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1998 - 99
MIGRATION LEGISLATION AMENDMENT (JUDICIAL
REVIEW) BILL 1998
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of
the Government
(Circulated by authority of
the Minister for Immigration and Multicultural Affairs, the Hon. Philip Ruddock
MP)
OUTLINE
The Migration Legislation Amendment (Judicial
Review) Bill 1998 implements a number of Government initiatives in relation to
judicial review of decisions in the Immigration and Multicultural Affairs
portfolio.
The amendments contained in the Bill will introduce a new
judicial review scheme, by introducing a privative clause to cover decisions
made under the Migration Act 1958 relating to the ability of non-citizens to
enter and remain in Australia.
The Government has decided to move
amendments to the Bill to clarify that:
- The Federal Court has
jurisdiction to review privative clause decisions made by an independent merits
review Tribunal;
- Privative clause decisions made by a primary
decision-maker and decisions of the Migration Internal Review Office will not be
reviewable by the Federal Court where that decision is able to be reviewed by a
merits tribunal or has been reviewed by a merits tribunal;
- The
privative clause decision of the tribunal is reviewable by the Federal Court in
accordance with the grounds permitted by the privative clause.
The amendments to the Migration Act 1958 in relation to judicial review
of immigration decision-making will, if they operate as predicted by reducing
the issues to be addressed and allowing cases to be resolved more quickly,
deliver substantial savings. It will take some time before the scheme is fully
effective given a backlog of cases to which it will not apply and for any
initial court challenges to it to be resolved.
MIGRATION LEGISLATION
AMENDMENT (JUDICIAL REVIEW) BILL 1998
Proposed subsection 474(6) inserted by item 7 of Part 1 of Schedule 1 of
the Bill is deleted to make it clearer, that where the Federal Court has
jurisdiction to review privative clause decisions, it is on the same grounds of
review that would be available before the High Court in its original
jurisdiction under subsection 75(v) of the Commonwealth Constitution. That is,
they are the grounds of review that are available by interpreting the privative
clause at proposed subsection 474(1) inserted by item 7 of Part 1 of Schedule 1
of the Bill, as if subsection 39B(1) of the Judiciary Act 1903 were
equivalent to subsection 75(v) of the Commonwealth Constitution.
This proposed new section replaces proposed subsection 476(3) inserted by
item 7 of Part 1 of Schedule 1 of the Bill and makes it clearer that the Federal
Court has jurisdiction to review decisions of the Immigration Review Tribunal
(and its successor, the Migration Review Tribunal), the Refugee Review Tribunal
and the Administrative Appeals Tribunal, and any other decision not excluded by
proposed section 476 of Part 1 of Schedule 1 of the Bill (that is, certain visa
decisions which attract no merits review rights under Part 5 or Part 7 or
section 500 of the Migration Act 1958).
Clause 3 Subsection 476(1)
This proposed new subsection,
in combination with the proposed new definition of “primary
decision”, replaces proposed subsection 476(1) inserted by item 7 of Part
1 of Schedule 1 of the Bill to make it clearer that the Federal Court does not
have any jurisdiction in relation to a primary decision or any decision by a
review officer on an internal review, where:
• the decision has
been the subject of a merits review decision by a Tribunal under Part 5 or 7 or
section 500 of the Migration Act 1958; or
• the decision is
still subject to the merits review processes under Part 5 or 7 or section 500
whether because it is still going through those processes or an application for
merits review has not yet been made and the time specified for such an
application has not expired; or
• the decision would have been
merits reviewable had a merits review application been made within the time
specified for such an application.
Clause 4
Proposed
subsection 476(3) inserted by item 7 of Part 1 of Schedule 1 of the Bill is
deleted because it has been replaced by proposed new section
475A.
Clause 5
This change is consequential to the
amendments made by clauses 3 and 4.
Clause 6 Definition of
“primary decision”
See under clause 3 above.