3. Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023
   1. The Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 (Consequential Bill) would:

• where possible, ensure that the Administrative Review Tribunal’s (ART’s) proposed standard powers and procedures would apply to all appellants by repealing bespoke procedures concerning reviews of decision making in other Acts
• in circumstances where the ART’s proposed standard powers and procedures would need to be changed, make the necessary amendments to other Acts to preserve existing arrangements
• effect the transition from the Administrative Appeals Tribunal (AAT) to the ART.[1]
  2. The Consequential Bill contains amendments to 138 Commonwealth Acts. AppendixC lists the Acts that would be consequentially amended by portfolio.
  3. As noted in the first chapter, after the Administrative Review Tribunal Bill 2023 (ARTBill) and the Consequential Bill were referred to this Committee, the Australian Government introduced a third bill, the Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Bill 2024. The third bill would make consequential amendments to the remaining 110 Commonwealth Acts that interact with the AAT Act, including Acts that have required consultation with the states and territories under cooperative schemes or intergovernmental agreements.[2] The Committee was not asked to inquire into the third bill.
  4. This chapter examines a range of issues raised by stakeholders relating to the consequential amendments in the Home Affairs portfolio. The main criticism is that there will be a separate set of procedures with lower standards of procedural fairness for migration and protection applicants, which some stakeholders argue undermines the ART’s aim to provide fair and efficient decision-making.[3]
  5. Concerns were also raised in relation to Schedule 3, which would replace the existing second tier of review within the AAT for social security and some family assistance decisions with the ability to seek further review by the Guidance and Appeals Panel. These issues were examined in the previous chapter.

Home Affairs

3.6The Home Affairs portfolio is responsible for approximately half of all administrative appeals to the AAT.[4] According to the Attorney-General’s Department (AGD):

Where possible, the Consequential and Transitional Bill amends the Migration Act 1958 (the Migration Act) to significantly standardise the review process for migration and protection matters with the other caseloads at the Tribunal. This will enable use of a broader range of powers and procedures for migration and protection matters.[5]

3.7The Explanatory Memorandumfor the Consequential Bill states:

Broadly, the amendments would enable the Tribunal to exercise a range of functions and powers in the ART Bill in proceedings for review of reviewable migration and protection decisions, and harmonise and combine Parts 5 and 7 of the Migration Act into one single Part dealing with the conduct of a review. It would also abolish the [Immigration Assessment Authority] and provide for those matters to transition into the Tribunal to be dealt with as a reviewable protection decision.[6]

Amendments to the Migration Act 1958

3.8The Consequential Bill would repeal the existing Part 7 of the MigrationAct concerning the review of decisions relating to the grant or cancellation of protection visas in some circumstances. They would also replace the existing Part5 of the Migration Act (concerning the review of decisions that relate to a grant or cancellation of visas in some circumstances) with a new Part 5 of the Migration Act dealing with reviewable migration decisions and reviewable protection decisions. According AGD, this would reduce duplication and complexity in the review of Migration Act decisions by the new ART.[7]

3.9The Schedule includes provisions:

• abolishing the Immigration Assessment Authority (IAA)
• abolishing provisions deeming that the Minister has elected to be a non-participating party for most ART review proceedings other than guidance and appeals panel proceedings
• setting out how to make an application for ART review of a migration or visa related matter, who may apply and who the other parties to a review can be
• mandating private hearings for reviewable protection visa decisions at the ART
• imposing shorter timeframes for certain applications, including where applicants are in immigration detention, or are appealing character related visa decisions and bridging visa decisions
• disapplying provisions in the ART Bill concerning extensions of time and reinstatement of applications for migration and visa applicants
• altering certain provisions in the ART Bill concerning provision of documents and statements of reasons to the ART and parties to a migration and visa related matter
• requiring that applicants must request files for migration and visa appeals
• adjusting the exhaustive statement of the natural justice hearing rule, so that it applies only in limited, critical areas
• disapplying appeals to the guidance and appeals panel for migration and visa related decisions, while retaining the ability for the President of the Tribunal to refer matters raising systemic issues to the guidance and appeals panel.[8]
  10. Some amendments remove bespoke procedures for reviews of migration and visa matters. In these cases, the standard provisions in the ART Bill will apply. This includes the option to hold directions hearings, case conferences and to use broader dismissal powers, directions powers and summons powers.[9]
  11. The Explanatory Memorandum for the Consequential Bill states:

