Laurie Ferguson (Reid, Australian Labor Party, Parliamentary Secretary for Multicultural Affairs and Settlement Services) Share this | Link to this | Hansard source

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

That this bill be now read a second time.

The Migration Legislation Amendment Bill (No. 2) 2008 amends the Migration Act 1958 to clarify and enhance provisions relating to merits and judicial review of migration decisions.

The bill has three sets of amendments.

Firstly, the bill clarifies that, when the Migration Review Tribunal or the Refugee Review Tribunal seek information from review applicants or third parties, this may be done either orally or by written invitation.

Secondly, the bill reinstates effective and uniform time limits for applying for judicial review of migration decisions in the Federal Magistrates Court, Federal Court and High Court. The courts will have a broad discretion to extend that time where they consider an extension necessary in the interests of the administration of justice.

Thirdly, the bill limits appeals against judgments by the Federal Magistrates Court and the Federal Court that make an order or refuse to make an order to extend time to apply for judicial review of migration decisions.

These amendments will ensure a more efficient migration review system, while maintaining the rights of applicants to procedural fairness.

The first set of amendments seek to address a series of recent decisions of the full Federal Court where the court held that the tribunals may only seek additional information from review applicants or third parties if they do so by written invitation—that is, they cannot seek information orally.

In particular, the case of SZKTI v the Minister for Immigration and Citizenship [2008] FCAFC 83 found that the parliament did not authorise the tribunals to get additional information from a person pursuant to its general power to obtain information, without complying with the specified procedures set out in sections 424, 424A, 424B and 424C of the Migration Act for obtaining such information. This effectively means that the tribunals are not able to seek information orally from an applicant.

Requiring the tribunals to seek information only by written invitation is problematic when the only available means to communicate with a person is orally, for example, where only a telephone number is provided, which was the case in SZKTI.

Conducting investigations only in writing can also cause considerable delay without necessarily improving procedural fairness to the applicant.

It is important to note that these amendments will not impact on procedural fairness afforded to an applicant. Where information is collected that is adverse to the applicant and which the tribunal considers would be the reason or part of the reason for affirming the decision under review, clear particulars of that information will be put to the applicant. The applicant would then have an opportunity to comment on such adverse information within a prescribed period before a decision on review is made.

The second set of amendments will reinstate effective time limits for applying to the courts for judicial review of migration decisions.

Without effective time limits there is an incentive for unsuccessful visa applicants to take advantage of the delays that litigation may cause, for example, by waiting until their removal from Australia is imminent before lodging an application for review.

The current time limits in the Migration Act are largely ineffective as a result of the April 2007 High Court decision of Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 and the July 2007 full Federal Court decision of the Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105.

In Bodruddaza the High Court held that the time limits imposed on the court were constitutionally invalid because there was no discretion to extend time.

In SZKKC the full Federal Court held that the time period for seeking judicial review of a tribunal decision will begin to run only if the applicant is personally served with the written statement of reasons of the tribunal by a person authorised by the registrar of the tribunal.

It would be expensive and impractical for the tribunals to implement the practice of personally serving a written statement of the reasons for the decision. As such, the time limits for seeking judicial review of a migration decision to the Federal Court and Federal Magistrates Court are now largely ineffective.

This bill reinstates effective time limits in three main ways.

Firstly, it extends the time for lodging an application for judicial review of a migration decision from the current 28 days to 35 days.

The bill also seeks to address the problems identified in SZKKC and Bodruddaza. The time period for seeking judicial review of a migration decision will start to run from the time the migration decision is taken to have been made rather than from the time of actual notification, which the act currently requires. This addresses the practical difficulties associated with personally serving a written statement of reasons. To provide certainty, the bill defines ‘date of decision’.

The bill provides the courts with broad discretion to extend time where they consider it necessary in the interests of the administration of justice. This seeks to address the constitutional issues identified by the High Court in Bodruddaza and enables the courts to protect applicants from possible injustice caused by the time limits.

Applicants will be required to state in their applications for an extension of time why they consider it necessary in the interests of the administration of justice for the order to extend time to be made. This will assist the courts to deal with requests for extensions of time more quickly and assist in more efficient use of court resources.

The third set of amendments in the bill will limit all appeals against judgements by the Federal Magistrates Court and the Federal Court that make an order or refuse to make an order to extend time to apply for judicial review of migration decisions.

This measure will strengthen and enhance the new time limits for applying for judicial review of a migration decision as inserted by the bill by encouraging applicants to seek timely resolution of their cases.

It may also in effect help to prevent applicants from engaging in strategic litigation to deliberately delay their removal from Australia.

