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2004 2005 2006
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (REVIEW PROVISIONS) BILL 2006
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Immigration and Multicultural Affairs,
Senator the Hon Amanda Vanstone)
MIGRATION AMENDMENT (REVIEW PROVISIONS) BILL 2006
OUTLINE
1. The Migration Amendment (Review Provisions) Bill 2006 ("the Bill") amends the
Migration Act 1958 ("the Act") to:
a) allow the Migration Review Tribunal ("the MRT") and the Refugee Review
Tribunal ("the RRT") to give procedural fairness to review applicants, during
a hearing, by allowing the Tribunals to orally give clear particulars of any
information that the Tribunal considers would be the reason, or part of the
reason, for affirming the decision that is under review and invite the applicant
to comment on or respond to the information;
b) provide that the obligation to give an applicant information and invite
comment on or a response to the information does not extend to information
already provided by the applicant to the Department of Immigration and
Multicultural Affairs ("the Department"), as part of the process leading to the
decision under review, other than information that the applicant has given
orally to the Department;
c) provide that if the Tribunals give, orally or in writing, clear particulars of the
information that the Tribunals consider would be the reason or part of the
reason for affirming the decision under review, then the Tribunals must
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;
d) provide that if an applicant is given information at the hearing, the Tribunals
must advise that he or she may seek additional time to comment on or respond
to the information; and
e) provide that if an applicant seeks more time to comment on the information
and the Tribunals consider that the applicant reasonably needs additional time,
the Tribunals must adjourn the review and provide the applicant with that
opportunity.
1. The bill also includes new provisions that ensure that in carrying out the procedures and
requirements regarding the natural justice hearing rule set out in the Act (which continue to
be an exhaustive statement of the natural justice hearing rule), the Tribunals must do so in a
way which is fair and just. This complements subsections 353(1) and 420(1) of the Act,
which provides that in carrying out their functions under the Act, the Tribunals must pursue
the objective of providing a mechanism of review that is fair, just, economical, informal and
quick.
2. Under existing subsections 359A(1) and 424A(1) of the Act, the MRT and RRT have an
obligation to provide review applicants with procedural fairness. The Tribunals must:
· give to the applicant, in the way that the Tribunal considers appropriate in the
circumstances, particulars of any information that the Tribunal considers would be the
reason, or part of the reason, for affirming the decision that is under review;
· ensure, as far as reasonably practicable, that the applicant understands why the
information is relevant to the review; and
· invite the applicant to comment on the information.
1. There are certain exceptions to these requirements, provided in subsections 359A(4) and
424A(3) of the Act. One of these exceptions is that the Tribunal is not required to give to the
applicant information that has already been given by the applicant for the purposes of the
application.
2. The full Federal Court decision of MIMA v Al Shamry [2001] FCA 919 ("Al Shamry") in
July 2001 made it clear that adverse information provided by an applicant to the Department
as part of their visa application or in response to a possible visa cancellation decision was not
covered by the exemption provisions in subsections359A(4) and 424A(3). Accordingly, the
Tribunals are required to put that information to the applicant and invite them to comment.
3. Following Al Shamry, the Tribunals complied with this decision by orally providing any
such adverse information to the applicant for comment during the hearing.
4. In February 2006, the full Federal Court handed down its decision in SZEEU v MIMIA
[2006] FCAFC 2. The Court found that Al Shamry was not plainly wrong and that it should
be followed.
5. In May 2005, in SAAP v MIMIA [2005] HCA 23, the High Court made it clear that the
requirement in sections 359A and 424A to provide the information in writing was not
procedural and had to be strictly complied with by the Tribunals.
6. The cumulative effect of these decisions is that the Tribunals have needed to adopt a very
literal approach to providing applicants with procedural fairness, and this is having
considerable practical ramifications on their operations. For example:
· delays are being caused by matters that have already been covered exhaustively at the
Tribunal hearings, having to be put to the applicants again in writing following the
hearing; and
· information such as passport details, family composition and statutory declarations
provided by the applicant during the process leading to the decision under review, if the
Tribunals are to rely on the information, must be put to the applicant in writing for
comment.
