Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2016
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Legislation Amendment (Code
of Procedure Harmonisation) Bill 2016
No. , 2016
(Immigration and Border Protection)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Code of procedure harmonisation
3
Part 1--Main amendments
3
Migration Act 1958
3
Part 2--Multiple amendments referring to Part 5-reviewable
decisions
24
Migration Act 1958
24
Part 3--Consequential amendments of the Administrative
Appeals Tribunal Act 1975
25
Administrative Appeals Tribunal Act 1975
25
Part 4--Application, saving and transitional provisions
26
Schedule 2--Other amendments
31
Part 1--Responses to a written invitation
31
Migration Act 1958
31
Part 2--Officers of Tribunal
33
Migration Act 1958
33
Part 3--Fast track reviewable decisions
35
Migration Act 1958
35
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
1
A Bill for an Act to amend the Migration Act 1958,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Migration Legislation Amendment (Code of
5
Procedure Harmonisation) Act 2016.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
3
Schedule 1--Code of procedure
1
harmonisation
2
Part 1--Main amendments
3
Migration Act 1958
4
1 Subsection 5(1)
5
Repeal the following definitions:
6
(a) definition of Part 5-reviewable decision;
7
(b) definition of Part 7-reviewable decision.
8
2 Subsection 5(1)
9
Insert:
10
reviewable decision: see section 337A.
11
reviewable migration decision: see section 338.
12
reviewable refugee decision: see section 338A.
13
3 Paragraph 5(9)(a)
14
Omit "7", substitute "7AA".
15
4 Paragraph 5(9)(b)
16
Omit "or 7".
17
5 Paragraph 5(9)(b)
18
Omit "prescribed; or", substitute "prescribed.".
19
6 Paragraph 5(9)(c)
20
Repeal the paragraph.
21
7 Subsection 5(9A)
22
Omit ", 7".
23
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
4
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
8 Paragraphs 5(9A)(a) and (b)
1
Omit "Part 5-reviewable", substitute "reviewable".
2
9 Paragraphs 5(9A)(c) and (d)
3
Repeal the paragraphs.
4
10 Paragraph 5(9B)(a)
5
Omit "Part 5-reviewable", substitute "reviewable".
6
11 Paragraph 5(9B)(b)
7
Repeal the paragraph.
8
12 Paragraph 66(2)(d)
9
Omit "or 7".
10
13 Paragraph 66(2)(e)
11
Omit "or Part 7".
12
14 Paragraph 66(2)(f)
13
Omit ", 7".
14
15 Paragraph 66(3)(b)
15
Omit "or 7".
16
16 Paragraphs 127(2)(b) and (c)
17
Omit "or 7".
18
17 Paragraph 178(2)(b)
19
Omit ", 351 or 417", substitute "or 351".
20
18 Section 275 (definition of review authority)
21
Repeal the definition, substitute:
22
review authority means:
23
(a) the Tribunal in its Migration and Refugee Division; or
24
(b) the Immigration Assessment Authority.
25
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
5
19 Paragraph 276(2A)(a)
1
Omit ", 417".
2
20 Subsection 277(4)
3
Omit ", 417".
4
21 Paragraph 282(4)(e)
5
Omit ", 417".
6
22 Part 5 (heading)
7
Repeal the heading, substitute:
8
Part 5--Review of reviewable decisions
9
23 Division 1 of Part 5 (heading)
10
Repeal the heading, substitute:
11
Division 1--Introduction
12
24 Section 336M
13
Repeal the section, substitute:
14
336M Simplified outline of this Part
15
This Part provides for the review of reviewable decisions by the
16
Administrative Appeals Tribunal in its Migration and Refugee
17
Division.
18
There are 2 types of reviewable decisions: reviewable migration
19
decisions and reviewable refugee decisions.
20
Reviewable migration decisions relate to the refusal or cancellation
21
of visas in some circumstances. They do not include decisions
22
relating to protection visas or temporary safe haven visas, or
23
decisions in relation to which the Minister has given a conclusive
24
certificate.
25
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
6
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
Reviewable refugee decisions generally relate to protection visas.
1
Some other decisions under this Act may be reviewed by the
2
Administrative Appeals Tribunal in its General Division, including
3
the following:
4
(a)
some decisions to cancel business visas;
5
(b)
some decisions relating to migration agents;
6
(c)
some decisions relating to deportation, protection visas
7
and the refusal or cancellation of visas on character
8
grounds.
9
Fast track reviewable decisions are reviewable by the Immigration
10
Assessment Authority under Part 7AA of this Act. These are
11
decisions to refuse protection visas to some applicants, including
12
unauthorised maritime arrivals who entered Australia on or after
13
13 August 2012.
14
25 Subsection 336N(1)
15
Omit "Part 5-reviewable decisions (see section 338)", substitute
16
"reviewable decisions (see section 337A)".
17
26 Subsection 336N(2)
18
Omit "Part 5-reviewable decisions", substitute "reviewable decisions".
19
27 Section 337 (definition of decision on a review)
20
Omit "Part 5-reviewable decision" (wherever occurring), substitute
21
"reviewable decision".
22
28 Section 337 (definition of Part 5-reviewable decision)
23
Repeal the definition.
24
29 Section 337
25
Insert:
26
reviewable decision: see section 337A.
27
reviewable migration decision: see section 338.
28
reviewable refugee decision: see section 338A.
