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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
Senator the Hon. Chris Evans)
MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 2008
OUTLINE
The Migration Legislation Amendment Bill (No. 2) 2008 ('the Bill') amends
the Migration Act 1958 ('the Act') to clarify and enhance provisions in the
Act that relate to merits and judicial review of migration decisions. In
particular, the Bill:
. clarifies that the Migration Review Tribunal and the Refugee Review
Tribunal ('the Tribunals') may invite either orally (including by
telephone) or in writing, review applicants or third parties to give
information;
. reinstates effective and uniform time limits for applying for judicial
review of a migration decision in the Federal Magistrates Court,
Federal Court and High Court ('the Courts'); and
. 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.
The amendments relating to the Tribunals seek to address decisions of the
Full Federal Court which held that whenever the Tribunals require
information from a person; this must be done by written invitation.
Enabling the Tribunals to obtain information from review applicants and
third parties orally (including, for example, by telephone) will ensure
that review of migration decisions can be conducted more efficiently and
may result in an applicant's status being resolved more quickly.
The amendments relating to time limits are important as without effective
time limits, there is 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 extend the time
period for applying for review of a migration decision where the Courts
consider an extension is necessary in the interests of the administration
of justice. Vesting the Courts with such broad discretion will protect
applicants from possible injustice.
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 a migration decision as inserted by the Bill.
financial impact statement
The financial impact of these amendments will be negligible. These
measures may in fact represent a cost saving to the Department of
Immigration and Citizenship, the Tribunals and the Courts.
Migration Legislation amendment Bill (No. 2) 2008
notes on individual clauses
Clause 1 Short title
Clause 1 provides that the short title by which the Act may be cited is the
Migration Legislation Amendment Act (No. 2) 2008.
Clause 2 Commencement
Subclause 2(1) provides that each provision of the Act specified in column
1 of the table commences, or is taken to have commenced, in accordance with
column 2 of the table.
Table Item 1 provides that sections 1 to 3 of the Act and anything in the
Act not elsewhere covered by the table will commence on the day on which
the Act receives the Royal Assent.
Table Item 2 provides that Schedules 1, 2 and 3 to the Act commence on a
single day to be fixed by Proclamation. However, it also provides that if
any provision(s) do not commence within the period of 6 months beginning on
the day on which the Act receives the Royal Assent, they commence on the
first day after the end of that period.
Subclause 2(2) explains that column 3 of the table contains additional
information that is not part of this Act. It specifies that information in
this column may be added to or edited in any published version of this Act.
An explanatory note is provided to assist the reader at the end of this
table. It specifies that the table relates only to the provisions of this
Act as originally passed by both Houses of Parliament and assented to. It
states clearly that the table will not be expanded to deal with provisions
inserted in this Act after it receives the Royal Assent.
Clause 3 Schedule(s)
This clause provides that each Act specified in a Schedule to the Migration
Legislation Amendment Act (No. 2) 2008 is amended or repealed as set out in
the applicable items in the Schedule concerned. In addition, any other
item in a Schedule to the Migration Legislation Amendment Act (No. 2) 2008
has effect according to its terms.
SCHEDULE 1 - Amendments relating to merits review
Migration Act 1958
Item 1 Subsection 359(2)
This item inserts ", either orally (including by telephone) or in writing"
after "may invite" in subsection 359(2) of the Act. This item also
includes a note to provide that the heading to section 359 is altered by
omitting the word "additional".
Subsection 359(1) of the Act provides the Migration Review Tribunal (MRT)
with the power to get any information it considers relevant. Importantly,
it provides that once the MRT has such information, it must have regard to
this information in making its decision on the review.
Currently, subsection 359(2) provides that without limiting subsection (1),
the MRT may invite a person to give additional information. In addition,
subsection 359(3) provides that if an invitation is given to a person other
than the Secretary, the invitation must be given by one of the methods in
section 379A. In general, section 379A provides that the MRT must give
documents to a person, other than the Secretary, by hand, handing it to
another person who is at the last residential or business address of the
recipient, dispatching by prepaid post or other prepaid means or
transmitting by fax, e-mail or other electronic means.
The amendments to subsection 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 a person by
written invitation to provide information. 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.
The amendment seeks to address several Full Federal Court decisions
including SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83
('SZKTI'). In this case, which relates to section 424 (which is similar in
terms to section 359 except that it relates to the Refugee Review Tribunal
(RRT)), the Full Federal Court held in SZKTI that the Parliament did not
authorise the RRT to get additional information from a person pursuant to
its general power under subsection 424(1) without strictly complying with
the specified procedure set out in subsections 424(2) and (3). That is,
the RRT is not able to obtain information orally from the applicant under
section 424. The original policy intention behind subsection 359(1) was to
enable the Tribunals to request information via less formal means, for
example, orally over the telephone. These amendments seek to give effect to
this policy intention following the Full Federal Court decision in SZKTI.
