Key issues
2.1
This chapter sets out the issues raised by submitters to the inquiry
concerning the Migration Legislation Amendment (Code of Procedure
Harmonisation) Bill 2016 (the bill).
2.2
First, it considers the general support for the bill's provisions in
submissions to the inquiry. Second, it looks at the concerns raised about the
bill, which are discussed by schedule.
2.3
Lastly, this chapter outlines the committee's views and recommendations.
Support for the bill
Harmonising codes of practice
across the Administrative Appeals Tribunal
2.4
The Department of Immigration and Border Protection (the department) outlined
the positive effects that the bill would have on the transparency and
efficiency of decisions made by the Administrative Appeals Tribunal (AAT or
Tribunal):
...now that the functions of both the former [Migration Review
Tribunal] and the former [Refugee Review Tribunal] have been taken over by a
single Division of the AAT [namely the Migration and Refugee Division (MRD)],
it is appropriate that the codes of procedure are streamlined and consolidated
into a single Part of the Migration Act.
The Bill consolidates the codes of procedure in Parts 5 and 7
into a single code of procedure, and makes a number of additional amendments
aimed at clarifying the operation of certain provisions relating to the conduct
of review, and at improving the efficiency of the review process by the MRD and
by the Immigration Assessment Authority (IAA).[1]
2.5
The Law Council of Australia (Law Council) was broadly supportive of the
harmonisation of procedures across the AAT, particularly:
...the reformulation of moving the...MRD as part of the
development of the amalgamated AAT as a body that reviews government decisions
(rather than being exceptional within the field of administrative review).[2]
2.6
In answers to questions on notice, the department noted that the bill is
not intended to harmonise the codes of practice used across the AAT, but only
those relevant to the MRD. It noted that:
The amendments in the Bill do not alter the decisions for
which merits review is currently available under the Migration Act, or alter
the rights of current or future applicants to seek review.
It is noted that there are certain policy settings and
drivers that are unique to the MRD’s caseload. Any amendments to align
procedures between the MRD and the General Division would need to be carefully
considered.[3]
Maintaining rights of review for
applicants
2.7
The department submitted that the bill's provisions would have no effect
on the rights of visa applicants or former visa holders to seek reviews of
refusal or cancellation decisions made under the Migration Act:
The amendments do not alter the decisions for which merits
review is currently available under the Migration Act, and do not otherwise
diminish a former visa holder or visa applicant's access to merits review of
refusal and cancellation decisions.
Former protection visa holders and protection visa applicants
will retain their right of access to merits review, and the amendments will not
affect how a review applicant's protection claims are assessed. The Bill also
maintains privacy requirements in relation to former protection visa holders
and protection visa applicants, including mechanisms to protect the identity of
the review applicant and relevant parties.[4]
Improving the efficiency of the
Tribunal
2.8
The Explanatory Memorandum states that the amendments made by Part 3 of
Schedule 2 of the bill would make the Tribunal more efficient, by expediting
the reviewable decisions process for some families applying for visas. It notes
that:
...the Minister may refer fast track reviewable decisions in
relation to members of the same family unit to the IAA for review together.