29
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
7
30 Division 2 of Part 5 (heading)
1
Repeal the heading, substitute:
2
Division 2--Reviewable decisions
3
31 Before section 338
4
Insert:
5
337A What is a reviewable decision?
6
A decision is a reviewable decision if it is:
7
(a) a reviewable migration decision (see section 338); or
8
(b) a reviewable refugee decision (see section 338A).
9
32 Section 338 (heading)
10
Repeal the heading, substitute:
11
338 Definition of reviewable migration decision
12
33 Paragraph 338(1)(b)
13
Omit "a Part 7-reviewable decision", substitute "a reviewable refugee
14
decision".
15
34 After section 338
16
Insert:
17
338A Definition of reviewable refugee decision
18
(1) A decision is a reviewable refugee decision if this section so
19
provides, unless:
20
(a) the Minister has issued a conclusive certificate under
21
section 339 in relation to the decision; or
22
(b) the decision is to cancel a protection visa and was made by
23
the Minister personally; or
24
(c) the decision is made in relation to a non-citizen who is not
25
physically present in the migration zone when the decision is
26
made; or
27
(d) the decision is a fast track decision.
28
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
8
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
(2) Each of the following decisions is a reviewable refugee decision:
1
(a) a decision that:
2
(i) was made before 1 September 1994; and
3
(ii) was that a non-citizen is not a refugee under the
4
Refugees Convention as amended by the Refugees
5
Protocol;
6
other than a decision made after a review by the Minister of
7
an earlier decision that the person was not such a refugee;
8
(b) a decision:
9
(i) that was made before 1 September 1994; and
10
(ii) that was to refuse to grant, or to cancel, a visa, or entry
11
permit (within the meaning of this Act as in force
12
immediately before that date); and
13
(iii) a criterion for which is that the applicant for it is a
14
non-citizen who has been determined to be a refugee
15
under the Refugees Convention as amended by the
16
Refugees Protocol;
17
other than a decision made under the Migration (Review)
18
(1993) Regulations or under the repealed Part 2A of the
19
Migration (Review) Regulations;
20
(c) a decision to refuse to grant a protection visa, other than a
21
decision that was made relying on:
22
(i) subsection 5H(2), or 36(1B) or (1C); or
23
(ii) paragraph 36(2C)(a) or (b);
24
(d) a decision to cancel a protection visa, other than a decision
25
that was made because of:
26
(i) subsection 5H(2) or 36(1C); or
27
(ii) paragraph 36(2C)(a) or (b); or
28
(iii) an assessment by the Australian Security Intelligence
29
Organisation that the holder of the visa is directly or
30
indirectly a risk to security (within the meaning of
31
section 4 of the Australian Security Intelligence
32
Organisation Act 1979).
33
35 Section 339 (note)
34
Omit "Part 5-reviewable decision (see subsections 338(1) and 348(2))",
35
substitute "reviewable decision (see subsections 338(1), 338A(1) and
36
348(2))".
37
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
9
36 Division 3 of Part 5 (heading)
1
Repeal the heading, substitute:
2
Division 3--Tribunal to review reviewable decisions
3
37 Section 347 (heading)
4
Repeal the heading, substitute:
5
347 Application for review--reviewable migration decisions
6
38 Paragraph 347(1)(b)
7
Omit "prescribed period", substitute "period prescribed by the
8
regulations".
9
39 After section 347
10
Insert:
11
347A Application for review--reviewable refugee decisions
12
(1) An application for review of a reviewable refugee decision must:
13
(a) be made in the approved form; and
14
(b) be given to the Tribunal within the period prescribed by the
15
regulations, being a period ending not later than 28 days after
16
the notification of the decision; and
17
(c) be accompanied by the fee (if any) prescribed by the
18
regulations.
19
(2) An application for review may only be made by the non-citizen
20
who is the subject of the primary decision.
21
(3) An application for review may only be made by a non-citizen who
22
is physically present in the migration zone when the application for
23
review is made.
24
(4) Regulations made for the purposes of paragraph (1)(b) may specify
25
different periods in relation to different classes of reviewable
26
refugee decisions (which may be decisions that relate to
27
non-citizens in a specified place).
28
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
10
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
40 Section 348 (heading)
1
Repeal the heading, substitute:
2
348 Tribunal to review reviewable decisions
3
41 Subsection 348(1)
4
Omit "under section 347 for review of a Part 5-reviewable decision",
5
substitute "under section 347 or 347A for review of a reviewable
6
decision".
7
42 Section 349 (heading)
8
Repeal the heading, substitute:
9
349 Powers of Tribunal
10
43 Subsection 349(1)
11
Omit "a Part 5-reviewable decision", substitute "a reviewable decision".
12
44 After section 350
13
Insert:
14
350A Multiple review applications--reviewable refugee decisions
15
Scope
16
(1) This section applies if:
17
(a) a non-citizen has made an application (the earlier
18
application) to a review body for review of a reviewable
19
refugee decision; and
20
(b) the earlier application has been determined by a review body;
21
and
22
(c) the non-citizen makes a further application, to the Tribunal,
23
for review of a reviewable refugee decision.
24
Tribunal not required to consider earlier information
25
(2) The Tribunal, in considering the further application:
26
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
11
(a) is not required to consider any information considered in the
1
earlier application; and
2
(b) may have regard to, and take to be correct, any decision that
3
a review body has made about, or because of, that
4
information.
5
(3) In this section:
6
review body means:
7
(a) the former Refugee Review Tribunal; or
8
(b) the Tribunal.
