2008 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008 (Immigration and Citizenship) A Bill for an Act to amend the law relating to migration, and for related purposes [Page Break] 1 Short title ............................................................................................ 1 2 Commencement .................................................................................. 1 3 Schedule(s) ......................................................................................... 2 Schedule 1--Amendme nts relating to merits revie w 3 Migration Act 1958 3 Schedule 2--Amendme nts relating to judicial revie w 5 Migration Act 1958 5 Schedule 3--Amendme nts relating to appeals against extension of time decisions 8 Migration Act 1958 8 i Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008 [Page Break] 2 migration, and for related purposes 3 The Parliament of Australia enacts: 4 1 Short title 5 This Act may be cited as the Migration Legislation Amendment Act 6 (No. 2) 2008. 7 2 Commence ment 8 (1) Each provision of this Act specified in column 1 of the table 9 commences, or is taken to have commenced, in accordance with 10 column 2 of the table. Any other statement in column 2 has effect 11 according to its terms. 12 Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008 1 [Page Break] Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedules 1, 2 A single day to be fixed by Proclamat ion. and 3 However, if any of the provision(s) do not commence with in the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 1 Note: This table relates only to the provisions of this Act as originally 2 passed by both Houses of the Parliament and assented to. It will not be 3 expanded to deal with provisions inserted in this Act after assent. 4 (2) Column 3 of the table contains additional information that is not 5 part of this Act. Information in this column may be added to or 6 edited in any published version of this Act. 7 3 Schedule(s) 8 Each Act that is specified in a Schedule to this Act is amended or 9 repealed as set out in the applicable items in the Schedule 10 concerned, and any other item in a Schedule to this Act has effect 11 according to its terms. 12 2 Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008 [Page Break] 1 2 Schedule 1--Amendments relating to merits 3 review 4 5 Migration Act 1958 6 1 Subsection 359(2) 7 After "may invite", insert ", either orally (including by telephone) or in 8 writing,". 9 Note: The heading to section 359 is altered by omitting "additional". 10 2 Subsection 359(2) 11 Omit "additional". 12 3 Subsection 359(3) 13 Omit "If an invitation", substitute "If a written invitation under 14 subsection (2)". 15 4 Paragraph 359B(1)(a) 16 Repeal the paragraph, substitute: 17 (a) invited in writing under section 359 to give information; or 18 5 Subsection 359B(1) 19 Omit "additional" (last occurring). 20 6 Subsection 359B(2) 21 Omit "additional". 22 7 Paragraph 359C(1)(a) 23 Repeal the paragraph, substitute: 24 (a) is invited in writing under section 359 to give information; 25 and 26 Note: The heading to section 359C is altered by omitting "additional". 27 8 Subsection 359C(1) 28 Omit "additional" (last occurring). Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008 3 [Page Break] 1 9 Subsection 424(2) 2 After "may invite", insert ", either orally (including by telephone) or in 3 writing,". 4 Note: The heading to section 424 is altered by omitting "additional". 5 10 Subsection 424(2) 6 Omit "additional". 7 11 Subsection 424(3) 8 Omit "The invitation", substitute "A written invitation under 9 subsection (2)". 10 12 Paragraph 424B(1)(a) 11 Repeal the paragraph, substitute: 12 (a) invited in writing under section 424 to give information; or 13 13 Subsection 424B(1) 14 Omit "additional" (last occurring). 15 14 Subsection 424B(2) 16 Omit "additional". 17 15 Paragraph 424C(1)(a) 18 Repeal the paragraph, substitute: 19 (a) is invited in writing under section 424 to give information; 20 and 21 Note: The heading to section 424C is altered by omitting "additional". 22 16 Subsection 424C(1) 23 Omit "additional" (last occurring). 24 17 Application 25 The amendments made by this Schedule apply to invitations made by 26 the Migration Review Tribunal and the Refugee Review Tribunal on or 27 after the commencement of this Schedule. 28 4 Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008 [Page Break] 1 2 Schedule 2--Amendments relating to judicial 3 review 4 5 Migration Act 1958 6 1 Subsection 477(1) 7 Omit "28 days of the actual (as opposed to deemed) notification of the 8 decision", substitute "35 days of the date of the migration decision". 9 2 Subsections 477(2), (3) and (4) 10 Repeal the subsections, substitute: 11 (2) The Federal Magistrates Court may, by order, extend that 35 day 12 period as the Federal Magistrates Court considers appropriate if: 13 (a) an application for that order has been made in writing to the 14 Federal Magistrates Court specifying why the applicant 15 considers that it is necessary in the interests of the 16 administration of justice to make the order; and 17 (b) the Federal Magistrates Court is satisfied that it is necessary 18 in the interests of the administration of justice to make the 19 order. 