Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Hansard source

I rise to speak in support of the Migration Amendment (Notification Review) Bill 2008. This is a bill which amends the Migration Act 1958 to provide that the Department of Immigration and Citizenship and the Migration Review Tribunal and Refugee Review Tribunal will no longer have to completely strictly comply with the legislation’s notification requirements. The notification requirements of this act deal with how the department and the tribunals communicate with people who are affected by the immigration regime. The act contains a number of detailed provisions specifying how the department and the tribunals can, and in some circumstances must, communicate with visa applicants and people whose visas have been cancelled.

An example can be seen in section 66 of the Migration Act, which provides that the department must notify an applicant of a decision to refuse a visa in a prescribed way. The notification not only is required to contain specific information, such as the criterion or the provision of the act or the regulations that was not satisfied, but also must tell the applicant if the applicant has a right to have the decision reviewed by the Migration Review Tribunal, the Refugee Review Tribunal or the Administrative Review Tribunal and also must tell the applicant when and where the application for review needs to be lodged and similar formal information of that nature. If one goes to other provisions of the act—section 494B, section 379A, section 441A—one can read other prescriptions of methods that are to be used in communicating with applicants, such as directions as to whether it can be by post or fax or other similar formal requirements.

The formal requirements for the way in which the department and the tribunals are to communicate with those affected by the immigration regime in turn lead to other provisions of the act, because effective notification under section 66 will trigger section 494C of the Migration Act, and that provides for a deemed receipt of a document by an applicant within a specified time. That has further consequences under the immigration regime. For example, if a document was sent within three working days of the date of the document to an address in Australia, the present provisions of the Migration Act provide that the applicant is deemed to have received it within seven working days after the date of the document. That in turn will have the consequence that an applicant wishing to have an adverse primary decision independently reviewed must initiate the review process within the time stipulated in the notification, and that is normally 21 days. Failure to initiate the review process within the prescribed time will result in forfeiting the right of review.

All systems for applications to government departments and processing of those applications by government departments and tribunals necessarily need to have formal processes and necessarily require time limits to be specified. The requirements for forms and the requirements for notification in all cases will need to be set out in legislation. What we have in the Migration Act is a particularly complex set of notification procedures, and those notification procedures have been found wanting, I think it is fair to say, in that a series of court decisions over the last several years has demonstrated a degree of unworkability of these notification procedures. Certainly, as has been examined at some length by the Commonwealth Ombudsman, the Department of Immigration and Citizenship has been found wanting in the way in which it has been administering these notification procedures.

The Commonwealth Ombudsman, Professor John McMillan, produced two very thorough and thoughtful reports over the course of last year that look at the notification procedures used by the Department of Immigration and Citizenship under the Migration Act. The first of those reports, released in June 2007, is entitled Report into referred immigration cases: notification issues, and the second report, released in December 2007, is entitled Notification of decisions and review rights for unsuccessful visa applications. What Professor McMillan found and reported on in these two reports was a range of deficiencies in the way in which the department had responded to difficulties identified by the Federal Court of Australia, the Federal Magistrates Court of Australia and the full Federal Court of Australia in a whole range of decisions, but notably the decision in Srey. It is worth reading some of the comments that were made by Professor John McMillan in those reports. In the June 2007 report, he said:

The legislative and policy framework controlling the notification of decisions is comprehensive and provides clear guidance to DIAC staff. However, the investigation of the individual cases in this report highlighted some recurring problems in the way that DIAC officers implemented the legislative and policy requirements. These problems appear to stem from poor internal administrative processes, a lack of understanding by some DIAC officers of the notification requirements imposed by the legislation and a failure by officers to identify notification deficiencies, and their implications, in a timely manner.

The Commonwealth Ombudsman made similar comments in his later report of December 2007, at the conclusion of his investigation into notification requirements. He said:

The investigation found that DIAC’s overall management of notification of adverse decisions is not coordinated or consistent. There was significant variation in the quality of information presented in notification letters, many of which fell considerably short of best practice standards. In some instances, this limited a visa applicant’s ability to seek review or successfully reapply. In other instances, the information was overly complex, confusing and poorly presented.

The Commonwealth Ombudsman was, naturally enough, focusing on administrative processes used within the department, but he also commented on possible deficiencies in the legislation itself. It is worth quoting from his June 2007 report in that regard. He said:

As a general observation, the prescriptive nature of the notification regime is a double-edged sword. Strict compliance by DIAC with the legislation will be enough to ensure legally effective notification, even if the letter remains unread or is lost in the post. Conversely, a small deviation from the requirements of the legislation can render the notice legally ineffective, even though the notice was received and read.