By ensuring that the MRT may seek information under subsection 359(2)
orally (including by telephone), the MRT will be able to more efficiently
obtain the information it requires to make a decision. Conducting
investigations in writing can cause considerable delay without necessarily
improving procedural fairness to the applicant. In addition, the amendment
will 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 a
telephone number is provided. In all circumstances, where information is
collected (including by telephone) 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 would then have an
opportunity to comment on such adverse information within a prescribed
period before a decision on 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 uncertainty surrounding what information is covered by
section 359.
Item 2 Subsection 359(2)
This item omits the word "additional" from subsection 359(2) of the Act.
This item also inserts a note which provides that the heading to section
359 is altered by omitting the word "additional".
Currently, subsection 359(2) provides that the MRT may invite a person to
give additional information. The amendments made by item 1 of this
Schedule provide that the MRT may seek this information either orally
(including by telephone), or by written invitation. The removal of the
word "additional" makes it clear that the MRT's power to seek information,
orally (including by telephone) or by written invitation, applies to all
information and deals with some uncertainty surrounding what information is
covered by section 359.
Item 3 Subsection 359(3)
This item omits the words "If an invitation" in subsection 359(3) and
substitutes the words "If a written invitation under subsection (2)".
This item clarifies that subsection 359(3) only applies where the MRT has
written to invite a person to provide information. This subsection does
not apply where the MRT has orally invited a person to provide information.
Subsection 359(2), as amended by item 1 of this Schedule, provides that
the MRT may invite either orally (including by telephone) or in writing, a
person to give information.
Subsection 359(3) provides that if a written invitation is given to a
person other than the Secretary, the invitation must be given by one of the
methods in section 379A. Broadly, section 379A provides that the MRT must
give documents to a person other than the Secretary by hand, handing it to
another person who is at the last residential or business address of the
recipient, dispatching by prepaid post or other prepaid means or
transmitting by fax, e-mail or other electronic means.
Item 4 Paragraph 359B(1)(a)
This item repeals paragraph 359B(1)(a) and substitutes it with a new
paragraph 359B(1)(a).
Subsection 359B(1) sets out the requirements for an invitation where,
among other things, a person is invited in writing to give information
under section 359. Those requirements are that the invitation is to
specify the way the information is to be given, being the way the MRT
considers appropriate in the circumstances.
This item clarifies that subsection 359B(1), as it relates to invitations
under section 359, only relates to written invitations. New subsection
359(2), as amended by item 1 of this Schedule, provides that the MRT may
invite either orally (including by telephone) or in writing, a person to
give information.
Item 5 Subsection 359B(1)
This item omits the word "additional" (last occurring) from subsection
359B(1).
Currently subsection 359B(1) sets out the requirements for a written
invitation where, among other things, a person is invited by the MRT under
section 359 to give additional information. The written invitation is to
specify the way in which the additional information must be given, being
the way the MRT considers appropriate in the circumstances. These
amendments remove the word "additional" from subsection 359B(1) to ensure
consistency with the new wording in subsection 359(2), as amended by items
1 and 2 of this Schedule.
Item 6 Subsection 359B(2)
This item omits the word "additional" from subsection 359B(2).
Relevantly, subsection 359B(2) provides that where the MRT invites a
person to give additional information otherwise than by interview, the
response to that invitation is to be given within a specified period, being
a prescribed period, or if no period is prescribed, a reasonable period.
The removal of the word "additional" in subsection 359B(2) ) ensures
consistency with the new wording in subsection 359(2), as amended by items
1 and 2 of this Schedule.
Item 7 Paragraph 359C(1)(a)
This item repeals paragraph 359C(1)(a) and substitutes it with a new
paragraph 359C(1)(a). This item also includes a note to provide that the
heading to section 359C is altered by omitting the word "additional".
Subsection 359C(1) currently provides that where a person is invited by
the MRT under section 359 to give additional information, but does not give
the information before the time for giving it has passed, then the MRT may
make a decision on the review without taking any further action to obtain
the additional information.
This item clarifies that subsection 359C(1) only applies to written
invitations under section 359. New section 359, as amended by item 1 of
this Schedule, provides that the MRT may invite either orally (including by
telephone) or in writing, a person to give information.
The removal of the word "additional" from the heading in section 359C
ensures consistency with the new wording in subsection 359(2), as amended
by items 1 and 2 of this Schedule.
Item 8 Subsection 359C(1)
This item omits the last occurring "additional" in subsection 359C(1).
Subsection 359C(1) currently provides that where a person is invited by
the MRT under section 359 to give additional information, but does not give
the information before the time for giving it has passed, then the MRT may
make a decision on the review without taking any further action to obtain
the additional information. The amendments remove the word "additional" in
subsection 359C(1) to ensure consistency with the new wording in subsection
359(2), as amended by items 1 and 2 of this Schedule.
Item 9 Subsection 424(2)
This item inserts ", either orally (including by telephone) or in
writing," after "may invite" in subsection 424(2) of the Act. This item
also includes a note to provide that the heading to section 424 is altered
by omitting the word "additional".
Subsection 424(1) provides the Refugee Review Tribunal (RRT) with the
power to get any information it considers relevant. Importantly it
provides that once the RRT gets such information, the Tribunal must have
regard to that information in making its decision on the review.