9
Note:
The Refugee Review Tribunal was abolished from 1 July 2015, and its
10
functions transferred to the Migration and Refugee Division of the
11
Administrative Appeals Tribunal ("the Tribunal").
12
45 Paragraph 351(5)(b)
13
Repeal the paragraph, substitute:
14
(b) if the statement relates to a reviewable refugee decision--any
15
information that may identify the applicant; or
16
(c) if the Minister thinks that it would not be in the public
17
interest to publish the name of another person connected in
18
any way with the matter concerned:
19
(i) the name of that other person; or
20
(ii) if the statement relates to a reviewable refugee
21
decision--any information that may identify that other
22
person.
23
46 Section 352 (heading)
24
Repeal the heading, substitute:
25
352 Tribunal to notify Secretary of application for review of
26
reviewable decision
27
47 Division 4 of Part 5
28
Repeal the Division.
29
48 Division 5 of Part 5 (heading)
30
Repeal the heading, substitute:
31
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
12
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
Division 4--Conduct of review
1
49 Before section 357A
2
Insert:
3
Subdivision A--Natural justice hearing rule and technicalities
4
etc.
5
50 Subsection 357A(2)
6
Omit "Division 8A", substitute "Division 8".
7
51 Subsection 357A(3)
8
Repeal the subsection.
9
52 After section 357A
10
Insert:
11
357B Tribunal not bound by technicalities, legal forms or rules of
12
evidence
13
The Tribunal is not bound by technicalities, legal forms or rules of
14
evidence.
15
Subdivision B--Documents, new claims or evidence before
16
Tribunal
17
53 After section 358
18
Insert:
19
358A How Tribunal is to deal with new claims or evidence--
20
reviewable refugee decisions
21
(1) This section applies if, in relation to an application (the review
22
application) for review of a reviewable refugee decision in relation
23
to a protection visa, the applicant:
24
(a) raises a claim that was not raised in the application for the
25
protection visa before the reviewable refugee decision was
26
made; or
27
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
13
(b) presents evidence in the review application that was not
1
presented in the application for the protection visa before the
2
reviewable refugee decision was made.
3
(2) In making a decision on the review application, the Tribunal is to
4
draw an inference unfavourable to the credibility of the claim or
5
evidence if the Tribunal is satisfied that the applicant does not have
6
a reasonable explanation why the claim was not raised, or the
7
evidence was not presented, before the reviewable refugee decision
8
was made.
9
54 Before section 359
10
Insert:
11
Subdivision C--Tribunal may seek information
12
55 Before section 359AA
13
Insert:
14
Subdivision D--Tribunal invitations to applicant
15
56 After paragraph 359A(4)(a)
16
Insert:
17
(aa) that was included, or referred to, in the written statement of
18
the decision that is under review; or
19
57 Subsection 360A(1)
20
Repeal the subsection, substitute:
21
(1) If the applicant is invited to appear before the Tribunal, the
22
Tribunal must give the applicant notice of the following:
23
(a) that he or she is invited to appear before the Tribunal to give
24
evidence and present arguments;
25
(b) the day on which, and the time and place at which, he or she
26
is scheduled to appear;
27
(c) the effect of:
28
(i) subsections 361(1) and (2) (if applicable); and
29
(ii) section 362B.
30
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
14
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
58 Subsection 360A(5)
1
Repeal the subsection.
2
59 Section 361
3
Repeal the section, substitute:
4
361 Applicant may request Tribunal to obtain evidence--most
5
reviewable decisions
6
(1) The applicant may, after being notified under section 360A, give
7
the Tribunal written notice that the applicant wants the Tribunal to
8
obtain:
9
(a) oral evidence from a person or persons named in the notice;
10
or
11
(b) written evidence from a person or persons named in the
12
notice; or
13
(c) other written material relating to the issues arising in relation
14
to the decision under review.
15
(2) A notice under subsection (1) has no effect unless the Tribunal
16
receives it before the start of the day on which the applicant is
17
scheduled to appear.
18
(3) Subject to subsection (2), the Tribunal must have regard to the
19
notice but is not required to comply with it.
20
(4) This section does not apply to the review of a reviewable migration
21
decision covered by subsection 338(4) (certain bridging visa
22
decisions).
23
60 Section 362 (heading)
24
Repeal the heading, substitute:
25
362 Applicant may request Tribunal to call witnesses--reviewable
26
migration decisions covered by subsection 338(4)
27
61 Section 362A
28
Repeal the section.
29
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
15
62 Before section 363
1
Insert:
2
Subdivision E--Other powers and obligations of Tribunal
3
63 Paragraph 363(1)(c)
4
Omit "section 378", substitute "sections 375A, 376 and 378".
5
64 Subsection 363(2)
6
Omit "Part 5-reviewable decisions", substitute "reviewable decisions".
7
65 Section 363A
8
Repeal the section.
9
66 Section 365
10
Repeal the section, substitute:
11
365 Review to be in public--reviewable migration decisions
12
(1) Any oral evidence that the Tribunal takes while reviewing a
13
reviewable migration decision must be taken in public.
14
(2) However, the Tribunal may direct that:
15
(a) particular oral evidence; or
16
(b) oral evidence for the purposes of the review of a particular
17
reviewable migration decision;
18
be taken in private if the Tribunal is satisfied that it is in the public
19
interest to do so.
