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Amendments to the Merits Review and Authorised Recipient Provisions and Section 193 of the Migration Act 1958

27 October 2008 legislation change

Client summary

The Migration Legislation Amendment Act (No. 1) 2008 (the Amending Act) received Royal Assent on 15 September 2008. Schedule 1 and items 1 to 4 and subitems 6(1) and (2) of Schedule 4 to the Amending Act will commence by proclamation on 27 October 2008. Schedule 1 and the above items will amend the Migration Act 1958 (the Act).

The Act is amended to:

Schedule 1: Amendments relating to merits review

  • remove the requirement for the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) to ‘hand down’ their decision, providing that the date of the decision is the date on which the written statement of the decision is signed by the member
  • provide that where two or more persons apply to the MRT or the RRT for a review of a decision together, any documents given to any of them in connection with the review are taken to be given to all of them
  • create a new position of Deputy Principal Member for the MRT to mirror the RRT structure
  • make the appointment of a Deputy Principal Member to each tribunal discretionary
  • make a minor technical amendment to section 486AB of the Act to clarify its application.

Schedule 4: items 1, 3 and 4 and subitem 6(2) relating to authorised recipients

  • provide that the Minister is not obliged to give documents to an authorised recipient appointed by a person if:

    • the authorised recipient is not a registered migration agent
    • the Minister reasonably suspects that the authorised recipient is giving immigration assistance
    • the Minister has notified the person that he or she does not intend to give documents to the authorised recipient.

Schedule 4: item 2 and subitem 6(1) amending section 193

  • ensure that an illegal foreign fisher or environmental offender who is an unlawful non-citizen can be removed from Australia despite previously being granted a bridging visa or criminal justice visa while in remand or serving a custodial sentence.

Affected legislation

The following provisions of the Act are amended:

In relation to merits review:

  • sections 337, 354, 357, 395 and 396
  • sections 404, 405, 458 and 459
  • sections 368 and 368D
  • sections 368A to 368C have been repealed and replaced by new section 368A
  • sections 430 and 430D
  • sections 430A to 430C have been repealed and replaced by new section 430A
  • new sections 379EA and 441EA have been inserted
  • section 486AB.

In relation to authorised recipients:

  • new subsection 494D(5) has been inserted
  • consequential amendments have been made to notes in subsection 52(3C) and section 494A to reflect the amendments made to subsection 494D(5).

In relation to section 193:

  • subparagraph 193(1)(d)(ii)

Additional information:

The amendment to section 193 of the Act will in effect allow the Minister the capacity to grant illegal foreign fishers or environmental offenders a bridging visa or criminal justice visa (should that be appropriate in the circumstances) and still maintain the ability to remove them from Australia as soon as reasonably practicable. The grant of a bridging visa or criminal justice visa will enable the illegal foreign fisher or environmental offender to be a lawful non-citizen and therefore not in immigration detention while in remand or serving a custodial sentence for their fisheries or environment offences.

Transitional provisions:

The amendments to the merits review provisions apply from 27 October 2008. However, if the MRT or the RRT has given the applicant and the Secretary written notice before 27 October 2008 under existing section 368A or 430A of the Act of the day, time, and place of the handing down of a decision, then existing handing down procedures will continue to operate after 27 October 2008 in relation to the particular decision on review (despite the amendments by the Amending Act to remove these procedures).

The amendments apply to authorised recipients on and from 27 October 2008, whether the notice under subsection 494D(1) in relation to the authorised recipient is given before, on or after 27 October 2008.

The amendment to section 193 applies in respect of a person who has been granted a bridging visa or criminal justice visa on or after 27 October 2008.

Forms: Nil

Instructions:

PAM3 – Act: Migration agents – Dealing with migration agents
PAM3 – Act: Compliance – Removal – Removal from Australia have been amended to reflect these changes.