Government reacts to Federal Court decisions with changes to Migration Act

The Government is poised to make changes to the Migration Act 1958 (Cth) after a number of judges and decision makers interpreted the current legislation in such a way that the Minister for Immigration and Boarder Protection, Mr Scott Morrison believed that the “operations” of his department were “significantly affected”.

The Minister for Immigration and Border Protection gave the second reading speech on 12 December 2013 for the Migration Amendment Bill 2013 (Bill). The Bill proposes a number of amendments to the Migration Act 1958 in response to recent court and tribunal decisions regarding the processing of visa applications made by a number of applicants, including asylum seekers.

When a decision is made and meaning of 'finally determined'

Proposed schedule 1 seeks to overcome what the minister referred to as “difficulties and risks” in the administration of the act due to courts and government differing in their interpretation of the sections concerning when a decision is made and finally determined. Whether a decision is finally determined has implications on a number of consequences such as liability for deportation.

The proposed amendments follow the decision in Minister for Immigration and Citizenship v SZQOY [2012] FCAFC 131, in which the Full Federal Court found that the Refugee Review Tribunal's (RRT) decision-making power for a review was not exercised until the review decision was 'irrevocably and externally' notified. The schedule aims to spell out that a decision (for example, a review decision, or a visa refusal, cancellation or revocation decision) by the minister or his or her delegate, is taken to be made on the day and at the time when a record of it is made, and not when the decision is reported or communicated to the application or the former visa holder.

Proposed Schedule 1 also clarifies the meaning of ‘finally determined’ following the Full Federal Court's decision in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY[2013] FCAFC 104. In that case the Full Federal Court extended the judgment in SZQOY and found that an application is 'finally determined'— that is, no longer subject to merits review— only when the review decision of the RRT is notified to both the applicant and the Secretary of the Department of Immigration and Border Protection according to law.

Statutory bar against further Protection visa applications

Schedule 2 seeks to clarify that a person who has previously been refused a protection visa, or who held a protection visa that was cancelled, is forbidden from making any further protection visa applications even if the basis upon which the subsequent protection visa application is different from the previous application(s).

The amendment follows the decision in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71 in which the full Federal Court found that section 48A of the Migration Act only prohibited the making of a protection visa application that relied on the same ground as the previously refused protection visa application. The minister asserted that this will “restore the intended operation of the statutory bar in section 48A of the act…[and] preserve the integrity of Australia's protection visa program and avoid its abuse, by preventing non-citizens without meritorious claims for protection from delaying their departure from Australia by making repeat protection visa applications on different grounds each time.”

Protection visa applicant not assessed to be a risk to security by ASIO

The third schedule to the Bill proposes an amendment to section 36 of the Migration Act to insert a condition that the applicant not be assessed by ASIO to be directly or indirectly a risk to security to be eligible for a protection visa.

According to Mr Morrison, the amendments are in line with the community expectation that the government:

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Migration Amendment Bill 2013 Second Reading Speech