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Research Note no. 58 2003–04
Time limits on migration court appeals
Peter Prince
Law and Bills Digest Section
31 May 2004
Australian governments for the last ten years or more
have tried to reduce the use of the Australian court system by people
refused the right to stay in this country. Various methods have been tried
by governments of both persuasions—with limited success. This research
note focuses on the key method in the latest legislation to address this
issue: the Migration Amendment (Judicial Review) Bill 2004.
The migration caseload
In October 2003 the Attorney-General, the Hon. Philip Ruddock MP, announced
a 'Migration Litigation Review'. According to Mr Ruddock, 'much court
time is being wasted at taxpayer expense … Great strain is being placed
on the courts and the migration system more generally by unmeritorious applications.'(1)
These are not new concerns. Former Immigration Minister Gerry Hand (ALP)
told a Senate inquiry in 1998 that throughout his time as Minister, he was
concerned with the 'amount of public resources consumed in judicial review
processes which ultimately did not alter the situation that the person was
not entitled to remain in Australia.'(2)
The migration appeal process
A person wishing to stay in Australia who has been refused a visa or
whose visa has been cancelled can appeal—depending on the nature of their
particular case—to the Migration Review Tribunal, the Refugee Review Tribunal
or the Commonwealth Administrative Appeals Tribunal. Each of these tribunals
will conduct 'merits review' of the particular matter, i.e. they will
review the facts of the case and the relevant law as if they were
the original decision-maker, and either substitute their own decision
or send the matter back to the appropriate immigration officials for a
new decision.
If the person is unsuccessful at the tribunal stage, they can appeal
directly to the Minister, or seek judicial review in the Federal Magistrates
Court, the Federal Court or the High Court. Judicial review involves a
review of the legality of the tribunal's decision.
As prominent barrister John Basten QC says, 'the history of immigration
law reform over the last decade has been dominated by attempts to restrict
judicial review of decision making'. Previous restrictions in the Migration
Act on court appeals were based on reforms introduced in 1992 by the Keating
Government. But Labor's reforms 'suffered from serious technical difficulties'(3)
and were only partially effective in a legal sense.
After the Coalition Government came to power in 1996, it contemplated 'a
more radical set of restraints on judicial review'(4) in immigration
matters. In 2001 Parliament approved a new Part 8 for the Migration Act,
including new section 474 which said that visa decisions by an immigration
official or one of the tribunals would be 'final and conclusive and must
not be challenged, appealed against, reviewed, quashed or called in question
in any court.' Minister Ruddock explained that the amendment 'will restrict
access to judicial review in all but exceptional circumstances.'(5)
In 2003 the High Court in the case of Plaintiff S157 made the restriction
on court appeals in section 474 largely ineffective. The High Court said
that a migration decision affected by what it called a 'jurisdictional
error' or mistake was 'in law … no decision at all'. Any decision with
such an error was not properly 'made under' the Migration Act and was
not covered by the restriction on court appeals in section 474.
The effect of the ruling in Plaintiff S157 was to allow people refused
a visa to appeal to the federal or High Courts because of more or less any
mistake by an immigration official or tribunal. In Plaintiff S157
itself, for example, the Refugee Review Tribunal did not give a person seeking
a protection visa a fair hearing.(6) This mistake meant the refusal
of the visa by the tribunal was not a decision properly 'made under' the
Migration Act.(7) So the restriction on appeals in section 474
—as well as, importantly, the strict time limit for appealing to the High
Court in section 486A—were not applicable,(8) and the person
could appeal to the High Court, and could do so even though the time limit
had expired.
The 2004 Bill
The main aim of the legislation currently before the Parliament is to counter
the effect of the High Court's judgment in Plaintiff S157 and to
re-impose or re-introduce restrictions on court appeals, especially through
strict time limits. The Bill does this by saying that invalid or 'purported'
decisions—that is, decisions involving some mistake or error—are
covered by the Migration Act, except, importantly, for the purpose of
section 474. So the restriction on court appeals in section 474 will have
no real effect, even with this Bill.
