In this case, which relates to section 424 (which is similar in terms to section 359 except that it relates to the Refugee Review Tribunal (RRT)), the Full Federal Court held in SZKTI that the Parliament did not authorise the RRT to get additional information from a person pursuant to its general power under subsection 424(1) without strictly complying with the specified procedure set out in subsections 424(2) and (3).  That is, the RRT is not able to obtain information orally from the applicant under section 424.  The original policy intention behind subsection 359(1) was to enable the Tribunals to request information via less formal means, for example, orally over the telephone. These amendments seek to give effect to this policy intention following the Full Federal Court decision in SZKTI .

 

13.    By ensuring that the MRT may seek information under subsection 359(2) orally (including by telephone), the MRT will be able to more efficiently obtain the information it requires to make a decision.  Conducting investigations in writing can cause considerable delay without necessarily improving procedural fairness to the applicant.  In addition, the amendment will ensure that the MRT is able to obtain relevant information where the only way of contacting a person is by oral means, for example, where only a telephone number is provided.  In all circumstances, where information is collected (including by telephone) that is adverse to the applicant and which the MRT considers would be the reason or part of the reason for affirming the decision under review, clear particulars of that information will be put to the applicant in writing.  The applicant would then have an opportunity to comment on such adverse information within a prescribed period before a decision on review is made.

 

14.    The removal of the word “additional” from the heading in section 359 makes it clear that the MRT’s power to seek information, orally (including by telephone) or by written invitation, applies to all information and seeks to deal with the uncertainty surrounding what information is covered by section 359.

 

Item 2             Subsection 359(2)

 

15.    This item omits the word “additional” from subsection 359(2) of the Act.  This item also inserts a note which provides that the heading to section 359 is altered by omitting the word “additional”.

 

16.    Currently, subsection 359(2) provides that the MRT may invite a person to give additional information.  The amendments made by item 1 of this Schedule provide that the MRT may seek this information either orally (including by telephone), or by written invitation.  The removal of the word “additional” makes it clear that the MRT’s power to seek information, orally (including by telephone) or by written invitation, applies to all information and deals with some uncertainty surrounding what information is covered by section 359.

 

Item 3             Subsection 359(3)

 

17.    This item omits the words “If an invitation” in subsection 359(3) and substitutes the words “If a written invitation under subsection (2)”.

 

18.   This item clarifies that subsection 359(3) only applies where the MRT has written to invite a person to provide information.  This subsection does not apply where the MRT has orally invited a person to provide information.  Subsection 359(2), as amended by item 1 of this Schedule, provides that the MRT may invite either orally (including by telephone) or in writing, a person to give information.

 

19.   Subsection 359(3) provides that if a written invitation is given to a person other than the Secretary, the invitation must be given by one of the methods in section 379A.  Broadly, section 379A provides that the MRT must give documents to a person other than the Secretary by hand, handing it to another person who is at the last residential or business address of the recipient, dispatching by prepaid post or other prepaid means or transmitting by fax, e-mail or other electronic means.

 

Item 4             Paragraph 359B(1)(a)

 

20.    This item repeals paragraph 359B(1)(a) and substitutes it with a new paragraph 359B(1)(a).

 

21.    Subsection 359B(1) sets out the requirements for an invitation where, among other things, a person is invited in writing to give information under section 359.  Those requirements are that the invitation is to specify the way the information is to be given, being the way the MRT considers appropriate in the circumstances. 

 

22.    This item clarifies that subsection 359B(1), as it relates to invitations under section 359, only relates to written invitations.  New subsection 359(2), as amended by item 1 of this Schedule, provides that the MRT may invite either orally (including by telephone) or in writing, a person to give information. 

 

Item 5             Subsection 359B(1)

 

23.    This item omits the word “additional” (last occurring) from subsection 359B(1). 

 

24.    Currently subsection 359B(1) sets out the requirements for a written invitation where, among other things, a person is invited by the MRT under section 359 to give additional information.  The written invitation is to specify the way in which the additional information must be given, being the way the MRT considers appropriate in the circumstances.  These amendments remove the word “additional” from subsection 359B(1) to ensure consistency with the new wording in subsection 359(2), as amended by items 1 and 2 of this Schedule.

 

Item 6             Subsection 359B(2)

 

25.    This item omits the word “additional” from subsection 359B(2). 

 

26.    Relevantly, subsection 359B(2) provides that where the MRT invites a person to give additional information otherwise than by interview, the response to that invitation is to be given within a specified period, being a prescribed period, or if no period is prescribed, a reasonable period.  The removal of the word “additional” in subsection 359B(2) ) ensures consistency with the new wording in subsection 359(2), as amended by items 1 and 2 of this Schedule.

