Kevin Andrews (Menzies, Liberal Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I present the explanatory memorandum to this bill and I move:

That this bill be now read a second time.

The Migration Amendment (Review Provisions) Bill 2006 amends the Migration Act 1958 to allow the Migration Review Tribunal and Refugee Review Tribunal flexibility in how they give procedural fairness to review applicants.

The Migration Act currently states that the tribunals must give the applicant particulars of adverse information ‘in the way the tribunals consider appropriate in the circumstances’ and invite the applicant to comment on those particulars. What I mean by the expression ‘adverse information’, is information that would be the reason, or a part of the reason, for the member affirming the decision under review.

The current provisions also state that the particulars and invitation to comment must be given by one of the methods set out in the act. These methods involve the tribunal sending a document to the applicant.

The full Federal Court and the High Court have strictly interpreted the latter provisions 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.

The cumulative effect of the court decisions is creating serious operational difficulties for the tribunals, including delays in finalising decisions.

The proposed amendments seek to resolve these difficulties. Specifically, they provide that where an applicant is at a hearing before one of the tribunals, the tribunal member will have a discretion to either (1) tell the applicant about any adverse information before it at the hearing, and invite him or her to respond, or (2) write to the applicant about the adverse information, and invite him or her to respond.

Whether they opt for the written or the oral method of providing procedural fairness, the proposed amendments will require the tribunals to do their best to ensure that the applicant understands why the adverse information being put to them is relevant to the review. They must ensure that the applicant understands the consequences of the tribunal relying on that information to affirm the decision that is under review.

If a tribunal chooses to tell the applicant at hearing about any adverse information, the member must also tell the applicant that he or she may ask for more time to respond to that information. If the applicant then asks for more time, and the tribunal considers that this request is reasonable, the tribunal must adjourn the review.

As has long been the case, interpreters will be available to applicants who need them for review proceedings so people who have difficulty with English will in no way be disadvantaged.

The tribunal’s choice as to whether they provide procedural fairness to an applicant orally or in writing will depend on what is appropriate in a particular case and with the tribunal bearing in mind the guiding principle, which is stated in the act, that it endeavour to provide a review that is fair, just, economical, informal and quick.

The bill will also provide that the tribunals are not obliged to provide an applicant with information already given by the applicant to the department, as part of the process leading to the decision under review.

The current requirement to give an applicant particulars of adverse information is subject to an exception in relation to information that has been given by the applicant for the purposes of ‘the application’.

However, the courts have strictly interpreted this exception to apply only to information provided to the tribunals, and not to information provided by the applicant to my department during the process leading to the decision under review.

The bill will insert a new exception for information given by the applicant to my department during the process leading to the decision that is under review. This exception will not extend to information that the applicant orally gave to my department, such as information provided during an interview with a departmental officer for a visa application. Such information is typically not recorded verbatim, and the tribunals will still be required to give the particulars of that information to the applicant for comment.

Since the full Federal Court and the High Court decisions I referred to earlier, the tribunals have operated under a very technical application of the law. The tribunals advise that this is seriously hampering their efficient operation and is causing unnecessary delays in finalising cases.

For example, take information such as passport details and details of a person’s movements—information that is frequently before the tribunals. If a tribunal was to rely on such information to affirm a decision, it must put particulars of it to the applicant in writing for comment before making the decision, even if the tribunal had orally put that to the applicant at the hearing, and the applicant had an opportunity to comment on it at the hearing and so had, in substance and effect, been given procedural fairness.

The bill will also insert new provisions into the act, expressly requiring the tribunals, when applying the requirements and procedures set out in relevant divisions of the act, to act in a way that is fair and just.

These amendments will uphold the fundamental right of all review applicants to receive procedural fairness during review proceedings, while at the same time giving the tribunals flexibility in how they meet their procedural fairness obligations.

These amendments will allow the tribunals to conduct reviews more efficiently, with less unnecessary process and paperwork. This will help the Refugee Review Tribunal to comply with its statutory 90-day time limit for finalising decisions. It will also lead, in many cases, to the faster completion of cases, which will benefit review applicants who no doubt experience stress and uncertainty in waiting to hear of a decision.

