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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amend the Migration Act 1958 (the Act) to:
• harmonise and streamline Part 5 and Part 7 of the Act relating to
merits review of certain decisions;
• make amendments to certain provisions in Part 5 of the Act to
clarify the operation of those provisions;
• clarify the requirements relating to notification of oral review
decisions; and
• make technical amendments to Part 7AA of the Act
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Portfolio
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Immigration and Border Protection
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Introduced
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House of Representatives on 30 November 2016
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Bill status
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Before House of Representatives
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Scrutiny principle
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Standing Order 24(1)(a)
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2.133 The committee dealt with this bill in Scrutiny Digest No. 1 of 2017. The Minister responded to the committee's comments in a letter dated 3 March 2017. The committee sought further information in the Scrutiny Digest 3 of 2017 and the Minister responded in a letter dated 2 May 2017.
2.134 Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is at Appendix 2.
Initial scrutiny – extract
2.135 Item 34 seeks to insert a new section 338A into the Migration Act. The proposed section contains a definition of 'reviewable refugee decision'. This new section largely mirrors the provisions contained in existing section 411 of the Act.
2.136 Proposed subsection 338A(2) defines what is a 'reviewable refugee decision', which includes a decision to refuse to grant or to cancel a protection visa. However, a decision to refuse to grant or to cancel a protection visa is not classified as a reviewable decision if it was made on a number of specified grounds, relating to criminal convictions or security risk assessments. As such, decisions made on such grounds are not reviewable by the Administrative Appeals Tribunal (AAT). In addition, subsection 338A(1) provides that a number of reviewable refugee decisions are excluded from review on specified grounds:
• that the Minister has issued a conclusive certificate in relation to the decision, on the basis that the Minister believes it would be contrary to the national interest to change or review the decision;
• that the decision to cancel a protection visa was made by the Minister personally;
• the decision is made in relation to a non-citizen who is not physically present in the migration zone when the decision is made; or
• that the decision is a fast track decision. A 'fast track decision' is a decision to refuse to grant a protection visa to certain applicants,[48] for which a very limited form of review is available under Part 7AA of the Act.
2.137 As such, there are a wide number of decisions relating to the grant or cancellation of protection visas that are either not subject to any merits review or which are subject to very limited review (in the case of fast track decisions).
2.138 Although the committee notes that this provision largely mirrors an existing provision of the Act, the committee still expects that any provisions which have the effect of limiting the availability of merits review will be comprehensively justified in the explanatory memorandum. The committee therefore requests the Minister's detailed justification for the limitation on merits review in proposed subsection 338A.
Minister's first response
2.139 The Minister advised:
New section 338A reflects the current definition of 'Part 7-reviewable decision' in section 411 of the Migration Act, and thus does not introduce any new limitations on the availability of merits review. Section 411 was enacted in 1992 and has since been amended numerous times. These amendments have been passed by both Houses of Parliament and therefore have been subject to the Parliamentary scrutiny processes required for all legislative amendments. It would be inappropriate to revisit the merits of previous amendments that have been passed by Parliament.
Committee's first comment
2.140 The committee thanks the Minister for this response. The committee notes the Minister's advice that new section 338A reflects the current definition in section 411 of the Migration Act and all amendments to this provision have already been subject to parliamentary scrutiny and so it would be inappropriate to revisit the merits of previous amendments passed by the Parliament.
2.141 The committee does not consider that it would be inappropriate for this Parliament to fully scrutinise legislation currently before it. The fact that the amendment mirrors an existing provision that previous Parliaments have examined does not prevent this committee from examining the legislation to consider whether it meets its scrutiny principles.
2.142 The committee therefore restates its request for the Minister to provide a detailed justification for the limitation on merits review in proposed subsection 338A.
Minister's further response
2.143 The Minister advised:
I acknowledge the role of the Committee requires it to examine proposed legislation to consider whether it meets the Committee's scrutiny principles. As previously advised, proposed section 338A of the Act imports the existing exhaustive list in section 411 of the Act, which provides for merits review in respect of protection visa decisions, and places it under the new heading of 'definition of reviewable refugee decision'. This amendment does not introduce any new limitations on the availability of merits review in respect of protection visa decisions. The Committee may be interested to know that while current section 411 of the Act provides for some protection visa decisions to be excluded from merits review by the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT), those decisions are still subject to some form of review by the AAT or the Immigration Assessment Authority, as provided by statute.
Committee's further comment
2.144 The committee thanks the Minister for this response. The committee notes the response does not address the committee's request for a detailed justification for the limitation on merits review. The committee notes the Minister's advice that while current section 411 of the Act provides for some protection visa decisions to be excluded from merits review by the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT), those decisions are still subject to some form of review by the AAT or the Immigration Assessment Authority (though no detail has been provided about this review).