Currently, subsection 424(2) provides that without limiting subsection (1),
the RRT may invite a person to give additional information. Also relevant,
subsection 424(3) provides that if an invitation is given to a person other
than the Secretary, the invitation must be given by one of the methods in
section 441A. In general, section 441A provides that the RRT must give
documents to a person other than the Secretary by hand, handing it to
another person who is at the last residential or business address of the
recipient, dispatching by prepaid post or other prepaid means or
transmitting by fax, e-mail or other electronic means.
The amendments to subsection 424(2) outline that the RRT has the power to
seek information orally, by whichever method it chooses, including, but not
limited to by telephone. The RRT will still be able to invite a person by
written invitation to provide information. These powers are a subset of the
RRT's broad powers under subsection 424(1). The power to seek information
orally or in writing applies at any stage in the review.
The amendment seeks to address several Full Federal Court decisions
including SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83
('SZKTI'). The Full Federal Court held in SZKTI that the Parliament did
not authorise the RRT to get additional information from a person pursuant
to its general power under subsection 424(1) without strictly complying
with the specified procedure set out in subsections 424(2) and (3). That
is, the RRT is not able to orally invite an applicant to provide
information under subsection 424. The original policy intention behind
subsection 424(1) was to enable the Tribunals to request information via
less formal means, for example, orally over the telephone. These amendments
seek to give effect to this policy intention following the Full Federal
Court decision in SZKTI.
By ensuring that the RRT may obtain information under subsection 424(2)
orally (including by telephone), the RRT will be able to more efficiently
obtain the information it requires to make a decision. Conducting
investigations in writing can cause considerable delay without necessarily
improving procedural fairness to the applicant. In addition, it will
ensure that the RRT is able to obtain relevant information where the only
way of contacting a person is by oral means, for example, where only a
telephone number is provided. In all circumstances, where information is
collected that is adverse to the applicant and which the RRT 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 review
is made.
The removal of the word "additional" from the heading in section 424 makes
it clear that the RRT's power to seek information, orally (including by
telephone) or by written invitation, applies to all information and seeks
to deal with the uncertainty surrounding what information is covered by
section 424.
Item 10 Subsection 424(2)
This item omits the word "additional" from subsection 424(2) of the Act.
This item also inserts a note which provides that the heading to section
424 is altered by omitting the word "additional".
Currently, subsection 424(2) provides that the RRT may invite a person to
give additional information. The amendments made by item 9 of this
Schedule provide that the RRT may seek this information either orally
(including by telephone), or by written invitation. The removal of the
word "additional" makes it clear that the RRT's power to seek information,
orally (including by telephone) or by written invitation, applies to all
information and seeks to deal with the uncertainty surrounding what
information is covered by section 424.
Item 11 Subsection 424(3)
This item omits the words "If an invitation" in subsection 424(3) and
substitutes the words "If a written invitation under subsection (2)".
This item clarifies that subsection 424(3) applies where the invitation to
provide information is given by the RRT in writing. Subsection 424(2), as
amended by item 9 of this Schedule, provides that the RRT has the power to
seek information orally (including by telephone) or in writing.
Subsection 424(3) provides that if an invitation is given to a person other
than the Secretary, the invitation must be given by one of the methods in
section 441A. In general, section 441A provides that the RRT must give
documents to a person other than the Secretary by hand, handing it to
another person who is at the last residential or business address of the
recipient, dispatching by prepaid post or other prepaid means or
transmitting by fax, e-mail or other electronic means.
Item 12 Paragraph 424B(1)(a)
This item repeals paragraph 424B(1)(a) and substitutes it with a new
paragraph 424B(1)(a).
Subsection 424B(1) sets out the requirements for an invitation where, among
other things, a person is invited in writing to give information under
section 424. Those requirements are that the invitation is to specify the
way the information is to be given, being the way the RRT considers
appropriate in the circumstances.
This item clarifies that subsection 424B(1), as it relates to invitations
under section 424, only relates to written invitations. New subsection
424(2), as amended by item 9 of this Schedule, provides that the RRT may
invite either orally (including by telephone) or in writing, a person to
give information.
Item 13 Subsection 424B(1)
This item omits the word "additional" (last occurring) from subsection
424B(1).
Currently subsection 424B(1) sets out the requirements for a written
invitation where, among other things, a person is invited by the RRT under
section 424 to give additional information. The written invitation is to
specify the way in which the additional information must be given, being
the way the RRT considers appropriate in the circumstances. These
amendments remove the word "additional" from subsection 424B(1) to ensure
consistency with the new wording in subsection 424(2), as amended by items
9 and 10 of this Schedule.
Item 14 Subsection 424B(2)
This item omits the word "additional" from subsection 424B(2).
Relevantly, subsection 424B(2) provides that where the Refugee Review
Tribunal (RRT) invites a person to give additional information otherwise
than by interview, the response to that invitation is to be given within a
specified period, being a prescribed period, or if no period is prescribed,
a reasonable period. The removal of the word "additional" in subsection
424B(2) ensures consistency with the new wording in subsection 424(2), as
amended by items 9 and 10 of this Schedule.
