Migration Act 1958 - Direction under section 499 - Migration Review Tribunal - Role and Responsibilities of Principal Member (Direction No. 11 of 1999)

Administered by Department of Home Affairs

Legislation au F2006B11687 Not in force Legislative Instrument

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MIGRATION ACT 1958

 

DIRECTION UNDER SECTION 499

MIGRATION REVIEW TRIBUNAL

ROLE AND RESPONSIBILITIES OF PRINCIPAL MEMBER

  

WHEREAS:

 

Section 394 of the Migration Act 1958 (the Act) establishes the Migration Review Tribunal (the Tribunal).

 

Section 353 of the Act provides that the Tribunal, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

 

Section 353A of the Act provides, amongst other things, that the Principal Member may, in writing, give directions, not inconsistent with the Act or the Migration Regulations, as to the operation of the Tribunal and the conduct of reviews by the Tribunal, including efficient processing practices.

 

Section 397 of the Act provides that the Principal Member is the executive officer of the Tribunal and is responsible for the overall operation and administration of the Tribunal, including monitoring the operations of the Tribunal to ensure that those operations are as fair, just, economical, informal and quick as practicable, determining written guidelines (subject to subsection 397(4)) for the allocation of the work of the Tribunal and allocating the Tribunal's work among members in accordance with those guidelines.

 

The Principal Member is primarily responsible for the productivity of the Tribunal and for maintaining its effectiveness and efficiency as a decision making body. The Principal Member requires the ongoing co-operation of members to meet the Tribunal's statutory objective.

 

The Principal Member must take appropriate steps to satisfy themself that members are performing their functions so that the Tribunal is operating to meet its objective.

  

NOW:

 

I, Philip Ruddock, Minister for Immigration and Multicultural Affairs, acting under and subject to section 499 of the Act, hereby give the following Direction.

 

1.      This Direction may be cited as Direction No. 11 of 1999.

 

2.      This Direction applies to the Principal Member of the Migration Review Tribunal, to any person appointed under section 404 of the Act to act in the office of Principal Member and to any Senior Member to whom under section 405 the Principal Member has delegated a relevant power.

 

3.      The Principal Member, as part of their function of monitoring the operations of the Tribunal to ensure that those operations are as fair, just, economical, informal and quick as practicable, is directed to implement a performance management program.

 

4.      The Principal Member, with the involvement of Senior Members, is to review any performance agreements on a regular basis and is to discuss outcomes with and, as necessary, counsel members in relation to their individual performance agreements.

 

5.      The Principal Member is to set performance targets for, and priorities in relation to, the processing of cases, bearing in mind the priority which migration cases have under subsection 397(4) and any relevant Directions given by me.

 

6.      The Principal Member is to issue a practice direction on the recording of decisions to assist members in meeting their obligations under section 368 of the Act in a way which best meets the Tribunal's objectives under section 353 of the Act. In issuing the practice direction, the Principal Member should have due regard to the Government’s view that matters covered in the practice direction should include the minimum requirements for decision records (indicating the ideal requirements, indicating how decision records can be reduced, and indicating the circumstances in which a more expansive record is required). The practice direction may also require members' decision records to specifically address any discrepancies in the applicant's case.

 

7.      The Principal Member is to issue a practice direction concerning ex tempore decision making. In issuing the practice direction, the Principal Member should have due regard to the Government’s view that matters covered in the practice direction should include the circumstances where due regard should be had to the desirability of making, or not making, ex tempore decisions. The Principal Member is to endeavour to ensure that members follow this practice direction in a manner which best meets the requirements of being fair, just, economical, informal and quick.

 

8.      While recognising the effect of sections 348, 349, 363 and 363A of the Act, the Principal Member is to issue a practice direction about reviewing decisions. In issuing the practice direction, the Principal Member should have due regard to the Government’s view that matters covered in the practice direction should include that due consideration should be given to the decision that has been made by the primary decision maker and, in particular, to matters which are contested; to inconsistent information or discrepancies in information provided by or regarding the applicant in relation to any immigration or refugee decisions or applications; and to the issue of establishing the applicant’s credibility based on information provided by or regarding the applicant.

