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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (PROTECTION AND OTHER MEASURES)
BILL 2014
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Border Protection,
the Hon. Peter Dutton MP)
1
Migration Amendment (Protection and Other Measures) Bill 2014
The purpose of this addendum is to provide additional material to the Explanatory
Memorandum to the Migration Amendment (Protection and Other Measures) Bill 2014. This
addendum responds to a request by the Senate Standing Committee for the Scrutiny of Bills
in its Tenth Report of 2014 (27 August 2014) and questions that have arisen in relation to
certain measures in this Bill as it has progressed through the Senate.
Schedule 1, item 5, section 91W
After paragraph 38 on page 10, insert the following paragraphs:
The Government accepts there are exceptional circumstances which may prevent an
applicant for a protection visa from providing documentary evidence of identity,
nationality or citizenship; for instance, the circumstances of some stateless people.
The requirement that the applicant ,,has taken reasonable steps has been included to
accommodate these circumstances. Examples of what may constitute having taken
reasonable steps may include:
Contacting family and friends in their home country to obtain existing
documentary evidence of identity, nationality or citizenship;
Obtaining documentary evidence of identity, nationality or citizenship from the
authorities of their home country where the applicant is claiming harm from a
non-State actor (for example, an organised criminal group);
Obtaining documentary evidence of identity, nationality or citizenship from a safe
third country where they may have previously resided for a period of time.
It would not be considered a reasonable step for an applicant to approach the
authorities of the country from which they fear state persecution.
In determining whether the applicant has met the threshold of having taken reasonable
steps to produce documentary evidence of his or her identity, nationality or
citizenship under paragraph 91W3(b)(ii) and 91WA(2)(b)(ii), factors that will be
considered include but are not limited to:
the potential for detriment to be caused to the applicant or another individual by
attempting to produce such evidence; and
undue financial burden to the applicant or another individual arising from
attempting to produce such evidence.
2
Schedule 1, item 10, section 91W
After paragraph 48 on page 11, insert the following paragraphs:
The Government accepts there are exceptional circumstances which may prevent an
applicant for a protection visa from providing documentary evidence of identity,
nationality or citizenship; for instance, the circumstances of some stateless people.
The requirement that the applicant ,,has taken reasonable steps has been included to
accommodate these circumstances. Examples of what may constitute having taken
reasonable steps may include:
Contacting family and friends in their home country to obtain existing
documentary evidence of identity, nationality or citizenship;
Obtaining documentary evidence of identity, nationality or citizenship from the
authorities of their home country where the applicant is claiming harm from a
non-State actor (for example, an organised criminal group);
Obtaining documentary evidence of identity, nationality or citizenship from a safe
third country where they may have previously resided for a period of time.
It would not be considered a reasonable step for an applicant to approach the
authorities of the country from which they fear state persecution.
In determining whether the applicant has met the threshold of having taken reasonable
steps to produce documentary evidence of his or her identity, nationality or
citizenship under paragraph 91W3(b)(ii) and 91WA(2)(b)(ii), factors that will be
considered include but are not limited to:
the potential for detriment to be caused to the applicant or another individual by
attempting to produce such evidence; and
undue financial burden to the applicant or another individual arising from
attempting to produce such evidence.
Schedule 1, item 11, section 91WA
After paragraph 55 on page 12, insert the following paragraphs:
The Government accepts there are exceptional circumstances which may prevent an
applicant for a protection visa from providing documentary evidence of identity,
nationality or citizenship; for instance, the circumstances of some stateless people.
The requirement that the applicant ,,has taken reasonable steps has been included to
accommodate these circumstances. Examples of what may constitute having taken
reasonable steps may include:
3
Contacting family and friends in their home country to obtain existing
documentary evidence of identity, nationality or citizenship;
Obtaining documentary evidence of identity, nationality or citizenship from the
authorities of their home country where the applicant is claiming harm from a
non-State actor (for example, an organised criminal group);
Obtaining documentary evidence of identity, nationality or citizenship from a safe
third country where they may have previously resided for a period of time.
It would not be considered a reasonable step for an applicant to approach the
authorities of the country from which they fear state persecution.
In determining whether the applicant has met the threshold of having taken reasonable
steps to produce documentary evidence of his or her identity, nationality or
citizenship under paragraph 91W3(b)(ii) and 91WA(2)(b)(ii), factors that will be
considered include but are not limited to:
the potential for detriment to be caused to the applicant or another individual by
attempting to produce such evidence; and
undue financial burden to the applicant or another individual arising from
attempting to produce such evidence.