But other parts of the Migration Act, including those imposing time limits
for appealing to a court, will apply. The Bill sets a 28 day period for
lodging an appeal to the Federal Magistrates Court, the Federal Court or
the High Court, although the courts can extend this period by up to a further
56 days if it is 'in the interests of the administration of justice to do
so'.
The Bill also removes the current requirement in the Migration Act for
a person to be 'actually' notified of an adverse visa decision before
the time period for an appeal to the High Court starts to run.
Constitutional issues
The Bill does not try to make the blanket restriction in section 474
on any appeal to any court legally effective—because the High Court made
it clear in Plaintiff S157 that it would not accept this. The High
Court said that if the Migration Act was amended to prevent people appealing
to the court against any decision—even those containing mistakes or errors,
then the Migration Act 'would be in direct conflict with section 75 of
the Constitution'.
Section 75 of the Constitution states that the High Court has 'original
jurisdiction' (i.e. the authority to hear cases) in all matters in which
the Commonwealth is a party or where a legal remedy is sought against
'an officer of the Commonwealth'. This provision ensures that the actions
of the Commonwealth and its officers—including immigration officials and
migration tribunals—can be tested in the High Court. As the Court itself
said, section 75:
'is a means of assuring … that officers of the Commonwealth
obey the law and neither exceed nor neglect any jurisdiction which the
law confers on them … In the end … this limits the powers of the Parliament
or of the Executive to avoid, or confine, judicial review'
As Chief Justice Gleeson said, the ability of the High
Court 'to require officers of the Commonwealth to act within the law cannot
be taken away by Parliament'.(9)
Time limits
The Commonwealth could validly pass legislation preventing migration
appeals to the Federal and Federal Magistrates Courts. The jurisdiction
of these courts—unlike the High Court—is controlled by statute and is
not enshrined in the Constitution. But the Bill does not seek to do this.
Instead it imposes—or re-imposes—a time limit on appeals to the two courts.
This is plainly within the Commonwealth's constitutional authority.
In Plaintiff S157 High Court justice Ian Callinan said the Commonwealth
Government can also impose time limits on appeals to the High Court, but
not if this stops people having access to the court. Justice Callinan
said the existing time limit of 35 days in the Migration Act for appealing
to the High Court was invalid since the type of people who want to appeal
'may be incapable of speaking English … and will often be living or detained
in places remote from lawyers'. So in practice the Migration Act as currently
worded can deny such people access to the High Court, in conflict with
section 75.
However the Bill currently before Parliament further reduces the time
for appealing to the High Court to 28 days, although it does give the
High Court the discretion to allow an appeal within a further set period
of 56 days. An important point to note is that even setting this longer
period amounts to an absolute prohibition on appeals to the High Court
outside this time, with no allowance for the circumstances of any particular
case. As Chief Justice Gleeson noted, the problem with such an approach
is that some grounds for appealing—such as fraud or a 'corrupt inducement'
to make a decision in a certain way—might not be discovered until after
such a fixed time limit for appealing expires.
Further reading:
See Bills Digest
No. 118 2003-04.
- P. Ruddock, transcript of press conference, 27 October 2003.
- Senate Legal and Constitutional Committee, Report into Migration Legislation
Amendment (Judicial Review) Bill 1998, p. 7.
- J. Basten, 'Revival of procedural fairness for asylum seekers', Alternative
Law Journal, June 2003, p.114.
- ibid.
- P. Ruddock, Second reading: Migration Legislation Amendment (Judicial
Review) Bill 2001, House of Representatives, Debates, 26.9.01,
p. 31559.
- Duncan Kerr and George Williams, 'Review of executive action and the
rule of law under the Australian Constitution', (2003) 14 Public
Law Review 219 at 221.
- Plaintiff S157 211 CLR 476 at 506.
- ibid at 514.
- ibid at 482.
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