 

Item 7             Paragraph 359C(1)(a)

 

27.    This item repeals paragraph 359C(1)(a) and substitutes it with a new paragraph 359C(1)(a).  This item also includes a note to provide that the heading to section 359C is altered by omitting the word “additional”.

 

28.    Subsection 359C(1) currently  provides that where a person is invited by the MRT under section 359 to give additional information, but does not give the information before the time for giving it has passed, then the MRT may make a decision on the review without taking any further action to obtain the additional information. 

 

29.    This item clarifies that subsection 359C(1) only applies to written invitations under section 359.  New section 359, as amended by item 1 of this Schedule, provides that the MRT may invite either orally (including by telephone) or in writing, a person to give information. 

 

30.    The removal of the word “additional” from the heading in section 359C ensures consistency with the new wording in subsection 359(2), as amended by items 1 and 2 of this Schedule.

 

Item 8                         Subsection 359C(1)

 

31.    This item omits the last occurring “additional” in subsection 359C(1).

 

32.    Subsection 359C(1) currently provides that where a person is invited by the MRT under section 359 to give additional information, but does not give the information before the time for giving it has passed, then the MRT may make a decision on the review without taking any further action to obtain the additional information. The amendments remove the word “additional” in subsection 359C(1) to ensure consistency with the new wording in subsection 359(2), as amended by items 1 and 2 of this Schedule.

 

Item 9             Subsection 424(2)

 

33.    This item inserts “, either orally (including by telephone) or in writing,” after “may invite” in subsection 424(2) of the Act.  This item also includes a note to provide that the heading to section 424 is altered by omitting the word “additional”.

34.    Subsection 424(1) provides the Refugee Review Tribunal (RRT) with the power to get any information it considers relevant.  Importantly it provides that once the RRT gets such information, the Tribunal must have regard to that information in making its decision on the review. 

 

35.   Currently, subsection 424(2) provides that without limiting subsection (1), the RRT may invite a person to give additional information.  Also relevant, subsection 424(3) provides that if an invitation is given to a person other than the Secretary, the invitation must be given by one of the methods in section 441A.  In general, section 441A provides that the RRT must give documents to a person other than the Secretary by hand, handing it to another person who is at the last residential or business address of the recipient, dispatching by prepaid post or other prepaid means or transmitting by fax, e-mail or other electronic means.

 

36.   The amendments to subsection 424(2) outline that the RRT has the power to seek information orally, by whichever method it chooses, including, but not limited to by telephone. The RRT will still be able to invite a person by written invitation to provide information. These powers are a subset of the RRT’s broad powers under subsection 424(1). The power to seek information orally or in writing applies at any stage in the review.

 

37.    The amendment seeks to address several Full Federal Court decisions including SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 (‘SZKTI’).  The Full Federal Court held in SZKTI that the Parliament did not authorise the RRT to get additional information from a person pursuant to its general power under subsection 424(1) without strictly complying with the specified procedure set out in subsections 424(2) and (3).  That is, the RRT is not able to orally invite an applicant to provide information under subsection 424.  The original policy intention behind subsection 424(1) was to enable the Tribunals to request information via less formal means, for example, orally over the telephone. These amendments seek to give effect to this policy intention following the Full Federal Court decision in SZKTI .

                                                     

38.   By ensuring that the RRT may obtain information under subsection 424(2) orally (including by telephone), the RRT will be able to more efficiently obtain the information it requires to make a decision.  Conducting investigations in writing can cause considerable delay without necessarily improving procedural fairness to the applicant.  In addition, it will ensure that the RRT is able to obtain relevant information where the only way of contacting a person is by oral means, for example, where only a telephone number is provided.  In all circumstances, where information is collected that is adverse to the applicant and which the RRT considers would be the reason or part of the reason for affirming the decision under review, clear particulars of that information will be put to the applicant in writing. The applicant would then have an opportunity to comment on such adverse information within a prescribed period before a decision on review is made.

 

39.   The removal of the word “additional” from the heading in section 424 makes it clear that the RRT’s power to seek information, orally (including by telephone) or by written invitation, applies to all information and seeks to deal with the uncertainty surrounding what information is covered by section 424.

 

  Item 10          Subsection 424(2)

 

40.   This item omits the word “additional” from subsection 424(2) of the Act.  This item also inserts a note which provides that the heading to section 424 is altered by omitting the word “additional”.

 

41.   Currently, subsection 424(2) provides that the RRT may invite a person to give additional information.  The amendments made by item 9 of this Schedule provide that the RRT may seek this information either orally (including by telephone), or by written invitation.  The removal of the word “additional” makes it clear that the RRT’s power to seek information, orally (including by telephone) or by written invitation, applies to all information and seeks to deal with the uncertainty surrounding what information is covered by section 424.