They also confirm that the IAA may review two or more fast track reviewable
decisions together, whether or not they were referred together. Further, these
amendments ensure that where fast track reviewable decisions have been referred
and reviewed together, documents given by the IAA to any of the applicants are
taken to be given to each of them. This would make the IAA provisions
consistent with the giving of documents provisions that apply to family groups
in the MRD.[5]
2.9
The department submitted that the provisions of the bill would make Australia's
visa system more flexible and efficient, particularly for families, as:
...the amendments will increase the efficiency of review of
decisions concerning members of the same family unit. Applicants will not be
disadvantaged as these changes do not compel referral, consideration or
notification of decisions together. If it is considered appropriate in the
circumstances, the IAA retains the ability to review decisions relating to
members of the same family unit separately.[6]
2.10
According to the department, the bill would have no implications for the
Australian business sector or current residents, as the relevant 'decisions for
which merits review is currently available to businesses in a sponsor capacity
will not change under the amendments'.[7]
General concerns raised about the bill
The need to harmonise codes of
procedures across the whole Tribunal
2.11
The Law Council was concerned that some aspects of the bill were not
consistent with the goal of harmonising procedures across the AAT and could
lead to procedural unfairness for some migration and refugee visa applicants:
The role and functions of the MRD remain distinctly separate
from the role and functions of the General Division and, in many instances, the
proposed changes erode the rights of review applicants to fair hearings and
continue to isolate the MRD distinct from—as opposed to harmonised with—the
remainder of the Tribunal with which it amalgamated. The Bill seems only to
address inconsistencies within the MRD through the partial amalgamation of Part
5 and Part 7 of the Migration Act 1958...in many instances at the cost of
procedural fairness to both migration and refugee visa review applicants.[8]
2.12
Victoria Legal Aid was also concerned that the bill could erode some the rights of people subject
to adverse decisions made under the Migration Act 1958
(Migration Act). It noted that the proposed amendments made by the bill could
potentially 'water down substantive rights without any compelling 'harmonisation'
rationale'.[9]
2.13
The Refugee Advice and Casework Service (RACS) submitted that the bill's
provisions would disadvantage some of their clients, as it:
...proposes a number of substantive changes to the review
procedures and the 'fast track' provisions. We submit that these substantive
changes will adversely impact a number of our clients and compromise certain
existing procedural fairness safeguards.[10]
2.14
The Law Council also noted that this bill only harmonised codes of
procedure underpinning the former RRT and MRT, but that it was also needed more
broadly for all other AAT tribunals assessing decisions made under the
Migration Act.[11]
2.15
Victoria Legal Aid highlighted the potential for the amendments to cause
an increase in judicial review of AAT decisions, and the complications and
inefficiency this could cause:
Some of the changes are also likely to increase the risk of
successful legal challenge with decisions being subject to judicial review and
then remitted back to the Tribunal, creating inefficiency and delay.[12]
Concerns raised about provisions contained in Schedule 1
The right of applicants to
representation
2.16
The Law Council raised concerns that the provisions of the bill may
erode the rights of some review applicants, which would be contrary to the AAT's
stated objective of providing reviews that are 'accessible, fair, just,
economical, formal and quick'.[13]
2.17
The Law Council noted this risk may particularly affect those who are
unrepresented or have limited representation due to restrictions placed on
representation by lawyers at hearings.[14]
Most seriously, it highlighted that the bill does not harmonise section 366A of
the Migration Act with the Administrative Appeals Act 1975
(AAT Act), which allows persons to be represented, commenting that:
...implementation of s 366A(2) of the [Migration Act]—which
enables a person to assist an applicant during a hearing but not present
arguments unless 'exceptional circumstances' arise—varies considerably as a
result of the broad discretion that it grants Tribunal Members...[which
potentially] detracts from the support that a representative can provide to the
review applicant, isolates the applicant at the hearing table, places the
review applicant away from material in the representative's possession, and
impedes the representative's capacity to effectively represent or assist the
review applicant.[15]
2.18
The Law Council noted that the forthcoming deregulation of migration
lawyers was likely to increase the number of lawyers involved in cases before
the AAT. Should this occur, they suggested:
...the lack of representation for review applicants in the MRD
as opposed to the General Division, will stand out as a legal anomaly and
unduly limit procedural fairness in the AAT.[16]
2.19
The department responded to the Law Council's submission in answers to
questions on notice, noting its comments addressed issues 'beyond the scope of
this bill'.[17]
The department reiterated that the bill was intended only to harmonise codes of
procedure contained in parts 5 and 7 of the Migration Act—rather than those
active across other areas of the AAT, and noted:
Section 366A of the Migration Act currently provides for a
person to assist an applicant appearing before the Tribunal in respect of a
migration reviewable decision only. The Bill provides this existing position to
refugee reviewable decisions, thus harmonising the procedures.[18]
Procedural fairness and substantial
justice of the AAT
2.20
Some submitters raised concerns that the bill would adversely affect the
integrity of the AAT, and its requirements for providing decisions grounded in
substantial and natural justice.