20
(3) The Tribunal may also direct that particular oral evidence be taken
21
in private if the Tribunal is satisfied that it is impracticable to take
22
the particular oral evidence in public.
23
(4) If the Tribunal gives a direction under subsection (2) or (3), it may
24
give directions as to the persons who may be present when the oral
25
evidence is given.
26
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
16
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
365A Review to be in private--reviewable refugee decisions
1
The hearing of an application for review of a reviewable refugee
2
decision by the Tribunal must be in private.
3
67 Subsection 366(1)
4
Omit "(1)".
5
68 Subsection 366(2)
6
Repeal the subsection.
7
69 Subsection 366A(1)
8
Omit "(the assistant)".
9
70 Subsection 366A(2)
10
Omit "assistant" (wherever occurring), substitute "person assisting".
11
71 Section 366C
12
Repeal the section, substitute:
13
366C Interpreters
14
If a person appearing before the Tribunal to give evidence is not
15
proficient in English, the Tribunal may direct that communication
16
with the person proceed through an interpreter during his or her
17
appearance.
18
72 Section 367 (heading)
19
Repeal the heading, substitute:
20
367 Certain reviewable migration decisions to be made within
21
prescribed period
22
73 At the end of Division 5 of Part 5
23
Add:
24
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
17
Subdivision F--Guidance decisions
1
367A Guidance decisions
2
(1) The President of the Tribunal, or the head of the Migration and
3
Refugee Division of the Tribunal, may, in writing, direct that a
4
guidance decision specified in the direction is to be complied with
5
by the Tribunal in reaching a decision on a review of a reviewable
6
decision of a kind specified in the direction.
7
(2) In reaching a decision on a review of a decision of that kind, the
8
Tribunal must comply with the guidance decision unless the
9
Tribunal is satisfied that the facts or circumstances of the decision
10
under review are clearly distinguishable from the facts or
11
circumstances of the guidance decision.
12
(3) However, non-compliance by the Tribunal with a guidance
13
decision does not mean that the Tribunal's decision on a review is
14
an invalid decision.
15
(4) In this section:
16
guidance decision means a decision of:
17
(a) the Tribunal; or
18
(b) the former Migration Review Tribunal; or
19
(c) the former Refugee Review Tribunal.
20
74 Division 6 of Part 5 (heading)
21
Repeal the heading, substitute:
22
Division 5--Decisions of Tribunal
23
75 Subsections 368D(4) and (5)
24
Repeal the subsections.
25
76 Paragraph 368D(7)(b)
26
Omit "(4), (5) or".
27
77 At the end of Division 6 of Part 5
28
Add:
29
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
18
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
368E Notifying parties of Tribunal's decision (decision given orally)
1
Oral statements
2
(1) Subsections (2), (3) and (4) apply if the Tribunal makes an oral
3
statement under paragraph 368D(2)(a) about a decision on a
4
review.
5
(2) The Tribunal must give to the Secretary a written notice that:
6
(a) sets out the decision of the Tribunal on the review; and
7
(b) states that:
8
(i) the decision was given orally; and
9
(ii) the Tribunal has made an oral statement about the
10
decision; and
11
(c) records the day and time the decision was given orally.
12
The Tribunal must give the notice to the Secretary within 14 days
13
after the day on which the decision is taken to have been made.
14
(3) The Minister or the applicant may, in writing, request the Tribunal
15
to provide the oral statement in writing. The Minister may make
16
the request at any time. The applicant may make the request only
17
within the period prescribed by the regulations.
18
(4) If the Minister or the applicant makes a request under
19
subsection (3), the Tribunal must:
20
(a) reduce the oral statement to writing; and
21
(b) give a copy of the written statement to both the Secretary and
22
the applicant within 14 days after the day the Tribunal
23
receives the request.
24
Written statements
25
(5) Subsection (6) applies if the Tribunal makes a written statement
26
under paragraph 368D(2)(b) about a decision on a review.
27
(6) The Tribunal must give to both the Secretary and the applicant a
28
copy of the written statement within 14 days after the day on which
29
the decision is taken to have been made.
30
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
19
Methods of giving statements
1
(7) A notice or copy given under subsection (2), (4) or (6) must be
2
given:
3
(a) if it is given to the Secretary--by one of the methods
4
specified in section 379B; or
5
(b) if it is given to the applicant--by one of the methods
6
specified in section 379A.
7
Validity etc. not affected by failure to comply with this section
8
(8) A failure to comply with this section in relation to a decision on a
9
review does not affect the validity of the decision.
10
369 Identifying information not to be published--reviewable refugee
11
decisions
12
The Tribunal must not publish a statement made under
13
subsection 362C(2), 368(1), 368D(2) or 368E(4) in relation to a
14
reviewable refugee decision if the statement could identify:
15
(a) an applicant; or
16
(b) any relative or other dependant of an applicant.
17
Note:
Section 66B of the Administrative Appeals Tribunal Act 1975 allows
18
the Tribunal to publish decisions and the reasons for them. However,
19
section 66B does not authorise the publication of information if its
20
disclosure would be prohibited or restricted by another enactment
21
(such as this) conferring jurisdiction on the Tribunal.
22
78 Division 7 of Part 5 (heading)
23
Repeal the heading, substitute:
24
Division 6--Offences
25
79 Division 8 of Part 5 (heading)
26
Repeal the heading, substitute:
27
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
20
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
Division 7--Miscellaneous
1
80 Section 375
2
Omit "In spite of anything else in this Act, the Secretary shall",
3
substitute "Despite anything in this Act, the Secretary must".