1. Subsequent judicial comment on the effect of this very literal interpretation has been that
it has led to a highly technical application of the law in circumstances where little or no
practical injustice can be found in the way the Tribunals have dealt with a matter (for
example, Justice Allsop in SZEWL v MIMIA [2006] FCA 968).
2. It has also led to delays in finalising reviews and operational difficulties in the conduct of
reviews impairing the ability of the Tribunals to conduct reviews that are fair, just,
economical, informal and quick.
3. These amendments are designed to ensure that applicants are still provided with
procedural fairness while providing flexibility to the Tribunals in how they meet their
obligations. If the Tribunals do not orally, at the hearing, give applicants clear particulars of
the relevant adverse information and invite them to comment or respond, the Tribunals will
be required to do so in writing. The provisions ensure that an applicant will not be taken by
surprise in this process and will have a reasonable time to comment or respond (including a
requirement for the Tribunal to adjourn the review if the Tribunal considers the applicant
reasonably needs additional time), and that they will be treated fairly and justly.
FINANCIAL IMPACT STATEMENT
There are no new costs. The amendments are likely to result in potential savings for the
Tribunals as unnecessary processes will be avoided.
MIGRATION AMENDMENT (REVIEW PROVISIONS) BILL 2006
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. The short title by which this Act may be cited is the Migration Amendment (Review
Provisions) Act 2006.
Clause 2 Commencement
2. Clause 2 provides that the Act will commence on the day after it receives the Royal
Assent.
Clause 3 Schedule(s)
3. This clause provides that each Act specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned. In addition, 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
Item 1 At the end of section 357A
1. This item inserts new subsection 357A(3) at the end of section 357A.
2. New subsection 357A(3) provides that in applying Division 5 of Part 5 of the Act, the
Migration Review Tribunal ("the MRT") must act in a way that is fair and just.
3. Division 5 relates to the MRT's conduct of its reviews. Subsection 357A(1) provides that
Division 5 is taken to be an exhaustive statement of the requirements of the natural justice
hearing rule in relation to the matters it deals with. New subsection 357A(3) ensures that in
carrying out the procedures and requirements set out in Division 5, which continue to be an
exhaustive statement of the natural justice hearing rule, the MRT must do so in a way which
is fair and just. This complements subsection 353(1) of the Act, which provides that in
carrying out its functions under the Act, the Tribunal must pursue the objective of providing a
mechanism of review that is fair, just, economical, informal and quick.
Item 2 After section 359
4. Currently, section 359A provides that the Migration Review Tribunal ("the MRT") must
give applicants for review particulars of any information that the MRT considers would be
the reason, or a part of the reason, for affirming the decision under review. This must be done
either by a prescribed method for an applicant in detention or by one of the methods specified
in section 379A. As a consequence of the High Court decision in SAAP, section 359A
requires that the MRT must always provide the particulars of the information and the
invitation to comment to the applicant in writing even if the information has already been
covered at hearing.
5. New section 359AA provides a new discretion for the MRT to orally give particulars of
information and invite the applicant to comment on or respond at the time that the applicant
is appearing before the MRT in response to an invitation issued under section 360. This will
complement the MRT's existing obligation under section 359A, in that, if the MRT does not
orally give information and seek comments or a response from an applicant under section
359AA, it must do so in writing, under section 359A. The corollary is that if the MRT does
give clear particulars of the information and seek comments or a response from an applicant
under section 359AA, it is not required to give the particulars under section 359A.
6. Where a review applicant is appearing before the MRT pursuant to an invitation issued
under section 360, new paragraph 359AA(a) provides the MRT with a discretion to give to
the review applicant orally, clear particulars of the information that the MRT considers would
be the reason, or part of the reason, for affirming the decision under review.
7. Section 360 provides that, unless the MRT considers that it will find in the applicant's
favour or the applicant consents to not appear before the MRT, the MRT must invite the
applicant to appear before it to give evidence and present arguments relating to the issues
arising in relation to the decision under review. Section 366 provides that the MRT may
allow the applicant to appear or to give oral evidence before it by telephone, closed-circuit
television or any other means of communication. The MRT is required to appoint an
interpreter if the applicant is not sufficiently proficient in English.