Item 15 Paragraph 424C(1)(a)
This item repeals paragraph 424C(1)(a) and substitutes it with a new
paragraph 424C(1)(a). This item also includes a note to provide that the
heading to section 424C is altered by omitting the word "additional".
Subsection 424C(1) currently provides that where a person is invited by the
RRT under section 424 to give additional information, but does not give the
information before the time for giving it has passed, then the RRT may make
a decision on the review without taking any further action to obtain the
additional information.
This item clarifies that subsection 424C(1) only applies to written
invitations under section 424. New section 424, as amended by item 9 of
this Schedule, provides that the RRT may invite either orally (including by
telephone) or in writing, a person to give information and seeks to deal
with the uncertainty surrounding what information is covered by section
424C.
The removal of the word "additional" from the heading in section 424C
ensures consistency with the new wording in subsection 424(2), as amended
by items 9 and 10 of this Schedule.
Item 16 Subsection 424C(1)
This item omits the last occurring "additional" in subsection 424C(1).
Subsection 424C(1) currently provides that where a person is invited by the
RRT under section 424 to give additional information, but does not give the
information before the time for giving it has passed, then the RRT may make
a decision on the review without taking any further action to obtain the
additional information. The amendments remove the word "additional" in
subsection 424C(1) to ensure consistency with the new wording in subsection
424(2), as amended by items 9 and 10 of this Schedule.
Item 17 Application
This item provides that the amendments made by Schedule 1 apply to
invitations made by the MRT and RRT on or after commencement of this
Schedule.
SCHEDULE 2-Amendments relating to judicial review
Migration Act 1958
Item 1 Subsection 477(1)
This item amends subsection 477(1) by omitting the words "28 days of the
actual (as opposed to deemed) notification of the decision" and replacing
them with the words "35 days of the date of the migration decision".
Subsection 477(1) currently provides that where a person applies to the
Federal Magistrates Court ('the FMC') for a remedy in exercise of the
Court's original jurisdiction, the person must make the application within
28 days of the actual notification of the decision (rather than deemed
notification).
Two important changes to subsection 477(1) are made by this item. Firstly,
the 28 day period for lodging an application to the FMC for judicial review
of a migration decision will be changed to 35 days. Secondly, the new 35
day period will commence to run from the "date of the migration decision"
rather than from the time of actual notification.
This item removes actual notification as the time from which the time
period for seeking judicial review starts to run because it can be
difficult to establish when and if, an applicant is actually notified. In
addition, for migration decisions made by the Migration Review Tribunal and
the Refugee Review Tribunal ('the Tribunals'), the Full Federal Court held
in Minister for Immigration and Citizenship v SZKKC [2007] FCAFC 105
('SZKKC') 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 a result, the time limits
for seeking judicial review of a migration decision in subsection 477(1)
are not currently effective.
The change to the 'date of the migration decision' from which time
commences to run for the purpose of time limits for seeking judicial review
of a migration decision, will provide greater certainty and overcome the
practical difficulties associated with personally serving a written
statement of reasons. Item 2 of this Schedule inserts a definition of
"date of the migration decision".
Item 2 Subsections 477(2), (3) and (4)
This item repeals subsections 477(2), (3) and (4) of the Act and
substitutes new subsections 477(2), (3), (4) and (5).
Current subsection 477(2) provides that the FMC may, by order, extend the
current 28 day time period for seeking judicial review of a migration
decision by up to 56 days if:
. an application for that order is made within 84 days of the actual
notification of the decision; and
. the FMC is satisfied that it is in the interests of the administration
of justice to make the order to extend time.
Current subsection 477(3) provides that the FMC may not make an order
extending time to apply for judicial review of a migration decision,
outside the 28 day period, other than that provided for by subsection (2).
This provision is now redundant as a result of the amendment to subsection
477(2) by this item which provides the FMC with broad discretion to extend
time. Current subsection 477(4) provides that the regulations may prescribe
the way of notifying a person of a decision for the purposes of section
477. However, this provision is no longer necessary because new subsection
477(1) provides that the time for applying for review of a migration
decision will run from the date of a migration decision and not from
notification. There are currently no regulations made under subsection
477(4).
New subsection 477(2) will enable the FMC to order an extension of the 35
day time period for applying for judicial review of a migration decision if
paragraphs (a) and (b) are satisfied. Paragraph 477(2)(a) will now require
applicants to state in their applications why they consider it necessary in
the interests of the administration of justice for the FMC to make the
extension of time order. Requiring applicants to give reasons in their
applications for an extension of time will assist the FMC by drawing early
attention to cases where there is a compelling reason to grant an extension
of the time. This may assist the Court to deal with requests for extension
of time more quickly and may thereby result in a more efficient use of
court resources.