The provisions retain and enhance special features that are fundamental to the operation of Tribunal review for migration and refugee matters, including provisions that disapply or apply instead of, or in addition to, provisions of the ART Bill. These provisions recognise the distinct nature of these applications and their volume and complexity.[10]

Abolition of the Immigration Assessment Authority

3.12The Consequential Bill repeals Part 7AA of the Migration Act, which will abolish the IAA.[11] The IAA was established to allow for the review of refugee status decisions made under legislation passed to deal with the ‘legacy’ caseload of asylum seekers who came to Australia by boat between 2012 and 2013.[12] Relevant applicants will now have their matters reviewed in the same way as other protection visa applicants.[13]

3.13According to Professor Mary Crock, the IAA is more like an ‘internal’ departmental review than an external review:

Applicants are allowed to submit 5 pages of written arguments contesting the rejection of their claims. The presumptive starting point is that the review must be carried out without accepting or requesting new information, and without interviewing the applicant. A key element of review by the IAA is the restriction on consideration of new information. In theory the IAA has power to seek out and consider new information. It can invite an applicant to give information orally or in writing, but did not do so in practice.[14]

3.14While the IAA system was intended to speed up consideration of these legacy caseload decisions, it generated a large number of judicial review applications. In February 2023, over 12,000 cases remained unresolved.[15]

Exhaustive statements of natural justice

3.15Natural justice refers to certain rights conferred upon applicants by common law that must be met for an administrative decision to be valid. In the context of administrative decision making, natural justice takes the form of procedural fairness. There is no fixed definition of procedural fairness, but in general it refers to a reasonable opportunity for an applicant to present their case in the relevant circumstances. An ‘exhaustive statement of natural justice’ refers to an attempt by the Government to codify what ‘natural justice’ means in a particular circumstance.[16]

3.16The natural justice rule for migration and visa matters in the Consequential Bill has been adjusted to apply in limited ‘critical’ areas for migration and visa review matters.[17] This includes:

• the notification framework concerning the provision of information to applicants (including ‘deemed receipt’)
• the information that must be, and must not be, put before the applicant in a review before certain powers are exercised
• the ability of the Minister to issue non-disclosure certificates for certain types of evidence relevant to an administrative decision.[18]
  17. The Explanatory Memorandum for the Consequential Bill states that:

These amendments ensure that there continues to be a robust administrative review mechanism available for reviewable migration and protection decisions, allowing applicants a fair opportunity to put forward their case.[19]

3.18AGD further advised:

Other matters currently covered by the exhaustive statement of the natural justice hearing rule will be repealed. This includes provisions that are no longer necessary because they duplicate provisions in the ART Bill or unnecessarily constrain the Tribunal’s ability to conduct efficient and fair reviews.[20]

3.19AGD said these amendments will result in a significant reduction in the matters where an exhaustive statement of natural justice will apply.[21]

Notification

3.20The new notification framework in Part 5 of the Migration Act would displace the common law as it relates to providing documents to an applicant, and in particular when the applicant is taken to have received notification in relation to an ART review.[22] The effect of the provision is that an applicant will be ‘deemed’ to have been notified, even though the applicant may not have received actual notification.[23]

3.21AGD argued that:

In the Department of Home Affairs’ experience, the notifications regime gives certainty in relation to precisely when certain documents are lawfully given by the Tribunal to applicants. This supports the efficient conduct of reviews, for example, by minimising avenues for the applicant to debate when they received correspondence and therefore when the timeframe for response began and ended. Having certainty regarding the date the decision is taken to have been made also allows the applicant to easily calculate when a judicial review application needs to be lodged (if they wish to do so).[24]

3.22Accordingly, the proposed notification framework would enable the legitimate objective of supporting efficient ART reviews of decisions. The codification of notification is necessary because of the significant volume of migration and protection matters. Codification also contributes to certainty about how the ART communicates and when documents essential to a review have been received.[25]

Provision of documents

3.23As noted in the previous chapter, the ART Bill contains a requirement for the decision maker to provide all parties to a matter with a copy of relevant documents. This enables all applicants to access the same information as the ART and the decision maker.[26] In relation to migration and visa reviews, however, the onus of this requirement is reversed. An applicant is instead required to request the Department of Home Affairs provide such documents.[27]

