Concetta Fierravanti-Wells (NSW, Liberal Party, Shadow Parliamentary Secretary for Immigration and Shadow Parliamentary Secretary Assisting the Leader in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Migration Legislation Amendment Bill (No. 2) 2008 [2009] which amends the Migration Act to clarify and enhance provisions in the act that relate to merits and judicial review of migration decisions.

These amendments aim to rectify the shortcomings of the Migration Legislation Amendment Bill (No. 1) 2008 by creating conditions conducive to the expeditious and efficient administration of justice for those seeking review. These principles were first introduced as part of the previous bill before they were withdrawn in August 2008 amid some concerns over their unintended consequences. The coalition supported the principle behind these changes when they were first introduced. Consequently, we are in support of these amendments in their revised and improved form.

As the then shadow minister for immigration and citizenship, Senator Ellison, indicated in his speech on the second reading on 27 August 2008, it is fair to say that the coalition, while in government, was looking at amendments of a similar nature to the ones we see currently in this bill. These amendments provide for a number of much-needed improvements in process—in particular, allowing oral communication of requests for further or initial information, the setting of time limits for appeals, and the commencement dates of the times within which appeals can be made. Most notably, this bill seeks to amend the current 28-day period for lodging an application to the High Court for judicial review of a migration decision, which will be changed to 35 days. In order to remove concerns, a new 35-day period will commence to run from the date of the migration decision rather than from the time of the actual notification of the decision.

The case of Minister for Immigration and Citizenship v SZKKC highlighted concerns associated with the concept of notification for the purposes of lodging an application for judicial review in the Federal Magistrates Court. Section 477 of the Migration Act as it currently stands provides that the time period for initiating proceedings in the Federal Magistrates Court commences from the date an applicant is actually notified of a decision. This provision creates a large degree of uncertainty as it is often difficult for a court to ascertain when an applicant is actually notified of a decision. The Senate recently moved to rectify many of the problems associated with notification of migration decisions when it passed the  Migration Amendment (Notification Review) Bill 2008 last year. I spoke on behalf of the coalition in support of that bill as I saw it as a practical measure to prevent unnecessary legal recourse based on minor technical deficiencies in the process of notification by the department.

The amendments prescribed in the notification review bill have removed opportunities for unnecessary legal challenges which intended to delay and overturn migration decisions. In a similar fashion, this bill calls for a range of measures aimed to prevent such action before the courts while also improving effective administration of justice. Indeed, as a former lawyer with the Australian Government Solicitor, I have seen in my own experience how, regrettably, unscrupulous immigration lawyers and migration agents can exploit such technicalities in a futile attempt to delay their clients’ cases.

Together with the notification review bill, these amendments solidify changes which improve the notification process between migration applicants, the department and the relevant tribunals. These pieces of legislation will, at the same time, ensure that the notification system remains fair and reasonable for all of the parties involved. The objective of the Migration Legislation Amendment Bill (No. 2) is to amend the Migration Act to clarify and enhance communication provisions in the act that relate to merit and judicial review of migration decisions. In particular, this bill clarifies that the Migration Review Tribunal, the MRT, and the Refugee Review Tribunal, the RRT, may invite either orally or in writing review applicants or third parties to give them information. It establishes uniform time limits for applying for a judicial review of a migration decision in the Federal Magistrates Court, the Federal Court and the High Court and it limits appeals against judgments by the Federal Magistrates Court and the Federal Court when they make an order or refuse to make an order in relation to extending time to apply for judicial review of migration decisions.

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 over the telephone, will help ensure that reviews of migration decisions can be conducted more efficiently and quickly. In many instances the only available method for contacting an applicant is by oral means. While acknowledging the issues surrounding procedural fairness which arise from the acquisition of information orally, it is often the case that the tribunal registry only has access to telephone numbers. These amendments, allowing the tribunal greater power in obtaining information orally, will ease delays in the judicial process without necessarily compromising procedural fairness.

The amendments relating to time limits 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 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. The limitation on appeals against extension of time decisions will help ensure the effectiveness of the new time limits for applying for judicial review of migration decisions as inserted by the bill.

The current wording in the act is, in places, ambiguous and has allowed appeals to migration decisions based on lack of clarity concerning dates of decisions and communication processes. These amendments seek to clarify the intention of the act and to streamline the appeal processes. Under these amendments, various changes will occur. Section 359(2) inserts the words ‘either orally including by telephone or in writing’ after ‘may invite’ in section 359(2) of the act. Section 359(1) of the act provides the Migration Review Tribunal with the power to get any information it considers relevant. Importantly, it provides that once the MRT has such information it may have regard to this information in making its decision on the review.