Schedule 1, item 14, section 423A
At the end of item 14 on page 14, insert the following paragraphs:
The intention of this provision is to enable timely, efficient and quality protection
outcomes by discouraging late claims. This measure benefits all applicants with
genuine claims to protection in Australia. Early and full presentation of claims and
supporting evidence allows people entitled to protection to be recognised at the
earliest opportunity.
Encouraging all claims to be presented at the earliest opportunity is consistent with
guidelines issued by the United Nations High Commissioner for Refugees
(,,UNHCR). The current UNHCR Handbook and Guidelines on Procedures and
Criteria for Determining Refugee Status state that an applicant should "assist the
examiner in full in establishing the facts of his case" and "supply all pertinent
information ... in as much detail as is necessary" to enable relevant facts to be
established (paragraph 205, page 40, December 2011).
Proposed section 423A does not limit the RRT to the facts and evidence before the
original decision-maker. Rather, it clarifies the manner in which the RRT is to
consider any new claims and evidence presented to it. Applicants may continue to
introduce new claims and evidence to support their application at the review stage.
However, if the RRT is satisfied that there is not a reasonable explanation for not
4
providing the information at the primary stage, the Tribunal will draw an inference
unfavourable to the credibility of the new claims or evidence raised.
Similarly, section 423A does not allow or require the RRT to disregard new claims or
evidence. All claims and evidence presented must be considered and evaluated. It is
only once all claims and evidence have been considered that a Tribunal member can
determine whether an applicants explanation for presenting new claims or evidence
is reasonable.
The general principles of administrative law and reasonable decision-making apply
and the RRT will consider what is reasonable in all of the circumstances of the case.
A reasonable explanation may include, but is not limited to:
no reasonable opportunity to present the claim, e.g. interpreting or translating
error made in the primary stage of the application;
a change in the country situation affecting human rights occurred after the primary
decision was made;
new information relevant to the application became available, e.g. new
documentary evidence of identity was forthcoming from the authorities in the
home country;
a change in personal circumstances allowing presentation of new claims, e.g. a
new relationship (spouse or child) with a person who has protection claims in their
own right; or
being a survivor of torture and trauma, where the ill-treatment has affected an
applicants ability to recall or articulate persecution claims.
Where a reasonable explanation is not already provided by the applicant, it is open to
the RRT to seek such an explanation. The manner in which that explanation is sought
is a matter for the RRT, in accordance with its Tribunal obligations under sections
424A, 424AA and 425 of the Migration Act.
It is also open to the RRT to determine whether or not a reasonable explanation is
implicit in the new claims or evidence. For instance, there may be a significant change
in the home country. In such cases, the Tribunal member may consider a reasonable
explanation to be self-evident.
Appropriate reference will be made to the applicants explanation in the RRT reasons
for decision.
Where the member of the Tribunal is not satisfied that the explanation provided for
new claims and evidence is reasonable, the applicant will be afforded natural justice,
in accordance with requirements for procedural fairness codified in the Migration Act.
5
Accordingly in drawing an unfavourable inference under the proposed subsection
423A(2), the Tribunal has obligations under section 425 of the Migration Act which
include requiring the Tribunal to:
give the applicant an opportunity to provide a reasonable explanation about the
failure to provide information at the primary stage; and
inform the applicant that a failure to provide such a reasonable explanation will
lead to the drawing of an unfavourable inference.
The Tribunal also has procedural fairness obligations to the applicant under sections
424A and 424AA of the Migration Act.
Schedule 4, item 7, section 353B
After paragraph 223 on page 36, which ends with the following sentence, and before item 8:
The purpose of this provision is therefore to promote consistency in decision-making
between different members of the MRT in relation to common issues and/or the same
or similar facts or circumstances.
Insert the following paragraphs:
Guidance decisions are not intended to go to the conduct of the review, but are
intended to provide guidance on how to decide factual or evidentiary issues that might
arise in review cases. The application of a guidance decision in a direction of the
Principal Member of the MRT depends on whether the facts or circumstances in the
guidance decision can be distinguished from the current matter before the relevant
tribunal. Once those matters of substance are determined, it becomes clear whether or
not the tribunal must follow the direction and apply a decision (the guidance decision)
of the tribunal as a matter of practice. That is, the question of whether a guidance
decision must, as a matter of practice, be applied is resolved. The application of
guidance decisions will align and reduce inconsistencies in decision-making and
increase efficiency of the review process. However, there will be no derogation of the
responsibility of the tribunal to investigate the individual circumstances of an
applicant.