3.24AGD argued that:

Given the volume of migration and protection matters and the high proportion of people who have copies of their documents, the request-based model provides the appropriate balance between equity, fairness and accessibility, and the efficient and effective use of Government resourcing.[28]

3.25This process has attracted a degree of criticism. Monash Law Clinics argued that, although governed by the Migration Act, there is no logical justification for migration and visa decision reviews to have a more onerous regime for applicants to obtain documents relevant to their applications compared to other applications for review.[29]

3.26Further, the Asylum Seeker Resource Centre argued that the Consequential Bill would not require the ART to notify the applicant it intends to rely on adverse information used in the original decision to affirm the decision. In other words, the ART would be permitted to find against an applicant without providing any notice to the applicant that it intends to rely on information mentioned in the original decision that the original decision-maker did not use when making the original decision.[30]

Adverse information and non-disclosure certificates

3.27In addition to placing the onus on the applicant to request copies of documents relevant to their appeal for a review of a migration and visa decision, the new bespoke migration and visa provisions retain previous provisions preventing an applicant from obtaining certain documents. There are two categories of such documents, adverse information documents and documents subject to a ministerial non-disclosure certificate. Adverse information means information that is not specifically about the applicant, information the applicant has provided themselves, and information ‘that was included or referred to in the written statement provided to the applicant of the decision under review.’[31]

3.28AGD argued that, in its experience, providing adverse information documents was not necessary in ‘circumstances where factual information has already been exhaustively considered’ as part of the original decision and any following reviews.[32]

3.29Ministerial non-disclosure certificates allow the Minister to certify that certain information must not be disclosed on the basis of either the security, defence or international relations of Australia, or because the deliberations or decisions of the Cabinet might be revealed. Where such a certificate is issued, the information may only be provided to the ART, and not to the applicant.[33]

3.30In support of the retention of these provisions, the Explanatory Memorandum states:

These limitations are reasonable and necessary to manage the volume of migration and protection reviews, while minimising the disadvantage to the applicant, as the information is either not about them, is information they ought to have access to already, or is against the public interest to disclose. As such, the limitation is permissible.[34]

Timeframes

3.31Schedule 2 of the Consequential Bill applies the standard 28-day timeframe to most applicants for migration and visa decisions. This represents an increase in many existing timeframes under the Migration Act, but is a reduction from 70 days for certain reviewable decisions in recognition that longer timeframes for persons who are offshore are no longer required when applications can be made electronically.[35]

3.32However, reduced timeframes (of seven or nine days after being notified) apply for certain migration and visa decisions.[36]

3.33The Consequential Bill would amend specific timeframes in the Migration Act as follows:

• Paragraph 347(3)(a) would provide that an application for review of a decision from eligible applicants in immigration detention must be made within seven days after the day the applicant is notified of the decision.
• Section 367 would provide that for a refusal to grant, or cancellation of, a visa that requires a person to be detained, a decision on review and notification of the applicant must be provided within seven working days after the day on which the review application is received.
• Section 500(6B) would retain existing nine-day timeframe for a review of a decision to refuse or cancel a visa on character grounds.
• The ART must make a decision within 84 days of the day on which an applicant would be notified the outcome of a review of a decision to refuse or cancel a visa under section 501 or a revocation request under section 501C.
• Subsection 347(5) provides that the ART cannot provide a timeframe extension for an application to review a migration or visa decision.[37]
  34. Organisations that provide advocacy services to migrants and refugees, such as Refugee Advice and Casework Services, pointed out the difficulties such short time frames present for applicants and their representatives:

The ART Bill sets out a general rule that provides for 28 days to lodge an appeal, however, some refugees and people seeking asylum in detention would have only 7 days to apply for a review a decision. Other applicants who are seeking a review of a decision to refuse or cancel a visa on character grounds are limited to only 9 days to make an appeal. In our experience, this is a wholly insufficient timeframe for an applicant to: read a complex legal decision that is likely in a language they are not fluent in, understand the contents of the decision, recognise the timeframe for an appeal and contact a legal service provider for advice or assistance. This is also not accounting for the time required by the legal service provider to respond to queries for assistance, obtain the necessary information to be able to provide relevant legal advice, and offer substantive assistance with lodging an appeal.[38]