The limitation on appeals does not affect any rights the applicant may have to seek review in the High Court’s original jurisdiction because such a limitation would be unconstitutional. The amendments do, however, limit appeals of decisions to make an order or refuse to make an order to extend time to apply for judicial review of migration decisions to the High Court in its appellate jurisdiction.

In conclusion, these amendments bring about key reforms that will lead to a more streamlined migration review process but one that still delivers fair and reasonable outcomes to clients of the Department of Immigration and Citizenship.

The bill deserves the support of all members of the House.

I commend the bill to the House.

Sharman Stone (Murray, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I support the Migration Legislation Amendment Bill (No. 2) 2008 [2009] because, as the Parliamentary Secretary for Multicultural Affairs and Settlement Services has just said, it aims to streamline the process of making appeals as a result of particular migration decisions and at the same time delivers a just outcome for those who are seeking those reviews. The objective of the Migration Legislation Amendment Bill (No.2) 2008 [2009] is to amend the Migration Act 1958 to clarify and enhance communication provisions in the act that relate to merit and judicial reviews of migration decisions and in particular to ensure that in the future there is no attempt made to use process as a means to delay departure from Australia when the decision has been taken that a person’s application for, for example, asylum seeker status has been rejected.

In particular, this bill allows the Migration Review Tribunal and the Refugee Review Tribunal to invite either orally or in writing review applicants or third parties to give them information. Currently the tribunals and the full Federal Court can only request or require information from a person in writing. Enabling the tribunals to obtain information from review applicants and third parties orally, including by telephone, will obviously help ensure that reviews of migration decisions can be conducted efficiently and much more quickly. It also brings the communication options into the 21st century. It will lessen the problem for those who only have, for example, a mobile phone number as a means of contact and therefore with the capacity of the tribunals to communicate by telephone there can be an expectation that the applicants and third parties will have a much more effective and efficient system of understanding where they are up to and what is going on.

The bill also establishes uniform time limits for applying for a judicial review of a migration decision in the Federal Magistrates Court, Federal Court and High Court. These amendments relate to time limits and address the problem where there is currently an incentive for unsuccessful visa applicants to take advantage of the delays litigation can cause by waiting until their removal from Australia is imminent before lodging an application for review. These amendments also provide the courts with broad discretion to vary the time period for applying for a review of a migration decision where the courts consider such a time frame is necessary in the interests of the administration of justice. Therefore, the setting of time limits cannot be seen in any way to restrict the rights of the applicant.

The third broad area addressed by this bill is where the appeals against judgement by the Federal Magistrates Court and the Federal Court will be limited when they make an order or refuse to make an order in relation to extending time to apply for a judicial review of migration decisions. The limitation of appeals against extension of time decisions will help ensure the effectiveness of the new time limits for applying for judicial review of a migration decision, as inserted in the bill.

The current wording of the act is, in places, ambiguous and in the past has allowed appeals of migration decisions based on lack of clarity about notification, dates of decisions and communication processes. As the parliamentary secretary identified, there have been numbers of cases in the Federal Court and High Court which made the original intentions of the act less clear, but where the aim was also to have an efficient, just and timely process. The amendments seek to clarify the intention of the act and to streamline the appeal process.

To give some further details, the bill will amend section 359(2) of the act to provide that communications can be made ‘either orally (including by telephone) or in writing’. Section 359(1) of the act provides the Migration Review Tribunal with the power to ‘get any information that it considers relevant’. Importantly, it provides that once the Migration Review Tribunal has that information it ‘must have regard to that information in making the decision on the review’. The amendments of section 359(2) outline that the Migration Review Tribunal has the power to seek information orally by whichever method it chooses, ‘including’—but not limited to—‘by telephone’. The MRT will still be able to invite a person by written invitation to provide information, and these powers are a subset of the MRT’s broad powers under subsection 359(1). The power to seek information orally or in writing applies at any stage in the review.

As I said, the amendment will also ensure that the MRT is able to obtain relevant information where the only way of contacting a person is by oral means—for example, where a telephone number is the only contact provided. In all circumstances where information is collected, including by telephone, that is adverse to the applicant and that the MRT considers would be the reason or part of the reason for affirming the decision under review, clear particulars of that information will be put to the applicant in writing. The applicant would then have an opportunity to comment on such adverse information within a prescribed period before a decision on the review is made. The removal of the word ‘additional’ from the heading in section 359 makes it clear that the MRT’s power to seek information orally, including by telephone, or by written invitation applies to all information and seeks to deal with the uncertainties surrounding what information is covered by section 359.

