Federal Litigation and Dispute Resolution

Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016

The submission to the Senate Legal and Constitutional Affairs Legislation Committee in relation to the Migration Legislation Amendment (Code of Procedure Harmonisation) Bill 2016 (Cth) was prepared by the Migration Law Committee of the Federal Litigation & Disputes Resolution Section. 

The Committee supports harmonisation of procedures across the Administrative Appeals Tribunal (AAT) and in particular supports the reformulation of moving the Migration and Refugee Division (MRD) as part of the development of the amalgamated AAT as a body that reviews government decisions (rather than being exceptional within the field of administrative review).

The Committee, however, does not believe that all aspects of the proposed Bill are consistent with this goal. The role and functions of the MRD remain distinctly separate from the role and functions of the General Division and, in many instances, the proposed changes erode the rights of review applicants to fair hearings and continue to isolate the MRD distinct from - as opposed to harmonised with - the remainder of the Tribunal with which it amalgamated.

The Bill seems only to address inconsistencies within the MRD through the partial amalgamation of Part 5 and Part 7 of the Migration Act 1958 (Cth) (MA), in many instances at the cost of procedural fairness to both migration and refugee visa review applicants. It is the Committee’s view that harmonisation of procedures in the AAT procedure harmonisation needs to occur across all divisions of the AAT to bring decisions under the MA in line with the AAT General Division.

It is noted that this Bill proposes changes to the Immigration Assessment Authority’s (IAA) procedures in correcting an anomaly in Part 7AA of the MA. Whilst the Committee supports these administrative changes, it is the Committee’s view that these changes do not ‘harmonise’ the IAA and MRD in terms of procedure due to significant divergence in terms of its procedures and, in particular, the level of procedural fairness available.

The Committee has not attempted to respond to all aspects of the Bill and has focused on the areas of concern to the Law Council and the Committee.

You can read the full submission below.

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