4
81 Subsection 375A(2)
5
Omit "pursuant to", substitute "in compliance with".
6
82 Subsection 376(2)
7
Omit "Where, pursuant to", substitute "If, in compliance with".
8
83 Subsection 376(3)
9
Omit "Where", substitute "If".
10
84 Paragraph 376(3)(b)
11
Repeal the paragraph, substitute:
12
(b) may, if the Tribunal thinks it appropriate to do so having
13
regard to any advice given by the Secretary under
14
subsection (2), disclose any matter contained in the
15
document, or the information, to:
16
(i) in the case of a reviewable decision--the applicant; or
17
(ii) in the case of a reviewable migration decision--any
18
other person who has given oral or written evidence to
19
the Tribunal.
20
85 At the end of section 376
21
Add:
22
(4) If the Tribunal discloses any matter contained in the document or
23
the information under subsection (3), the Tribunal must give a
24
direction under section 378 in relation to the document or
25
information.
26
86 Section 378 (heading)
27
Repeal the heading, substitute:
28
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
21
378 Tribunal may restrict publication or disclosure of certain
1
matters
2
87 Subsection 378(1)
3
Repeal the subsection, substitute:
4
(1) If the Tribunal is satisfied, in relation to a review, that it is in the
5
public interest that:
6
(a) any evidence given before the Tribunal; or
7
(b) any information given to the Tribunal; or
8
(c) the contents of any document produced to the Tribunal;
9
should not be published or otherwise disclosed, or should not be
10
published or otherwise disclosed except in a particular manner and
11
to particular persons, the Tribunal may give a written direction
12
accordingly.
13
88 Subsection 378(2)
14
After "publication", insert "or other disclosure".
15
89 Paragraph 378(2)(a)
16
Omit "section 368", substitute "section 362C, 368, 368D or 368E".
17
90 Division 8A of Part 5 (heading)
18
Repeal the heading, substitute:
19
Division 8--Giving and receiving review documents etc.
20
91 Section 379F
21
Omit "Part 5-reviewable decision", substitute "reviewable decision".
22
92 Paragraphs 379G(1)(a) and (1A)(a)
23
Omit "Part 5-reviewable decision", substitute "reviewable decision".
24
93 Paragraph 379G(1A)(a)
25
After "section 347", insert "or 347A".
26
94 Part 7
27
Repeal the Part.
28
Schedule 1 Code of procedure harmonisation
Part 1 Main amendments
22
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
95 Subsection 474(4) (table item 23)
1
Repeal the item, substitute:
2
23
Division 6 of Part 5
Offences
96 Subsection 474(4) (table item 28)
3
Repeal the item.
4
97 Paragraph 474(7)(a)
5
Omit ", 351 or 417", substitute "or 351".
6
98 Paragraph 474A(a)
7
Omit "Part-5 reviewable decision or Part-7 reviewable decision",
8
substitute "reviewable decision".
9
99 Paragraph 474A(b)
10
Omit "Part 5-reviewable decisions or Part 7-reviewable decisions",
11
substitute "reviewable decisions".
12
100 Paragraph 476(2)(b)
13
Omit "Administrative Appeals".
14
101 At the end of subsection 476(2)
15
Add:
16
; (e) a privative clause decision, or a purported privative clause
17
decision, of the Tribunal to dismiss an application under
18
paragraph 362B(1A)(b).
19
Note:
The applicant may apply to the Tribunal for reinstatement of the
20
application under subsection 362B(1B).
21
102 Subsection 476(4) (paragraph (a) of the definition of
22
primary decision)
23
Omit "or 7".
24
103 Subsection 477(3) (paragraph (b) of the definition of date
25
of the migration decision)
26
Omit "362C(3),".
27
Code of procedure harmonisation Schedule 1
Main amendments Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
23
104 Paragraph 477(3) (paragraph (c) of the definition of date
1
of the migration decision)
2
Repeal the paragraph.
3
105 Paragraphs 478(a) and 479(a)
4
Omit "or 7".
5
106 Subsection 486D(5) (paragraph (a) of the definition of
6
tribunal decision)
7
Omit "or 7".
8
107 Subsection 500(1)
9
Omit "to the Administrative Appeals Tribunal", substitute "to the
10
Tribunal".
11
108 Subsections 500(3), (4) and (4A)
12
Omit "or 7".
13
109 Subsection 501A(7) (heading)
14
Repeal the heading, substitute:
15
Decision not reviewable under Part 5
16
110 Subsections 501A(7) and 501B(4)
17
Omit "or 7".
18
111 Subsection 501BA(5) (heading)
19
Repeal the heading, substitute:
20
Decision not reviewable under Part 5
21
112 Subsections 501BA(5), 501C(11), 501CA(7) and 501F(5)
22
Omit "or 7".