 

Item 11           Subsection 424(3)

 

42.   This item omits the words “If an invitation” in subsection 424(3) and substitutes the words “If a written invitation under subsection (2)”.

 

43.   This item clarifies that subsection 424(3) applies where the invitation to provide information is given by the RRT in writing.  Subsection 424(2), as amended by item 9 of this Schedule, provides that the RRT has the power to seek information orally (including by telephone) or in writing.

 

44.   Subsection 424(3) provides that if an invitation is given to a person other than the Secretary, the invitation must be given by one of the methods in section 441A.  In general, section 441A provides that the RRT must give documents to a person other than the Secretary by hand, handing it to another person who is at the last residential or business address of the recipient, dispatching by prepaid post or other prepaid means or transmitting by fax, e-mail or other electronic means.

 

Item 12           Paragraph 424B(1)(a)

 

45.   This item repeals paragraph 424B(1)(a) and substitutes it with a new paragraph 424B(1)(a).

 

46.   Subsection 424B(1) sets out the requirements for an invitation where, among other things, a person is invited in writing to give information under section 424.  Those requirements are that the invitation is to specify the way the information is to be given, being the way the RRT considers appropriate in the circumstances. 

 

47.   This item clarifies that subsection 424B(1), as it relates to invitations under section 424, only relates to written invitations.  New subsection 424(2), as amended by item 9 of this Schedule, provides that the RRT may invite either orally (including by telephone) or in writing, a person to give information. 

 

Item 13           Subsection 424B(1)

 

48.   This item omits the word “additional” (last occurring) from subsection 424B(1). 

 

49.   Currently subsection 424B(1) sets out the requirements for a written invitation where, among other things, a person is invited by the RRT under section 424 to give additional information.  The written invitation is to specify the way in which the additional information must be given, being the way the RRT considers appropriate in the circumstances.  These amendments remove the word “additional” from subsection 424B(1) to ensure consistency with the new wording in subsection 424(2), as amended by items 9 and 10 of this Schedule.

 

Item 14           Subsection 424B(2)

 

50.   This item omits the word “additional” from subsection 424B(2). 

 

51.   Relevantly, subsection 424B(2) provides that where the Refugee Review Tribunal (RRT) invites a person to give additional information otherwise than by interview, the response to that invitation is to be given within a specified period, being a prescribed period, or if no period is prescribed, a reasonable period.  The removal of the word “additional” in subsection 424B(2) ensures consistency with the new wording in subsection 424(2), as amended by items 9 and 10 of this Schedule.

 

Item 15           Paragraph 424C(1)(a)

 

52.   This item repeals paragraph 424C(1)(a) and substitutes it with a new paragraph 424C(1)(a).  This item also includes a note to provide that the heading to section 424C is altered by omitting the word “additional”.

 

53.   Subsection 424C(1) currently provides that where a person is invited by the RRT under section 424 to give additional information, but does not give the information before the time for giving it has passed, then the RRT may make a decision on the review without taking any further action to obtain the additional information. 

 

54.   This item clarifies that subsection 424C(1) only applies to written invitations under section 424.  New section 424, as amended by item 9 of this Schedule, provides that the RRT may invite either orally (including by telephone) or in writing, a person to give information and seeks to deal with the uncertainty surrounding what information is covered by section 424C. 

 

55.   The removal of the word “additional” from the heading in section 424C ensures consistency with the new wording in subsection 424(2), as amended by items 9 and 10 of this Schedule.

 

Item 16           Subsection 424C(1)

 

56.    This item omits the last occurring “additional” in subsection 424C(1).

 

57.   Subsection 424C(1) currently provides that where a person is invited by the RRT under section 424 to give additional information, but does not give the information before the time for giving it has passed, then the RRT may make a decision on the review without taking any further action to obtain the additional information. The amendments remove the word “additional” in subsection 424C(1) to ensure consistency with the new wording in subsection 424(2), as amended by items 9 and 10 of this Schedule.

 

Item 17           Application

 

58.   This item provides that the amendments made by Schedule 1 apply to invitations made by the MRT and RRT on or after commencement of this Schedule.

 

SCHEDULE 2—Amendments relating to judicial review

 

Migration Act 1958

 

Item 1             Subsection 477(1)

 

59.   This item amends subsection 477(1) by omitting the words “28 days of the actual (as opposed to deemed) notification of the decision” and replacing them with the words “35 days of the date of the migration decision”.

 

60.   Subsection 477(1) currently provides that where a person applies to the Federal Magistrates Court (‘the FMC’) for a remedy in exercise of the Court’s original jurisdiction, the person must make the application within 28 days of the actual notification of the decision (rather than deemed notification). 