2.21
For instance, Victoria Legal Aid noted that the bill would remove
sections 353(b) and 420(b) of the Migration Act, which require the AAT to 'act
according to substantial justice and the merits of the case'.[19]
However, the Explanatory Memorandum notes that the Tribunal would be subject to
these principles as contained in section 2A of the Tribunals Act.[20]
2.22
Victoria Legal Aid conceded that there is some overlap between these two
acts. However, they argued that, whereas section 353(b) and 420(b) of the
Migration Act emphasises the provision of justice to applicants, section
2A of the Tribunals Act 'reflects a greater efficiency motive'.[21]
Given this, it suggested that:
This change in focus and language in respect of the Tribunal's
conduct [by deleting 353(b) and 420(b) of the Migration Act] may materially
affect the safeguards currently provided to Applicants including by ensuring
that the Tribunal conducts its review focused on the substantial justice of the
case.[22]
2.23
The Law Council and RACS both noted that the bill would also repeal subsection
357A(3) of the Migration Act.[23]
Section 357A sets out an 'Exhaustive statement of natural justice hearing rule',
and stipulates that 'In applying this Division, the Tribunal must act in a way
that is fair and just'.[24]
2.24
Regarding this, the Law Council advised that it opposed the repeal of this
subsection, at least 'until such time that the Tribunals are fully harmonised',
as it:
...enhances clarity and
streamlines procedure by clearly enshrining that, in relation to the matters
that the AAT deals with under this division, it must act in a way that is fair
and just.[25]
2.25
The department provided the committee with answers to questions on
notice on this matter, which clarified that:
Repealing subsection 357A(3) of the Migration Act will have
no impact on the conduct of review by the Tribunal as it is simply an
exhortatory provision and merely mirrors the requirements to which the Tribunal
is already bound under paragraph 2A(b) of the AAT Act. Paragraph 2A(b) of the
AAT Act requires the Tribunal to pursue the objective of providing a mechanism
of review that is fair, just, economical, informal and quick, and therefore
subsection 357A(3) is considered to be redundant.[26]
The applicant's right to access to
material considered by the AAT
2.26
Under section 362A of the Migration Act, an applicant is entitled to
have access to written material before the AAT for the purposes of the review,
up until the time that a final decision is made.[27]
2.27
The bill proposes to remove section 362A. According to the Explanatory
Memorandum, this section is unnecessary, as it duplicates the clear obligations
the AAT has to provide applicants with the opportunity to comment on adverse
information being considered as part of their case under sections 359A and
359AA of the Migration Act.[28]
2.28
Some submitters disagreed with the perception that the AAT was bound by
sections 359 and 359AA of the Migration Act to provide applicants with all
relevant information being considered in their case.[29]
For example, the Law Council cited number of grounds for this position, particularly
that section 362A includes provisions for:
-
A person to seek advice about their case, its prospects of
success and what is needed to improve prospects of success. A representative
needs to see not only a decision record, but also relevant material, to be able
to provide appropriate advice.
-
Applicants access to the materials the Tribunal offers.
Conversely, sections 359A and 359AA only oblige the Tribunal to give
particulars of adverse information (and exclude certain kinds of adverse
information)... It is not uncommon for material that is useful to an applicant to
be non-adverse and therefore not covered by sections 359A and 359AA.[30]
-
Access to material [which] is critical for preparation in advance
of a hearing and enables preparation to be undertaken with the complete
context. FOI processes... are not a substitute for s 362A [as] they can be
slow and outside the control of the Tribunal... [Moreover] it is only the
Tribunal that knows the documents it has sought access to for the purpose of
reviewing a decision and therefore an applicant may not be aware which files a
Tribunal has obtained access to.
-
[All relevant information being available for applicants] as
sections 359A and 359AA are focused upon information, not documents. A
document contains information on many levels and sections 359A and 359AA
are not designed to provide all the information.[31]
2.29
Some submitters opposed the deletion of section 362A from the
Migration Act.[32]
For instance, Victoria Legal Aid argued that applicants must have the right to
be aware of and to access all non-protected documents being considered in their
case, commenting:
This will include material which may not fall within s 362A,
but is nonetheless material which: (a) will be viewed by the Tribunal; and (b)
which the Tribunal may, in some cases, have a duty to disclose. Without an
express right to access the material before the Tribunal, Applicants will not
be in a position to 'know what they do not know'.