I commend the bill to the House.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration, Integration and Citizenship) Share this | Link to this | Hansard source

The Migration Amendment (Review Provisions) Bill 2006 will not attract a whole lot of attention. That is probably partly why we are up here in the Main Committee. Notwithstanding that, it is actually a very important piece of legislation because it shows a policy direction which is of great importance, a commitment to which is shared by both the government and the opposition. It will ensure that decisions are streamlined and that a final answer can be given at the earliest possible opportunity.

One of the saddest things that I think we find in the portfolio of immigration is when somebody is being returned to their home away from Australia after seven years when the answer actually could have been given much earlier. It is an ongoing legislative battle to be able to come up with the correct processes to streamline it and to make sure that, if the answer is going to be no, that answer be given at the earliest possible opportunity. During the long delays, people are often encouraged by migration agents who know that a case has very little hope and also know that once the people leave Australia they lose a client. I see this in my own electorate from time to time—migration agents give people false hope and get them into endless litigation.

While it is easy to jump up and defend the fact that we want everybody to be able to assert their legal rights at every opportunity, we also cannot get past the human cost of litigation that runs on forever. In that situation, after lengthy periods of time, people lose all contact with the country from which they originally came. That would not be the case if their return had occurred earlier. Their children have grown up knowing only the language of this country and having made friends in the schools that they attended in this country. If the answer is going to be no, the earlier that answer can be given the better.

This piece of legislation is an attempt to streamline and allow that answer to be given at an earlier opportunity than is currently given.

About four years ago, with respect to refugee claims, the Labor Party adopted a policy of being able to process 90 per cent of claims within 90 days. At the time, we were ridiculed by the government for adopting that proposal. The minister in his second reading speech has just referred to the fact that, a couple of years ago now, the government actually adopted a statutory principle that claims should be processed within 90 days. It is good that they did so and it is a shame they did not acknowledge the earlier ridicule of this earlier policy—but that is just life in this sort of business, I guess. It is good that they did so and that they acknowledged the public policy importance of the same decision—the exact same decision which would have so much more justice attached to it in terms of dignity in the lives of individuals if it had arrived at an earlier time.

This bill deals specifically with two areas where the streamlining can be done a whole lot better. In each it would not be fair to blame the drafting of the legislation by the government of the act prior to this bill being introduced because, in all fairness, no-one expected the courts to interpret the provisions as narrowly as they have.

It is ludicrous to have the current situation where a court has to put back to somebody the material in writing that person has just provided in writing. It is also an extraordinary situation where information like passport details, family composition and statutory declarations, which have been provided and which the tribunal is seeking to rely on, have to be put back in writing to that applicant, in the same way as information which is being covered exhaustively during the tribunal hearings and which the applicant is clearly 100 per cent aware of has to be put back to them again in writing. It creates further opportunities for endless litigation and that is something which we do not want.

I do acknowledge the presence of the member for Kooyong in the Main Committee right now and acknowledge the work that he did in bringing the government to provide the statutory limit of 90 days for the processing of claims. I acknowledge his role in that.

The bill, in bringing about those changes, has to make sure people’s rights are not trampled. We want a decision to be made quickly. We want it to be finalised at the earliest possible opportunity. We also want the procedures to be handled in a manner which can only be described as fair. The Senate committee report made the quite reasonable recommendation:

It is almost certain that the provisions will invite litigation challenging whether the Tribunals:

• considered that the applicant understood the information;
• reasonably formed the view that the applicant did not require more time to respond to the information; and
• met the overarching requirement to apply the provisions in a fair and just manner.

This raises a legitimate fear. While there is no doubt about the good intention of the legislation, we do not want to see our attempt to close off one end of endless litigation actually open up a new path of endless litigation. For that reason, the Senate committee in its report unanimously recommended that there be an amendment to the effect that, when the tribunal determines that the information will not be provided in writing and that it will actually be provided orally, the applicant consent to the process. Getting the applicant to consent would obviously close out the likelihood that the applicant will seek litigation and complain about an outcome that they themselves had actually agreed to during the tribunal hearing.