3.35Professor Mary Crock argued that:

… the inflexibility of time limits undermines the ability of the tribunal to deliver effective and efficient justice for applicants ... With the backlog in judicial review applications and the overwhelming number of ministerial appeals, it is difficult to see the wisdom in this constraint on the new ART.[39]

3.36Professor Crock added that ‘process failures [in the migrant and visa appeals process] have resulted in great harms, including loss of livelihood or opportunity and prolonged deprivation of personal liberty.’[40]

3.37Law Council of Australia (LCA) recommended that:

… the 28-day period be streamlined across the board for reviewable migration and protection matters under Schedule 2, including ‘character’ review applications under section 500 of the Migration Act (currently nine days, and proposed to be retained) to make it fairer and easier for all applicants to access justice.[41]

3.38The Immigration Advice and Rights Centre stated that it has witnessed many clients unable to seek merits review at the AAT as the timeframe to lodge a review application has expired:

These clients often have meritorious cases, but due to a lack of ability to have the timeframe extended, are then left with limited to no realistic options to appeal their matter or remain in Australia.[42]

3.39In support of these time frames, the AGD noted that:

• Any potential limitation of time frames is reasonable and necessary to maintain the integrity of the immigration framework.[43]
• The timeframes for persons in immigration detention would increase from two days to seven.[44]
• A shorter timeframe would reflect the priority of resolving the immigration status of visa applicants who are required to be detained until their immigration status has been resolved.[45]
• The shorter timeframe also minimises the opportunity for exploitation of the review timeframe to delay departure from Australia.[46]
• The nine day time period for character related visa decisions has been maintained so as to be as efficient as possible, while also being fair, and reflects the sensitive nature of these matters.[47]

Treatment of new information

3.40LCA noted that:

Under item 170, new section 367A replaces existing section 423A of the Migration Act. New 367A requires the Tribunal to draw an interference unfavourable to the credibility of new claims or evidence provided to the Tribunal if the applicant does not have a reasonable explanation to justify why claims were not raised or the evidence was not presented before the primary decision was made on their protection visa application.[48]

3.41The origin of these provisions lies in the IAA’s reviews of Protection Visa decisions, which took place on the basis that a review must be carried out without accepting or requesting new information, and without interviewing the applicant.[49] This ‘starting point’ has been partially retained in the bespoke migrant and visa process in a new section 367A of the Migration Act that would direct the ART to draw an ‘unfavourable inference’ when a Protection Visa applicant raises new claims or evidence during an ART review.[50]

3.42The Committee heard that Protection Visa applicants may have valid reasons for a delay in providing updated evidence and claims, including trauma and related mental health illness, language barriers, fear of authorities and lack of legal representation.[51]

3.43AGD argued that this provision is intended to ensure that applicants present all the available evidence relevant to their Protection Visa application at the start of the application process to allow for an accurate and efficient decision by the decision maker.[52]

3.44The Committee notes that the ‘unfavourable inference’ provisions, unlike the original IAA provisions, would permit the ART to accept new evidence from a Protection Visa applicant if the ART is satisfied that the applicant has a ‘reasonable explanation’ for the delay in providing the information.

Conclusion

3.45The Committee acknowledges that the proposed new administrative arrangements for migration and protection matters do not go as far as many would like. However, the Committee is of the view that the Consequential Bill meets the intended policy objectives of streamlining the administrative appeals process, while maintaining the current principles of administrative review.

3.46The Committee is also of the view that the arrangements in the Bill would – together with other measures announced by the Government – go a long way towards addressing the crippling delays in the Migration and Refugee Division of the AAT. As the Nixon Review noted, those delays are ‘motivating bad actors to take advantage by lodging increasing numbers of non-genuine applications for protection’.[53] The Committee agrees with the comments by the Attorney-General in his Second Reading Speech when he noted that this comes at a cost to people in genuine need of protection and to the broader Australian community.[54]

3.47The Committee recommends the House of Representatives pass the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Bill 2023 without amendment.

3.48The Committee is grateful to all those who contributed their time and expertise to this inquiry by preparing quality submissions during December 2023 and January 2024.

Ms Susan Templeman MP

Chair

Footnotes

[1]Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023, Explanatory Memorandum, pages 2-3.

