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ABSTAINED – Bills — Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023; Consideration in Detail

Zoe Daniel

I move amendment (3) as circulated in my name:

(3) Schedule 2, item 160, page 67 (lines 1 to 6), omit the item.

This amendment is not dissimilar in theme or tone to the previous amendment from the member for Clark or the amendment moved by the member for North Sydney. However, this amendment goes to information that is required or not required to be given to an applicant for comment.

I did move the amendment. Thank you for the advice, Attorney-General. I did move the amendment as circulated in my name.

This amendment goes to the issue that, under this legislation, the ART is not required to notify the applicant of information that it intends to rely on to affirm the decision under review if this information is included in the original decision. Arguably, this is a significant departure from procedural fairness requirements where the tribunal is required to notify applicants of adverse information in the decision under review which it intends to rely on. As written, the legislation will permit the ART to refuse an application based on material mentioned in the applicant's department decision, even where this material wasn't relied on by the department in making its decision, without providing any notice to the applicant that it intends to rely on this material in a different manner to the department.

There are several issues with this. One is the potentially unjust outcome for applicants who will be denied an opportunity to comment on that adverse information before a tribunal decision is made. Also, it forces applicants into a position where they will have to address every single issue in their department decision without knowing which bit of that decision is or is not being relied on to make an adverse decision. This will mean more lengthy submissions, voluminous materials to the tribunal, and potentially higher legal fees for the preparation of these materials. So there's potentially an inefficiency factor for the tribunal.

By way of case study—and I am in part, like the previous speakers, relying on advice from the ASRC, which has done amazing work in providing examples and case studies of people who have been affected by these sorts of rules—this case study goes to Jibrail, a Hazara man from Afghanistan, who sought asylum in Australia and applied for a protection visa but was refused one by the Department of Home Affairs. Jibrail sought a review of his department decision. As the department accepted he couldn't return to his hometown or Mazar-i-Sharif, Jibrail focused his submissions to the tribunal on why he could not return to Kabul. The tribunal then notified Jibrail that it considered he could safely return to Mazar-i-Sharif, and Jibrail had an opportunity to address this matter before the tribunal. If the subsection as written in this new iteration of the legislation had been in place, arguably Jibrail would have been denied the opportunity to respond to the adverse information the tribunal intended to rely on regarding relocation to Mazar-i-Sharif as the matter was considered in the department decision, even though the department reached a different finding.

The issue I'm trying to get to here is that these are life-and-death decisions for people. I know that the Attorney-General understands that, and that that's the whole point of what we're trying to do here, but the crux of the matter is that these are some of the most vulnerable people in our community who are facing immense pressure, immense anxiety, financial issues, language issues and a whole range of barriers as they work through these processes. These issues of procedural fairness are really critical, and we need to get this right.

I will finish by saying that, in conversations with the Attorney-General, he has made the point about not wanting to overlegislate in order to give the tribunal the flexibility to do its job. I hear that completely. But we also don't want to underlegislate when what we're trying to do is protect due process for some of the most vulnerable people who interact with the system.

Mark Dreyfus

The government does not support these amendments. I thank the member for Goldstein for withdrawing her earlier amendment because of the interaction with the government amendments. On this amendment, with respect to the member for Goldstein and those who provided her with the example she gave, there seems to be some misconception about what these new paragraphs, 359A(4)(d) and (e), of the Migration Act will do. What they do is clarify that the tribunal is not required to give to the applicant information that was included or referred to in the written statement of the decision that's under review or that's prescribed by the regulations. Because the written statement of the decision is the primary document that is relevant to the decision under review, applicants will already be aware of the contents of the written statement. They will have the opportunity to respond to any of that information during the review process, particularly at the hearing. It's not actually necessary for the tribunal to separately draw this to an applicant's attention. Very importantly, proposed section 359A does not prevent the tribunal member from putting information to an applicant if they consider it necessary and conducive to the review process.

The government and I accept the vulnerability of many applicants in migration review processes, but, as far as possible, I can assure the member for Goldstein that, contrary to her suggestion to the House that this might lead to longer decisions or hearings, or her suggestion that applicants were somehow being denied the right to put submissions, that is not what this provision deals with.

This provision is a very narrow procedural provision. It relieves the tribunal from any obligation to give information to the applicant that's already included or referred to in the written statement of the decision. This narrow procedural provision won't lead to longer decisions. It won't lead to longer hearings. It won't deny applicants the right to put submissions on any matter that they believe is relevant to their situation. It's a very narrow procedural provision, and I would suggest to the House that it is likely to improve the way in which the decision-making process takes place in the tribunal.

Question negatived.