That amendment, which was supported by the government members in the committee report, was opposed by those members when it came to the vote in the Senate. Labor supported that amendment and supported it for the same reason that the government put forward this bill—because the policy objective is a good one. Some people will say it is a bad thing whenever you try to put any extra limitations in the way of people’s appeals. I do not believe that is the case for a minute. We want decisions to be made fairly and in a streamlined manner—as fast as is possible—so that people know if their future lies in Australia or in another country and can get on with that decision and its implications for them before they lose touch with that other country. That is a good policy objective. There is a genuine fear that, by not seeking the consent of the applicant, this legislation could well have the opposite impact to what is intended by the government, I believe, in good faith.

We had a go with that amendment in the Senate. Given that we did not win it in the Senate, I reckon odds-on we are not going to win it in the House of Representatives so we will not be moving that amendment again. But I do put on the table the concerns from the opposition. We want to make sure that we do not unintentionally end up with this bill, which was aimed at reducing litigation, actually closing off one path and opening up a whole new path. That is in nobody’s interests. Whether it will turn out that way remains to be seen, but it is a concern that came out of the Senate inquiry and it is a concern that the opposition view as being quite genuine.

While we believe that amendment could have made the bill better, we certainly hold the view that this legislation nonetheless is an improvement on the current act. No-one could have foreseen that we would end up in the situation where it would be insisted upon that something that was covered exhaustively would be given to an applicant again in writing. Certainly we never expected we would be in the situation where information which the applicant had provided to the tribunal would have to be provided by the tribunal back to the applicant in writing. I do not think anyone foresaw that that would be an outcome. To have a more streamlined process involves correcting anomalies such as those.

For those reasons the opposition support this bill. We believe that there is a risk that could have been closed out. The government sought to go down this path. I certainly hope history shows that we ended up with a positive outcome and that this did play a small role—it will not play an earth-shattering role—in making sure that the determination of someone’s claim to stay in Australia is made fairly and at the earliest opportunity.

Petro Georgiou (Kooyong, Liberal Party) Share this | Link to 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.

Peter Slipper (Fisher, Liberal Party) Share this | Link to 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.

Kevin Andrews (Menzies, Liberal Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

May I thank the members for Watson, Kooyong and Fisher for their contributions during the second reading debate on this bill. As members have pointed out, this review provisions bill strikes a practical balance between continuing to ensure that review applicants receive procedural fairness, on the one hand, and ensuring that the tribunals are able to provide procedural fairness in a way that is sufficiently flexible to be appropriate in each individual case, on the other hand. This is achieved by providing a discretion to the tribunals to deal with adverse information orally at a hearing. The bill also clarifies that adverse information which has already been provided by the applicant other than orally for the purposes of the decision under review does not have to be given to the applicant for comment or response.

Reference was made in the debate to the recommendations by the Senate Standing Committee on Legal and Constitutional Affairs, which handed down its report on this bill on 20 February this year. I record my thanks to the committee for the valuable work it has done throughout its inquiry into the bill. I also thank the people and organisations who provided thoughtful and considered input to the committee. The committee recommended that the bill be passed with an amendment so that adverse material may only be provided orally at hearing at the election of the applicant. However, the government supports the passing of the review provisions bill in its original form. This is because the recommendation would, to a large extent, nullify the objective of the bill to allow the tribunals flexibility in how they give procedural fairness to review applicants.

The committee’s proposed amendment would remove the ability of the tribunals to control a process by which adverse information is provided to applicants. Those applicants who wish to deliberately delay the review process could simply refuse to respond to adverse information put to them orally at hearing, even where they are perfectly capable of doing so. The government’s longstanding objective of maintaining the integrity of the migration review process could be undermined because the committee’s proposed amendment has the potential to be open to such abuse. In addition, the committee’s recommendation would add an impractical process and introduce greater complexity in the conduct of tribunal hearings. I also remind the House that this bill does not affect an applicant’s right to seek judicial review of a tribunal decision. Access to the courts remains intact. I therefore commend the bill to the House.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.