New paragraph 477(2)(b) provides that the FMC must be satisfied that it is
necessary in the interests of the administration of justice to make the
order to extend the 35 day time period. This paragraph provides a new test
for the granting of extension time orders. It also removes, the
restriction on the period by which the FMC may extend time (56 days) and
the requirement that the application must be made within 84 days. The FMC
will have broad discretion to extend time for applying for judicial review
of a migration decision by whatever period it considers appropriate,
provided the FMC is satisfied that it is necessary in the interests of the
administration of justice. Vesting the FMC with broad discretion to extend
time where it is necessary in the interests of the administration of
justice will protect applicants from possible injustice.
New subsection 477(3) creates a definition of 'date of migration decision'
for the purpose of section 477. Subsection 477(1), as amended by item 1 of
this Schedule, provides that the 35 day period for applying for review of a
migration decision, starts to run from the date of the migration decision.
A migration decision is currently defined in section 5 of the Act. A
migration decision means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision.
Paragraph (a) of the definition of the 'date of migration decision'
provides that in the case of a migration decision made under subsection
43(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act), 'date
of the migration decision' means date of the written decision under
subsection 43(1) of that Act. Subsection 43(1) of the AAT Act provides,
amongst other things, that the Administrative Appeals Tribunal (the AAT)
must make a decision in writing and give reasons for its decision. The AAT
has authority to review certain migration decisions. The date of the AAT's
written decision will be the date of the migration decision for the purpose
of determining when time limits for applying for judicial review of that
AAT migration decision start to run.
Paragraph (b) of the definition of the 'date of migration decision'
provides for written migration decisions made by the Migration Review
Tribunal (MRT) or the Refugee Review Tribunal (RRT). Where the MRT or RRT
makes a written decision, paragraph (b) provides that the date of the
migration decision will be the date of the written statement for the
purpose of determining when time limits for applying for judicial review of
that MRT or RRT decision start to run. Subsections 368(1) and 430(1)
provide that when the MRT or RRT makes its decision on review, it must
prepare a written statement that sets out matters relevant to the decision.
Paragraph (c) of the definition of the 'date of migration decision'
provides for oral migration decisions made by the MRT or RRT. If the MRT
or RRT makes an oral decision, then the date of the migration decision will
be the date of that oral decision for the purpose of determining when time
limits for applying for judicial review of that MRT or RRT decision start
to run.
Paragraph (d) of the definition of the 'date of migration decision'
provides for instances not covered by paragraphs (a) to (c). In such a
case, the date of the migration decision will be the date of the written
notice of the decision, or if no such notice exists, the date the Court
considers appropriate. There are a number of provisions in the Act that
provide that the Minister for Immigration and Citizenship (or his or her
delegate) must notify by written notice, an applicant for a visa or a visa
holder of a decision made by the Minister (or his or her delegate) under
the Act. In these instances, the date of the migration decision will be
the date of that written notice for the purpose of determining when the
time period for seeking judicial review of the Minister's decision starts
to run. If a written notice does not exist, then the date of the migration
decision will be the date that the Court considers appropriate.
By setting out a definition of 'date of migration decision' there will be
clarity around when time limits for applying for judicial review start to
run.
New subsection 477(4) clarifies that for the purpose of time limits, the 35
day time period starts to run despite a failure to comply with any of the
provisions mentioned in subsection (3). This subsection will ensure that
the time limits operate effectively by seeking to ensure that applicants
cannot argue that there was no date of decision for the purposes of time
limits because the decision did not comply with the legislative
requirements for that decision. For example, the effect of this subsection
will be that even where a written statement for the decision does not
comply with all the requirements set out in subsection 368(1) (for the MRT)
or subsection 430(1) (for the RRT), this will not affect the time limits
starting to run. It will be possible for the FMC to address injustices
caused by this provision by using its broad discretion to order an
extension of time under subsection 477(2), as amended by this item, where
it is necessary in the interests of the administration of justice.
New subsection 477(5) clarifies that for the purpose of seeking judicial
review in the FMC of a migration decision, the new 35 day time limit
commences on the date of decision, notwithstanding the validity of the
migration decision. That is, the time limits will begin irrespective of
whether the migration decision is valid or not. This subsection seeks to
ensure that the FMC is not required to examine whether there is a
jurisdictional error in the migration decision in order to determine
whether the application for review is within time. It will be possible for
the FMC to address injustices caused by this provision by using its broad
discretion to order an extension of time under subsection 477(2), as
amended by this item, where it is necessary in the interests of the
administration of justice.
Item 3 Subsection 477A(1)
This item amends subsection 477A(1) by omitting all the words "28 days of
the actual (as opposed to deemed) notification of the decision" and
replacing them with the words "35 days of the date of the migration
decision".
Subsection 477A(1) currently provides that where a person applies to the
Federal Court for a remedy in exercise of the court's original
jurisdiction, the person must make the application within 28 days of the
actual notification of the decision (rather than deemed notification).
Two important changes to subsection 477A(1) are made by this item.
Firstly, the 28 day period for lodging an application to the Federal Court
for judicial review of a migration decision will be changed to 35 days.
Secondly, the new 35 day period will commence to run from the "date of the
migration decision" rather than from the time of actual notification.