 

61.   Two important changes to subsection 477(1) are made by this item.  Firstly, the 28 day period for lodging an application to the FMC for judicial review of a migration decision will be changed to 35 days.  Secondly, the new 35 day period will commence to run from the “date of the migration decision” rather than from the time of actual notification. 

 

62.   This item removes actual notification as the time from which the time period for seeking judicial review starts to run because it can be difficult to establish when and if, an applicant is actually notified.  In addition, for migration decisions made by the Migration Review Tribunal and the Refugee Review Tribunal (‘the Tribunals’), the Full Federal Court held in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 (‘ SZKKC ’) that the time period for seeking judicial review of a Tribunal decision will begin to run only if the applicant is personally served with the written statement of reasons of the Tribunal by a person authorised by the Registrar of the Tribunal.  It would be expensive and impractical for the Tribunals to implement the practice of personally serving a written statement of the reasons for the decision.  As a result, the time limits for seeking judicial review of a migration decision in subsection 477(1) are not currently effective.

 

63.   The change to the ‘date of the migration decision’ from which time commences to run for the purpose of time limits for seeking judicial review of a migration decision, will provide greater certainty and overcome the practical difficulties associated with personally serving a written statement of reasons.  Item 2 of this Schedule inserts a definition of “date of the migration decision”.

 

Item 2             Subsections 477(2), (3) and (4)

 

64.   This item repeals subsections 477(2), (3) and (4) of the Act and substitutes new subsections 477(2), (3), (4) and (5).

 

65.   Current subsection 477(2) provides that the FMC may, by order, extend the current 28 day time period for seeking judicial review of a migration decision by up to 56 days if:

 

·          an application for that order is made within 84 days of the actual notification of the decision; and

·          the FMC is satisfied that it is in the interests of the administration of justice to make the order to extend time.

 

66.   Current subsection 477(3) provides that the FMC may not make an order extending time to apply for judicial review of a migration decision, outside the 28 day period, other than that provided for by subsection (2).  This provision is now redundant as a result of the amendment to subsection 477(2) by this item which provides the FMC with broad discretion to extend time. Current subsection 477(4) provides that the regulations may prescribe the way of notifying a person of a decision for the purposes of section 477.  However, this provision is no longer necessary because new subsection 477(1) provides that the time for applying for review of a migration decision will run from the date of a migration decision and not from notification.  There are currently no regulations made under subsection 477(4).

 

67.   New subsection 477(2) will enable the FMC to order an extension of the 35 day time period for applying for judicial review of a migration decision if paragraphs (a) and (b) are satisfied.  Paragraph 477(2)(a) will now require applicants to state in their applications why they consider it necessary in the interests of the administration of justice for the FMC to make the extension of time order.  Requiring applicants to give reasons in their applications for an extension of time will assist the FMC by drawing early attention to cases where there is a compelling reason to grant an extension of the time.  This may assist the Court to deal with requests for extension of time more quickly and may thereby result in a more efficient use of court resources.

 

68.   New paragraph 477(2)(b) provides that the FMC must be satisfied that it is necessary in the interests of the administration of justice to make the order to extend the 35 day time period.  This paragraph provides a new test for the granting of extension time orders.  It also removes, the restriction on the period by which the FMC may extend time (56 days) and the requirement that the application must be made within 84 days.  The FMC will have broad discretion to extend time for applying for judicial review of a migration decision by whatever period it considers appropriate, provided the FMC is satisfied that it is necessary in the interests of the administration of justice. Vesting the FMC with broad discretion to extend time where it is necessary in the interests of the administration of justice will protect applicants from possible injustice.

 

69.   New subsection 477(3) creates a definition of ‘date of migration decision’ for the purpose of section 477.  Subsection 477(1), as amended by item 1 of this Schedule, provides that the 35 day period for applying for review of a migration decision, starts to run from the date of the migration decision.

70.   A migration decision is currently defined in section 5 of the Act.  A migration decision means:

            (a)          a privative clause decision; or

            (b)          a purported privative clause decision; or

            (c)          a non-privative clause decision. 

 

71.   Paragraph (a) of the definition of the ‘date of migration decision’ provides that in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), ‘date of the migration decision’ means date of the written decision under subsection 43(1) of that Act.  Subsection 43(1) of the AAT Act provides, amongst other things, that the Administrative Appeals Tribunal (the AAT) must make a decision in writing and give reasons for its decision.  The AAT has authority to review certain migration decisions.  The date of the AAT’s written decision will be the date of the migration decision for the purpose of determining when time limits for applying for judicial review of that AAT migration decision start to run.

