Nick Xenophon (SA, Independent) Share this | Hansard source

With your indulgence, Mr Temporary Chairman, I will make a brief contribution in relation to the Migration Legislation Amendment Bill (No. 1) 2008 and raise some issues. I had the opportunity to have a brief but very useful discussion with the minister yesterday. My consideration of this bill has raised concerns about inconsistencies in relation to time frames for judicial review, but before I address these I will speak briefly on the substance of the bill. I appreciate that it is an omnibus bill that is to tidy up and rectify impracticalities within the Migration Act, the Australian Citizenship (Transitionals and Consequentials) Act and the Customs Act, and I support the general thrust of the bill: improving the effectiveness of migration and citizenship legislation by addressing and rectifying a range of problems that have been identified in the legislation over the years. Therefore, I am sympathetic to and supportive of the broad intentions of this bill.

I wish to note aspects of the first schedule of the bill which the government proposes to remove by amendment. Items 30 to 35 sought to amend the time limits imposed on applications for judicial review from 28 days to 35 days. I am pleased that the government proposes to remove these items, as I would not have been able to support them. But that leaves uncertainty around the matter of time limits and extensions. I have been informed that the government will address these matters in future legislation. It also raises issues about the history of judicial review of migration decisions in Australia. For many years the legislation has excised judicial review of migration decisions from the Administrative Decisions (Judicial Review) Act and placed it within the Migration Act. In doing so, the right to judicial review for applicants was significantly constrained. Most notably, tight time lines were introduced for submitting applications for review, with no exemptions or consideration of other factors. However, the changes in this legislation will still not permit the courts to allow an application to be lodged outside the set time period. I refer the committee to the High Court ruling in Bodruddaza v Minister for Immigration 2007, which relates to the issue of time limits. It reads:

... the limitation structure provided by section 486A does not allow for supervening events which may physically incapacitate the applicant or otherwise, without any shortcoming on the part of the applicant, lead to a failure to move within the stipulated time limit.

This points to an unfair situation, which the government must fix substantively rather than administratively. This could result in an inconsistency, as time extensions can be granted for consideration by the Administrative Appeals Tribunal—which handles visa issues related to business—but cannot be granted for the Refugee Review Tribunal, which handles refugee visas, or the Migration Review Tribunal, which handles migrant visas. We have a situation where there is provision for extension for applicants for review of any decision made by any Commonwealth department unless they are a refugee or migrant. I want to make it clear that I am not advocating for changes to the criteria by which refugee or migrant status is granted. What I am calling for is a fair go, for there to be an onus on the government to explain why migration judicial review decisions have different conditions from those of any other department.

I have been approached by the Circle of Friends group in my home state, who have highlighted the cruel edge of this policy inconsistency. I have informed the minister’s office in broad terms in relation to this case and today I will forward the specific details to the minister and request an urgent response. The man in question was assisted to escape Afghanistan by his mother and uncle in 1999 and now resides in Australia. In retribution for assisting him in his escape, the Taliban executed both his mother and uncle and then took his orphan brother captive. After many years this man, with the assistance of the Red Cross, was able to locate the boy in Pakistan and in July 2004 instructed his migration agent to lodge the documentation for a subclass 117 orphan relative visa. What followed was a series of acts of incompetence by the migration agent—the details of which I will also forward to the minister—which ultimately resulted in the migration agent being suspended for three years. Most importantly, the migration agent’s negligence included failing to lodge applications for appeal within time.

Due to the lack of provision for any time extensions, the Migration Review Tribunal now cannot hear this case. While the man has the right to sue the migration agent, this is little comfort while his orphan brother is left in Pakistan. With this man, we do not see a case for changing the criteria for refugee or migrant status; we see a case for the criteria we already have being amended. This man wants not favouritism but a fair go. His is a situation where bureaucracy and inconsistency are adding to a family’s pain and may well be putting a young life at risk. That is the nub of the concerns of Circle of Friends, and I appreciate that the minister will be looking at this as soon as those details are forwarded to him. I look forward to the minister’s response, if not in the committee stage then at some subsequence stage, to this and other matters. I thank the committee for its indulgence.