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Chaaya, Michael --- "Proposed Changes to the Review of Migration Decisions: Sensible Reform Agenda or Political Expediency?" [1997] SydLawRw 28; (1997) 19(4) Sydney Law Review 547



[*] BEc (Hons), Final Year Student 1997, Faculty of Law, University of Sydney. This article is an edited version of a more detailed paper presented to the Senate Legal and Constitutional Legislation Committee in October 1997. Dr Mary Crock gave me the necessary guidance to prepare the paper. I am grateful for this and the ongoing assistance which was a regular feature of many discussions with her. I also wish to thank my fiancee, Michelle Rowland for her useful comments and suggestions on earlier drafts of this article. Any errors which remain belong to me.

[1] See Joint Standing Committee on Migration, The Immigration Review Tribunal Appointments Process (1994) Australian Government Publishing Service, Canberra. See also the discussion below at nn63-68.

[2] See Table 1 below at n12 and footnote (a) in Table 2 below.

[3] On this issue, see Crock, M, Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill [1996] SydLawRw 14; (1996) 18 Syd LR 267.

[4] See Ruddock, P, MP. Sweeping changes to refugee and immigration decision making, Press Release (Minister for Immigration and Multicultural Affairs), MPS 28/97, 20 March 1997.

[5] The Senate recently rejected a disallowance motion to these amendments moved by Senator Margetts, effectively leaving the amended regulations intact. See Migration Regulations, Commonwealth Parliamentary Debates, House of Representatives, 1 September 1997 at P5910 P5919.

[6] Although the changes were initially contained in Migration Legislation Amendment Bill (No. 4) 1997 (hereinafter Bill No. 4), this Bill was later divided in two. Bill No. 4 retains the proposals relating to merits review. Migration Legislation Amendment Bill (No. 5) 1997 (hereinafter Bill No. 5) provides for the introduction of a privative clause in the Migration Act 1958 (Cth).

[7] Whilst the article focuses on merits review of migration decisions, it will also look briefly at the proposed changes to judicial review of migration decision-making.

[8] In 1989, following a series of community consultations, the Government introduced a comprehensive codification of the Migration Act 1958 (Cth). This codified the law and policy in the migration area, established a two-tiered system for review on the merits, and created a special regime for the judicial review of migration decisions. For a more detailed account of the amendments see Cooney, S, The Codification of Migration Policy: Excess Rules? Part I, (1994a) 1 AJ Admin L 125; Cooney, S, The Codification of Migration Policy: Excess Rules? Part II (1994b) 1 AJ Admin L 181; and Appudurai, R, Amendments to the Migration Act 1958: an overview (1994) 68 L Int J 853.

[9] For an interesting account of the short history of merits review of refugee determinations see Chetty, S, The Refugee Review Tribunal Facilitating Australias Compliance with its Obligations Under the Refugees Convention, in Retreating from the Refugee Convention Conference Proceedings, 7-10 February 1997, Northern Territory University, Darwin.

[10] MIROs jurisdiction is outlined in ss337-338 of the Migration Act 1958. In short, most decisions made in Australia to refuse a visa are reviewable by MIRO. Decisions to refuse a visa made outside are reviewable decisions if the visa required a nomination or sponsorship and this was lodged; or the visa required that the applicant has been an Australian permanent resident, and a relative (parent, spouse, child, brother or sister) of the visa applicant is an Australian citizen or permanent resident; or the applicant applied for a visitor visa and they have relatives in Australia who were mentioned on the application form (s338). Most concessional family visa applications are also reviewable by MIRO.

[11] Department of Immigration and Multicultural Affairs, Annual Report 1995-96 at 52.

[12] This data is taken from Department of Immigration and Ethnic Affairs, Annual Report 1994-95 and Department of Immigration and Multicultural Affairs, Annual Report 1995-96.

[13] The IRTs jurisdiction is found in s346 of the Migration Act 1958.

[14] This new measure is discussed in greater detail below nn22-24.

[15] See Section 4 below, entitled One Review Body or Separate Tribunals?: Refugee Law and Migration Decision-Making.

[16] See Migration Regulations regs 4.04(1) and 4.13(1), amended as part of Statutory Rules 1997 (Nos. 109 and 185).

[17] Rubenstein, K, Citizenship as Democratic Participation and Exclusion: The High Courts Approach to Judicial Review and Refugees in Retreating from the Refugee Convention Conference Proceedings, 7-10 February 1997, Northern Territory University, Darwin.

[18] Ibid.

[19] On 1 September 1994 Part 8 of the Migration Act was introduced in order to limit the jurisdiction of the Federal Court in reviewing migration decisions. For a sophisticated critique of Part 8, see Crock, M, Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill [1996] SydLawRw 14; (1996) 18 Syd LR 267.

[20] There is no cost involved in seeking merits review through the Social Security Appeals Tribunal, Veterans Review Board or Child Support Review Office. A $300.00 application fee applies to the AAT but this is not payable by certain groups of applicants such as students, prisoners and social security recipients, and the Registrar has a discretion to waive the fee in cases of demonstrated hardship.