20 (3) In this section: 21 date of the migration decision means: 22 (a) in the case of a migration decision made under subsection 23 43(1) of the Administrative Appeals Tribunal Act 1975--the 24 date of the written decision under that subsection; or 25 (b) in the case of a written migration decision made by the 26 Migration Review Tribunal or the Refugee Review 27 Tribunal--the date of the written statement under subsection 28 368(1) or 430(1); or 29 (c) in the case of an oral migration decision made by the 30 Migration Review Tribunal or the Refugee Review 31 Tribunal--the date of the oral decision; or 32 (d) in any other case--the date of the written notice of the 33 decision or, if no such notice exists, the date that the Court 34 considers appropriate. Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008 5 [Page Break] 1 (4) For the purposes of subsection (1), the 35 day period begins to run 2 despite a failure to comply with the requirements of any of the 3 provisions mentioned in the definition of date of the migration 4 decision in subsection (3). 5 (5) To avoid doubt, for the purposes of subsection (1), the 35 day 6 period begins to run irrespective of the validity of the migration 7 decision. 8 3 Subsection 477A(1) 9 Omit "28 days of the actual (as opposed to deemed) notification of the 10 decision", substitute "35 days of the date of the migration decision". 11 4 Subsections 477A(2), (3) and (4) 12 Repeal the subsections, substitute: 13 (2) The Federal Court may, by order, extend that 35 day period as the 14 Federal Court considers appropriate if: 15 (a) an application for that order has been made in writing to the 16 Federal Court specifying why the applicant considers that it 17 is necessary in the interests of the administration of justice to 18 make the order; and 19 (b) the Federal Court is satisfied that it is necessary in the 20 interests of the administration of justice to make the order. 21 (3) In this section: 22 date of the migration decision has the meaning given by 23 subsection 477(3). 24 (4) For the purposes of subsection (1), the 35 day period begins to run 25 despite a failure to comply with the requirements of any of the 26 provisions mentioned in the definition of date of the migration 27 decision in subsection 477(3). 28 (5) To avoid doubt, for the purposes of subsection (1), the 35 day 29 period begins to run irrespective of the validity of the migration 30 decision. 31 5 Subsection 486A(1) 32 Omit "28 days of the actual (as opposed to deemed) notification of the 33 decision", substitute "35 days of the date of the migration decision". 6 Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008 [Page Break] 1 6 Subsections 486A(1A), (2) and (3) 2 Repeal the subsections, substitute: 3 (2) The High Court may, by order, extend that 35 day period as the 4 High Court considers appropriate if: 5 (a) an application for that order has been made in writing to the 6 High Court specifying why the applicant considers that it is 7 necessary in the interests of the administration of justice to 8 make the order; and 9 (b) the High Court is satisfied that it is necessary in the interests 10 of the administration of justice to make the order. 11 (3) In this section: 12 date of the migration decision has the meaning given by 13 subsection 477(3). 14 (4) For the purposes of subsection (1), the 35 day period begins to run 15 despite a failure to comply with the requirements of any of the 16 provisions mentioned in the definition of date of the migration 17 decision in subsection 477(3). 18 (5) To avoid doubt, for the purposes of subsection (1), the 35 day 19 period begins to run irrespective of the validity of the migration 20 decision. 21 7 Application 22 (1) The amendments made by this Schedule apply to applications under 23 section 477, 477A or 486A of the Migration Act 1958 made on or after 24 the commencement of this Schedule. 25 (2) If the application relates to a migration decision made before the 26 commencement of this Schedule, for the purposes of applying 27 sections 477, 477A and 486A of the Migration Act 1958, treat the date 28 of the migration decision as the date of that commencement. 29 Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008 7 [Page Break] 1 2 Schedule 3--Amendments relating to appeals 3 against extension of time decisions 4 5 Migration Act 1958 6 1 At the end of section 476A 7 Add: 8 (3) Despite section 24 of the Federal Court of Australia Act 1976, an 9 appeal may not be brought to the Federal Court from: 10 (a) a judgment of the Federal Magistrates Court that makes an 11 order or refuses to make an order under subsection 477(2); or 12 (b) a judgment of the Federal Court that makes an order or 13 refuses to make an order under subsection 477A(2). 14 (4) Despite section 33 of the Federal Court of Australia Act 1976, an 15 appeal may not be brought to the High Court from a judgment of 16 the Federal Court that makes an order or refuses to make an order 17 under subsection 477A(2). 18 (5) In this section: 19 judgment has the same meaning as in the Federal Court of 20 Australia Act 1976. 21 2 Application 22 The amendment made by this Schedule applies to judgments made on 23 or after the commencement of this Schedule that make an order or 24 refuse to make an order under subsection 477(2) or 477A(2) of the 25 Migration Act 1958. 8 Migration Legislation Amendment Bill (No. 2) 2008 No. , 2008