The amendments to section 359(2) outline that the MRT 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, in writing, a person to provide information. These powers are a subset of the MRT’s broad powers under section 359(1). The power to seek information orally or in writing applies at any stage in the review. As previously mentioned, these amendments 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 only the telephone number has been provided.

In all circumstances, including over the telephone, where information is collected that is adverse to the applicant and which 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 will 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 over the telephone, or by written invitation applies to all information and seeks to deal with the uncertainty 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. A prime reason for an extension of time being necessary is evidenced in the 2007-08 annual report of the High Court of Australia, which illustrates that 93 per cent of the immigration applications filed in 2007 were filed by self-represented litigants. The Human Rights and Equal Opportunity Commission’s submission to the Senate Legal and Constitutional Legislation Committee in 2004 stated:

It must be remembered that persons making claims under the Migration Act may have little familiarity with Australian legal processes, and may face linguistic and cultural barriers to effectively managing their application and advocating on their own behalf.

Furthermore, where the services of a migration agent are employed not all problems are overcome, as it is often the case that the actions or rather inaction of an agent can adversely affect the prospects of an individual wishing to appeal their decision.

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 a migration decision. Section 486A(1) as amended by section 5 of the schedule provides that the 35-day period for applying for a review of a migration decision starts to run from the date of the migration decision. One of the effects of this section will be to ensure that where a written statement for the decision does not comply with all of the requirements set out in section 368(1) for the MRT and section 430(1) for the RRT the time limits starting to run will not be affected. 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.

In short, these amendments will ensure improvements to the Migration Act in order to build upon the shortcomings of the Migration Legislation Amendment Bill (No. 1) 2008. These provisions aim to do so by creating conditions conducive to the expeditious and efficient administration of justice for those seeking review. The coalition supports such positive changes. In the past applicants have been afforded opportunities to abuse the tribunal and appeals process based on shortcomings of the process, particularly those originating from the notification process. These amendments, together with those outlined in previous amendments supported by the coalition such as the Migration Amendment (Notification Review) Bill, will help ensure more efficient and effective judicial review of migration cases in Australia.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The Migration Legislation Amendment Bill (No. 2) 2008 [2009] is a welcome move to clarify and enhance judicial provisions relating to the merits and judicial review of migration decisions. Judicial review has been an issue of great concern for the Greens. We are particularly pleased to see the government move to ensure effective time limits for judicial review of migration decisions reinstated, effectively allowing for the courts to extend the time frame where they consider it necessary in the interests of justice and of course administration. Despite our overall support for this bill, we have some ongoing concerns about the proposed increase in the length of time unsuccessful applicants have to lodge an application for judicial review and, more concerningly, the proposal to remove the right of unsuccessful applicants to appeal decisions regarding extension of time to a superior court.

Firstly, I will address the issue of the time frames. Currently, an application for judicial review must be lodged within 28 days of the actual notification of that decision. The relevant court may extend the initial 28-day period by up to 56 days if an application for such an extension is made within the 84 days of the actual notification of the decision and the court is satisfied that it is in the interests of the administration of justice to grant that extension. While in theory this amendment seems logical, on closer inspection there seems to be a danger that the new provisions may not sufficiently safeguard against unfairness to applicants who experience delays or mistakes in being notified of the migration decision. Under this proposed new provision, time would be running as soon as the decision was made and any error or delay in providing notification could diminish or completely use up the amount of time available to make an application.

Although these circumstances would most probably be sufficient grounds to apply for an extension of time, we are concerned that the onus of doing so would be on the applicant alone, requiring an application in writing setting out why the extension was in the interests of the administration of justice. This appears to impose an unreasonable burden upon applicants who may already suffer considerable disadvantage—including language barriers and limited financial means—in accessing the legal system and may diminish their practical ability to obtain a fair hearing. Accordingly, I would like the minister to outline how the proposed amendments to sections 477, 477A and 486A will safeguard against any potential disadvantages that could arise if these amendments were to proceed.

The second issue I would like to raise deals with schedule 3 of the bill. Essentially, schedule 3 removes the right to appeal in a superior court in respect of a decision of a lower court relating to the extension of time given to lodge an application for judicial review. The explanatory memorandum notes that the amendments are being made to ‘discourage unsuccessful visa applicants from taking advantage of the delays caused by litigation to prolong their stay in Australia’. Although I understand the contention of the Minister for Immigration and Citizenship that appeals of such decisions may, in some circumstances, be used as a delaying tactic or as a burden on court resources, these factors should not justify unreasonable restrictions upon fundamental rights. The rights of applicants to obtain a fair trial and access to the legal system must be protected. While I see the minister’s point, it is a concern that we are suggesting taking away people’s rights just because some people do not play fairly.

