Petro Georgiou (Kooyong, Liberal Party) Share this | Hansard source

The Migration Amendment (Review Provisions) Bill 2006 proposes changes to the conduct of the review process of the Migration Review Tribunal and the Refugee Review Tribunal. These are the administrative bodies responsible for reviewing decisions on visas, decisions made by the Minister for Immigration and Citizenship or his delegates. The sections the bill proposes to amend were introduced by this government back in 1998 as part of an extensive process of legislative change. This was part of an ongoing attempt by this government and also its predecessors to restrict the courts’ ability to review decisions of the tribunals.

In presenting the case for the changes, Mr Ruddock said that the most corrosive actions against an effective and fair immigration program were taking place in the courts and that these administrative decisions should have administrative review dealing with merits and that the courts can have a supervisory role in relation to whether they follow procedural fairness. He added, ‘That is why we set out what procedural fairness will involve but they’—the courts—‘will not use that as a basis for going in and putting their views on the merits.’ To this end, sections were added to the act that spelt out: ‘An exhaustive statement of the natural justice hearing rule’. This exhaustive statement was specified by the act as being contained in division 4 and sections 416, 437, 438 and division 7A. To put it simply: the tribunals are required to give the applicant information for affirming the decision that was under review to ensure that the applicants understand the relevance of the information and be invited to comment on it. That information and the invitation had to be in writing in a document delivered by a variety of prescribed methods.

In the event, the tribunals did not comply with this legislation. The full Federal Court decision in MIMA v Al Shamry made it clear that adverse information provided by an applicant to the department as part of their visa application or in response to a possible visa decision was not covered by the exemptions, provisions and subsections 359A(4) and 424A(3). Accordingly, tribunals are required to put the information to the applicant and invite them to comment.

Following Al Shamry, the tribunals complied with this decision by orally providing any such adverse information to the applicant for comment during the hearing. In May 2005, in SAAP v MIMIA, the High Court made it clear that the requirements in section 359A and 424A to provide the information in writing were not procedural and had to be strictly complied with by the tribunals. In February 2006, the Federal Court in SZEEU v MIMIA found that Al Shamry should be followed.

In 2005-06, more than 500 cases were returned to the tribunals for reconsideration because the High Court and the full court of the Federal Court ruled that the tribunals had not met their obligations regarding the hearing rule. In the High Court case SAAP v MIMIA, the dispute centred on the means by which applicants to the RRT were informed of information adverse to their appeals that had been considered by the RRT. The majority found that applicants must be informed of adverse information in writing. The majority reasoned that, firstly, the act had been breached; secondly, that without full compliance with the act there is no procedural fairness; and, thirdly, that in the absence of procedural fairness an RRT decision may be erroneous and can be set aside.

The Federal Court in SZEEU v MIMIA upheld Al Shamry concerning the scope of section 424A. In this case the dispute centred on a description of the type of information required to be disclosed under the adverse information rule. Section 424A(3)(b) exempted information tendered ‘for the purpose of the application’ from the requirement of the invitation to comment on adverse information. SZEEU affirmed that the term ‘application’ has the narrow meaning of ‘application to the RRT’ and this meant that only adverse information furnished as part of the RRT application, not the overall visa application, is subject to the exemption from written notice.

Mr Justice Weinberg’s statement on the case underlined the degree to which legislative requirements regarding procedure have overshadowed the matter of fairness itself, forcing judges to overturn decisions because of procedure even where no actual unfairness had resulted. He said:

Henceforth any decision based on information adverse to the applicant where such information does not fall within any of the exceptions in s.424A(3) is likely to be set aside irrespective of whether there has been any actual unfairness.

Mr Justice Weinberg said that the appeals illustrate ‘the problems that can arise when the legislature embarks upon the course of establishing a highly prescriptive code of procedure for dealing with visa applications and subsequent applications for review instead of simply allowing for such matters to be dealt with in accordance with well developed principles of common law’. While doubting that ‘the legislature ever contemplated that section 424A would give rise to the difficulties it has’, Justice Weinberg attributed the problems directly to the ‘attempt to codify, and prescribe exhaustively, the requirements of natural justice, without having given adequate attention to the need to maintain some flexibility in this area’. It is the situation created by such legislation that the bill before us seeks to correct.