 

72.   Paragraph (b) of the definition of the ‘date of migration decision’ provides for written migration decisions made by the Migration Review Tribunal (MRT) or the Refugee Review Tribunal (RRT).  Where the MRT or RRT makes a written decision, paragraph (b) provides that the date of the migration decision will be the date of the written statement for the purpose of determining when time limits for applying for judicial review of that MRT or RRT decision start to run.  Subsections 368(1) and 430(1) provide that when the MRT or RRT makes its decision on review, it must prepare a written statement that sets out matters relevant to the decision.

 

73.   Paragraph (c) of the definition of the ‘date of migration decision’ provides for oral migration decisions made by the MRT or RRT.  If the MRT or RRT makes an oral decision, then the date of the migration decision will be the date of that oral decision for the purpose of determining when time limits for applying for judicial review of that MRT or RRT decision start to run.

 

74.   Paragraph (d) of the definition of the ‘date of migration decision’ provides for instances not covered by paragraphs (a) to (c).  In such a case, the date of the migration decision will be the date of the written notice of the decision, or if no such notice exists, the date the Court considers appropriate.  There are a number of provisions in the Act that provide that the Minister for Immigration and Citizenship (or his or her delegate) must notify by written notice, an applicant for a visa or a visa holder of a decision made by the Minister (or his or her delegate) under the Act.  In these instances, the date of the migration decision will be the date of that written notice for the purpose of determining when the time period for seeking judicial review of the Minister’s decision starts to run.  If a written notice does not exist, then the date of the migration decision will be the date that the Court considers appropriate.

 

75.   By setting out a definition of ‘date of migration decision’ there will be clarity around when time limits for applying for judicial review start to run.

 

76.   New subsection 477(4) clarifies that for the purpose of time limits, the 35 day time period starts to run despite a failure to comply with any of the provisions mentioned in subsection (3).  This subsection will ensure that the time limits operate effectively by seeking to ensure that applicants cannot argue that there was no date of decision for the purposes of time limits because the decision did not comply with the legislative requirements for that decision.  For example, the effect of this subsection will be that even where a written statement for the decision does not comply with all the requirements set out in subsection 368(1) (for the MRT) or subsection 430(1) (for the RRT), this will not affect the time limits starting to run.  It will be possible for the FMC to address injustices caused by this provision by using its broad discretion to order an extension of time under subsection 477(2), as amended by this item, where it is necessary in the interests of the administration of justice.

77.   New subsection 477(5) clarifies that for the purpose of seeking judicial review in the FMC of a migration decision, the new 35 day time limit commences on the date of decision, notwithstanding the validity of the migration decision.  That is, the time limits will begin irrespective of whether the migration decision is valid or not.  This subsection seeks to ensure that the FMC is not required to examine whether there is a jurisdictional error in the migration decision in order to determine whether the application for review is within time.   It will be possible for the FMC to address injustices caused by this provision by using its broad discretion to order an extension of time under subsection 477(2), as amended by this item, where it is necessary in the interests of the administration of justice.

 

Item 3               Subsection 477A(1)

 

78.   This item amends subsection 477A(1) by omitting all the words “28 days of the actual (as opposed to deemed) notification of the decision” and replacing them with the words “35 days of the date of the migration decision”.

 

79.   Subsection 477A(1) currently provides that where a person applies to the Federal Court for a remedy in exercise of the court’s original jurisdiction, the person must make the application within 28 days of the actual notification of the decision (rather than deemed notification). 

 

80.   Two important changes to subsection 477A(1) are made by this item.  Firstly, the 28 day period for lodging an application to the Federal Court for judicial review of a migration decision will be changed to 35 days.  Secondly, the new 35 day period will commence to run from the “date of the migration decision” rather than from the time of actual notification. 

 

81.   This item removes actual notification as the time from which the time period for seeking judicial review starts to run  because it can be difficult to establish when and if, an applicant is actually notified.  In addition, for migration decisions made by the MRT and the RRT (‘the Tribunals’), the Full Federal Court held in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 (‘ SZKKC ’) that the time period for seeking judicial review of a Tribunal decision will begin to run only if the applicant is personally served with the written statement of reasons of the Tribunal by a person authorised by the Registrar of the Tribunal.  While SZKKC was in relation to time limits for seeking judicial review of a migration decision to the FMC under section 477, it also applies to time limits in the Federal Court.  It would be expensive and impractical for the Tribunals to implement the practice of personally serving a written statement of the reasons for the decision.  As a result, the time limits for seeking judicial review of a migration decision in subsection 477A(1) are not currently effective.

 

82.   The change to the ‘date of the migration decision’ from which time commences to run for the purpose of time limits for seeking judicial review, will provide greater certainty and overcome the practical difficulties associated with personally serving a written statement of reasons.  Item 2 of this Schedule inserts a definition of “date of the migration decision”.

 

Item 4               Subsections 477A(2), (3) and (4)

 

83.   This item repeals current subsections 477A(2), (3) and (4) of the Act and substitutes new subsections 477A(2), (3), (4) and (5).