23
Schedule 1 Code of procedure harmonisation
Part 2 Multiple amendments referring to Part 5-reviewable decisions
24
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
Part 2--Multiple amendments referring to
1
Part 5-reviewable decisions
2
Migration Act 1958
3
113 Amendments of listed provisions
4
5
Further amendments--Part 5-reviewable decisions
Item
Column 1
Provision
Column 2
Omit
Column 3
Substitute
1
Subsections 338(1), (2),
(3) and (3A)
a Part 5-reviewable
decision
a reviewable
migration decision
2
Subsection 338(4)
Part 5-reviewable
decisions
reviewable migration
decisions
3
Subsections 338(5), (6),
(7), (7A), (8) and (9)
a Part 5-reviewable
decision
a reviewable
migration decision
4
Subsection 347(1)
a Part 5-reviewable
decision
a reviewable
migration decision
5
Subparagraphs 347(1)(b)
(i), (ii) and (iii)
Part 5-reviewable
decision
reviewable migration
decision
6
Paragraphs 347(2)(a),
(b), (c) and (d)
Part 5-reviewable
decision
reviewable migration
decision
7
Subsections 347(3), (3A)
and (4)
Part 5-reviewable
decision
reviewable migration
decision
8
Subsection 347(5)
Part 5-reviewable
decisions
reviewable migration
decisions
Code of procedure harmonisation Schedule 1
Consequential amendments of the Administrative Appeals Tribunal Act 1975 Part 3
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
25
Part 3--Consequential amendments of the
1
Administrative Appeals Tribunal Act 1975
2
Administrative Appeals Tribunal Act 1975
3
114 Subsection 24Z(1) (note 1)
4
Omit "Parts 5 and 7", substitute "Part 5".
5
115 Paragraph 66(2)(a)
6
Omit "Part 7-reviewable decision", substitute "reviewable refugee
7
decision".
8
Schedule 1 Code of procedure harmonisation
Part 4 Application, saving and transitional provisions
26
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
Part 4--Application, saving and transitional
1
provisions
2
116 Definitions
3
In this Part:
4
commencement day means the day this item commences.
5
finally determined has the meaning given by the old law.
6
new law means the Migration Act 1958 as amended by this Schedule.
7
old law means the Migration Act 1958 as in force immediately before
8
the commencement day.
9
reviewable decision means:
10
(a) a Part 5-reviewable decision or a Part 7-reviewable decision,
11
within the meaning of the old law; or
12
(b) a reviewable decision, within the meaning of the new law.
13
reviewable refugee decision means:
14
(a) a Part 7-reviewable decision, within the meaning of the old
15
law; or
16
(b) a reviewable refugee decision, within the meaning of the new
17
law.
18
117 Application of amendments
--general
19
(1)
The amendments made by this Schedule (other than items 107 to 112)
20
apply in relation to a review of a reviewable decision, whether the
21
application for the review was made before, on or after the
22
commencement day.
23
(2)
However, those amendments do not apply if, immediately before the
24
commencement day, the application had been finally determined.
25
(3)
This item has effect subject to items 118 to 125 of this Schedule.
26
Code of procedure harmonisation Schedule 1
Application, saving and transitional provisions Part 4
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
27
118 Application of amendments
--when applications are
1
finally determined
2
(1)
The amendments made by items 3 to 11 of this Schedule apply in
3
relation to a decision in respect of an application, whether the decision
4
or the application was made before, on or after the commencement day.
5
(2)
However, the amendments do not apply if immediately before the
6
commencement day, the application had been finally determined.
7
119 Application of amendments
--notification of visa
8
decisions
9
The amendments made by items 12 to 16 of this Schedule apply in
10
relation to notices the Minister gives on or after the commencement
11
day.
12
120 Application of amendments
--multiple applications for
13
review of reviewable refugee decisions
14
(1)
Section 350A of the new law applies in relation to:
15
(a) an application made to a review body for review (the earlier
16
review) of a reviewable refugee decision; and
17
(b) a further application made to the Tribunal for review (the
18
further review) of a reviewable refugee decision;
19
whether the earlier application or further application was made before,
20
on or after the commencement day.
21
(2)
However, if a decision on the earlier review was taken to have been
22
made under subsection 430(2) or 430D(1) of the old law before the
23
commencement day, section 350A only applies if a decision on the
24
further review was not taken to have been made under
25
subsection 430(2) or 430D(1) of the old law before the commencement
26
day.
27
121 Saving
--directions to comply with guidance decisions
28
A direction:
29
(a) made under section 353B of the old law; and
30
(b) in force immediately before the commencement day;
31
has effect, from the commencement day, as if it had been made under
32
section 367A of the new law.
33
Schedule 1 Code of procedure harmonisation
Part 4 Application, saving and transitional provisions
28
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
122 Application of amendments
--notices about evidence
1
(1) If the Tribunal gave an applicant notice under section 360A of the
2
old law before the commencement day in relation to a review:
3
(a) sections 360A and 361 of the old law continue to apply in
4
relation to the notice, despite the amendments of those
5
sections made by this Schedule; and
6
(b) sections 360A and 361 of the new law do not apply in
7
relation to the notice.
8
(2) If the Tribunal gave an applicant notice under section 425A of the
9
old law before the commencement day in relation to a review:
10
(a) sections 425A and 426 of the old law continue to apply in
11
relation to the notice, despite the repeal of those sections by
12
this Schedule; and
13
(b) sections 360A and 361 of the new law do not apply in
14
relation to the notice; and
15
(c) the notice is taken to include a statement of the effect of
16
section 362B of the new law, if the notice included a
17
statement of the effect of section 426A of the old law.
18
123 Transitional
--proficiency in English
19
A person is taken, for the purposes of section 366C of the new law, to
20
be proficient in English if, before the commencement day, the Tribunal
21
considered that the person was sufficiently proficient in English for the
22
purposes of section 366C of the old law.
23
124 Application of amendments
--offences
24
(1)
To avoid doubt, sections 370 and 371 of the new law do not apply to
25
conduct that:
26
(a) related to a review under Part 7 of the old law; and
27
(b) occurred before the commencement day.