The power of the Principal Member of the MRT to issue guidance decisions is not an
exercise of judicial power. Only the courts stipulated in section 71 of the Constitution
can exercise the judicial power of the Commonwealth.1 A person or body which is
part of the executive government, such as the Principal Member of the MRT, cannot
exercise the judicial power of the Commonwealth. As such, section 353B will involve
the exercise of legislative power by the Principal Member.
1 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
6
A direction of a Principal Member in relation to a guidance decision is not an
instrument for the purposes of the Legislative Instruments Act 2003 (,,the LIA) and is
not subject to disallowance under the LIA. Section 7 of the LIA provides for
instruments declared not to be legislative instruments. Subsection7(1)(a) of the LIA
provides that an instrument is not a legislative instrument for the purposes of the LIA
if it is included in the table in section 7. Item 24 of that table relevantly provides that
instruments that are prescribed by the regulations for the purposes of this table are not
legislative instruments.
Regulation 7 of the Legislative Instruments Regulations 2004 (,,the LIR) provides
that for item 24 of the table in subsection 7(1) of the LIA, and subject to sections 6
and 7 of the LIA, instruments mentioned in Schedule 1 of the LIR are prescribed.
Item 6 of Part 1 of Schedule 1 provides that practice directions made by a court or
tribunal are not legislative instruments. As such, the direction of a Principal Member
in relation to a guidance decision is not an instrument for the purposes of the LIA and
is not subject to disallowance.
Schedule 4, item 11, subsection 362B(1A)
After the following paragraph 245 on page 39:
The purpose of this amendment is to clarify that if the applicant fails to appear before
the MRT in response to an invitation under section 360 of the Migration Act, the MRT
has the option of dismissing the application or making a decision on the review, as is
the case under current subsection 362B(1).
Insert the following paragraphs:
The power to dismiss a review application for non-attendance is not intended to
impact on procedural fairness provisions already codified in the Act. It is intended to
increase tribunal efficiency by providing for a quick resolution of a case where,
despite the accordance of procedural fairness, the applicant for review has not
attended the hearing. Dismissal for failure to attend a hearing is one of three possible
options the MRT may consider for non-attendance by an applicant at a hearing. The
other options are either to proceed to a decision on the review or reschedule the
hearing.
Review applicants will be made aware in the invitation to hearing letter that, if they
do not attend a hearing after being invited to do so, their application may be dismissed
for failing to appear. The MRT will be required to notify the applicant of the decision
to dismiss the application for failure to appear. The notice will also include
information that sets out how the review applicant can seek reinstatement of their
review application within a specified timeframe. Where the MRT reinstates the
7
review application, applicants will be notified that their application is taken never to
have been dismissed and the review will continue.
The MRT is required to afford procedural fairness in accordance with the Migration
Act. The measure does not limit the right set out in the Migration Act to a hearing by
the MRT, rather it provides for a new consequence if the person does not exercise that
right.
The Government notes that there is a strong incentive for merits review to be used by
unsuccessful visa applicants with unmeritorious claims to delay their removal from
Australia. The Government therefore considers that a power enabling review
applications at the MRT to be dismissed for non-attendance at a scheduled hearing
would allow the MRT to focus resources away from matters that are not actively
being pursued by the review applicant.
Schedule 4, item 17, section 368D
After paragraph 302 on page 45, add the following paragraph:
If the MRT makes an oral statement under paragraph 368D(2)(a), the MRT will
advise the applicant at the time of making the oral statement that the applicant can
make a written request within the period prescribed by regulation for the oral
statement to be provided in writing. It is proposed to prescribe a period of 14 days in
the Migration Regulations.
Schedule 4, item 22, section 420B
After paragraph 334 on page 49, which ends with the following sentence, and before item 23:
The purpose of this provision is therefore to promote consistency in decision-making
between different members of the RRT in relation to common issues and/or the same
or similar facts or circumstances.