8. New paragraph 359AA(b) provides that if the MRT exercises its discretion to orally
provide clear particulars of the information that it considers would be the reason, or part of
the reason, for affirming the decision under review, then the MRT is obliged to 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.
The MRT is also obliged to orally invite the applicant to comment on or respond to the
information and to advise the applicant that he or she may seek additional time to comment
or respond. If the applicant seeks additional time to comment or respond, the MRT must
adjourn the review, if it considers that the applicant reasonably needs additional time to
comment or respond.
9. In inviting the applicant to comment on or respond to information while the applicant is
appearing before it, the MRT must clearly set out the particulars of information is and why it
is relevant. The applicant can seek clarification and make additional comments. It will enable
the MRT to give clear particulars of information orally at a hearing without also being
required, as is presently the case, to give the same particulars in writing to the applicant after
the hearing. The amendment will facilitate the more efficient conduct of reviews by
improving their quality, timeliness and will reduce the cost of reviews.
10. The amendments will also ensure that applicants are not taken by surprise and are given
time, if necessary, to provide their comments or response.
Item 3 Subsection 359A(1)
11. This item omits the words "subsection (2)" to substitute "subsections (2) and (3)" in
subsection 359A(1).
12. This item provides that subsection 359A(1) is subject to the provisions in subsection
359A(2) and new subsection 359A(3) (inserted by item 7 below). Previously, subsection
359A(1) was only subject to subsection 359A(2).
13. This item also includes a note which provides that the current heading to section 359A
(which reads "Applicant must be given certain information") is omitted and substituted with
the heading "Information and invitation given in writing by Tribunal".
14. The note to item 3 altering the heading to section 359A reinforces the distinction that the
procedures and requirements contained in section 359A only apply to particulars of the
information and invitations to comment that the MRT gives to the applicant in writing.
Item 4 Paragraph 359A(1)(a)
15. Subsection 359A(1) currently provides that the MRT is required to give to the applicant
particulars of the information that it considers would be the reason, or part of the reason, for
affirming the decision under review and ensure, as far as reasonably practicable, that the
applicant understands why the particulars are relevant to the review and invite the applicant
to comment on the information.
16. This item inserts the word `clear' before `particulars' in paragraph 359A(1)(a). It is a
consequential amendment to mirror the wording in new paragraph 359AA(a).
Item 5 Paragraph 359A(1)(b)
17. This item repeals paragraph 359A(1)(b) and replaces it with new paragraph 359A(1)(b)
that mirrors new subparagraph 359AA(b)(i). That is, if the MRT provides particulars of
information to the applicant pursuant to subsection 359A(1), the MRT is obliged to 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.
Item 6 Paragraph 359A(1)(c)
18. This item adds the words "or respond to" after "comment on" in paragraph 359A(1)(c).
19. Paragraph 359A(1)(c) provides that the MRT must, when providing information to an
applicant in writing, invite the applicant to comment on the information. The amendment will
provide that the MRT's invitation must be not only to comment on, but also to respond to, the
information. This is consistent with new subparagraph 359AA(1)(b)(ii), inserted by item 2.
Item 7 After subsection 359A(2)
20. This item inserts new subsection 359A(3).
21. New subsection 359A(3) complements new section 359AA which provides a discretion
for the MRT to give procedural fairness orally to the applicant at the time that the applicant is
appearing before the MRT.
22. Subsection 359A(1) (as amended by items 3, 4, 5 and 6) provides that the MRT is
required to give to the applicant clear particulars of the information that the MRT considers
would be the reason, or part of the reason, for affirming the decision under review; ensure, as
far as reasonably practicable, that the applicant understands why it is relevant to the review
and the consequences of it being relied on; and invite the applicant to comment on or respond
to the information. Subsection 359A(2) sets out how the information and invitation are to be
given.
23. New subsection 359A(3) provides that the MRT is not obliged, under section 359A, to
give particulars of the information to an applicant, nor invite the applicant to comment on or
respond to the information if, at the time the applicant appeared before it, the MRT exercised
its discretion under new section 359AA (inserted by item 2) to orally give clear particulars of
the information and orally invited the applicant to comment on or respond to the information.