28
Note:
The repeal of sections 432 and 433 of the old law by this Schedule does not apply to
29
conduct that occurred before the commencement day. See subsection 7(2) of the Acts
30
Interpretation Act 1901.
31
(2)
In this item:
32
conduct means:
33
(a) a failure to comply with a summons; or
34
Code of procedure harmonisation Schedule 1
Application, saving and transitional provisions Part 4
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
29
(b) a failure to comply with a requirement; or
1
(c) a failure to answer a question.
2
125 Application of amendments
--disclosures
3
Subsection 376(4) of the new law does not apply to a disclosure that
4
was made under subsection 376(3) of the old law before the
5
commencement day.
6
126 Transitional
--things done under repealed Part 7 taken to
7
have been done under amended Part 5
8
(1)
For the purposes of the new law:
9
(a) a thing done before the commencement day by, or in relation
10
to, the Tribunal under the provision mentioned in column 1
11
of an item of the following table has effect, on and after the
12
commencement day, as if it had been done by, or in relation
13
to, the Tribunal under the provision mentioned in column 2
14
of the item; and
15
(b) a thing done before the commencement day by, or in relation
16
to, a person (including the Minister, the Secretary or an
17
applicant) under a provision mentioned in column 1 of an
18
item of the following table has effect, on and after the
19
commencement day, as if it had been done by, or in relation
20
to, the person under the provision mentioned in column 2 of
21
the item.
22
23
Part 5 provisions
Item
Column 1
Provision of Part 7 of the old law
Column 2
Provision of Part 5 of the new law
1
Subsection 411(3)
Section 339
2
Section 412
Section 347A
3
Section 414
Section 348
4
Section 415
Section 349
5
Section 416
Section 350A
6
Section 417
Section 351
7
Section 418
Subsections 352(1), (2) and (4)
8
Section 420B
Section 367A
Schedule 1 Code of procedure harmonisation
Part 4 Application, saving and transitional provisions
30
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
Part 5 provisions
Item
Column 1
Provision of Part 7 of the old law
Column 2
Provision of Part 5 of the new law
9
Section 423
Section 358
10
Section 423A
Section 358A
11
Section 424
Subsections 359(1) to (3)
12
Section 424AA
Section 359AA
13
Section 424A
Section 359A
14
Section 424B
Section 359B
15
Section 424C
Section 359C
16
Section 425
Section 360
17
Section 426A
Section 362B
18
Section 426B
Section 362C
19
Subsections 427(1) to (4)
Subsections 363(1) to (4)
20
Subsection 427(7)
Section 366C
21
Section 428
Section 364
22
Section 429
Section 365A
23
Section 429A
Section 366
24
Section 437
Section 375
25
Section 438
Section 376
26
Section 440(1)
Section 378(1)
27
Section 441AA
Section 379AA
28
Section 441A
Section 379A
29
Section 441B
Section 379B
30
Section 441C
Section 379C
31
Section 441D
Section 379D
32
Section 441EA
Section 379EA
33
Section 441F
Section 379F
34
Section 441G
Section 379G
(2)
This item is not taken to change the time at which the thing was actually
1
done.
2
Other amendments Schedule 2
Responses to a written invitation Part 1
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
31
Schedule 2--Other amendments
1
Part 1--Responses to a written invitation
2
Migration Act 1958
3
1 Subparagraphs 359AA(1)(b)(ii), (iii) and (iv)
4
Omit "or respond to" (wherever occurring).
5
2 Paragraph 359A(1)(c)
6
Omit "or respond to".
7
3 Subsection 359A(3)
8
Omit "or respond to" (wherever occurring).
9
4 Paragraph 359B(1)(b)
10
Omit "or respond to".
11
5 Subsection 359B(1)
12
Omit ", or the comments or the response,", substitute "or the
13
comments".
14
6 Subsection 359B(2)
15
Omit ", or comments or a response,", substitute "or comments".
16
7 Subsection 359B(2)
17
Omit ", or the comments or the response,", substitute "or the
18
comments".
19
8 Subsection 359B(3)
20
Omit ", or comments or a response,", substitute "or comments".
21
9 Section 359C (heading)
22
Repeal the heading, substitute:
23
Schedule 2 Other amendments
Part 1 Responses to a written invitation
32
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
359C Failure to give information or comments as invited
1
10 Paragraph 359C(2)(a)
2
Omit "or respond to".
3
11 Paragraph 359C(2)(b)
4
Omit "or the response".
5
12 Application of amendments
6
The amendments made by this Part apply in relation to a written
7
invitation given by the Administrative Appeals Tribunal under
8
section 359A of the Migration Act 1958 on or after the day this item
9
commences.
10
Other amendments Schedule 2
Officers of Tribunal Part 2
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
33
Part 2--Officers of Tribunal
1
Migration Act 1958
2
13 Subsection 5(1)
3
Insert:
4
staff member, of the Tribunal, means a member of the staff of the
5
Tribunal.
6
14 Section 337 (definition of officer of the Tribunal)
7
Repeal the definition.
8
15 Subsection 379AA(2)
9
Omit "or an officer", substitute ", the Registrar or a staff member".
10
16 Paragraph 379A(1A)(b)
11
Omit "or an officer", substitute ", the Registrar or a staff member".
12
17 Subsections 379A(2), (3) and (4)
13
Omit "or an officer", substitute ", the Registrar or a staff member".