Vesting the High Court with the broad discretion to extend time where it is necessary in the interests of the administration of justice aims to protect applicants from possible injustice while also ensuring extensions are granted only where there is a compelling reason to do so—of course, these are extensions on appeals. A new section, 486A(3), provides a definition of ‘date of the migration decision’, which will serve the purpose of setting the time limits for applying to the High Court for review of the migration decision. This is a very important part of this bill, in that, in the past, there has been an acceptance of the date of notification as the beginning of the time for appeal.

Section 486A(1), as amended by proposed section 5 of schedule 2 of the bill, provides that the 35-day period for applying for review of a migration decision starts to run from the date of the migration decision. One of the effects of this proposed section will be to ensure that, where a written statement for the decision does not comply with all the requirements set out in section 368(1) for the MRT and section 430(1) for the Refugee Review Tribunal, this will not affect the time limit starting to run. These sections seek to ensure that the High Court is not required to examine whether there is a jurisdictional error in the migration decision before determining whether the application for review is within time.

I support this bill. It aims to make the process of review of immigration decisions more efficient and effective within reasonable time frames while at the same time ensuring that the rights of the person making the applications are still firmly upheld. We commend the bill to the House. I think it is an important evolution of our immigration legislation in this country.

Bernie Ripoll (Oxley, Australian Labor Party) Share this | Link to this | Hansard source

Thank you, Deputy Speaker Thomson, for the opportunity to speak on the Migration Legislation Amendment Bill (No. 2) 2008 [2009]. Like other speakers, I will try to keep my remarks on this bill brief, but I do want to make a number of comments on migration broadly and then on the bill specifically. When I was first elected to this place in 1998, one of my areas of interest was migration—migration law and all the aspects of what makes for a good migration policy in a country. I am certainly very interested in the way that we deal with migrants and the process of migration in this country. I have also participated in the Joint Standing Committee on Migration, and through that process I have learnt about the systems and mechanisms in place, the way systems can be abused, the way they are effective, the way they do actually treat people with humanity and justice and the benefits that can be derived by any country from a strong, healthy migration program.

Just the other day I learnt the importance of that through a brief that I received regarding the state of the economy and the benefits that come to an economy through migration—they are many and significant. It is very important, in a country such as ours with a small population of 20-odd million people, that we have a robust, effective and economically very strong migration program, so I support enhancements in the area of migration legislation. I think that they go hand-in-hand with human rights and justice and ensure not only that we do the right thing by others but also that others do the right thing by our laws and our country.

What has become very clear to me over a long period is that, while the vast majority of migrants who come to this country, by whatever means, do so in a proper manner, there are a small number who abuse the system—as there are in any country. I congratulate the Minister for Immigration and Citizenship, the Hon. Chris Evans, for making sure we bring in better practices, in particular to clarify the processes of the Migration Review Tribunal and the Refugee Review Tribunal and put a more streamlined, efficient and effective process in place that can deal with a common-sense practice such as receiving evidence orally rather than just by the very rigid, tough mechanism of receiving evidence in writing only.

The bill reinstates effective and uniform time limits for applying for judicial review of a migration decision in the Federal Magistrates Court. This is important because it provides the discretion to extend that time when necessary. It is about a balance between making things more efficient and effective and making sure there is some discretion in the interests of justice. It also limits appeals against judgements by the Federal Magistrates Court and the Federal Court in order that systems are not abused.

Schedule 1 of the bill addresses some issues that came about through the case SZKKC v the Minister for Immigration and Citizenship, where it was found that certain processes were not applicable. It will give the Migration Review Tribunal and Refugee Review Tribunal the capacity to obtain information from review applicants orally, which I think is the right way to go about these matters. I have sat in on some sessions of the MRT and the RRT, so I have firsthand experience of the complexities and difficulties faced by migrants and officers of the department and understand the importance of this legislation. I know that everybody in the House is supportive of this legislation, and it is good to see that support for this sensible way forward in addressing some of the limitations on the ability of the MRT and the RRT to go about their proper and effective roles.

Schedule 2 of the bill reinstates effective and uniform time limits for applying for judicial review of a migration decision in the Federal Magistrates Court. We have heard from other speakers how some people will use what is available to them—but it is an abuse. They use the lack of a time limit and use the mechanisms that exist to extend their stay in Australia beyond what is reasonable. In this they are not really seeking to address the substantive issue being dealt with in the courts. They appeal to try to extend their stay, to establish networks in Australia, to try to thwart our laws and regulations and their intent. The time limits reinstated by the bill mean people have to have genuine reasons and not just unlimited time in which to extend their stay in Australia and change their circumstances over that time, which may then compel a different decision later.