24. If the MRT has exercised its discretion under new section 359AA to provide clear
particulars of the information to the applicant orally, it may still choose to provide the
particulars, or part of the particulars, and the invitation to comment on or respond to the
information, to the applicant in writing, under section 359A.
Item 8 Paragraph 359A(4)(b)
25. This item inserts the words "for review" after the word "application" in paragraph
359A(4)(b) so that that paragraph now reads "that the applicant gave for the purpose of the
application for review".
26. This item clarifies that the MRT is not bound to give to the applicant information that the
applicant themself already gave for the purposes of their application for review by the MRT.
27. This item reinforces the distinction between information covered under paragraph
359A(4)(b) and information that is covered by new paragraph 359(4)(ba) inserted by item 9
of this bill.
Item 9 After paragraph 359A(4)(b)
28. This item inserts new paragraph 359A(4)(ba) into subsection 359A(4).
29. Subsection 359A(1) (as amended by items 3, 4, 5 and 6) provides that the MRT is
required to give to the applicant clear particulars of the information that the MRT considers
would be the reason, or part of the reason, for affirming the decision under review; ensure, as
far as reasonably practicable, that the applicant understands why the particulars are relevant
to the review and the consequences of it being relied on; and invite the applicant to comment
on or respond to the information. Subsection 359A(2) sets out how the information and
invitation are to be given.
30. Subsection 359A(4) provides that certain classes of information are excepted from the
requirement in subsection 359A(1).
31. New paragraph 359A(4)(ba) provides for a new class of information that is excepted
from the requirements of subsection 359A(1). The MRT will not be required to give to the
applicant information that the applicant has given during the process that led to the decision
that is under review, unless it was information provided orally by the applicant to the
Department.
32. This includes, for example, written information provided to the Department by the
applicant as part of their visa application (where it is the decision to refuse that application
which is under review by the MRT), or in response to a notice of intended visa cancellation
(where the subsequent visa cancellation is under review).
33. For example, an applicant might have provided a copy of their passport to the
Department in support of a visa application but not to the MRT in support of their review
application. Because the MRT receives the applicant's file from the Department, the MRT
will have the copy of the passport. If there is information in that passport that would be a part
of the reason for the MRT to affirm the decision under review, the MRT is not required to
inform the applicant of the particulars of the information in the passport, because the
applicant had already provided that passport.
34. The exception provided by new paragraph 359A(4)(ba) does not extend to information
that the applicant has provided orally to the Department. This would include information
provided by the applicant as part of interviews with the Department for the purposes of
applying for a visa or in response to a possible visa cancellation decision or information
provided to the Department as part of some other process (for example, an interview with a
Departmental officer at an airport about the applicant's entry into Australia). Such
information is typically not recorded verbatim.
Item 10 Paragraph 359B(1)(b)
35. This item adds the words "or respond to" after "comment on" in paragraph 359B(1)(b).
This is a technical amendment, consequential to the amendment made by item 6 to paragraph
359A(1)(c).
36. The note to this item provides that the heading to section 359B, which reads "Invitation
to give additional information or comments", is omitted and replaced by the heading
"Requirements for written invitation etc".
Item 11 Subsection 359B(1)
37. This item adds the words "or the response," after "or the comments" in subsection
359B(1). This is a technical amendment, consequential to the amendment made by item 10 to
paragraph 359B(1)(b).
Item 12 Subsection 359B(2)
38. This item adds the words "or a response" after "or comments" (first occurring) in
subsection 359B(2). This is a technical amendment, consequential to the amendment made by
item 6 to paragraph 359A(1)(c).
Item 13 Subsection 359B(2)
39. This item omits the words "or comments" (second occurring) in subsection 359B(2), and
substitutes the words "or the comments or the response". This is a technical amendment,
consequential to the amendment made by item 12 to subsection 359B(2).
Item 14 Subsection 359B(3)
40. This item adds the words "or a response" after "or comments" in subsection 359(3). This
is a technical amendment, consequential to the amendment made by item 6 to paragraph
359A(1)(c).