 

9.      This Direction is to take effect from the date of signature.

 

 

Dated this 1st day of June 1999.

 

 

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs

Overview

The Migration Act 1958 was enacted to provide for the administration of the migration and refugee program of the Commonwealth, including the control of migration into Australia and the regulation of the stay of people in Australia. The Act was introduced to address the need for a comprehensive legislative framework governing immigration and refugee matters. The enacting body for the Act was the Parliament of Australia, which aimed to establish a mechanism of review that is fair, just, economical, informal, and quick, as stated in Section 353 of the Act. This Direction, issued under Section 499 of the Act by Philip Ruddock, the Minister for Immigration and Multicultural Affairs, mandates the Principal Member of the Migration Review Tribunal to implement a performance management program, review performance agreements, set performance targets, and issue practice directions concerning the recording of decisions, ex tempore decision-making, and reviewing decisions, with the intent of ensuring the Tribunal's operations align with the Act's objectives.

Scope and Application

The Direction No. 11 of 1999 applies to the Principal Member of the Migration Review Tribunal, any person appointed under section 404 of the Migration Act 1958 to act in the office of Principal Member, and any Senior Member to whom the Principal Member has delegated a relevant power. The legislation targets the operational efficiency and effectiveness of the Tribunal, ensuring that it meets its statutory objective of providing a review mechanism that is fair, just, economical, informal, and quick. The Direction mandates the Principal Member to implement a performance management program, regularly review performance agreements, set processing targets for cases, and issue practice directions on decision recording, ex tempore decision making, and reviewing decisions. These practice directions must align with the Government’s views on what constitutes the minimum and ideal requirements for decision records, the circumstances under which ex tempore decisions should or should not be made, and the factors to consider when reviewing decisions, including contested matters and discrepancies in information. The Direction takes effect from the date of its signature and operates under the auspices of the Migration Act 1958, without any stated exclusions or exemptions, and extends its application through subordinate instruments as necessary.

Key Provisions

This Direction under the Migration Act 1958, signed by the Minister for Immigration and Multicultural Affairs, mandates specific actions for the Principal Member of the Migration Review Tribunal. The Principal Member is directed to implement a performance management program (section 3) and regularly review performance agreements with members, discussing outcomes and providing necessary counsel (section 4). Additionally, the Principal Member must set performance targets and priorities for case processing, considering the priority of migration cases and any relevant directions issued by the Minister (section 5). A practice direction on the recording of decisions is also required, focusing on minimum and ideal requirements for decision records, methods for reducing records, and circumstances necessitating more expansive records (section 6). The Principal Member must also issue a practice direction on ex tempore decision-making, considering when such decisions should or should not be made, and ensuring adherence to fairness, justice, economy, informality, and expedience (section 7). Furthermore, a practice direction on reviewing decisions is mandated, with considerations for contested matters, inconsistent or discrepant information, and the credibility of applicants (section 8). This Direction takes effect from the date of signature, which is 1 June 1999. The obligations imposed by this Direction on the Principal Member include the implementation of a performance management program, regular review of performance agreements, setting performance targets and priorities, and issuing practice directions on decision recording, ex tempore decision-making, and reviewing decisions. These actions are aimed at ensuring that the Migration Review Tribunal operates efficiently and effectively, in line with the objectives outlined in the Migration Act 1958. The Principal Member is required to collaborate with Senior Members in these efforts and ensure that all members of the Tribunal are adequately performing their duties to meet the statutory objectives of fairness, justice, economy, informality, and expedience. Failure to comply with the provisions of this Direction could result in various consequences, although the specific penalties or consequences are not detailed within this Direction. Generally, under the Migration Act 1958, breaches of obligations or directions given by the Minister could lead to administrative actions, such as reprimands or removal from office, depending on the severity and nature of the breach. Additionally, failure to adhere to practice directions might affect the quality and efficiency of the Tribunal's decision-making processes, potentially leading to appeals or judicial review. However, the exact penalties or consequences for non-compliance with this Direction would need to be sought from the relevant provisions of the Migration Act 1958 and any related regulations or guidelines.

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Administrative Law
Instrument
Legislative Instrument
Concepts
Delegated & Subordinate Legislation
Performance Management
Practice Direction

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