 

84.   Current subsection 477A(2) provides that the Federal Court may, by order, extend the current 28 day period for seeking judicial review by up to 56 days if:

 

·          an application for that order is made within 84 days of the actual notification of the decision; and

·          the Federal Court is satisfied that it is in the interests of the administration of justice to make the order to extend time.

 

85.   Current subsection 477A(3) provides that the Federal Court may not make an order extending time to apply for judicial review of a migration decision, outside the 28 day period, other than that provided for by subsection (2).  This provision is now redundant as a result of the amendment to subsection 477A(2) by this item which provides the Federal Court with broad discretion to extend time.  Existing subsection 477A(4) currently provides that the Regulations may prescribe the way of notifying a person of a decision for the purposes of section 477A.  However, this provision is no longer necessary because new subsection 477A(1), as amended by item 3 of this Schedule, provides that the time for applying for review will run from the date of a migration decision and not from notification.  There are currently no regulations made under subsection 477A(4).

 

86.   New subsection 477A(2) will enable the Federal Court to order an extension of the 35 day time period for applying for judicial review of a migration decision if paragraph (a) and (b) are satisfied.  Paragraph 477A(2)(a) requires applicants to state in their applications why they consider it necessary in the interests of the administration of justice for the Federal Court to make the extension of time order.  Requiring applicants to give reasons in their applications for an extension of time will assist the Federal Court by drawing early attention to cases where there is a compelling reason to grant an extension of the time.  This may assist the Court to deal with requests for extension of time more quickly and may thereby result in a more efficient use of court resources.

 

87.   Paragraph 477A(2)(b) provides that the Federal Court must be satisfied that it is necessary in the interests of the administration of justice to make the order to extend the 35 day period.  This paragraph provides a new test for the granting of extension time orders.  It also removes, the restriction on the period by which the Federal Court may extend time (56 days) and the requirement that the application must be made within 84 days.  The Federal Court will have broad discretion to extend time for applying for judicial review of a migration decision by whatever period it considers appropriate, provided the Federal Court is satisfied that it is necessary in the interests of the administration of justice.  Vesting the Federal Court with broad discretion to extend time where it is necessary in the interests of the administration of justice will protect applicants from possible injustice, while also ensuring that the extension is only granted where there are compelling reasons to do so.

 

88.   New subsection 477A(3) provides a definition of “date of the migration decision” for the purpose of section 477A, that is, for the purpose of time limits for applying to the Federal Court for review of a migration decision.  Subsection 477A(1), as amended by item 3 of this Schedule, provides that the 35 day period for applying for review of a migration decision, starts to run from the date of the migration decision.  The definition is given the same meaning as that provided by subsection 477(3), as amended by item 2 of this Schedule.

 

89.   New subsection 477A(4) clarifies that for the purpose of time limits, the 35 day time period starts to run despite a failure to comply with any of the provisions mentioned in subsection (3).  This subsection will ensure that the time limits operate effectively by seeking to ensure that applicants cannot claim that there was no date of decision for the purposes of time limits because the decision did not comply with the legislative requirements for that decision.  For example, the effect of this subsection will be that where a written statement for the decision does not comply with all the requirements set out in subsection 368(1) (for the MRT) or subsection 430(1) (for the RRT), this will not affect the time limits starting to run.  It will be possible for the Federal Court to address injustices caused by this provision by using its broad discretion to order an extension of time under subsection 477A(2), as amended by this item, where it is necessary in the interests of the administration of justice.

90.   New subsection 477A(5) clarifies that for the purpose of seeking judicial review in the Federal Court of a migration decision, the new 35 day time limit commences on the date of decision, notwithstanding the validity of the migration decision.  That is, the time limits will begin irrespective of whether the migration decision is valid or not.  This subsection seeks to ensure that the Federal Court is not required to examine whether there is a jurisdictional error in the migration decision in order to determine whether the application for review is within time.  It will be possible for the Federal Court to address injustices caused by this provision by using its broad discretion to order an extension of time under subsection 477A(2), as amended by this item, where it is necessary in the interests of the administration of justice.

 

Item 5               Subsection 486A(1)

 

91.   This item amends subsection 486A(1) by omitting the words “28 days of the actual (as opposed to deemed) notification of the decision” and replacing them with the words “35 days of the date of the migration decision”.

 

92.   Subsection 486A(1) currently provides that where a person applies to the High Court for a remedy in exercise of the Court’s original jurisdiction, the person must make the application within 28 days of the actual notification of the decision (rather than deemed notification).

 

93.   Two important changes to subsection 486A(1) are made by this item.  Firstly, the 28 day period for lodging an application to the High Court for judicial review of a migration decision will be changed to 35 days.  Secondly, the new 35 day period will commence to run from the “date of the migration decision” rather than from the time of actual notification. 