Item 15 Paragraph 359C(2)(a)
41. This item adds the words "or respond to" after "comment on" in paragraph 359C(2)(a).
This is a technical amendment, consequential to the amendment made by item 6 to paragraph
359A(1)(c).
42. The note to this item provides that the heading to section 359C, which reads "Failure to
give additional information or comments", is changed to "Failure to give additional
information or comments or response in response to written invitation".
Item 16 Paragraph 359C(2)(b)
43. This item adds the words "or the response" after "the comments" in paragraph
359C(2)(b). This is a technical amendment, consequential to the amendment made by item 15
to paragraph 359C(2)(a).
Item 17 At the end of section 422B
44. This item inserts new subsection 422B(3) at the end of section 422.
45. New subsection 422B(3) provides that in applying Division 4 of Part 7 of the Act, the
Refugee Review Tribunal ("the RRT") must act in a way that is fair and just.
46. Division 4 relates to the RRT's conduct of its reviews. Subsection 422B(1) provides that
Division 4 is taken to be an exhaustive statement of the requirements of the natural justice
hearing rule in relation to the matters it deals with. New subsection 422B(3) ensures that in
carrying out the procedures and requirements set out in Division 4, which continue to be an
exhaustive statement of the natural justice hearing rule, the RRT must do so in a way which
is fair and just. This complements subsection 420(1) of the Act, which provides that in
carrying out its functions under the Act, the RRT must pursue the objective of providing a
mechanism of review that is fair, just, economical, informal and quick.
Item 18 After section 424
47. Currently, section 424A provides that the Refugee Review Tribunal ("the RRT") must
give applicants for review particulars of any information that the RRT considers would be the
reason, or a part of the reason, for affirming the decision under review. This must be done
either by a prescribed method for an applicant in detention or by one of the methods specified
in section 379A. As a consequence of the High Court decision in SAAP, section 424A
requires that the RRT must always provide the particulars of the information and the
invitation to comment to the applicant in writing even if the information has already been
covered at hearing.
48. New section 424AA provides a new discretion for the RRT to orally give information
and invite an applicant to comment on or respond to the information at the time that the
applicant is appearing before the RRT in response to an invitation issued under section 425.
This will complement the RRT's existing obligation under section 424A, in that, if the RRT
does not orally give information and seek comments or a response from an applicant under
section 424AA, it must do so in writing, under section 424A. The corollary is that if the RRT
does give clear particulars of the information and seek comments or a response from an
applicant under section 424AA, it is not required to give the particulars under section 424A.
49. Where a review applicant is appearing before the RRT pursuant to an invitation issued
under section 425, new paragraph 424AA(a) provides the RRT with a discretion to give to
the review applicant orally, clear particulars of the information that the RRT considers would
be the reason, or part of the reason, for affirming the decision under review.
50. Section 425 provides that, unless the RRT considers that it will find in the applicant's
favour or the applicant consents to not appear before the RRT, the RRT must invite the
applicant to appear before the RRT to give evidence and present arguments relating to the
issues arising in relation to the decision under review. Section 429A provides that the RRT
may allow the applicant to appear or to give oral evidence before it by telephone, closed-
circuit television or any other means of communication. The RRT is required to appoint an
interpreter if the applicant is not sufficiently proficient in English.
51. New paragraph 424AA(b) provides that if the RRT exercises its discretion to orally
provide clear particulars of the information that it considers would be the reason, or part of
the reason, for affirming the decision under review, then the RRT is obliged to 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.
The RRT is also obliged to orally invite the applicant to comment on or respond to the
information and to advise the applicant that he or she may seek additional time to comment
or respond. If the applicant seeks additional time to comment or respond, the RRT must
adjourn the review, if it considers that the applicant reasonably needs additional time to
comment or respond.
52. In inviting the applicant to comment on or respond to information while the applicant is
appearing before it, the RRT must clearly set out what the information is and why it is
relevant. The applicant can seek clarification and make additional comments. It will enable
the RRT to give clear particulars of information orally at a hearing without also being
required, as is presently the case, to give the same particulars in writing to the applicant after
the hearing. The amendment will facilitate the more efficient conduct of reviews by
improving their quality, timeliness and will reduce the cost of reviews.