The amendments in schedule 2 provide for a new time limit of 35 days in which to lodge an application for review of a migration decision, from the date of that decision. The current time limit that applies to judicial review is 28 days from when the client is actually notified. This has been a problem in the past—which is something that has been covered by other speakers—but the amendments in this bill will address that issue. It will mean that the 35-day period will start to run from the time the decision is taken to have been made rather than from the time of actual notification. I think any fair individual would understand that sometimes serving papers can be very difficult. Some people deliberately seek not to be served. The changes coming into place will mean that the time limit applies from the date of the decision rather than from the time of serving, as is currently the case.

Schedule 3 of the bill will operate in concert with the amendments in schedule 2 and limits appeals against judgements by the Federal Magistrates Court and the Federal Court that make an order or refuse to make an order to extend time to apply for judicial review of migration decisions. Again, it is about limiting the opportunities for abuse and discouraging unsuccessful applicants from continuing a fruitless process not of trying to address the substantive matters, because they know they will not be successful, but simply using the system to seek to stay in the country for longer periods of time. There is a strong incentive for clients to litigate in order to extend their period of stay. As I said earlier, it increases the possibility of them extending their networks and their relationships to make it more difficult for the MRT or the RRT to make adverse decisions, when these people would otherwise be unsuccessful applicants.

There is some very good data on this, which, interestingly, clearly points towards abuse in those areas. Appeal rates in immigration portfolios, as you would expect, are very high. They are exceptionally high. In 2006-07, it was 78 per cent. So, of the 2,205 applications, there were 1,713 with adverse RRT decisions. The evidence is that people want to appeal. They are very rarely happy with the decisions made by those bodies and want to appeal, and they continue to appeal and use every legal mechanism they have available to them. Interestingly, though, they have a very low success rate. In fact, the minister has a very high success rate. The minister wins appeals in over 90 per cent of cases. That is a clear indication that there was really no chance in the first place that they were going to get an overturned decision. But I do not believe that that was ever their intent. They probably very clearly understood that they were not going to get one but wanted to go down that path anyway merely for the luxury of the extension of time. That is not the way our system is meant to operate; it is not the way it is designed to be. We need a streamlined, efficient and economical system that, as I said earlier in my remarks, provides justice and does the right thing by migrants to this country but is also balanced with what is just, fair and right for Australia and its citizens and what we need as a country. So I am very supportive of these changes.

In summary, there are a number of very important provisions in this bill. It clarifies and enhances matters in relation to merits and judicial review of migration decisions, which I think is important and needs to happen. It also clarifies the Migration Review Tribunal and the Refugee Review Tribunal in terms of seeking oral submissions from third parties or by written invitation—giving effect to the original policy intention before the Federal Court’s decision in SZKTI v Minister for Immigration and Citizenship. It reinstates the effective and uniform time limits for applying for judicial review of migration decisions and clarifies that the 35-day time limit commences not from the time of notification but from the time the decision is made. It also places effective time limits on unsuccessful applicants so as not to take advantage of delay for delay’s sake. Very importantly, it gives broad discretion to extend time where that is considered to be necessary in the interests of administrative justice. There are also a range of good quality amendments to ensure the immigration processes in this country are fair, effective, efficient and, I believe, in the interests of all Australians. I commend the bill to the House.

Tony Zappia (Makin, Australian Labor Party) Share this | Link to this | Hansard source

I too rise in support of the Migration Legislation Amendment Bill (No. 2) 2008 [2009]. I listened to the Parliamentary Secretary  for Multicultural Affairs and Settlement Services speak earlier today, and I believe that he very clearly outlined the purpose and intent of this bill—and that was added to by the member for Oxley just a moment ago. So I am not going to cover the purpose of the bill per se, but I do want to make some points with respect to it. The first comment I will make is that I believe that this bill brings a degree of efficiency and clarity to the implementation of our migration laws in this country, and that is a good thing.

I want to base my comments on two factors. Firstly, since being elected to this place, migration cases have resulted in being one of the most significant areas of constituency work that we do in my office. Therefore, I have been able to look at a whole range of different issues that arise from the migration laws of this country. Secondly, as a member of the Joint Standing Committee on Migration, I have been able to visit a number of detention centres in and around Australia. As part of visiting those detention centres not only have I been able to listen firsthand to comments made to the committee by people who were in detention but also, and just as importantly, I have been able hear and listen to many, many people who, on behalf of refugees and people in detention centres in this country, have made submissions to the committee—submissions which, I might add, are based on their own experience of having been involved with literally hundreds and hundreds of cases dealing with immigration matters.