 

94.   This item removes actual notification as the time from which the time period for seeking judicial review starts to run because it can be difficult to establish when and if, an applicant is actually notified.  In addition, for migration decisions made by the MRT and the RRT, the Full Federal Court held in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105 (‘ SZKKC ’) that the time period for seeking judicial review of a Tribunal decision will begin to run only if the applicant is personally served with the written statement of reasons of the Tribunal by a person authorised by the Registrar of the Tribunal.  It would be expensive and impractical for the Tribunals to implement the practice of personally serving a written statement of the reasons for the decision.  As a result, the time limits for seeking judicial review of a migration decision in subsection 486A(1) are not currently effective.

 

95.   The change to the ‘date of the migration decision’ from which time commences to run for the purpose of time limits for seeking judicial review of a migration decision, will provide greater certainty and overcome the practical difficulties associated with personally serving a written statement of reasons.

 

Item 6               Subsections 486A(1A), (2) and (3)

 

96.   This item repeals current subsections 486A(1A), (2) and (3) of the Act and substitutes new subsections 486A(2), (3), (4) and (5).

 

97.   Current subsection 486A(1A) provides that the High Court may order an extension of the current 28 day period for seeking judicial review of a migration decision by up to 56 days if:

 

·          an application for that order is made within 84 days of the actual notification of the decision; and

·          the High Court is satisfied that it is in the interests of the administration of justice to make the order to extend time.

 

98.   Current subsection 486A(2) provides that the High Court may not make an order extending time to apply for judicial review of a migration decision, outside the 28 day period, other than that provided for by subsection (1A).  This provision is now redundant as a result of the amendment to subsection 486A(1A) by this item which provides the High Court with broad discretion to extend time.  Current subsection 486A(3) provides that the Regulations may prescribe the way of notifying a person of a decision for the purposes of section 486A.  However, this provision is no longer necessary because new subsection 486A(1), as amended by item 5 of this Schedule, provides that the time for applying for review will run from the date of a migration decision and not from notification.  There are currently no regulations made under subsection 486A(3).

 

99.   New subsection 486A(2) will enable the High Court to order an extension of the new 35 day time period for applying for judicial review of a migration decision if paragraphs (a) and (b) are satisfied.  The new 35 day time period for seeking judicial review in the High Court is inserted into subsection 486(1) by item 5 of this Schedule. 

 

100.           New paragraph 486A(2)(a) requires applicants to state in their applications why they consider it necessary in the interests of the administration of justice for the High Court to make the extension of time order.  Requiring applicants to give reasons in their applications for an extension of time will assist the High Court by drawing early attention to cases where there is a compelling reason to grant an extension of the time.  This may assist the Court to deal with requests for extension of time more quickly and may thereby result in a more efficient use of court resources.

 

101.     New paragraph 486A(2)(b) provides that the High Court must be satisfied that it is necessary in the interests of the administration of justice to make the order to extend the 35 day time period.  This paragraph provides a new test for the granting of extension time orders.  It also removes, the restriction on the period by which the High Court may extend time (56 days) and the requirement that the application must be made within 84 days. The High Court will have broad discretion to extend time for applying for judicial review of a migration decision by whatever period it considers appropriate, provided the High Court is satisfied that it is necessary in the interests of the administration of justice. 

 

102.     Vesting the High Court with a broad discretion to extend time where it is necessary in the interests of the administration of justice will protect applicants from possible injustice, while also ensuring that the extension is only granted where there are compelling reasons to do so.  In addition, ensuring that the High Court has broad discretion to extend time seeks to address the High Court’s decision in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 (‘ Bodruddaza ’). In Bodruddaza , the High Court held that the time limit imposed by section 486A of the Act was invalid because it precluded the High Court from exercising residual discretion.  Discretion is a key element of the jurisdiction to grant constitutional writs under paragraph 75(v) of the Constitution.

 

103.     New subsection 486A(3) provides a definition of “date of the migration decision” for the purpose of section 486A, that is, for the purpose of time limits for applying to the High Court for review of a migration decision.  Subsection 486A(1), as amended by item 5 of this Schedule, provides that the 35 day period for applying for review of a migration decision, starts to run from the date of the migration decision.  The definition is given the same meaning as that provided by subsection 477(3), as amended by item 2 of this Schedule.

