House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

General Outline and Financial Impact

General Outline

This Bill amends the Migration Act 1958 (the Migration Act) and other legislation to improve the overall efficiency of migration litigation.

The Government is very concerned about the large increases in the number of migration cases in the federal courts in recent years and the very low success rate of this litigation. Migration litigation constitutes a substantial proportion of the workload of the High Court, Federal Court and Federal Magistrates Court (FMC). In recent years, the Government has won over 90 per cent of all migration cases decided at hearing. Unsuccessful cases are not necessarily unmeritorious. However, the very high failure rate reflects concerns raised, including by the courts, about high levels of unmeritorious migration litigation.

The large volume of judicial review proceedings, unmeritorious litigation and delays are very costly and are placing strains on the courts and the migration system more generally. Extended waiting times in courts have been taken advantage of by some applicants using the court process simply to delay their removal from Australia and prolong their stay in the community. These delays impact on applicants with genuine claims who are waiting to have their cases considered.

The key areas of reform in the Bill to improve migration litigation are:

(i) directing migration cases to the FMC for more efficient handling

Directing migration cases to the FMC is central to the Government's package of reforms for more efficient handling of migration cases. The FMC was established to resolve expeditiously a high volume of less complex and shorter matters, making it a suitable forum for most migration cases.

The Federal Court will have limited jurisdiction under the Migration Act in relation to migration cases. This will comprise, first, complex migration cases transferred from the FMC to the Federal Court and, secondly, migration cases involving judicial review of decisions of the Administrative Appeals Tribunal (AAT) under section 500 of the Migration Act or decisions made personally by the Minister for Immigration and Multicultural and Indigenous Affairs under section 501, 501A, 501B or 501C of the Migration Act. This second group of migration cases involve decisions not to grant or cancel a visa, or involve deportation of a person, on character grounds. (otherwise known as 'character-related decisions').

Consistent with the key reform of directing migration cases to the FMC, the Bill also channels nearly all migration cases remitted from the High Court directly to the FMC. Migration cases will only be remitted to the Federal Court where they involve judicial review of character-related decisions made by the AAT or the Minister personally.

(ii) ensuring identical grounds of review in migration cases

The grounds of review in migration cases in the FMC under the Migration Act will be the same as in the High Court under section 75(v) of the Constitution. Identical grounds of judicial review in these cases, whether applications are filed in the High Court or the FMC or the application comes within the limited jurisdiction of the Federal Court as described above, reduces incentive for applicants to commence matters in the High Court.

(iii) imposing uniform time limits in all migration cases

The Bill includes amendments to impose uniform time limits for applications for judicial review of migration decisions in the FMC, the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court.

Applications must be made within 28 days of an applicant having received actual notice of the decision he or she seeks to review. The Court may extend the 28 day time limit by a further period of up to 56 days provided the person seeking to file the application makes the request for an extension of time within 84 days of actual notification of the tribunal decision (or decision of the Minister or delegate) and the Court is satisfied that it is in the interests of the administration of justice to extend the time limit.

(iv) facilitating quicker handling of cases by improving court processes

The Bill also includes amendments to improve court processes. These amendments are designed to complement the reforms implemented by the Bill to direct migration cases to the FMC for quicker handling.

Improvements to court processes include:

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requiring applicants to disclose previous applications for judicial review of the same migration decision, which will assist the courts to identify early in the process applicants seeking to re-litigate matters,

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providing that appeals from decisions of federal magistrates made under the Migration Act will be heard by a Federal Court judge sitting alone, unless a judge considers it is appropriate to refer the case to a Full Court, and

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expressly providing for the High Court to remit migration and other cases filed in the High Court's original jurisdiction on the papers.

(v) deterring unmeritorious applications

The Bill strengthens the power of the High Court, Federal Court and FMC to deal with unmeritorious proceedings by broadening the grounds on which a court can summarily dispose of proceedings. A court will be able to dispose of a matter summarily where it is satisfied that there are no reasonable prospects of success. This provision will have general application.

In light of the high rate of unsuccessful migration cases in recent years, the Government is concerned to ensure that lawyers and other advisers do not encourage the commencement and continuation of unmeritorious proceedings. Not only does the prosecution of such cases give clients false hope, it also wastes court resources.

The Bill prohibits persons, including lawyers and migration agents, from encouraging the initiation or continuation of unmeritorious migration litigation. A personal costs order may be made where there was no reasonable prospect of success and the person has either (i) given no proper consideration to the prospects of success or (ii) initiated or continued the migration litigation for a purpose unrelated to the objectives of the court process. A person runs the risk of a personal costs order against them if they contravene the obligation not to encourage unmeritorious cases.

Lawyers acting for applicants in migration cases will also be required to certify that an application has merit.

Changes to the management arrangements of the FMC

As part of the Government's package of migration litigation reforms, the Government appointed eight additional federal magistrates to handle the FMC's large migration workload. In view of the increased size of the federal magistracy, the Government has decided to align the arrangements for the management of the administrative affairs of the FMC with the arrangements for the management of the administrative affairs of the Federal Court of Australia and the Family Court of Australia. This involves making the Chief Federal Magistrate responsible for managing the administrative affairs of the FMC.

FINANCIAL IMPACT

There is no direct financial impact on Government revenue from this Bill. A reduction in migration applications to the courts will reduce pressure on the courts and lead to some reduction in litigation costs of the Government.