In introducing the bill to the Senate, Minister Ellison pointed out that the requirements imposed upon the tribunal by the courts have made the process slower and more impractical for the tribunal. The process is, I think rightly, said to be burdened by cumbersome reiteration in writing of unimportant information such as passport details. The tribunal’s principal member, Mr Steve Karas, observed that the judgements have had an impact on the efficiency of the tribunals and on the time lines for reviews. It does need to be noted however that the judgements actually do flow from the legislation, and the attempt by successive governments over the years to curtail the discretionary power of the courts in matters of procedural fairness has created a situation where courts are forced to send back cases because of procedural issues irrespective of whether the original decision had been fair or unfair. Given the gravity of the decisions made by these tribunals—as well as the case of the RRT, which assesses whether a person is a refugee under the United Nations convention—and our obligations under international law, we must take every effort to ensure that decisions of the MRT and the RRT are fair and just.

I think it is worthwhile reiterating that what is at issue here is not a lack of justice in a substantive sense but rather a legislative provision which relates to the giving of notice in circumstances in which it may not matter at all whether such notice was given. This bill will make it a statutory requirement that the tribunal must act in a way that is fair and just in conducting its review. This gives pre-eminence to fairness and justice as guiding principles for discretion and as the criteria upon which discretion itself may be judged.

Section 424A will give tribunal members the discretion to choose whether to advise applicants of adverse information orally or in writing. It obviates the need for time-consuming and unnecessary reiterations of materials in writing and clarifies this aspect of the process to relieve a technicality from the burden of judicial scrutiny. We must take care, however, to ensure that the option of an oral presentation of adverse material does not mean that people will be rushed in their consideration of matters that may take some time to process. To this end, the bill introduces a new safeguard. Members will be required by law to ask whether the applicant has had enough time to consider the information before responding. If they have not had sufficient time, and if the member agrees, the hearing must be adjourned.

There is an inherent tension between the guiding legislative directive of the tribunal that their decision making should be both fair and quick. The legislative objective of dealing with applications for review efficiently—and I am a very firm believer in that efficiency and that speed—should not be allowed to detract from an obligation to deal with people fairly. The reforms initiated by this bill allowing members to present adverse information orally but requiring them to ask applicants whether they have had sufficient time to consider the information presented, I believe, strikes the right balance between the competing demands of justice and efficiency.

The vast majority of people speaking before the tribunals do not speak English as a first language. This is why it is required by law that interpreters be made available not only on request but also if and when the tribunal member perceives a need. In 2005-06, interpreters were required in 66 per cent of MRT hearings and 90 per cent of RRT hearings. Under the new conditions of oral presentation, it is also important that members are sensitive to applicants’ needs for interpreters and act on their obligation to suggest an interpreter if they perceive a need.

Let me move to the question of the type of information that the members are required to present to applicants. Under section 424A(3)(b) information tendered for the purpose of the application is exempt from the fair hearing rule. As I have indicated, there has been an issue before the courts about whether the term ‘application’ should be taken narrowly to refer to the application for review before the tribunal or more broadly to also include the visa application that is the subject of the review.

In SZEEU v MIMIA the full court of the Federal Court determined that the nature of the adverse information should, in the interests of fairness to the applicant, be broadly defined. To this end, the meaning of the term ‘application’ in section 424A(3)(b) should refer only to information tendered as part of the application for review by either of the tribunals. As I have said, this issue brought the courts to the unhappy situation of having to overturn decisions, regardless of fairness or otherwise, based on an interpretation of a word—a situation in which fairness is only marginally relevant, as Justice Weinberg characterised it.

The bill clarifies the matter by defining ‘application’ as ‘any document tendered during the visa application’. This will save the tribunals from wasting time sending out duplicate copies of uncontroversial routine documents such as passports. Importantly however, oral statements are exempt from this practice and any statement an applicant gives orally as part of their visa application process, if it is found to be adverse information, will need to be brought to the applicant’s attention in writing.

The bill introduces legislation which attempts to break through the impasse that has been created by an overly prescriptive approach to procedural fairness. It will restore an important measure of discretion and flexibility to members who, in applying this division, will have to act in a way that is fair and just. In terms of process, I have highlighted the new safeguards introduced by this bill—the exemption of oral statements from section 424C and the requirement for members to ask whether an applicant has had sufficient time to consider the adverse information put to them. I commend this bill to the House.

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