This item removes actual notification as the time from which the time
period for seeking judicial review starts to run because it can be
difficult to establish when and if, an applicant is actually notified. In
addition, for migration decisions made by the MRT and the RRT ('the
Tribunals'), the Full Federal Court held in Minister for Immigration and
Citizenship v SZKKC [2007] FCAFC 105 ('SZKKC') 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.
While SZKKC was in relation to time limits for seeking judicial review of a
migration decision to the FMC under section 477, it also applies to time
limits in the Federal Court. 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 a result, the time limits
for seeking judicial review of a migration decision in subsection 477A(1)
are not currently effective.
The change to the 'date of the migration decision' from which time
commences to run for the purpose of time limits for seeking judicial
review, will provide greater certainty and overcome the practical
difficulties associated with personally serving a written statement of
reasons. Item 2 of this Schedule inserts a definition of "date of the
migration decision".
Item 4 Subsections 477A(2), (3) and (4)
This item repeals current subsections 477A(2), (3) and (4) of the Act and
substitutes new subsections 477A(2), (3), (4) and (5).
Current subsection 477A(2) provides that the Federal Court may, by order,
extend the current 28 day period for seeking judicial review by up to 56
days if:
. an application for that order is made within 84 days of the actual
notification of the decision; and
. the Federal Court is satisfied that it is in the interests of the
administration of justice to make the order to extend time.
Current subsection 477A(3) provides that the Federal Court may not make an
order extending time to apply for judicial review of a migration decision,
outside the 28 day period, other than that provided for by subsection (2).
This provision is now redundant as a result of the amendment to subsection
477A(2) by this item which provides the Federal Court with broad discretion
to extend time. Existing subsection 477A(4) currently provides that the
Regulations may prescribe the way of notifying a person of a decision for
the purposes of section 477A. However, this provision is no longer
necessary because new subsection 477A(1), as amended by item 3 of this
Schedule, provides that the time for applying for review will run from the
date of a migration decision and not from notification. There are
currently no regulations made under subsection 477A(4).
New subsection 477A(2) will enable the Federal Court to order an extension
of the 35 day time period for applying for judicial review of a migration
decision if paragraph (a) and (b) are satisfied. Paragraph 477A(2)(a)
requires applicants to state in their applications why they consider it
necessary in the interests of the administration of justice for the Federal
Court to make the extension of time order. Requiring applicants to give
reasons in their applications for an extension of time will assist the
Federal Court by drawing early attention to cases where there is a
compelling reason to grant an extension of the time. This may assist the
Court to deal with requests for extension of time more quickly and may
thereby result in a more efficient use of court resources.
Paragraph 477A(2)(b) provides that the Federal Court must be satisfied that
it is necessary in the interests of the administration of justice to make
the order to extend the 35 day period. This paragraph provides a new test
for the granting of extension time orders. It also removes, the
restriction on the period by which the Federal Court may extend time (56
days) and the requirement that the application must be made within 84 days.
The Federal Court will have broad discretion to extend time for applying
for judicial review of a migration decision by whatever period it considers
appropriate, provided the Federal Court is satisfied that it is necessary
in the interests of the administration of justice. Vesting the Federal
Court with broad discretion to extend time where it is necessary in the
interests of the administration of justice will protect applicants from
possible injustice, while also ensuring that the extension is only granted
where there are compelling reasons to do so.
New subsection 477A(3) provides a definition of "date of the migration
decision" for the purpose of section 477A, that is, for the purpose of time
limits for applying to the Federal Court for review of a migration
decision. Subsection 477A(1), as amended by item 3 of this Schedule,
provides that the 35 day period for applying for review of a migration
decision, starts to run from the date of the migration decision. The
definition is given the same meaning as that provided by subsection 477(3),
as amended by item 2 of this Schedule.
New subsection 477A(4) clarifies that for the purpose of time limits, the
35 day time period starts to run despite a failure to comply with any of
the provisions mentioned in subsection (3). This subsection will ensure
that the time limits operate effectively by seeking to ensure that
applicants cannot claim that there was no date of decision for the purposes
of time limits because the decision did not comply with the legislative
requirements for that decision. For example, the effect of this subsection
will be that where a written statement for the decision does not comply
with all the requirements set out in subsection 368(1) (for the MRT) or
subsection 430(1) (for the RRT), this will not affect the time limits
starting to run. It will be possible for the Federal Court to address
injustices caused by this provision by using its broad discretion to order
an extension of time under subsection 477A(2), as amended by this item,
where it is necessary in the interests of the administration of justice.
New subsection 477A(5) clarifies that for the purpose of seeking judicial
review in the Federal Court of a migration decision, the new 35 day time
limit commences on the date of decision, notwithstanding the validity of
the migration decision. That is, the time limits will begin irrespective
of whether the migration decision is valid or not. This subsection seeks
to ensure that the Federal Court is not required to examine whether there
is a jurisdictional error in the migration decision in order to determine
whether the application for review is within time. It will be possible for
the Federal Court to address injustices caused by this provision by using
its broad discretion to order an extension of time under subsection
477A(2), as amended by this item, where it is necessary in the interests of
the administration of justice.