The point I would like to make in relation to that is that, in almost all cases—whether it is a person who has come into my office or whether it is someone who was in detention—these people would have liked to have had their matter dealt with much more expeditiously. Looking at the announcement made by the Minister for Immigration and Citizenship last July, where he said that processes relating to the refugees in this country are going to be dealt with a lot quicker, I have to say that this legislation is consistent with that inasmuch as the whole objective and intent is to bring clarity to the process and deal with the matters as efficiently as possible.

In listening to the people who were in those detention centres and to their advocates, two or three things became very, very evident to me. Firstly, many of those people who were seeking an application for residency in this country simply did not understand the processes or their rights and quite often were put in situations where they would never have been had they been able to access good and proper information in the first place. Secondly, there were also people who were in the situation that they were in because they had in fact sought information but unfortunately had sought information from people who were not in a position to provide them with accurate information—again resulting in people being held for lengthy periods in detention centres. Thirdly, there are people, in perhaps the legal fraternity, who feel it is in their interests to go from one appeal to the next. Some people who have found themselves in those situations have expended several thousands of dollars hoping, and being led to believe, that there would be a positive outcome for them at the end of the process, when in all reality it was never likely that their circumstance would have met the approval of the policies and laws of this country that would in turn enable them to remain here. All of those matters ought to be clarified as much as is possible.

The other comment I want to make is about people who find themselves in a situation where they believe they have rights or have been judged wrongly on their application and who rely on advice from migration agents. I have had constituents come into my office who have not only paid hefty sums of money but also been led to believe that they would be granted permanent residency in this country when, quite clearly, it was very likely that they never would be. Again, it is all based on bad advice. In some cases, perhaps it is genuine bad advice; in other cases perhaps the advice is bad because a person who is providing that advice has something to gain from prolonging the case and its outcome. Whether it is a decision that means they will stay here or a decision that means they will not be allowed to stay here or whether they have not even entered the country yet but are simply waiting in limbo, everyone wants to know what their future is. It makes a lot of difference. If they know they will not be granted residency in this country, they can get on with their lives and do whatever else they wish to do. However, quite often they wait, and sometimes that time runs into years and it is simply a waste of their lives, because their whole lives are put on hold. They cannot find work. They cannot make other plans. Sometimes perhaps they cannot have families. Whatever the case is, to put someone’s life on hold unnecessarily is not in anyone’s interests.

The last point I will make is with respect to the courts. I was pleased that the member for Oxley quoted statistics about appeals in the courts of this country. All of these processes cost money. In fact, the whole administration of the Migration Act by the government and by the department costs a lot of money. If we can reduce those costs simply by bringing clarity and efficiency into the system, then we ought to do so. There are two separate issues here. We need to have absolutely fair and just policies—and I do not think anybody would disagree with that—but then we need to have an efficient system for administering those policies. They are separate and distinct, and the objective of this bill is to bring some efficiency to the administration of those policies. Other members may disagree with the policies themselves—that is their prerogative—but that is not what this bill is all about. In my view, if it does bring about those efficiencies, everybody is a winner. That is why I support the legislation.

Laurie Ferguson (Reid, Australian Labor Party, Parliamentary Secretary for Multicultural Affairs and Settlement Services) Share this | Link to this | Hansard source

I thank the members for Oxley and Makin and the member for Murray, the shadow minister for immigration, for their contributions on the Migration Legislation Amendment Bill (No. 2) 2008 [2009]. They have all indicated support for this legislation. As noted earlier, the legislation clarifies and enhances provisions relating to merits and judicial review of migration decisions. Clearly, in most areas of law, it is in the interests of the client to expedite matters, to have quick hearings and to get finality. However, as a number of speakers have indicated in this debate, this is one area where that is often not the agenda. In actual fact, it is to the advantage of unsuccessful clients to prolong processes and, in many cases, they have the knowledge beforehand that they will not win. The longer one remains in the system, the more one builds up a collateral case around, for example, the formative years of children’s lives being spent in this country or the ties that people have with Australia. Those facts are useful in attempting at a later stage to launch parallel claims for permanent residency in the country. The refugee, human rights and humanitarian claims go their course. As I noted, it is often the case that, by making sure those hearings, those processes, go for many years—even if one had no thought whatsoever that one had a valid claim—one can over time establish an alternative claim on Australia.

I indicate my appreciation to the member for Oxley for providing those figures on the success of appeals. They point very obviously to the fact that a very significant proportion of these cases are waged for the reasons I have just outlined. The success rate of the Minister for Immigration and Citizenship is also very telling. I commend the legislation. There will be the ability henceforth to expedite these hearings without reducing the legal rights of those affected. There are a number of provisions in the bill that ensure injustice will not occur. I commend these points to the House.

Question agreed to.

Bill read a second time.