[21] See below nn323-3.

[22] See Migration Regulations reg 4.31B, a new regulation as part of Statutory Rules 1997 (Nos. 109 and 185).

[23] On this subject see Crock, above footnote (a) in Table 2.

[24] See the useful discussion of this issue by Crock, M, Apart from us or a part of us?: Immigrants Rights, Public Opinion and the Rule of Law (forthcoming) International Journal of Refugee Law; and Millbank, A, Boat people from China and Chinas one child policy: the refugee issues (1994/95) Parliamentary Research Papers (Social Policy Group) 25, 21 June 1995.

[25] See Migration Regulations, Schedule 2 Parts 010, 020, 030, 050, 051, amended as part of Statutory Rules 1997 (Nos. 109 and 185).

[26] See Migration Regulations regs 4.02, 4.10, amended as part of Statutory Rules 1997 (Nos. 109 and 185).

[27] See, for example, Ruddock, P, MP. Government to limit refugee and immigration litigation, Press Release (Minister for Immigration & Multicultural Affairs), MPS 32/97, 25 March 1997; and Ruddock, P, MP. Measures to discourage abuse of refugee applications, Press Release (Minister for Immigration & Multicultural Affairs), MPS 62/97, 25 June 1997.

[28] The statistics on appeal rates from the tribunals to the courts show that this objective has clearly not been met. According to a recent Ministerial Press Release, there are currently 623 cases being litigated in the immigration portfolio, of which 422 concern on-shore refugee decisions; above n4.

[29] Crock, M, Climbing Jacobs Ladder: The High Court and the Administrative Detention of Asylum Seekers in Australia [1993] SydLawRw 27; (1993) 15 Syd LR 338 at 353.

[30] See below n62.

[31] This requirement is currently under review; see the comments of Chetty, above n9.

[32] See Bill No. 4, Schedule 2 Migration Review Tribunal.

[33] See Committee for the Review of the System for Review of Migration Decisions, Non- Adversarial Review of Migration Decisions: The Way Forward (1992) Australian Government Publishing Service, Canberra at 47-52.

[34] This proposal is located in Bill No. 4, Schedule 1 MRT-reviewable decisions, proposed ss 359-360 and Schedule 3 Refugee Review Tribunal, proposed ss420A, 422A, 424, 424A, 424B, 424C, 425.

[35] This proposal is located in Bill No. 4, Schedule 1 MRT-reviewable decisions, proposed ss353A(2) 353A(4), 355A; and Schedule 3 Refugee Review Tribunal, proposed s429A.

[36] Crock makes a similar comment, above footnote (a) in Table 2. The omission of a hearing code is to be contrasted with the Code of procedures for dealing fairly, efficiently and quickly with visa applications in Part 2, Subdivision 3AB of the Migration Act 1958 (Cth).

[37] The IRP was an administrative arrangement with no statutory foundation with members appointed by the Minister as individuals with sometimes little or no migration experience. Applicants were only ever afforded a paper hearing and there was no further review right following IRP review except for judicial review on points of law. The IRP was also rightly criticised for lacking any true independence from the Department, having extremely narrow categories of review and a review process which was extremely lengthy, generating common delays. See generally, Rodgers, T and Short, G, The impact of administrative law: immigration and the Immigration Review Tribunal I in McMillan, J (ed), Administrative Law: Does the Public Benefit? Proceedings of the Australian Institute of Administrative Law Forum (1992) at 243.

[38] Similar to the IRPs, the RSRC did not afford applicants an oral hearing and a number of criticisms were made of its operations which mirrored the difficulties of the IRPs referred to above. Additionally, the RSRC proved to be a highly inefficient operation, creating a backlog of some 5000 review applications when the RRT eventually began its work in July 1993. See Chetty, S, The Refugee Review Tribunal Facilitating Australias Compliance with its Obligations Under the Refugees Convention, in Retreating from the Refugee Convention Conference Proceedings, 7-10 February 1997, Northern Territory University, Darwin.

[39] Certoma, L, The Non-Adversarial Administrative Process and the Immigration Review Tribunal (1993) 4 Public LR 4 at 11.

[40] See Migration Legislation Amendment Bill (No 1) 1996, Commonwealth Parliamentary Debates, House of Representatives, 19 June 1996 at 1813, 2279, 2327.

[41] Huttner, R, Re Roberto Raul Tordo; Re Minister for Immigration. Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 1 A J Admin L 54 at 55.

[42] Certoma, above n39 at 9.

[43] See below n47.

[44] See Arthur, E, The Impact of Administrative Law on Humanitarian Decision-Making (1991) 66 Canberra Bull Pub Admin 90.

[45] Above n19.

[46] Ruddock, P, Administrative Law Under the Coalition Government, paper presented at National Administrative Law Forum, National Convention Centre, Canberra, 1-2 May 1997 at 6.