This change would undermine the transparency of the Tribunal's
decision-making generally and impede an Applicant's awareness of whether or not
they have been denied procedural fairness in relation to a document before the
Tribunal at the time of the review.[33]
2.30
The Law
Council also noted that it was a fundamental requirement of section 2A of the
Tribunals Act that merits review processes are 'accessible, fair, just, economical,
formal and quick', and that:
In order to put their best case forward, the applicant must
be able to consider all information that may be used in a decision which
affects them. That was the purpose of this section when it was created and
there is no obvious reason why refugee applicants cannot also be provided with
a right of access to their personal information through the statutory framework
of the [Migration Act].[34]
2.31
The Law Council submitted that the amendment could potentially place
additional demands on AAT staff, should they have to rely on more laborious
legislation to process requests for documents:
Removal of this provision risks frustrating the Tribunal's
stated objective of 'quick' merits review by requiring Tribunal staff to
process requests for access to documents through the more laborious provisions
of the Freedom of Information Act 1982...[35]
2.32
The department provided some context for the changes made by the bill regarding
an applicant's access to material before the Tribunal. Most notably, the
department told the committee that the Migration Act has changed significantly
since the introduction of Section 362A in 1995, when there was no other
provision that required applicants to be provided with material information
before the then Immigration Review Tribunal. Given this, they stated that the
current provisions are duplicative, as:
The Tribunal is already obligated under section 359A to
provide information to the applicant that the Tribunal considers would be the
reason, or part of the reason, for affirming the decision that is under review
and ensure, as far as is reasonably practical, that the applicant understands
why it is relevant to the review and the consequences of it being relied on.[36]
The admission of new evidence in
reviewable refugee decisions
2.33
The bill includes provision to insert a new section 358A, which
stipulates how the Tribunal is to deal with new claims of evidence in
reviewable refugee decisions. The Explanatory Memorandum states that this
provision 'substantially recreates' the existing provision of section 423A
the Migration Act, which it also repeals.[37]
2.34
The Law Council argued that it did not support the insertion of this
section, adding that it had not supported the original insertion of
section 423A by the Migration Amendment (Protection and Other Measures)
Act 2015. It submitted:
It is a longstanding function
at common law that a tribunal has the power to make findings of credibility of
an applicant including to make findings where an applicant has raised new
claims or presented new evidence which was not before the primary decision
maker. The Tribunal's power to make such findings has been repeatedly endorsed
by the Courts, and the Committee submits that the Tribunal should be able to
undertake this duty without the need for legislation. The proposed change
overcomplicates the decision-making process and is likely to result in further
judicial review. The removal of the section would allow the accepted common law
position to prevail.[38]
2.35
On this, the department commented that:
While the intent of the Bill is to consolidate the codes of
procedure for the former MRT and RRT into a single code of procedure for review
of decisions by the MRD, this does not mean that all current Part 5 and Part 7
provisions are equally applicable to applications for review of reviewable
migration decisions and reviewable refugee decisions. In this context, section
358A substantially recreates current section 423A which is applicable to
reviewable refugee decisions only, therefore it is unnecessary and would be
contrary to the policy intent of this provision to make it also applicable to
reviewable migration decisions.[39]
The right of an applicant to request the Tribunal to
obtain evidence
2.36
The
bill would repeal and substitute the current section 361, which provides that a
witness may request
the AAT to call a witness to provide oral evidence or obtain written material
from a witness to be considered in their case in relation to:
- oral evidence from a persons or person named in the
notice;
- written evidence from a person or persons named in the
notice; or
- other written material in relation to the issues arising
in relation to the decision under review.[40]
2.37
Current provisions allow an applicant seven days to lodge such requests
after being 'invited to appear before the AAT to give evidence and present
arguments relating to the issues arising in relation to the decision under
review'.[41]
However, the Explanatory Memorandum advises that the bill's provisions amend
this section in the following way:
The 7 day requirement under current subsection 361(2) and
361(2A) has not been retained in new subsection 361(1). Instead, new subsection
361(2) has been inserted to ensure that prior to the applicant's appearance
before the Tribunal, the Tribunal is aware of the existence of any evidence or
material that the applicant wants the Tribunal to obtain, and can therefore
administer the review efficiently. The intention is to place the onus on the
applicant to give the notice to the Tribunal in a timely manner but without
prescribing a specific timeframe within which the applicant must give the
notice.[42]
2.38
The Law Council noted the proposed amendments could place an additional
burden on applicants, as the failure to lodge requests before the start of the
day on which an applicant is to appear may:
...lead the Tribunal to ignore the notice and to thereby deny a
review applicant the right to present his or her best case by being unable to