[2]Consequential Bill, Explanatory Memorandum, page 1.

[3]Office of the United Nations High Commissioner for Refugees (UNHCR), Submission 18, pages 2-4; Professor Mary Crock, Submission 9, page 6; Kaldor Centre Data Lab, Submission 11, page 7; Asylum Seeker Resource Centre (ASRC), Submission 14, page 1; Liberty Victoria, Submission 14, page 3. See also Refugee Council of Australia, Submission 25, page 1.

[4]Attorney-General’s Department (AGD), Submission 6, page 11.

[5]AGD, Submission 6, page 11.

[6]Consequential Bill, Explanatory Memorandum, page 8.

[7]AGD, Submission 6, page 11.

[8]Consequential Bill, Explanatory Memorandum, page 57.

[9]Consequential Bill, Explanatory Memorandum, pages 57-58.

[10]Consequential Bill, Explanatory Memorandum, page 57.

[11]AGD, Submission 6, page 12.

[12]Professor Crock, Submission 9, page 5.

[13]Consequential Bill, Explanatory Memorandum, page 58.

[14]Professor Crock, Submission 9, page 5.

[15]Professor Crock, Submission 9, page 5, Kaldor Centre Data Lab, Submission 11, pages 5-6.

[16]Australian Law Reform Commission, Traditional Rights and Freedoms - Encroachments by Commonwealth Laws, 2014, Page 395.

[17]AGD, Submission 6, page 12.

[18]AGD, Submission 6.1, pages 9-10.

[19]Consequential Bill, Explanatory Memorandum, page 14.

[20]AGD, Submission 6.1, page 10.

[21]AGD, Submission 6.1, page 10.

[22]Consequential Bill, Explanatory Memorandum, page 11.

[23]Consequential Bill, Explanatory Memorandum, page 11.

[24]AGD, Submission 6.1, pages 10-11.

[25]Consequential Bill, Explanatory Memorandum, page 11.

[26]UNHCR, Submission 18, page 2.

[27]Liberty Victoria, Submission 16, page 7; Immigration Advice and Rights Centre, Submission 23, page 3.

[28]AGD, Submission 6, page 13.

[29]Monash Law Clinics, Submission 8, Attachment 1, page 21. See also: Liberty Victoria, Submission 16, pages 7-8, ASRC, Submission 14, page 10; and Immigration Advice and Rights Centre, Submission 23, page (3).

[30]ASRC, Submission 14, page 8, Liberty Victoria, Submission 14, page 3, UNHCR, Submission 18, page 2.

[31]AGD, Submission 6.1, page 10.

[32]AGD, Submission 6.1, page 10.

[33]Consequential Bill, Explanatory Memorandum, page 11.

[34]Consequential Bill, Explanatory Memorandum, page 11.

[35]Consequential Bill, Explanatory Memorandum, page 12.

[36]Consequential Bill, Explanatory Memorandum, page 12.

[37]Consequential Bill, Explanatory Memorandum, pages 12-13.

[38]Refugee Advice and Casework Services, Submission 30, page 5.

[39]Professor Crock, Submission 9, page 6.

[40]Professor Crock, Submission 9, pages 4-5.

[41]Law Council of Australia (LCA), Submission 28, page 58.

[42]Immigration Advice and Rights Centre, Submission 23, page 2. See also Kaldor Centre Data Lab, Submission 11, page 7; ASRC, Submission 14, page 7.

[43]Consequential Bill, Explanatory Memorandum, page 13.

[44]AGD, Submission 6, page 12.

[45]AGD, Submission 6, pages 12-13.

[46]AGD, Submission 6, pages 12-13.

[47]AGD, Submission 6, page 13.

[48]LCA, Submission 28, page 57.

[49]Professor Crock, Submission 9, page 5.

[50]Kaldor Centre Data Lab, Submission 11, page 7.

[51]ASRC, Submission 14, page 6, Liberty Victoria, Submission 16, page 3, and Kaldor Centre Data Lab, Submission 11, page 7.

[52]AGD, Submission 6.1, page 11.

[53]Department of Home Affairs, Rapid Review into the Exploitation of Australia's Visa System, March 2023, page 24.

[54]The Attorney-General, the Hon Mark Dreyfus KC MP, House of Representatives Hansard, 7 December 2023, page 9202.