Dai Le

I move my amendment:

(1) Schedule 2, item 171, page 69 (line 15), at the end of subsection 368(1), add:

; and (e) inform the applicant, where possible, of any further steps needed to be taken by the applicant in order to have their matter finalised.

As we've heard this morning from the member for North Sydney, the government's Administrative Review Tribunal Bill is actually a great improvement on the previous Administrative Appeals Tribunal legislation. I have previously shared the experience of my constituents' woes with the AAT. There are recurring issues that derive from their experiences where they've struggled with accessibility due to language barriers, cost and the stress of waiting for correspondence without knowing if they would get a favourable outcome or not.

The introduction of the ART is an expensive exercise and it must be done right. In considering the experience of my constituents, my proposal for this amendment is to address the lack of notification. We often get constituents coming to our office and English is their second language, as the member for Brisbane initially mentioned. The AAT deals a lot with people from non-English-speaking backgrounds, and in my electorate of Fowler, where 70 per cent of the population have a parent or two parents born overseas, English is often a second language. Therefore, in seeking this amendment, I'm really just asking the government to consider that people need to know and to be informed about what's happening with the decision so that they can actually plan ahead. This is about procedural fairness and, basically, giving people the opportunity to plan to know what to do, and communication, as we know, is very important.

The ART, the new executive body, is a big beast, and I appreciate the cases that the ART will face and will have to consider. But I think it's a matter of fair process to just inform the review applicant of what they have to do and what they need to present to the AAT. We've been talking about the review process this morning. We've been talking about decisions being made, but are those decisions and review processes being given to clients, in particular to people of non-English-speaking backgrounds? We make legislation in this House all the time, and the legislation we make is in English and predominantly, if not 100 per cent of the time, aimed towards people whose first language is English. My hope is that the ART, as we progress to implement this legislation, will ensure that the tribunal is cognisant of the needs of multicultural communities and of those who are fronting the ART. Often, when you go into these institutions, there's a lot of stress and there are a lot of fears, because language is such a big barrier. Not being informed about what's happening with their case then adds to further stress.

As I said, there have been so many cases of people coming to see me at my office not knowing what the AAT's position is. They have not heard from the AAT. They've been waiting for years—12 months, two years or three years—without a simple notification of what's required of them or even a notification saying: 'You've been rejected. The case is concluded.' I really don't think a simple notification is too much to ask the tribunal to include in their decision.

I know that the minister will stand up and reject this amendment, but I really urge the government to consider our multicultural communities in making legislation, and such important legislation as the ART, especially in the reviewing process. Thank you.

Mark Dreyfus

The member for Fowler's amendment would alter section 368 of the Migration Act so as to require the tribunal's notice of decisions and statement of reasons to clearly outline 'next steps and action required' for applicants.

I can say directly that the government does not support the proposed amendment but not because we don't share entirely the objectives of the member for Fowler in making the processes of the Administrative Review Tribunal and administrative decision-making in respect of Migration Act matters as accessible, clear and available to applicants as they can possibly be.

We accept entirely the observations of the member for Fowler about the difficulty that is faced by many applicants, created by cultural and language barriers in their lives, to accessing the processes of the tribunal. It's for that reason that the provisions of the Administrative Review Tribunal Bill and the consequential bill that is now before the House require that applicants be given written notice when a tribunal case event is scheduled or where the tribunal has given a direction for something to be done. That requirement is already there in the legislation as proposed. This ensures that applicants understand what they're required to do and the time frames for doing so.

The particular section of the Migration Act to which the member for Fowler's amendment would attach is section 368. It applies to the tribunal's final decision in a migration or protection matter—that is, not procedural decisions and not directions in running but the decision whether to affirm, overturn or remit the original decision-maker's decision.

Section 368 of the Migration Act modifies section 111 of the Administrative Review Tribunal Bill to require that tribunal decisions provide additional information for reviewable migration and protection decisions. In particular, the decision must include the time and the date of the decision, which are essential to meet the need for certainty here. I referred to that need for certainty earlier in this debate about Migration Act processes. It's essential to meet the need for certainty about when a decision on a review of these decisions is final.

I can assure the member for Fowler that, in the government's view, not only does the legislation already require that there be clarity given to applicants and that applicants have the effect of a decision absolutely clearly spelled out for them, as well as the time and the date of a decision, but the government intends to work with the new tribunal over coming months to ensure that all communications with all parties to a review are clear, are accessible and are comprehensive.

Milton Dick

The question is that the amendment moved by the honourable member for Fowler be agreed to.

Summary

Date and time: 12:14 PM on 2024-03-21
Allegra Spender's vote: Abstained
Total number of "aye" votes: 14
Total number of "no" votes: 43
Total number of abstentions: 93
Related bill: Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2024

Adapted from information made available by theyvoteforyou.org.au

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