Peter Slipper (Fisher, Liberal Party) Share this | Hansard source

I am pleased to rise in the Main Committee today to support the Migration Amendment (Review Provisions) Bill 2006 [2007]. As honourable members would be aware, this bill amends the allowable task of the Migration Review Tribunal. Australia is a desirable country in which to live and every year about a million people from around the world apply to join our Australian family. We must of course, as we do, have a system of migration administration with integrity, and the Migration Amendment (Review Provisions) Bill 2006 updates and refines the provisions which are currently the law.

The Migration Review Tribunal, as outlined in the Migration Act 1958, has the purpose of reviewing visa related decisions made by the Minister for Immigration and Citizenship or by staff of the Department of Immigration and Citizenship who are acting as delegates of the minister. Its main role is to ensure that the original decisions are made in line with the requirements of our laws and available information. Over the years, Australia has done much to ensure that our system of migration is open, transparent, fair and equitable. While from time to time there might well be disagreements over whether the right balance has been reached, successive governments—and this government in particular—have sought to have a system which is fair, transparent, open and equitable.

The Migration Review Tribunal has jurisdiction over visa decisions involving those who are not citizens of Australia and also those who wish to travel here. Decisions that are reviewable include those related to a refusal to grant a visa, visa cancellations, decisions not to automatically cancel student visas, cancellations of previous approvals of business sponsors, the imposing of security conditions on a visa application and the like. Despite at times being called upon to do the impossible, the tribunal does not have any additional discretion than the discretion exercised by the initial decision maker, and any reviews of decisions must be made within the bounds of the same policy and legislative framework as has been applied in coming to the original decisions.

Honourable members would know of many cases where somehow the individual circumstances do not come within a particular category, yet it is really a moral thing that such a person ought to be admitted to Australia. While making sure that we have a system that is appropriate, it is important to have flexibility and it is also important to have ministerial discretion.

A former Labor immigration minister told me some time ago that governments had progressively sought to remove discretion away from the minister and pass that discretion on to the bureaucrats but that, ultimately, it is the minister who has to wear a bad decision, even if the minister had no part in reaching it. So I suppose what you also need as part of the balance is a balance between flexibility and a system where people know what is permissible and what is not.

This bill gives the Migration Review Tribunal and the Refugee Review Tribunal the ability to verbally give an explanation to applicants as to why a particular decision by the Department of Immigration and Citizenship has been upheld. Part of the reason for this bill is to overcome difficulties created by the full Federal Court and the High Court when they have interpreted provisions—as the minister said in his second reading speech:

... to mean that the tribunals can only discharge their procedural fairness obligations by providing applicants with particulars of adverse information and the invitation to comment on it in writing.

This bill will permit the explanation to be given in a verbal and not necessarily a written way.

The bill clarifies that an invitation to a visa applicant to comment on a decision does not extend to information that has already been lodged with the Department of Immigration and Citizenship and that has already been taken into account to make the initial decision, except for information that may previously have been given to the department by verbal means.

With regard to information that carries significant weight in those cases where the tribunal affirms a decision previously made by the department, it is important that the tribunal makes certain that the applicant has understood why that information has been seen as particularly relevant. The situation in which an applicant has received additional information at the review hearing and is given the option to seek additional time to consider the new information before making any comment in relation to that information is, I think, an equity measure, and I do not think any reasonable person would dissent from that proposal. With regard to the point I have just made, if the applicant does request more time to consider the new information and the tribunal sees that request as reasonable, the tribunal would adjourn proceedings to give the applicant sufficient time to review the new information. That is another instance of how we try to make sure that our legislation is as equitable and reasonable as possible.

As I said earlier, with respect to migration and the decisions made pursuant to the laws regarding migration and visas, people will always say that there ought to be a balance. The difference occasionally is on where the balance should be, but I think the Migration Amendment (Review Provisions) Bill 2006 is an important step forward, and I am very pleased to be able to commend it to the chamber.

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