 

104.     New subsection 486A(4) clarifies that for the purpose of time limits, the 35 day time period starts to run despite a failure to comply with any of the provisions mentioned in subsection (3).  This subsection will ensure that the time limits operate effectively by seeking to ensure that applicants cannot claim that there was no date of decision for the purposes of time limits because the decision did not comply with the legislative requirements for that decision.  For example, the effect of this subsection will be that where a written statement for the decision does not comply with all the requirements set out in subsection 368(1) (for the MRT) or subsection 430(1) (for the RRT), this will not affect the time limits starting to run.  It will be possible for the High Court to address injustices caused by this provision by using its broad discretion to order an extension of time under subsection 486A(2), as amended by this item, where it is necessary in the interests of the administration of justice.

105.     New subsection 486A(5) clarifies that for the purpose of seeking judicial review in the High Court of a migration decision, the new 35 day time limit commences on the date of decision notwithstanding the validity of that decision.  That is, the time limits will begin irrespective of whether the migration decision is valid or not.  This subsection seeks to ensure that the High Court is not required to examine whether there is a jurisdictional error in the migration decision in order to determine whether the application for review is within time.  It will be possible for the High Court to address injustices caused by this provision by using its broad discretion to order an extension of time under subsection 477(2), as amended by this item, where it is necessary in the interests of the administration of justice.

 

Item 7               Application

 

106.     This item inserts an application provision for the amendments made to sections 477, 477A and 486A.

 

107.     The amendments relating to the new time limits for seeking judicial review and the extensions of those time limits, will apply to applications for judicial review made on or after commencement of this Schedule. 

 

108.     However, if a migration decision is made before commencement, then the date of the migration decision is treated as the date of commencement for Schedule 2.  That is, if a migration decision has been made before commencement and judicial review proceedings have not commenced before the commencement of Schedule 2, then the 35 day time period for applying for judicial review will start to run from the date of commencement of Schedule 2.  The effect of this application provision will be to give all applicants who have a migration decision made before the date of commencement, the same time limits as applicants whose decisions are made on the date of commencement. 

 

SCHEDULE 3 - Amendments relating to appeals against extension of time decisions

 

Migration Act 1958

 

Item 1               At the end of section 476A

 

109.     This item inserts new subsections 476A(3), (4) and (5) into Division 2 of Part 8 of the Act.

 

110.     Section 476A currently sets out the circumstances in which the Federal Court of Australia (the Federal Court) has original jurisdiction in relation to a migration decision and provides that where the Federal Court has jurisdiction in relation to a migration decision, that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

 

111.     New subsection 476A(3) provides that despite section 24 of the Federal Court of Australia Act 1976 (the Federal Court Act), an appeal may not be brought to the Federal Court from:

 

-           a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2); or

-           a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).

 

112.     Section 24 of the Federal Court Act provides that the Federal Court has jurisdiction to hear and determine, among other things, appeals from judgments of the Federal Court (constituted by a single Judge), and appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth.  New subsections 477(2) and 477A(2), as amended by items 2 and 4 of Schedule 2 to this Bill, provide that the Federal Magistrates Court and the Federal Court respectively may, in the circumstances set out in those subsections, order an extension to the new 35 day period for applying for judicial review of a migration decision.

 

113.     The purpose of new subsection 476A(3) is to limit appeals to the Federal Court against a judgment of the Federal Magistrates Court or a single judge of the Federal Court to extend, or refuse to extend, the 35 day time limit on applications for a remedy to be granted in exercise of each court’s original jurisdiction in relation to a migration decision.  New subsection 476A(3) will strengthen the new time limits for applying for judicial review of migration decisions, as inserted by Schedule 2 to this Bill.  This will discourage unsuccessful visa applicants from taking advantage of the delays caused by litigation to prolong their stay in Australia.

 

114.     New subsection 476A(4) provides that despite section 33 of the Federal Court Act, an appeal may not be brought to the High Court from a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2).  Section 33 of the Federal Court Act provides, among other things, that an appeal can be brought from a judgment of the Full Federal Court if the High Court grants special leave to appeal. 

 

115.     Under subsection 20(1A) of the Federal Court Act, the Chief Justice of the Federal Court may direct that the original jurisdiction of the Federal Court is exercised by the Full Court if the matter coming before the Federal Court’s original jurisdiction is of sufficient importance. The purpose of new subsection 476A(4) is to limit appeals to the High Court against a judgment of the Full Federal Court to extend, or refuse to extend, the 35 day time limit on applications to the Federal Court for a remedy to be granted in exercise of the Federal Court’s original jurisdiction in relation to a migration decision.   

 

116.     New subsection 476A(5) provides that in section 476A, “judgment” has the same meaning as in the Federal Court Act.  Section 4 of the Federal Court Act, provides that “judgment” means a judgment, decree or order, whether final or interlocutory, or a sentence.

 

Item 2               Application

 

117.     This item provides that the amendment made by Schedule 3 applies to judgments made on or after the commencement of this Schedule that make an order or refuse to make an order under subsections 477(2) or 477A(2) of the Act.