present a witness or witnesses.[43]
2.39
RACS noted that the proposed repeal of the current 361A and its
replacement with a new section:
...is an unnecessary and arbitrary removal of the Tribunal’s
discretion to consider notices in circumstances where it may be reasonable,
appropriate and even necessary to call a witness to the stand on the day of the
Tribunal hearing. RACS submits that in order to afford natural justice and
procedural fairness to applicants (particularly those who are
self-represented), the Tribunal must have the discretion to have regard to a
notice given under proposed section 361(1) on the day of the applicant’s
hearing, especially considering that under the proposed drafting of section
361(3), the Tribunal will not be compelled to comply with the notice.[44]
2.40
Moreover, the Law Council noted that this provision would potentially prevent
some applicants from responding to adverse information presented to them at a
hearing:
...a review applicant is often faced with the situation in a
hearing where adverse information or documentation is put to him or her without
knowing about this prior to the hearing. Section 361(2) could have serious
ramifications for both migration and refugee review applicants, particularly in
relation to those unrepresented, it is onerous, complex and not easily
understood by review applicants. It is the Committee's view that the procedural
items that are highlighted in s 361 could be instead included in Principal
Member Directions of the AAT so that they allow for flexibility in response to
developments in Tribunal procedure.[45]
2.41
The department responded to concerns raised about the removal of
section 361 in answers to questions on notice. It stated that the current
provisions require an applicant to give written notice to the Tribunal within
seven days of being notified of the invitation to appear:
In practice, this generally requires the applicant to provide
written notice prior to the day of the hearing. This is because the Migration
Regulations 1994 prescribe the minimum period of notice for an invitation to
appear before the Tribunal, which is 7 days if the applicant is in detention,
or 14 days otherwise, unless the applicant agrees to a shorter timeframe.
Amended section 361 makes it clear that the applicant is
required to give their notice to the Tribunal prior to the start of the day of
the hearing so the Tribunal can administer its review efficiently.
Further, applicants seeking review of a reviewable refugee
decision will have on the face of the Migration Act the same entitlement
available to an applicant of a reviewable migration decision to request that
the Tribunal obtain written evidence or material.[46]
The availability of interpreters for
applicants
2.42
The bill proposes to remove and replace section 366C of the Migration
Act, which provides for interpreters to be provided to applicants. The proposed
amendment states:
If a person appearing before the Tribunal to give evidence is
not proficient in English, the Tribunal may direct that communication with the
person proceed through an interpreter during his or her appearance.[47]
2.43
This would remove the current provision of subsection 366C(1):
A person appearing before the Tribunal to give evidence may
request the Tribunal to appoint an interpreter for the purposes of
communication between the Tribunal and the person.[48]
2.44
The Law Council raised concerns that the bill would remove the
opportunity for applicants to request an interpreter, and instead only allow
translators to be provided on the AAT's own motion:
Without an express power to request an interpreter, an
applicant's need for an interpreter may not arise until the date of the
hearing. This in turn may result in unnecessary and avoidable adjournments
while an interpreter is sourced. The retention of existing subsection 366C(1)
will ameliorate such concerns while preserving the Tribunal's discretion
whether or not to direct that a review application proceed through an
interpreter.[49]
2.45
The implications of this amendment were drawn out by Victoria Legal Aid,
which argued it potentially:
...creates the possibility that the Tribunal will (a) consider
whether it will decline to engage an interpreter even where a person giving
evidence before it is not proficient in English; and (b) that it may in fact
decide not to engage an interpreter despite the person before it having
insufficient English to participate in the hearing.[50]
2.46
Victoria Legal Aid also raised concerns that the AAT's decision to
appoint an interpreter may privilege cost-effectiveness of the Tribunal over
the genuine need of applicants:
[The direction that the Tribunal should be 'economical' under
2A of the Tribunals Act] contemplates that cost or time efficiency may inform
the question of whether an interpreter should be appointed to assist a person,
including an applicant, giving evidence when they do not have a sufficient
proficiency in English.[51]
2.47
The department noted that this new provision is intended to continue to
enable the Tribunal to provide translators to applicants who are not proficient
in English. It highlighted that similar provisions have been operating
successfully based on current section 427(7) of the Migration Act, and that:
The Tribunal’s consideration and decision to appoint an
interpreter under new section 366C must be exercised in accordance with the
Tribunal's existing responsibility under section 2A of the AAT Act to pursue the
objective of providing a mechanism of review that is fair, just, economical,
informal and quick.[52]
Concerns raised about provisions contained in Schedule 2
The onus on applicants to provide
substantive comment to Tribunal invitations
2.48
The bill would delete the words 'or respond to' from paragraph
359A(1)(c) of the Migration Act. The Explanatory Memorandum states that:
The purpose of this amendment is to ensure that an applicant
must provide a substantive comment in response to an invitation given by the Tribunal...
