Introduction and background

1.1        On 1 December 2016, the Senate referred the provisions of the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 14 February 2017.[1]

1.2        The Senate Selection of Bills Committee recommended that the bill be referred to the committee due to:

The complex nature of the Migration Act and the impact any change may have on people seeking a visa, industry bodies, Australian business and residents warrants further consultation and investigation.^[2]

Background and purpose of the bill

1.3        The bill is intended to complement the Tribunals Amalgamation Act 2015 (Tribunals Act), which merged the key Commonwealth merits review tribunals that were responsible for reviewing certain decisions made under the Migration Act 1958 (Migration Act).

1.4        The Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) were abolished when the Tribunals Act commenced on 1 July 2015, with their functions amalgamated into the newly-established Migration and Refugee Division (MRD) of the Administrative Appeals Tribunal (AAT or Tribunal).[3]

1.5        However, the current Migration Act still contains two different codes of procedure for reviews of decisions made by the former MRT and RRT. Schedule 1 of the bill has been designed to amend this discrepancy, consolidating the functions of the former MRT and RRT into the MRD.[4]

1.6        The bill also contains a number of provisions designed to expedite applications made to the MRD, spread across Schedules 1 and 2 of the bill.

1.7        In particular, Schedule 2 includes provisions for families to 'bundle' applications, so that that their cases can be considered together.

1.8        The Hon Peter Dutton MP, the Minister for Immigration and Border Protection (the Minister), outlined the benefits of the proposed amendments in his Second Reading Speech:

[They will] assist applicants intending to lodge a review application, or who currently have a review on hand, with the Migration and Refugee Division of the AAT to have one consolidated part in the Migration Act to refer to for the code of procedure governing review. This is so regardless of the decision being a protection decision or migration decision, given that both may be reviewed by the Migration and Refugee Division.[5]

Overview of the provisions of the bill

Harmonisation of codes of practice (Schedule 1)

1.9        Schedule 1 of the bill contains provisions to 'harmonise and streamline' parts 5 and 7 of the Migration Act, so the MRD can administer the functions of the former MRT and RRT more effectively. This was summarised by the Department of Immigration and Border Protection (the department) in their submission to the inquiry:

The codes of procedure for review of decisions by the former MRT and the former RRT were, respectively, contained in Parts 5 and 7 of the Migration Act. The separation of the codes of procedure in Parts 5 and 7 reflected the previous existence of the two former tribunals. The Amalgamation Act amended these Parts as a consequence of the establishment of the MRD. However, now that the functions of both the former MRT and the former RRT have been taken over by a single Division of the AAT, it is appropriate that the codes of procedure are streamlined and consolidated into a single Part of the Migration Act.[6]

1.10      In practice, this means that the MRD of the AAT now handles decisions formerly handled by the MRT and RRT, such as 'a decision to refuse to grant a visa or a decision to cancel a visa on non-character grounds'.[7]

Other amendments to improve efficiency of the Tribunal (Schedules 1 and 2)

1.11      The bill contains a number of other provisions designed to improve the efficiency of the Tribunal, which are contained across Schedules 1 and 2. The Explanatory Memorandum highlights provisions aimed at:

• clarifying the operation of certain provisions relating to the conduct of review such that they are interpreted as intended (a number of Items contained in Schedule 1);
• clarifying the notification requirements in relation to oral decisions of the MRD (a number of Items contained in Schedule 1); and
• addressing an anomaly in Part 7AA of the Act regarding the giving of documents by the Immigration Assessment Authority (IAA) in relation to family groups as well as providing a mechanism for the IAA to review decisions relating to family groups together (a number of Items in Schedule 2).[8]

Financial implications

1.12      The Explanatory Memorandum includes a financial impact statement that notes the bill would have a low financial impact.[9]

Compatibility with human rights

1.13      The Explanatory Memorandum states that the bill is compatible with Australia's human rights obligations.[10]

Conduct of the inquiry

1.14      Details of the inquiry were advertised on the committee's website, including a call for submissions by 13 January 2017.[11] The committee also wrote directly to some individuals and organisations, inviting them to make submissions.

1.15      The committee received four submissions, which are listed at appendix 1 of this report. These submissions are available on the committee's website. The committee also sought additional clarification on particular provisions of the bill from the department.

Structure of this report

1.16      This report consists of two chapters:

• This chapter provides a brief background and overview of the bill, as well as the administrative details of the inquiry.
• Chapter 2 discusses the issues raised by submitters to the inquiry. It also outlines the committee's views and recommendations.

Acknowledgements

1.17      The committee thanks the organisations that made submissions to this inquiry.

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