Although the proposed amendments were not contained in the  Migration Legislation Amendment Bill (No. 1) 2008, the government has not indicated what has changed between the drafting of the two bills to necessitate the imposition of the limitation nor has it provided detailed reasons as to why this measure is needed other than that it will strengthen and enhance the new time limits, it may help to prevent applicants from making weak or vexatious appeals to deliberately delay their removal and it may seek to encourage applicants to seek timely resolution of their cases.

Schedule 3 as it stands is unacceptable to the Greens and we will not be supporting it. Judicial discretion should instead be exercised to allow review of orders in respect of an extension of time in appropriate cases. I ask the minister to outline how this amendment will not diminish a person’s fundamental right to access the legal system. Putting aside the small handful of cases as shown in the statistics of people who do currently take advantage of the processes, we need to ensure that we are not undermining the rights of those who are more vulnerable and disadvantaged.

The Greens support the overall intent of this bill, and I stress that. There are some good parts in this bill and overall we do support the intent, but we believe that the Migration Act as a whole needs to be amended to immediately implement the many principles announced by the Minister for Immigration and Citizenship on 29 July 2008, as well as to immediately implement judicial review for detention decisions. We want to give the courts the ability to review decisions and to make judgements in relation to immigration. We need a judicial process for looking at decisions made around detention.

While I understand that the bill before us today deals specifically with judicial review of migration decisions, it is important to note the findings in the Australian Human Rights Commission annual report into immigration detention which highlighted that asylum seekers, including children, continue to be held indefinitely, despite assurances by the government that detention is only being used as a last resort and for the shortest time possible.

Considering the bill aims to extend the judicial review time frames for applicants who have already received a tribunal decision on their visa applications—some of whom would still be in detention—stipulating reasonable time frames for people to contest their detention should also be an obvious inclusion in this overall package. As I outlined in my speech on the Joint Standing Committee on Migration report into immigration detention last year, we need to urgently ensure that the merit of detention decisions is subject to independent oversight without indicating a view as to whether that should be available as a right or should occur as a matter of course. Their intention did not suggest that they would have considered it reasonable to preclude merits and judicial review for 12 months—something I would like the minister to respond to today.

The Greens will therefore move a second reading amendment calling on the government to immediately put forward amendments to the Migration Act to implement the principles announced by the minister last year and to ensure that a person cannot be kept in immigration detention for more than 30 days unless a court makes an order deeming it necessary to detain a person on a specified ground and there are no effective alternatives to detain that person. I now move:

At the end of the motion, add:

                 "but the Senate calls on the government to immediately put forward amendments to the Migration Act:

             (a)    to implement in legislation the principles relating to immigration detention announced by the Minister for Immigration and Citizenship on 29 July 2008, in particular the following:

                   (i)    detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review,

                  (ii)    detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time,

                 (iii)    people in detention will be treated fairly and reasonably within the law,

                 (iv)    conditions of detention will ensure the inherent dignity of the human person; and

             (b)    to ensure that a person placed in immigration detention can apply to a court for an order that he or she be released because there are no reasonable grounds to justify detention; and

             (c)    to ensure that a person cannot be kept in immigration detention for more than 30 days unless on the application of the Department of Immigration and Citizenship a court makes an order that it is necessary to detain a person on a specified ground and there are no effective alternatives to detention".

Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary to the Minister for Health and Ageing) Share this | Link to this | Hansard source

I thank senators for their contributions to the second reading debate on the Migration Legislation Amendment Bill (No. 2) 2008 [2009]. I note that Senator Hanson-Young has asked a number of specific questions. Given that we will not conclude the debate before 1.45 pm, I assure Senator Hanson-Young that we will endeavour to get good answers to those legitimate questions.

The Migration Legislation Amendment Bill (No. 2) 2008 [2009] amends the Migration Act 1958 to clarify and enhance provisions relating to merits and judicial review of migration decisions. The bill contains three sets of amendments. The first set of amendments clarifies that when the Migration Review Tribunal or the Refugee Review Tribunal seek information from review applicants or third parties they may do so either orally or by written invitation. The amendments seek to address a series of recent judicial decisions which held that the tribunals may seek additional information only by written invitation. By allowing the tribunals to also seek information orally, the amendments seek to overcome problems where the only available means to communicate with a person is orally—for example, where only a telephone number is provided to the tribunals—or where it is appropriate to seek information orally rather than in writing.

Debate interrupted.