The deficiencies that the Commonwealth Ombudsman identified in those two reports were at an administrative level and are matters that the department is now, I think I am able to say, attending to. It is certainly something that the new Minister for Immigration and Citizenship in the Rudd Labor government, Senator Evans, has given priority to. It is reflective of the priority being given to this kind of administrative matter that the minister has initiated the amendments that are contained in the bill before the House today.

These amendments will assist in ensuring that, rather than the application of the completely strict letter of the law having dire consequences for applicants for visas or meaning that people whose applications have been refused lose their appeal rights, attention is given to the actual notification of those persons—that is, attention is being paid to the substance or the intention of these types of provisions, which are, after all, only facilitative provisions. These provisions are designed to ensure that people have drawn to their attention, through the processes of the department and the tribunals, matters which need to be drawn to their attention.

Just before going to the particular provisions contained in this bill, I want to comment on the speech on the second reading of this bill that was given by the member for Murray a short time ago. I was sorry to hear her wrongly claiming that the Rudd Labor government had continued the policies of the Howard government in relation to immigration. Indeed, I am sorry to hear any continuing defence of what I regard as the brutal immigration regime of the former government. The member for Murray has clearly not been paying attention to the recent announcements by the minister for immigration, because they make it entirely clear that the Rudd Labor government have put the immigration regime of the former government behind us.

The Rudd Labor government are not going to continue with the imprisoning of children of those who are seeking refuge. We are no longer going to remove people who are seeking refuge to the middle of the Pacific at huge cost to this nation—and that is before one even considers the emotional and physical cost to the people concerned. We are going to use a just and humane approach to immigration matters and to matters concerning refugees henceforth. The Rudd Labor government have already shown this. Australia is going to have an immigration policy and a refugee policy that the nation can be proud of, rather than the immigration policy that we were all ashamed of under the regime of the former government. The approach of the former government to immigration questions has been put behind us, whatever the member for Murray might choose to imagine.

The particular provisions of this bill are directed at a series of court decisions, as I said earlier. They are: Srey v Minister for Immigration and Multicultural and Indigenous Affairs, a 2003 decision of the Federal Court of Australia; Chand v Minister for Immigration and Multicultural and Indigenous Affairs, a 2000 decision of the Federal Court of Australia; Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, a 2003 decision of the full Federal Court; Khan v Minister for Immigration & Anor, a 2007 decision of the Federal Magistrates Court; Han v Minister for Immigration & Anor, another 2007 decision of the Federal Magistrates Court; and Pomare v Minister for Immigration and Citizenship, a 2008 decision of the Federal Court.

What you see in these decisions of the full Federal Court and the Federal Magistrates Court are decisions which are directed to the very tight and technical nature of the notification provisions as they presently stand in the Migration Act and are directed at a couple of aspects of those rather tightly worded provisions that this bill is directed to. First of all, the bill before the House will provide that actual notification will apply if the deemed notification provisions cannot operate. That of course is an entirely sensible provision in the circumstances. Provisions of this nature should be concerned with actually notifying the people who need to be notified.

The second provision in the bill before the House deals with the need to notify minors. It provides for the minister and the relevant appeal tribunals, where any of them reasonably suspect that a particular person has care and responsibility for a minor, to notify that person. A minor is defined as someone under the age of 18 years. Notification of that person having care and responsibility for the minor will equate to notification of the minor, except where an authorised recipient of notification has been validly appointed.

These are sensible provisions. They demonstrate that the government is attending to making the immigration regime of this country more workable. Lest anyone be in any doubt about the need to pay attention to the provisions of the act, one should only consider the volume of applications that these provisions potentially can apply to. We can read in the 2006-07 annual report of the Department of Immigration and Citizenship that the department processed some 12,000 visa applications every day, and in that year 3,678 applications and appeals to the courts were lodged against departmental or tribunal decisions compared to 3,893 in 2005-06.

This bill introduces provisions that are going to assist in the processing of that very large number of visa applications and will ensure that the processing of applications and appeals to the courts are dealt with in a way that is practical and in a way that pays attention to what is really occurring in terms of notification rather than getting lost in some forest of technicality—to use the words of a well-known playwright: to become lost in the ‘thickets of the law’. Instead, we need to pay attention to practical steps. The amendments in this bill are initial steps, the minister has said, in a broader series of measures that are being contemplated by this government in order to ensure the workability of the immigration regime. They are commendable measures and I commend the bill to the House.

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