[47] See Bill No. 5, Schedule 1 Judicial Review.

[48] Creyke, R, The Structure of Administrative Review, paper presented at National Administrative Law Forum, National Convention Centre, Canberra, 1-2 May 1997 at 5.

[49] See the recent High Court decision, Darling Casino Limited v NSW Casino Control Authority [1997] HCA 11; (1997) 143 ALR 55 at 74 per Gaudron and Gummow JJ. See also R v Coldham, Ex parte Australian Workers Union [1983] HCA 35; (1983) 153 CLR 415 at 418 per Mason ACJ and Brennan J.

[50] (1992) 110 ALR 97 (hereinafter Chu Kheng Lim).

[51] See Ruddock, above n27. See also Williams, D, AM QC MP, Reform of merits tribunal, Press Release (Attorney-General and Minister for Justice), 20 March 1997 and Merits review tribunals to stay independent, Press Release (Attorney-General and Minister for Justice), 13 July 1997.

[52] ARC Report No 25, Review of Migration Decisions (1986) Australian Government Publishing Service, Canberra at 71.

[53] ARC, Thirteenth Annual Report (1988-89) at paras 8-11.

[54] ARC, Sixteenth Annual Report (1991-92) at paragraph 207.

[55] Committee for the Review of the System for Review of Migration Decisions, Non-Adversarial Review of Migration Decisions: The Way Forward (1992) Australian Government Publishing Service, Canberra at 45-46.

[56] Sidoti, C, Retreating from the Refugee Convention in Retreating from the Refugee Convention Conference Proceedings, 7-10 February 1997, Northern Territory University,4646 Darwin.

[57] Ibid. Indeed, some of the earliest judicial statements on migration law echoed the idea of a sovereign state with the discretion to determine migration status. See, for example, Cheung Teong Toy v Musgrove (1988) XIV VLR 849; Musgrove v Chen Teong Toy [1891] UKLawRpAC 7; [1891] AC 272 at 283; and more recently, Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 110 ALR 97; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272; Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

[58] Joel, A, Australias on-shore humanitarian response (1993) 31 LSJ 48 at 49.

[59] See footnote (a) in Table 2.

[60] ARC Report No 39, Better Decisions: Review of Commonwealth Merits Review Tribunals (1995) Australian Government Publishing Service, Canberra.

[61] A similar argument is developed by Susan Kenny, see her article Review of Commonwealth Merits Review Tribunals (1996) 7 PLR 72.

[62] For example, the Immigration and Refugee Board in Canada, as the name suggests, incorporates both humanitarian and non-humanitarian decisions under the one umbrella. Refugee claimants are dealt with by the Convention Refugee Determination Division, but prior to this a filtering process is undertaken by an immigration officer. As part of the filtering process, a claim is considered inappropriate for further processing if the claimant has already been recognised as a refugee in another country; the claimant has come from a prescribed country in which the applicant could have claimed asylum (the country of first asylum principle); or the claimant is found to have engaged in gross human rights violations. For a useful discussion of the Canadian immigration system see Marrocco, F N and Goslett, H M (eds), The Annotated Immigration Act of Canada (1990).

[63] See Joint Standing Committee on Migration, The Immigration Review Tribunal Appointments Process (1994) Australian Government Publishing Service, Canberra.

[64] Id at 56.

[65] See, eg, Wood, A, Bolkuss cronyism reveals dead hand of Government on the turn The Australian 14 February 1995, and Editorial, Senator Bolkus fails the test The Australian 20 February 1995.

[66] See, eg, Ceresa, M, Overhaul for refugee tribunal The Australian 17 April 1996.

[67] The ARC has made similar comments on this topic, see ARC, Nineteenth Annual Report (1994- 95) at paragraph 2.39.

[68] For a thoughtful discussion of some of these issues, see Legomsky, S H, Courts, Administrative Tribunals and Real Independence: Dangers Ahead for Australia, paper presented at University of Sydney, Faculty of Law, Immigrant Justice: Courts, Tribunals and the Rule of Law, Sydney, 6 June 1997.

[69] Vrachness, J, The impact of administrative law: immigration and the Immigration Review Tribunal I in McMillan, J (ed), Administrative Law: Does the Public Benefit? Proceedings of the Australian Institute of Administrative Law Forum (1992) at 272. Cooneys study into the transformation of migration law cites a number of comments which echo this frustration with the rapid pace of change in the migration portfolio. As one example, a respondent commented: The difficulty of the present system is that it changes so often. It is very difficult for people like me who are giving advice and difficult for people who have to implement them. ... I would like to see a bit more stability in the whole system so you can get abreast of what is going on; see Cooney, S, Transformation of Migration Law (1995) at 74.

[70] This point is a recurring theme in the ARCs recent report Better Decisions: Review of Commonwealth Merits Review Tribunals, above n55.

[71] Cronin, K, A culture of control: an overview of immigration policy-making in Jupp, J and Kabala, M (eds), The Politics of Australian Immigration (1993) at 104.

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