Insert the following paragraphs:
Guidance decisions are not intended to go to the conduct of the review, but are
intended to provide guidance on how to decide factual or evidentiary issues that might
arise in review cases. The application of a guidance decision in a direction of the
Principal Member of the RRT depends on whether the facts or circumstances in the
guidance decision can be distinguished from the current matter before the relevant
tribunal. Once those matters of substance are determined, it becomes clear whether or
not the tribunal must follow the direction and apply a decision (the guidance decision)
of the tribunal as a matter of practice. That is, the question of whether a guidance
decision must, as a matter of practice, be applied is resolved. The application of
8
guidance decisions will align and reduce inconsistencies in decision-making and
increase efficiency of the review process. However, there will be no derogation of the
responsibility of the tribunal to investigate the individual circumstances of an
applicant.
The power of the Principal Member of the RRT to issue guidance decisions is not an
exercise of judicial power. Only the courts stipulated in section 71 of the Constitution
can exercise the judicial power of the Commonwealth.2 A person or body which is
part of the executive government, such as the Principal Member of the RRT, cannot
exercise the judicial power of the Commonwealth. As such, section 420B will involve
the exercise of legislative power by the Principal Member.
A direction of a Principal Member in relation to a guidance decision is not an
instrument for the purposes of the Legislative Instruments Act 2003 (,,the LIA) and is
not subject to disallowance under the LIA. Section 7 of the LIA provides for
instruments declared not to be legislative instruments. Subsection 7(1)(a) of the LIA
provides that an instrument is not a legislative instrument for the purposes of the LIA
if it is included in the table in section 7. Item 24 of that table relevantly provides that
instruments that are prescribed by the regulations for the purposes of this table are not
legislative instruments.
Regulation 7 of the Legislative Instruments Regulations 2004 (,,the LIR) provides
that for item 24 of the table in subsection 7(1) of the LIA, and subject to sections 6
and 7 of the LIA, instruments mentioned in Schedule 1 of the LIR are prescribed.
Item 6 of Part 1 of Schedule 1 provides that practice directions made by a court or
tribunal are not legislative instruments. As such, the direction of a Principal Member
in relation to a guidance decision is not an instrument for the purposes of the LIA and
is not subject to disallowance.
Schedule 4, item 26, subsection 426A(1A)
After the following paragraph 356 on page 52:
The purpose of this amendment is to clarify that if the applicant fails to appear before
the RRT in response to an invitation under section 425 of the Migration Act, the RRT
has the option of dismissing the application or making a decision on the review, as is
the case under current subsection 426A(1).
2 R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
9
Insert the following paragraphs:
The power to dismiss a review application for non-attendance is not intended to
impact on procedural fairness already codified in the Act. It is intended to increase
tribunal efficiency by providing for a quick resolution of a case where, despite the
accordance of procedural fairness, the applicant for review has not attended the
hearing. Dismissal for failure to attend a hearing is one of three possible options the
RRT may consider for non-attendance by an applicant at a hearing. The other options
are either to proceed to a decision on the review or reschedule the hearing.
Review applicants will be made aware in the invitation to hearing letter that, if they
do not attend a hearing after being invited to do so, their application may be dismissed
for failing to appear. The RRT will be required to notify the applicant of the decision
to dismiss the application for failure to appear. The notice will also include
information that sets out how the review applicant can seek reinstatement of their
review application within a specified timeframe. Where the RRT reinstates the review
application, applicants will be notified that their application is taken never to have
been dismissed and the review will continue.
The RRT is required to afford procedural fairness in accordance with the Migration
Act. The measure does not limit the right set out in the Migration Act to a hearing by
the RRT, rather it provides for a new consequence if the person does not exercise that
right.
The Government notes that there is a strong incentive for merits review to be used by
unsuccessful visa applicants with unmeritorious claims to delay their removal from
Australia. The Government therefore considers that a power enabling review
applications at the RRT to be dismissed for non-attendance at a scheduled hearing
would allow the RRT to focus resources away from matters that are not actively being
pursued by the review applicant.
Schedule 4, item 32, section 430D
After paragraph 413 on page 58, add the following paragraph:
If the RRT makes an oral statement under paragraph 430D(2)(a), the RRT is to advise
the applicant at the time of making the oral statement that the applicant can make a
written request within the period prescribed by regulation for the oral statement to be
provided in writing. It is proposed to prescribe a period of 14 days in the Migration
Regulations.
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