Migration Amendment (Validation of Decisions) Bill 2017
The Bill seeks to respond to current proceedings before the High Court in Australia, in which the validity of section 503A of the Migration Act 1958 (the Act) is being challenged. As outlined in the Explanatory Memorandum to the Bill, the cases are: Te Puia v Minister for Immigration and Border Protection P58/2016 and Graham v Minister for Immigration and Border Protection M97/2016. These matters were heard on 30 March 2017 and judgement has been reserved by the High Court.
The Bill gives rise to concerns from the Law Council’s perspective. These include:
- The retrospective nature of the Bill.
- The Bill would prevent individuals who have had a visa cancelled or refused under sections 501, 501A, 501B, 501BA, 501C and 501CA of the Act, where protected information under section 503A was relied upon or considered, from having their visas or visa applications reinstated and the opportunity to respond to that information prior to their visa being cancelled or refused.
- The Bill is being proposed prior to the handing down of the High Court of Australia’s decisions in the relation to the above matters which may result in the Parliament passing legislation without a comprehensive understanding of its likely impact on the state of the current law.
- Under the Bill persons who have had their visas cancelled or refused on the basis of section 503A protected information will remain able to seek judicial review of their visa decision following commencement of the proposed amendments. This may result in a significant number of judicial review proceedings should the High Court find that section 503A is in fact invalid. The Law Council is concerned this may result in an unnecessary use of Court resources, given that the High Court may have already considered the validity of decision affected by section 503A.
The Law Council makes the following recommendations in relation to the Bill:
- The Bill should be held over until such time as the High Court makes its decision in the above matters in order to fully determine and understand the consequences of the Bill and the subsections of the existing Act and their impact.
- The Bill should not operate retrospectively to valid decisions which may be found to be invalid by the High Court in the above rulings.