Migration Amendment (Review Provisions) Act 2007
No. 100, 2007
An Act to amend the Migration Act 1958, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Review processes of the Migration Review Tribunal and the Refugee Review Tribunal
Migration Act 1958
Migration Amendment (Review Provisions) Act 2007
No. 100, 2007
An Act to amend the Migration Act 1958, and for related purposes
[Assented to 28 June 2007]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Amendment (Review Provisions) Act 2007.
2 Commencement
This Act commences on the day after it receives the Royal Assent.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Review processes of the Migration Review Tribunal and the Refugee Review Tribunal
Migration Act 1958
1 At the end of section 357A
Add:
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
2 After section 359
Insert:
359AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
3 Subsection 359A(1)
Omit “subsection (2)”, substitute “subsections (2) and (3)”.
Note: The heading to section 359A is replaced by the heading “Information and invitation given in writing by Tribunal”.
4 Paragraph 359A(1)(a)
After “circumstances,”, insert “clear”.
5 Paragraph 359A(1)(b)
Repeal the paragraph, substitute:
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
6 Paragraph 359A(1)(c)
After “comment on”, insert “or respond to”.
7 After subsection 359A(2)
Insert:
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to…
Overview
The Migration Amendment (Review Provisions) Act 2007 was enacted to amend the Migration Act 1958, specifically targeting the review processes of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT). This legislation was introduced to address procedural deficiencies in how information was communicated to applicants during reviews, ensuring that the tribunals acted in a fair and just manner. The Act was assented to on 28 June 2007 by the Parliament of Australia, reflecting a commitment to enhancing the integrity and fairness of migration review processes. The policy objective underpinning this Act is to ensure that applicants are provided with clear information and are given adequate opportunity to respond to it, thus contributing to a more equitable review process.
Scope and Application
The Migration Amendment (Review Provisions) Act 2007 amends the Migration Act 1958 to introduce changes to the review processes of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT). These amendments apply to applications made after the commencement of the Act, specifically under section 347 for MRT-reviewable decisions and section 412 for RRT-reviewable decisions. The Act mandates that the Tribunals act in a fair and just manner when applying the Division, ensuring that applicants understand the relevance and consequences of the information being considered in the review. It also allows the Tribunal to orally communicate particulars of information to an applicant appearing before it and to invite the applicant to comment or respond to that information. The Act extends to the Commonwealth of Australia, encompassing federal jurisdiction over migration matters. There are no specific exclusions or exemptions stated within the Act itself, although the application and interpretation may be further detailed through subordinate instruments or case law.
Key Provisions
- The Migration Amendment (Review Provisions) Act 2007 introduces several changes to the Migration Act 1958, specifically targeting the review processes handled by the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT). The most notable changes include the introduction of new sections 359AA and 424AA, which provide for the Tribunal to orally inform applicants of specific information that may be relevant to the review of their case, provided they are given a reasonable opportunity to understand and respond to this information. If the Tribunal opts to provide this information orally, they are not required to offer the same information in writing under sections 359A and 424A, respectively, unless specifically requested. These new sections ensure that applicants are fully aware of the information that may impact the outcome of their case and can respond accordingly.
- The Act imposes obligations on both the Tribunal and the applicants to ensure that the review process is transparent and fair. The Tribunal must act in a manner that is fair and just, as specified in sections 357A(3) and 422B(3). This includes ensuring that applicants understand the relevance of the information provided and its potential impact on the review outcome. It also requires the Tribunal to invite applicants to comment on or respond to this information and to provide the opportunity for additional time if needed. For applicants, this means they have the right to be fully informed about the review process and to adequately prepare their response.
- Failure to comply with the provisions of this Act can result in legal consequences. While the Act does not explicitly outline specific offences or penalties, non-compliance with the outlined procedures could potentially lead to the review being deemed unfair or unjust, which may result in the decision being quashed by a higher court. Additionally, if the Tribunal fails to follow the required procedures, it could be subject to judicial review, leading to potential legal action against the Tribunal or its members for procedural errors.
- The Act’s amendments apply to applications made for review after the commencement of the Act, specifically those filed under section 347 for MRT-reviewable decisions or section 412 for RRT-reviewable decisions. This ensures that the new review processes are uniformly applied to all new cases, maintaining consistency and fairness in the review process across all tribunal decisions.
- Area of Law
- Immigration & Refugee Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Reporting & Disclosure Obligations
- Administrative Discretion
