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Law Council of Australia


Migration Amendment (Clarification of Jurisdiction) Bill 2018

The submission to the Senate Legal and Constitutional Affairs Legislation Committee in relation to the Migration Amendment (Clarification of Jurisdiction) Bill 2018 (the Bill) was prepared by the Law Council. 

The Bill seeks to clarify the allocation of jurisdiction between the Federal Circuit Court and the Federal Court in relation to a migration decision, as defined in the Migration Act 1958 (Cth) (Migration Act).

The Bill has been introduced in response to the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v ARJ17 (ARJ17).1

In that decision, the Court held that the definition of a migration decision for the purposes of judicial review under Part 8 of the Migration Act does not include a purported non-privative clause decision, that is, a non-privative clause decision that is affected by jurisdictional error.

The consequence of ARJ17 is that the Federal Court maintains original jurisdiction over such decisions, rather than the Federal Circuit Court. The Bill seeks to alter this outcome by inserting a new definition of ‘purported non-privative clause decision’ in the Migration Act, meaning that that such a decision will be classified as a migration decision, and therefore subject to the judicial review scheme contained at Part 8. Should the Bill proceed, the practical result will be that such matters must proceed in the first instance to the Federal Circuit Court.

The Law Council notes that the measures contained in the Bill attempt to provide a level of certainty as to the allocation of jurisdiction between the Federal Court and Federal Circuit Court for a non-privative clause decision affected by jurisdictional error.

However, the Law Council is concerned that by doing so, these measures may be narrowing an applicant’s rights to a higher jurisdiction and thereby impacting their remedy, and suggests that further enquiries by the committee be made to ensure that this would not be the case given the types of decisions being considered is much broader.

The Law Council remains concerned by reform measures that seek to further limit the original jurisdiction of the Federal Court to review a range of important administrative decisions, many of which have the potential to impact on the fundamental rights of those subject to immigration detention. The Law Council further points out that that the Bill does little to address the overall complexity and inaccessibility of the judicial review scheme set out in the Migration Act. 

You can read the full submission below.


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