The amendments are intended to provide greater clarity to
applicants around the need to provide substantive remarks or observations that
engage or grapple with the information in order to meet the requirements of the
invitation to appear before the Tribunal.[53]
2.49
The Law Council submitted that the deletion of 'or respond to' was not
necessary and prejudices the rights of review applicants, arguing that:
The EM suggests review applicants should be aware of the
issues at hand at primary stage. Even if that is the case, and the applicant
also has sufficient awareness of AAT procedure to know that a s 359A
invitation requires a substantive response (which is often not the case), the
Tribunal is not limited to only those issues raised at the primary stage when
hearing the review. Given the complexities of the legislation, review
applicants may not fully understand the loss of their right to a hearing simply
because they failed to respond to the Notice in accordance with this section.[54]
2.50
Victoria Legal Aid also expressed concern with this amendment, as it could
potentially disadvantage many applicants who could be obliged to respond in
writing (under 359B) to complex issues before the AAT, before an oral hearing would
be granted:
In our view, this reform is ill-adapted to its intention.... if
the intention is achieved, it will adversely impact the most disadvantaged
cohort of applicants seeking review before the Tribunal on important matters;
potentially locking them out of the one forum (oral hearing) in which (subject
to adequate provision of an interpreter) they will be able to best advance
their application for review.[55]
2.51
The department addressed these concerns, noting that under section 359A
the Tribunal is obliged to provide applicants with clear particulars of information
used to assess a decision under review and that, as far as possible, the
applicant understands why the information is relevant to the review. Given this,
the department stated that:
The amendments in Part 1 of Schedule 2 are consistent with
the intention of current subsection 359C(2), which is that if an applicant does
not substantively engage with an invitation to comment, that the Tribunal may
make a decision on the review without taking any further action to obtain the
applicant’s views on the information.[56]
The review of cases dismissed by
the Tribunal by the Federal Court
2.52
The bill would add a paragraph to subsection 476(2) of the Migration
Act:
...to provide that a decision of
the Tribunal to dismiss an application under paragraph 362B(1A)(b) of the
Migration Act will not be reviewable by the Federal Circuit Court.[57]
2.53
The Law Council opposed this addition, stating that it could lead to costly
and unnecessary burdens on Australia's judicial system as:
This change will mean that failure to appear at a hearing
leading to dismissal of the matter will not be reviewable if the review
applicant fails to apply for reinstatement within the specified period. This is
not appropriate as it is at the discretion of the Tribunal to proceed to
dismiss and such discretion may be unreasonable or inappropriately exercised in
some circumstances. Limiting review to the High Court will prevent some
applicants from seeking review where errors were made and/or may lead to an increase
in applications lodged through the High Court in its original jurisdiction. The
Committee submits that it is preferable to have an alternate path for judicial
review through the Federal Circuit Court (as currently exists in migration
matters) than only through the High Court's original jurisdiction.[58]
2.54
The department responded to this perspective by clarifying that:
The purpose of new paragraph
476(2)(e) is to ensure that the original decision to dismiss the application is
not reviewable by the Federal Circuit Court. It does not change the
jurisdiction of the Federal Circuit Court in relation to the latter decision of
the Tribunal to confirm the dismissal. In reviewing the latter decision to
confirm the dismissal, the Federal Circuit Court can consider whether there
were any errors with the original dismissal decision. This is the case whether
or not the applicant applies for reinstatement before the Tribunal confirms the
dismissal.[59]
The provision for non-citizens to
request review of refugee decisions
2.55
The bill would add a new section 350A to the Migration Act, which
details the AAT's obligations regarding non-citizen applications for review of
refugee decisions. The Explanatory Memorandum states the proposed amendment:
...provides that where a non-citizen makes a review application
to a review body in relation to a reviewable refugee decision, which is
determined by the Tribunal, and then the non-citizen makes a further review
application to the Tribunal in relation to a reviewable refugee decision, the Tribunal
is not required to consider any information considered in the earlier
application, and may have regard to, and take to be correct, any decision made
by the review body about or because of that information.[60]
2.56
The Law Council suggested that this change may lead to an 'increase in
judicial interpretation', and suggested it should be better explained or
greater justification provided in the Explanatory Memorandum. Additionally, it
highlighted that:
It also is unclear whether this change will capture matters
remitted from the Courts due to jurisdictional error or whether these matters
are considered a new application. It is clearly questionable how the Tribunal
can be undertaking its role if it is not obliged to consider previous refugee
review material. This seems counterproductive, open to error and possibly
allows the Tribunal to simply accept the previous Tribunal's findings even
where there may be errors or changed circumstances.[61]
2.57
On this issue, the department commented that the new section 350A was
not a 'new' provision, and so did not need justification in the Explanatory
Memorandum. Moreover, the department highlighted that:
Paragraph 171 of the Explanatory Memorandum (as referred to
by the Law Council) explains the operation of the application provision for new
section 350A.