14
18 Subparagraph 379A(4)(c)(iii)
15
Omit "or officer", substitute ", the Registrar or the staff member of the
16
Tribunal".
17
19 Subsection 379A(5)
18
Omit "or an officer", substitute ", the Registrar or a staff member".
19
20 Paragraph 379A(5)(e)
20
Omit "or officer", substitute ", the Registrar or the staff member of the
21
Tribunal".
22
21 Subsections 379B(2), (3) and (4)
23
Omit "or an officer", substitute ", the Registrar or a staff member".
24
Schedule 2 Other amendments
Part 2 Officers of Tribunal
34
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
22 Paragraph 379F(a)
1
Repeal the paragraph, substitute:
2
(a) by giving the document or thing to:
3
(i) the Registrar or a staff member of the Tribunal; or
4
(ii) a person authorised in writing by the Registrar; or
5
23 Subsection 473JE(2)
6
Omit "officers of the Tribunal (within the meaning of the
7
Administrative Appeals Tribunal Act 1975)", substitute "staff members
8
of the Tribunal".
9
24 Things done before commencement
10
(1)
This item applies for the purposes of section 379AA, 379A or 379B of
11
the Migration Act 1958.
12
(2)
A thing done by, or in relation to, an officer of the Tribunal under that
13
section, as in force immediately before the commencement of this item,
14
has effect, on and after that commencement, as if it had been done by,
15
or in relation to, the Registrar or a staff member of the Tribunal.
16
(3)
This item is not taken to change the time at which the thing was actually
17
done.
18
Other amendments Schedule 2
Fast track reviewable decisions Part 3
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
35
Part 3--Fast track reviewable decisions
1
Migration Act 1958
2
25 Subsection 379AA(1) (note 1)
3
Omit "a person", substitute "any of them".
4
26 Section 473CA
5
Before "The Minister", insert "(1)".
6
27 At the end of section 473CA
7
Add:
8
(2) The Minister may refer the following decisions to the Immigration
9
Assessment Authority under subsection (1) together:
10
(a) a fast track reviewable decision in relation to a fast track
11
applicant;
12
(b) a fast track reviewable decision in relation to another fast
13
track applicant who is a member of the same family unit as
14
the applicant mentioned in paragraph (a).
15
Note:
The Authority may review the decisions together, see section 473DG.
16
28 At the end of Division 3 of Part 7AA
17
Add:
18
Subdivision D--Immigration Assessment Authority may review
19
decisions together
20
473DG Immigration Assessment Authority may review decisions
21
together
22
(1) The Immigration Assessment Authority may review 2 or more fast
23
track reviewable decisions together under section 473CC.
24
(2) Subsection (1) applies whether or not the decisions were referred to
25
the Authority together as mentioned in subsection 473CA(2).
26
Schedule 2 Other amendments
Part 3 Fast track reviewable decisions
36
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
No. , 2016
(3) To avoid doubt, subsection (1) does not require the Authority to
1
review decisions together, even if the decisions were referred to the
2
Authority together.
3
29 Subsection 473HA(1) (before the note)
4
Insert:
5
Note 1:
If the Minister referred fast track reviewable decisions in relation to 2
6
or more fast track applicants to the Immigration Assessment Authority
7
together and the Authority reviews the decisions together, a document
8
given to any of the applicants is taken to be given to each of them: see
9
section 473HEA.
10
30 Subsection 473HA(1) (note)
11
Omit "Note", substitute "Note 2".
12
31 After subsection 473HA(2)
13
Insert:
14
(2A) However, subsection (2) does not apply if section 473HEA (which
15
relates to giving documents in the case of decisions referred and
16
reviewed together) applies in relation to the minor.
17
32 After subsection 473HB(2)
18
Insert:
19
(2A) However, subsection (2) does not apply if section 473HEA (which
20
relates to giving documents in the case of decisions referred and
21
reviewed together) applies in relation to the minor.
22
33 After section 473HE
23
Insert:
24
473HEA Giving documents by Immigration Assessment Authority--
25
decisions referred and reviewed together
26
If:
27
(a) the Minister referred fast track reviewable decisions in
28
relation to 2 or more fast track applicants together to the
29
Immigration Assessment Authority as mentioned in
30
subsection 473CA(2); and
31
Other amendments Schedule 2
Fast track reviewable decisions Part 3
No. , 2016
Migration Legislation Amendment (Code of Procedure Harmonisation)
Bill 2016
37
(b) the Authority is reviewing, or has reviewed, the decisions
1
together as mentioned in section 473DG;
2
documents given to any of the applicants in connection with the
3
review are taken to be given to each of them.
4
Note 1:
If the Immigration Assessment Authority gives a person a document
5
by a method specified in section 473HB, the person is taken to have
6
received the document at the time specified in section 473HD in
7
respect of that method.
8
Note 2:
Section 473HG deals with giving documents to a person's authorised
9
recipient.
10
34 Application of amendments
11
(1)
The amendments made by items 26, 27 and 33 of this Schedule apply in
12
relation to a fast track reviewable decision made before, on or after the
13
day this item commences.
14
(2)
The amendment made by item 28 of this Schedule applies in relation to
15
the Immigration Assessment Authority reviewing a fast track
16
reviewable decision on or after the day this item commences:
17
(a) whether the decision was made before, on or after that day;
18
and
19
(b) whether or not the Authority started to review the decision
20
before that day.
21