2.145 The committee notes that proposed section 338A provides that a wide number of decisions relating to the grant or cancellation of protection visas are either not subject to any merits review by the AAT or are subject to very limited review. While this provision largely mirrors an existing provision of the Act, the committee still expects that any provisions which have the effect of limiting the availability of merits review will be comprehensively justified in the explanatory memorandum.
2.146 Given that some of the decisions exempted from review or subject to limited review involve the exercise of very broadly framed discretionary powers by the Minister and the significance of the exercise of these powers on an individual's interests, the committee retains significant scrutiny concerns that adequate accountability mechanisms have not been included in the legislation. The committee notes that judicial review is often of limited efficacy when sought in relation to broadly framed discretionary powers.
2.147 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of limiting merits review in proposed section 338A.
Initial scrutiny – extract
2.148 Proposed subsections 368E(3) and (4) provide mechanisms that allow a merits review applicant or the Minister to request that the Tribunal provide a written version of an oral statement. While the committee notes that these provisions are similar to current subsections 368D(4) and (5) (which are proposed to be repealed by item 75), the committee has two related scrutiny concerns in relation to these provisions.
2.149 First, proposed subsection 368E(3) provides than an applicant may only make a request that the Tribunal provide an oral statement in writing 'within the period prescribed by the regulations'. On the other hand, the Minister may make such a request at any time. The explanatory materials do not explain why the time in which an applicant may make the request is limited.
2.150 Second, the explanatory materials do not explain why it is necessary to prescribe in the regulations the time period in which applicants may make a request, rather than including this time period on the face of the primary legislation.
2.151 Noting this proposed delegation of legislative power and the potential impact on the effectiveness of applicants' review rights, the committee requests the Minister's advice as to why:
• the period of time in which an applicant may make a request that the Tribunal provide an oral statement in writing is limited; and
• the relevant time period is to be included in regulations, rather than on the face of the legislation.
Minister's first response
2.152 The Minister advised:
New subsections 368E(3) and (4) reflect current subsections 368D(4) and (5). Specifically, it is noted that current subsection 368D(4) provides for a period prescribed by regulation within which the applicant can request the statement to be provided in writing. The new subsections thus do not introduce any new limitations on applicants seeking a statement to be provided in writing.
Current subsections 368D(4) and (5) have been passed by both Houses of Parliament and therefore have been subject to the Parliamentary scrutiny processes required for all legislative amendments.
Committee's first comment
2.153 The committee thanks the Minister for this response. The committee notes the Minister's advice that the relevant provisions reflect the current law, which has been previously subject to parliamentary scrutiny.
2.154 The committee reiterates that the fact that the amendments mirror existing provisions which previous Parliaments have examined does not prevent this committee from examining the legislation to consider whether it meets its scrutiny principles. The committee is concerned to understand the reasons as to why the legislation currently before this Parliament limits the period of time in which an applicant can make a request for written statements and why the relevant time period is to be prescribed in regulations.
2.155 The committee therefore restates its request for the Minister's advice as to why:
• the period of time in which an applicant may make a request that the Tribunal provide an oral statement in writing is limited; and
• the relevant time period is to be included in regulations, rather than on the face of the legislation.
Minister's further response
2.156 The Minister advised:
As previously advised, proposed subsections 368E(3) and (4) of the Act reflect the requirements set out in current subsections 368D(4) and (5) of the Act. Subsection 368D(4) provides for a period prescribed by regulation within which the applicant can request the statement to be provided in writing. This requirement that the applicant make a request within a prescribed period has been carried over into the restatement of the requirements as set out in proposed subsection 368E(3). The Committee has noted the potential impact of the proposed subsections on the effectiveness of applicants' review rights. The subsections in question relate to the provision, in writing, of an oral statement about a decision on a review that has already been delivered. Given that the applicant will have already received an oral statement of the decision – the provisions currently (and as proposed) have no impact on the effectiveness of an applicant's review rights.
Committee's further comment
2.157 The committee thanks the Minister for this response. The committee notes the response does not address the committee's queries in relation to the time period for making a request for an oral statement to be provided in writing. The committee notes the Minister's advice that as the applicant will have already received an oral statement about a decision the provisions have no impact on the effectiveness of an applicant's review rights.
2.158 However, the committee notes that the provision of a written statement setting out the reason why the Tribunal made a particular decision may be central to the effectiveness of an applicant's review rights. The applicant may not have been legally represented when the oral statement was delivered and without the statement in writing may not be able to properly instruct counsel in relation to any review of the original decision.