In relation to the Law Council’s concerns regarding matters
remitted by a Court, it is noted that such matters will not be considered a
'further application' for the purpose of new section 350A.[62]
The review of fast track reviewable
decisions
2.58
The bill would insert a new section 473DG into the Migration Act,
which provides that the IAA may review fast track reviewable decisions
together, whether or not those decisions were originally referred together.[63]
Regarding this provision, Victoria Legal Aid noted:
It appears that this reform is specifically designed so that
family members' applications can be bundled and determined at the same time.
The reform would also enable the IAA to compare protection visa applications
made by family members for potential inconsistencies.[64]
2.59
RACS expressed concern that the proposed amendment was not clear whether
fast track reviewable decisions would only be 'bundled' for members of the same
family. It noted:
...it would offend the
principles of natural justice and procedural fairness if the IAA were to be
given the ability to review two or more decisions together unless they were
members of the same family.[65]
2.60
Some submitters expressed concerns that the provisions of the bill lack
clarity about how information relevant to 'bundled' cases would be provided to
applicants for comment.[66]
RACS noted that:
...under proposed new section 473CA(2) [for bundled cases],...
then documents given by the IAA to any of the applicants are taken to be given
to each of those applicants.[67]
2.61
RACS also suggested that the bill was unclear whether family members
under 18-years old would be deemed appropriate recipients for such documents
relating to bundled Tribunal processes:
...the application of section 473HEA in practice could result
in an important document being given by the IAA to a 15 year old who is a
member of a family unit, whose decisions are being considered together under
proposed section 473CA(2). Receipt of the document by the 15 year old
would be taken to constitute receipt by all of the applicants, that is, each
member of the family unit.[68]
2.62
Victoria Legal Aid voiced concern that the new provision did not make it
clear if inconsistencies between bundled applications would be referred to all
relevant applicants for comment and, if so, how this would be done. Moreover,
it suggested the new provisions would add complexity to an already convoluted
and unstable visa system:
In our view, given the instability which already accompanies
the Fast Track reviews conducted by the IAA and the lack of existing case law
clarifying the way the key parts of the scheme are intended to operate,
Parliament should be cautious about further amending the scheme in ways that
create further complexity and uncertainty.[69]
Committee view
2.63
The committee considers that amending the Migration Act to reflect the
abolition of the MRT and the RRT is both timely and necessary, particularly as
their functions have been consolidated into the MRD of the AAT. The committee
also understands that the bill proposes amendments that would improve the
efficiency of decisions made by the MRD, while maintaining the rights of
current visa applicants, as well as former visa holders, to seek review of
tribunal decisions.
2.64
A number of issues about the bill's provisions were raised by
submitters. Some concerns were expressed that the proposed amendments may
compromise the functions and integrity of decisions made by the MRD,
particularly considering the AAT is required to deliver decisions grounded in
substantial and natural justice.
2.65
A number of these concerns were put to the department, who provided more
clarification to the committee on particular amendments made by the bill.
2.66
On balance, the committee is satisfied that there are sufficient
provisions in the Migration Act that will ensure that the provision of natural
and substantial justice to applicants remains a core obligation of the AAT. The
committee also notes that the bill would improve the administrative coherence
of the MRD in delivering the former functions of both the MRT and the RRT.
2.67
Moreover, the committee notes potential improvements to outcomes for
families applying for Australian visas together, as it will allow for their
cases to be 'bundled' and processed together.
2.68
In relation to the amendments relating to bundled cases, the committee
considers that the department could potentially clarify whether documents
provided to a family member under 18-years old would be considered as having
been provided to all applicants of that bundled case. This may clarify certain
aspects of the bill for applicants and relevant migration agents, should the
bill be enacted.
Recommendation 1
2.69
The committee recommends that the bill be passed.
Senator the Hon Ian Macdonald
Chair
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