Item 5 Subsection 486A(1)
This item amends subsection 486A(1) by omitting the words "28 days of the
actual (as opposed to deemed) notification of the decision" and replacing
them with the words "35 days of the date of the migration decision".
Subsection 486A(1) currently provides that where a person applies to the
High Court for a remedy in exercise of the Court's original jurisdiction,
the person must make the application within 28 days of the actual
notification of the decision (rather than deemed notification).
Two important changes to subsection 486A(1) are made by this item.
Firstly, the 28 day period for lodging an application to the High Court for
judicial review of a migration decision will be changed to 35 days.
Secondly, the new 35 day period will commence to run from the "date of the
migration decision" rather than from the time of actual notification.
This item removes actual notification as the time from which the time
period for seeking judicial review starts to run because it can be
difficult to establish when and if, an applicant is actually notified. In
addition, for migration decisions made by the MRT and the RRT, the Full
Federal Court held in Minister for Immigration and Citizenship v SZKKC
[2007] FCAFC 105 ('SZKKC') 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
a result, the time limits for seeking judicial review of a migration
decision in subsection 486A(1) are not currently effective.
The change to the 'date of the migration decision' from which time
commences to run for the purpose of time limits for seeking judicial review
of a migration decision, will provide greater certainty and overcome the
practical difficulties associated with personally serving a written
statement of reasons.
Item 6 Subsections 486A(1A), (2) and (3)
This item repeals current subsections 486A(1A), (2) and (3) of the Act and
substitutes new subsections 486A(2), (3), (4) and (5).
Current subsection 486A(1A) provides that the High Court may order an
extension of the current 28 day period for seeking judicial review of a
migration decision by up to 56 days if:
. an application for that order is made within 84 days of the actual
notification of the decision; and
. the High Court is satisfied that it is in the interests of the
administration of justice to make the order to extend time.
Current subsection 486A(2) provides that the High Court may not make an
order extending time to apply for judicial review of a migration decision,
outside the 28 day period, other than that provided for by subsection (1A).
This provision is now redundant as a result of the amendment to subsection
486A(1A) by this item which provides the High Court with broad discretion
to extend time. Current subsection 486A(3) provides that the Regulations
may prescribe the way of notifying a person of a decision for the purposes
of section 486A. However, this provision is no longer necessary because
new subsection 486A(1), as amended by item 5 of this Schedule, provides
that the time for applying for review will run from the date of a migration
decision and not from notification. There are currently no regulations
made under subsection 486A(3).
New subsection 486A(2) will enable the High Court to order an extension of
the new 35 day time period for applying for judicial review of a migration
decision if paragraphs (a) and (b) are satisfied. The new 35 day time
period for seeking judicial review in the High Court is inserted into
subsection 486(1) by item 5 of this Schedule.
New paragraph 486A(2)(a) requires applicants to state in their applications
why they consider it necessary in the interests of the administration of
justice for the High Court to make the extension of time order. Requiring
applicants to give reasons in their applications for an extension of time
will assist the High Court by drawing early attention to cases where there
is a compelling reason to grant an extension of the time. This may assist
the Court to deal with requests for extension of time more quickly and may
thereby result in a more efficient use of court resources.
New paragraph 486A(2)(b) provides that the High Court must be satisfied
that it is necessary in the interests of the administration of justice to
make the order to extend the 35 day time period. This paragraph provides a
new test for the granting of extension time orders. It also removes, the
restriction on the period by which the High Court may extend time (56 days)
and the requirement that the application must be made within 84 days. The
High Court will have broad discretion to extend time for applying for
judicial review of a migration decision by whatever period it considers
appropriate, provided the High Court is satisfied that it is necessary in
the interests of the administration of justice.
Vesting the High Court with a broad discretion to extend time where it is
necessary in the interests of the administration of justice will protect
applicants from possible injustice, while also ensuring that the extension
is only granted where there are compelling reasons to do so. In addition,
ensuring that the High Court has broad discretion to extend time seeks to
address the High Court's decision in Bodruddaza v Minister for Immigration
and Multicultural Affairs [2007] HCA 14 ('Bodruddaza'). In Bodruddaza, the
High Court held that the time limit imposed by section 486A of the Act was
invalid because it precluded the High Court from exercising residual
discretion. Discretion is a key element of the jurisdiction to grant
constitutional writs under paragraph 75(v) of the Constitution.
New subsection 486A(3) provides a definition of "date of the migration
decision" for the purpose of section 486A, that is, for the purpose of time
limits for applying to the High Court for review of a migration decision.
Subsection 486A(1), as amended by item 5 of this Schedule, provides that
the 35 day period for applying for review of a migration decision, starts
to run from the date of the migration decision. The definition is given
the same meaning as that provided by subsection 477(3), as amended by item
2 of this Schedule.