The amendments will also ensure that applicants are not taken by surprise and are given time,
if necessary, to provide their comments or response.
Item 19 Subsection 424A(1)
53. This item omits the words "subsection (3)" to substitute "subsections (2A) and (3)" in
subsection 424A(1).
54. This item provides that subsection 424A(1) is subject to the provisions in subsection
424A(3) and new subsection 424A(2A) (inserted by item 23 below). Previously, subsection
424A(1) was only subject to subsection 424A(2).
55. This item also includes a note which provides that the current heading to section 424A
(which reads "Applicant must be given certain information") is omitted and substituted with
the heading "Information and invitation given in writing by Tribunal".
56. The note to item 19 altering the heading to section 424A reinforces the distinction that
the procedures and requirements contained in section 424A only apply to particulars of the
information and invitations to comment that the RRT gives to the applicant in writing.
Item 20 Paragraph 424A(1)(a)
57. Subsection 424A(1) currently provides that the RRT is required to give to the applicant
particulars of the information that the RRT considers would be the reason, or part of the
reason, for affirming the decision under review and ensure, as far as reasonably practicable,
that the applicant understands why the particulars are relevant to the review and invite the
applicant to comment on the information.
58. This item inserts the word `clear' before `particulars' in paragraph 424A(1)(a). It is a
consequential amendment to mirror the wording in new paragraph 424AA(a).
Item 21 Paragraph 424A(1)(b)
59. This item repeals paragraph 424A(1)(b) and replaces it with new paragraph 424A(1)(b)
that mirrors new subparagraph 424AA(b)(i). That is, if the RRT provides particulars of
information to the applicant pursuant to subsection 424A(1), the RRT is obliged to 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.
Item 22 Paragraph 424A(1)(c)
60. This item adds the words "or respond to" after "comment on" in paragraph 424A(1)(c).
61. Paragraph 424A(1)(c) provides that the RRT must, when providing particulars of
information to an applicant in writing, invite the applicant to comment on the information.
The amendment will provide that the RRT's invitation must be not only to comment on, but
also to respond to, the information. This is consistent with new subparagraph 424AA(b)(ii),
inserted by item 18.
Item 23 After subsection 424A(2)
62. This item inserts new subsection 424A(2A).
63. New subsection 424A(2A) complements new section 424AA which provides a discretion
for the RRT to give procedural fairness orally to the applicant at the time that the applicant is
appearing before it.
64. Subsection 424A(1) (as amended by items 19, 20, 21 and 22) provides that the RRT is
required to give to the applicant clear particulars of the information that the RRT considers
would be the reason, or part of the reason, for affirming the decision under review; 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 upon; and invite the applicant to comment on or
respond to the information. Subsection 424A(2) sets out how the information and invitation
are to be given..
65. New subsection 424A(2A) provides that the RRT is not obliged, under section 424A, to
give particulars of the information to an applicant, nor invite the applicant to comment on or
respond to the information if, at the time the applicant appeared before it, the RRT exercised
its discretion under new section 424AA (inserted by item 18) to orally give clear particulars
of the information and orally invited the applicant to comment on or respond to the
information.
66. If the RRT has exercised its discretion under new section 424AA to provide clear
particulars of the information to the applicant orally, the RRT may still choose to provide the
particulars, or part of the particulars, and the invitation to comment on or respond to them, to
the applicant in writing, under section 424A.
Item 24 Paragraph 424A(3)(b)
67. This item inserts the words "for review" after the word "application" in paragraph
424A(3)(b) so that that paragraph now reads "that the applicant gave for the purpose of the
application for review".
68. This item clarifies that the RRT is not bound to give to the applicant information that the
applicant themself already gave for the purposes of their application for review by the RRT.
69. This item reinforces the distinction between information covered under paragraph
424A(3)(b) and information that is covered by new paragraph 424(3)(ba) inserted by item 25
of this bill.