2.159 The committee therefore considers that the timeframe for making such a request for a statement to be in writing may be key to exercising review rights, and as such, the committee would expect such detail to be included in primary legislation unless a justification is provided as to why it is appropriate to include this in delegated legislation.
2.160 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of limiting the timeframe for a request for an oral statement to be provided in writing and including this requirement in delegated legislation.
2.161 The committee also draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.
Initial scrutiny – extract
2.162 Proposed paragraph 476(2)(e) seeks 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. Decisions of the Tribunal under section 362B relate to circumstances where an applicant fails to appear before the Tribunal. Where an application is dismissed under paragraph 362B(1A)(b) it is possible for an applicant (within 14 days of receiving the notice of decision) to apply for reinstatement of the application. The Tribunal may then decide to reinstate the application (and it is taken never to have been dismissed) or to confirm the decision to dismiss. If the applicant does not, within 14 days of receiving the notice of decision, apply for reinstatement, the Tribunal must confirm the decision to dismiss the application.
2.163 The explanatory memorandum states that 'it would be an inappropriate use of the Federal Circuit Court's time and resources to determine whether the dismissal decision has been correctly made under paragraph 362(1A)(b) prior to one of the three possible outcomes above' (i.e. prior to possible reinstatement or confirmation to dismiss) and that an applicant may still seek review of the decision to dismiss in the ordinary jurisdiction of the High Court.[51]
2.164 The committee notes this explanation, although it generally does not consider the potential impact of review on a court's time and resources or the fact that the constitutionally entrenched minimal level of judicial review is still available in the High Court, to be sufficient justification for limiting the availability of judicial review in the lower courts (which is more accessible and less costly for review applicants).
2.165 While the committee appreciates it may be inappropriate to provide for review of a decision where the Tribunal may still have a chance to reinstate the application, it is unclear to the committee whether, where the Tribunal confirms a decision to dismiss an application, these changes will mean that such a decision will not be reviewable.
2.166 In order to assist the committee in determining whether this limitation on the availability of judicial review is appropriate, the committee seeks the Minister's advice as to whether judicial review in the Federal Circuit Court will be available where a decision to dismiss an application is confirmed under paragraph 362B(1C)(b) or subsection 362B(1E) of the Migration Act.
Minister's first response
2.167 The Minister advised:
If an applicant fails to appear before the Tribunal, current paragraph 362B(1A)(b) allows the Tribunal to dismiss the application. The applicant may apply for reinstatement of the application within 14 days after receiving the notice of the decision to dismiss. If the applicant fails to apply for reinstatement, or applies for reinstatement and the Tribunal does not consider it appropriate to reinstate the application, subsection 362B(1E) and paragraph 362B(1C)(b) respectively require the Tribunal to confirm the decision to dismiss the application. The effect of this is that the decision under review is taken to be affirmed.
The purpose of new paragraph 476(2)(e) is to ensure that the original decision to dismiss the application (the decision taken under paragraph 362B(1A)(b)) is not reviewable by the Federal Circuit Court. It does not change the jurisdiction of the Federal Circuit Court in relation to a 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.
Committee's first comment
2.168 The committee thanks the Minister for this response. The committee notes the Minister's advice that the purpose of the new paragraph is to ensure the original decision to dismiss the application is not reviewable by the Federal Circuit Court, but that this does not change the jurisdiction of the Court in relation to a latter decision of the Tribunal to confirm the decision to dismiss. The committee notes the Minister's advice that in reviewing this latter decision to confirm the dismissal the Federal Circuit Court can consider whether there were any errors with the original dismissal decision.
2.169 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.170 In light of the information provided, the committee makes no further comment on this matter.
Minister's further response
2.171 The Minister advised:
I agree that the explanatory memorandum could benefit from further clarification as to the purpose of this amendment and will arrange for this change to be made.
Committee's further comment
2.172 The committee thanks the Minister for this response and welcomes his commitment to amend the explanatory memorandum to provide further clarification in relation to the scrutiny concerns raised by the committee.
[47] Schedule 1, item 34, proposed section 338A of the Migration Act 1958.
[48] These include unauthorised maritime arrivals who entered Australia on or after 13 August 2012 but before 1 January 2014 and who have not been taken to a regional processing country.
[49] Schedule 1, item 77, proposed subsections 368E(3) and (4) of the Migration Act 1958.
[50] Schedule 1, item 101, proposed paragraph 476(2)(e) of the Migration Act 1958.
[51] Explanatory memorandum, p. 24.
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