Judicial decisions and decisions of administrative tribunals
Decision-making under the Migration Act 1958 and the Australian Citizenship Act 1948 is subject to a high level of external scrutiny by courts and tribunals. Most adverse visa decisions made in Australia are subject to independent review by the Migration Review Tribunal (MRT). Decisions about protection visa applications are reviewable by the Refugee Review Tribunal (RRT), while decisions about citizenship are reviewable by the Administrative Appeals Tribunal (AAT). These tribunals review decisions on the basis of merits; that is, they consider all of the relevant facts, including any new material, and make a completely new decision.
In addition to review by tribunals, judicial review of decisions is available from the courts. Courts can only review the ‘legality’ of decisions (as opposed to the ‘merits’). The question for a court is whether the decision-maker has followed necessary procedures, understood the applicable law, and applied the law correctly to the facts as they found them.
The legislative scheme providing for tribunal review is based on an assumption that primary decisions (that is decisions made by delegates of the Minister) should be reviewed by the relevant tribunal, rather than challenged in the courts. Applicants can then seek review of the tribunal’s decision in the courts if they want to. This means it is not necessary (or appropriate) for primary decisions, which are subject to merits review, to be challenged in the courts. This position was formalised, in relation to visa decision-making, by the Migration Litigation Reform Act 2005, which provides that the courts do not have jurisdiction to review primary decisions. The reform does not affect the ‘original jurisdiction’ of the High Court which cannot be taken away by legislation.
The Migration Litigation Reform Act 2005 also established a number of other measures aimed at streamlining litigation. In particular,
it re-established effective time limits on the commencement of litigation. The previous time limits were rendered practically ineffective by a High Court decision in February 2003 (Plaintiff S157 v the Commonwealth). The current position is that an application for judicial review of a tribunal decision must be lodged with the relevant court (usually the Federal Magistrates Court) within 28 days of actual notification, although that period may be extended by up to 56 days at the court’s discretion. This is an important reform that will end the abuse of the litigation processes that had become more prevalent since the decision in Plaintiff S157. Many non-citizens have sought to prolong their stay in Australia, when they have no other right to do so, by challenging decisions (typically RRT decisions) made several years earlier. In many cases, these decisions have already been challenged unsuccessfully in the courts on one or more occasions.
We are responsible for managing all litigation in the courts relating to migration and citizenship decisions, including challenges to decisions made by the tribunals. The numbers are significant, with close to 2400 matters before the courts at the end of 2005-06. The bulk of these applications (around 80 per cent) are applications for judicial review of RRT decisions. The most significant court decision, in relation to the RRT, during 2005-06, was SZEEU v MIMIA (24.2.06), a decision of a Full Court of the Federal Court. The effect of the decision is that the RRT must do more than was previously understood to be required, in relation to advising applicants about information which may lead to an adverse decision. This is a technical area of law which has presented significant challenges throughout 2005-06. A large number of RRT decisions, made before the decision in SZEEU, did not comply with the law as set out in that judgment, so those matters need to be reconsidered by the RRT. The decision in SZEEU also had implications for the MRT which has equivalent statutory obligations.
Judicial review of the lawfulness of decision-making sometimes involves consideration of constitutional issues. In recent years there have been several cases where it has been argued that Migration Act 1958 decisions are unlawful because the non-citizen is not an ‘alien’ under the Constitution (s51[xix]).
Generally speaking, the Migration Act 1958 powers to detain and remove unlawful non-citizens only apply to ‘aliens’ and ‘immigrants’ (s51[xxvii] of the Constitution). A notable decision during 2005-06 was Re MIMIA; Ex Parte Ame (24.8.05), which confirmed the validity of the legislative changes associated with Papua New Guinea’s independence in 1975. The High Court confirmed that most persons born in PNG, who had been Australian citizens, lost that citizenship, and therefore became aliens when PNG gained independence. Another constitutional case was Koroitmana v Commonwealth of Australia (14.6.06), in which the High Court reaffirmed that birth in Australia does not necessarily take a person outside the scope of the aliens power. In that case the High Court confirmed the alien status of two children born in Australia to Fijian parents who were not Australian citizens or permanent residents.
In addition to judicial review of decisions, another situation in which courts scrutinise our actions occurs when actions for damages are instituted by people claiming that they have been harmed by unlawful or negligent acts. These matters are mostly resolved without the need for a court hearing. In 2005-06, seven claims for damages were resolved.