Item 25 After paragraph 424A(3)(b)
70. This item inserts new paragraph 424A(3)(ba) into subsection 424A(3).
71. Subsection 424A(1) (as amended by items 19, 20, 21 and 22) provides that the RRT is
required to give to the applicant clear particulars of the information that the RRT considers
would be the reason, or part of the reason, for affirming the decision under review; ensure, as
far as reasonably practicable, that the applicant understands why the particulars are relevant
to the review and the consequences of it being relied upon; and invite the applicant to
comment on or respond to the information. Subsection 424A(2) sets out how the information
and invitation are to be given.
72. Subsection 424A(3) provides that certain classes of information are excepted from the
requirement in subsection 424A(1).
73. New paragraph 424A(3)(ba) provides for a new class of information that is excepted
from the requirements of subsection 424A(1). The RRT will not be required to give to the
applicant information that the applicant has given during the process that led to the decision
that is under review, unless it was information provided orally by the applicant to the
Department.
74. This includes, for example, written information provided to the Department by the
applicant as part of their visa application (where it is the decision to refuse that application
which is under review by the RRT), or in response to a notice of intended visa cancellation
(where the subsequent visa cancellation is under review).
75. For example, an applicant might have provided a copy of their passport to the
Department in support of a visa application but not to the RRT in support of their review
application. Because the RRT receives the applicant's file from the Department, the RRT will
have the copy of the passport. If there is information in that passport that would be a part of
the reason for the RRT to affirm the decision under review, the RRT is not required to inform
the applicant of the particulars of the information in the passport, because the applicant had
already provided that passport.
76. The exception provided by new paragraph 424A(3)(ba) does not extend to information
that the applicant has provided orally to the Department. This would include information
provided by the applicant as part of interviews with the Department for the purposes of
applying for a visa or in response to a possible visa cancellation decision or information
provided to the Department as part of some other process (for example, an interview with a
Departmental officer at an airport about the applicant's entry into Australia). Such
information is typically not recorded verbatim.
Item 26 Paragraph 424B(1)(b)
77. This item adds the words "or respond to" after "comment on" in paragraph 424B(1)(b).
This is a technical amendment, consequential to the amendment made by item 22 to
paragraph 424A(1)(c).
78. The note to this item provides that the heading to section 424B, which reads "Invitation
to give additional information or comments", is omitted and replaced by the heading
"Requirements for written invitation etc".
Item 27 Subsection 424B(1)
79. This item adds the words "or the response," after "or the comments" in subsection
424B(1). This is a technical amendment, consequential to the amendment made by item 26 to
paragraph 424B(1)(b).
Item 28 Subsection 424B(2)
80. This item adds the words "or a response" after "or comments" (first occurring) in
subsection 424B(2). This is a technical amendment, consequential to the amendment made by
item 22 to paragraph 424A(1)(c).
Item 29 Subsection 424B(2)
81. This item omits the words "or comments" (second occurring) in subsection 424B(2), and
substitutes the words "or the comments or the response". This is a technical amendment,
consequential to the amendment made by item 28 to subsection 424B(2).
Item 30 Subsection 424B(3)
82. This item adds the words "or a response" after "or comments" in subsection 424B(3).
This is a technical amendment, consequential to the amendment made by item 22 to
paragraph 424A(1)(c).
Item 31 Paragraph 424C(2)(a)
83. This item adds the words "or respond to" after "comment on" in paragraph 424C(2)(a).
This is a technical amendment, consequential to the amendment made by item 22 to
paragraph 424A(1)(c).
84. The note to this item provides that the heading to section 424C, which reads "Failure to
give additional information or comments", is changed to "Failure to give additional
information or comments or response in response to written invitation".
Item 32 Paragraph 424C(2)(b)
85. This item adds the words "or the response" after "the comments" in paragraph
424C(2)(b). This is a technical amendment, consequential to the amendment made by item 31
to paragraph 424C(2)(a).
Item 33 Application
86. This item provides for the application of the amendments in Schedule 1.
87. Paragraph 33(a) provides that the amendments made by this Act apply to an application
for review of an MRT-reviewable decision made under section 347 of the Act which is made
after item 33 commences.
88. Paragraph 33(b) provides that the amendments made by this Act apply to an application
for review of an RRT-reviewable decision made under section 412 of the Act which is made
after item 33 commences.
89. Clause 2 provides that this Act (which includes item 33) commences on the day after the
Act receives the Royal Assent.
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