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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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2.140 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. 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 1.
Initial scrutiny – extract
2.141 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.
2.142 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,[39] for which a very limited form of review is available under Part 7AA of the Act.
2.143 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).
2.144 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 response
2.145 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 comment
2.146 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.
2.147 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.
2.148 The committee therefore restates its request for the Minister to provide a detailed justification for the limitation on merits review in proposed subsection 338A.
2.149 Item 61 proposes to repeal section 362A of the Migration Act 1958 which currently entitles an applicant for review to 'have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review'. Its repeal is justified on the basis of other provisions which require or allow the Tribunal to provide information to the applicant which the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.
2.150 However, it remains the case that the proposed repeal appears to reduce the applicant's access to information which the Tribunal has before it for the purposes of the review. In this regard the committee notes that the common law rule of procedural fairness may require disclosure of adverse information that is relevant, credible and significant even though a decision-maker disavows any reliance on that information as part of the reason for their decision to affirm a decision under review.
2.151 The committee requests further advice from the Minister as to why it is considered necessary to remove an applicant's right to access written material given to the Tribunal, and whether this diminishes an applicant's right to a fair hearing.
Minister's response
2.152 The Minister advised:
Section 362A of the Migration Act was enacted at a time when there was no other provision in Division 5 of Part 5 of the Migration Act that required the then Immigration Review Tribunal to provide (in the sense of 'make available') to review applicants documents or information that was before the Tribunal.
The Migration Act has changed significantly since the enactment of section 362A, including the enactment of sections 357A (the exhaustive statement of the natural justice hearing rule) and sections 359AA to 359C (which deal exhaustively with the disclosure of adverse material).
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. This provides an applicant with the opportunity to consider, and comment on, information that the Tribunal will rely on in the review, and to be prepared in advance of a hearing.
There is no provision in Part 7 of the Migration Act that is equivalent to section 362A, and Part 7 review applicants have not been hindered in their ability to prepare for and present their case due to the absence of such a provision.
It is noted that the common law hearing rule not only does not require the disclosure of material that is not adverse, it also does not require the disclosure of the full text of adverse material that is relevant, credible and significant to the decision being made; rather, only the substance of such material needs to be put to an applicant.[41]
Committee comment
2.153 The committee thanks the Minister for this response. The committee notes the Minister's advice that the Tribunal is already obligated to provide information to the applicant that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. The committee also notes the Minister's advice that there is no equivalent provision in Part 7 of the Act and applicants under this Part 'have not been hindered in their ability to prepare for and present their case' due to the absence of such a provision. However, the committee considers it is not possible to know whether such applicants have been hindered in this way (noting that without a right to access such information they would be unlikely to know if such information exists).
2.154 As the committee previously noted, the common law rule of procedural fairness may require disclosure of adverse information (or the substance of such material) that is relevant, credible and significant even though a decision-maker disavows any reliance on that information as part of the reason for their decision to affirm a decision under review. Yet, in this case, removing the requirement in section 362A entirely would mean an applicant is only entitled to information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision. As the Minister noted, the Migration Act now provides that the provisions in the Act are an exhaustive statement of the requirements of the natural justice hearing rule. So while the common law requirements of procedural fairness require that a person against whom adverse comments have been made must be provided with the substance of the allegations and given a right of reply (even if the Tribunal does not intend to take the adverse comments into account),[42] the only requirement in relation to migration decisions is as set out in the Act.
2.155 Thus, removing an entitlement for an applicant to have access to any written material given or produced to the Tribunal, in circumstances where the Act only provides for particulars of information to be given where the Tribunal considers it would be the reason or part of the reason for affirming the decision, reduces the applicant's right to procedural fairness. From a scrutiny perspective, the committee considers it would be more appropriate for section 362A to not be repealed, or, at a minimum, to be amended to ensure all relevant, credible and significant information, or the substance of such information, is made available to the applicant.
2.156 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of repealing an applicant's right to access written material given or produced to the Tribunal for the purposes of the review.
2.157 Proposed subsection 368E(2) inserts a requirement for the Tribunal to notify the Secretary of the Department of Immigration and Border Protection after a Tribunal decision is given orally. The Tribunal must, on a request from the applicant or Minister, reduce the oral statement to writing and give a copy to the Secretary and the applicant. Proposed subsection 368E(6) provides that if the Tribunal has made a written statement (after giving an oral decision) the Tribunal must give a copy of that statement to both the Secretary and applicant. However, proposed subsection 368E(8) provides that a failure to comply with the requirements of the section in relation to a decision on a review does not affect the validity of the decision. The result is that a remedy could not issue to quash a decision on the basis that the legal requirements of this provision were breached.
2.158 As judicial review will not be effective to enforce the notification and reason-giving requirements in section 368E, the committee requests the Minister's advice as to how compliance with these important legal requirements will be enforced.
Minister's response
2.159 The Minister advised:
New subsection 368E(2) requires the Tribunal to notify the Secretary after a Tribunal decision is given orally. If, after giving an oral decision, the Tribunal has made a written statement, new subsection 368E(6) requires the Tribunal to give a copy of that statement to both the Secretary and applicant. While the subsections create new requirements, they are consistent with the requirements in relation to written statements of decisions which are not given orally (and which are covered by a provision similar to subsection 368E(8)).
It is noted that the requirements under subsections 368E(2) and (6) are in addition to existing paragraph 368D(2)(a), which requires an oral statement of the Tribunal to, amongst other things, describe the reasons for the decision. Currently there is no requirement that the Tribunal provide either the applicant or the Secretary with a written statement of an oral decision, even on request.
New subsection 368E(8) provides that a failure to comply with section 368E in relation to a decision on a review does not affect the validity of the decision. This wording is standard to provisions that set out notification requirements. The purpose of the provision is not to undermine the importance of the notification process, instead it ensures the validity of the decision should the notification process not be effective in a particular instance. It is noted that new subsection 368E(8) will not prevent judicial scrutiny of the Tribunal's reasons for decision, or judicial commentary on the notification process itself.
Committee comment
2.160 The committee thanks the Minister for this response. The committee notes the Minister's advice that the wording that provides a failure to comply with notification requirements on review does not affect the validity of the decision, is standard to these type of provisions. The committee also notes the advice that the purpose of the provision is to ensure the validity of the decision should the notification process not be effective, and this will not prevent judicial scrutiny of the Tribunal's reasons for decision or 'judicial commentary on the notification process itself'.
2.161 The committee notes that judicial commentary on the notification process, in the absence of any power to enforce the notification requirements, is not a mechanism for ensuring compliance with these important legal requirements.
2.162 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of providing that a failure to comply with notification requirements does not affect the validity of the Tribunal's decision.
2.163 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.
2.164 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.
2.165 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.
2.166 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 response
2.167 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 comment
2.168 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.
2.169 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.
2.170 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.
2.171 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.
2.172 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.[46]
2.173 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).
2.174 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.
2.175 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 response
2.176 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 comment
2.177 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.
2.178 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).
2.179 In light of the information provided, the committee makes no further comment on this matter.
[38] Schedule 1, item 34, proposed section 338A of the Migration Act 1958.
[39] 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.
[40] Schedule 1, item 61, proposed repeal of section 362A of the Migration Act 1958.
[41] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [29].
[42] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88.
[43] Schedule 1, item 77, proposed subsection 368E(8) of the Migration Act 1958.
[44] Schedule 1, item 77, proposed subsections 368E(3) and (4) of the Migration Act 1958.
[45] Schedule 1, item 101, proposed paragraph 476(2)(e) of the Migration Act 1958.
[46] Explanatory memorandum, p. 24.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2017/88.html