New subsection 486A(4) clarifies that for the purpose of time limits, the
35 day time period starts to run despite a failure to comply with any of
the provisions mentioned in subsection (3). This subsection will ensure
that the time limits operate effectively by seeking to ensure that
applicants cannot claim that there was no date of decision for the purposes
of time limits because the decision did not comply with the legislative
requirements for that decision. For example, the effect of this subsection
will be that where a written statement for the decision does not comply
with all the requirements set out in subsection 368(1) (for the MRT) or
subsection 430(1) (for the RRT), this will not affect the time limits
starting to run. It will be possible for the High Court to address
injustices caused by this provision by using its broad discretion to order
an extension of time under subsection 486A(2), as amended by this item,
where it is necessary in the interests of the administration of justice.
New subsection 486A(5) clarifies that for the purpose of seeking judicial
review in the High Court of a migration decision, the new 35 day time limit
commences on the date of decision notwithstanding the validity of that
decision. That is, the time limits will begin irrespective of whether the
migration decision is valid or not. This subsection seeks to ensure that
the High Court is not required to examine whether there is a jurisdictional
error in the migration decision in order to determine whether the
application for review is within time. It will be possible for the High
Court to address injustices caused by this provision by using its broad
discretion to order an extension of time under subsection 477(2), as
amended by this item, where it is necessary in the interests of the
administration of justice.
Item 7 Application
This item inserts an application provision for the amendments made to
sections 477, 477A and 486A.
The amendments relating to the new time limits for seeking judicial review
and the extensions of those time limits, will apply to applications for
judicial review made on or after commencement of this Schedule.
However, if a migration decision is made before commencement, then the date
of the migration decision is treated as the date of commencement for
Schedule 2. That is, if a migration decision has been made before
commencement and judicial review proceedings have not commenced before the
commencement of Schedule 2, then the 35 day time period for applying for
judicial review will start to run from the date of commencement of Schedule
2. The effect of this application provision will be to give all applicants
who have a migration decision made before the date of commencement, the
same time limits as applicants whose decisions are made on the date of
commencement.
SCHEDULE 3 - Amendments relating to appeals against extension of time
decisions
Migration Act 1958
Item 1 At the end of section 476A
This item inserts new subsections 476A(3), (4) and (5) into Division 2 of
Part 8 of the Act.
Section 476A currently sets out the circumstances in which the Federal
Court of Australia (the Federal Court) has original jurisdiction in
relation to a migration decision and provides that where the Federal Court
has jurisdiction in relation to a migration decision, that jurisdiction is
the same as the jurisdiction of the High Court under paragraph 75(v) of the
Constitution.
New subsection 476A(3) provides that despite section 24 of the Federal
Court of Australia Act 1976 (the Federal Court Act), an appeal may not be
brought to the Federal Court from:
- a judgment of the Federal Magistrates Court that makes an order or
refuses to make an order under subsection 477(2); or
- a judgment of the Federal Court that makes an order or refuses to make
an order under subsection 477A(2).
Section 24 of the Federal Court Act provides that the Federal Court has
jurisdiction to hear and determine, among other things, appeals from
judgments of the Federal Court (constituted by a single Judge), and appeals
from judgments of the Federal Magistrates Court exercising original
jurisdiction under a law of the Commonwealth. New subsections 477(2) and
477A(2), as amended by items 2 and 4 of Schedule 2 to this Bill, provide
that the Federal Magistrates Court and the Federal Court respectively may,
in the circumstances set out in those subsections, order an extension to
the new 35 day period for applying for judicial review of a migration
decision.
The purpose of new subsection 476A(3) is to limit appeals to the Federal
Court against a judgment of the Federal Magistrates Court or a single judge
of the Federal Court to extend, or refuse to extend, the 35 day time limit
on applications for a remedy to be granted in exercise of each court's
original jurisdiction in relation to a migration decision. New subsection
476A(3) will strengthen the new time limits for applying for judicial
review of migration decisions, as inserted by Schedule 2 to this Bill.
This will discourage unsuccessful visa applicants from taking advantage of
the delays caused by litigation to prolong their stay in Australia.
New subsection 476A(4) provides that despite section 33 of the Federal
Court Act, an appeal may not be brought to the High Court from a judgment
of the Federal Court that makes an order or refuses to make an order under
subsection 477A(2). Section 33 of the Federal Court Act provides, among
other things, that an appeal can be brought from a judgment of the Full
Federal Court if the High Court grants special leave to appeal.
Under subsection 20(1A) of the Federal Court Act, the Chief Justice of the
Federal Court may direct that the original jurisdiction of the Federal
Court is exercised by the Full Court if the matter coming before the
Federal Court's original jurisdiction is of sufficient importance. The
purpose of new subsection 476A(4) is to limit appeals to the High Court
against a judgment of the Full Federal Court to extend, or refuse to
extend, the 35 day time limit on applications to the Federal Court for a
remedy to be granted in exercise of the Federal Court's original
jurisdiction in relation to a migration decision.
New subsection 476A(5) provides that in section 476A, "judgment" has the
same meaning as in the Federal Court Act. Section 4 of the Federal Court
Act, provides that "judgment" means a judgment, decree or order, whether
final or interlocutory, or a sentence.
Item 2 Application
This item provides that the amendment made by Schedule 3 applies to
judgments made on or after the commencement of this Schedule that make an
order or refuse to make an order under subsections 477(2) or 477A(2) of the
Act.