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The Migration Litigation Reform Bill 2005

Jack H Smit
7 October 2005
Published at Margo Kingston's Webdiary

Image: thanks to Michael Leunig cartoons at The Age

Another D-Day is about to arrive for Human Rights in Australia - next week Tuesday, as scheduled on the Parliamentary program for about 12:30: the tabling of the Migration Litigation Reform Bill 2005 in the Senate. Some details of the Bill are below, as taken from the Parliament website.

I think the Bill is a disgrace, but it is also an opportunity to show to the better informed how the fight to the death between politicians in the Howard administration against the "refugee lobby" is a callous one, and that for the politicians, backed up by the best of their legal advisors and legislation drafters, this fight is one they're fully prepared to fight - and it seems there's no limit to the budget. No doubt they the politicians are set for another win in the context of a Senate majority, but it will not necessarily be a win for public opinion of those politicians. The balance of those accounts has changed considerably since Cornelia Rau and Vivian Alvarez. This week Vivian Alvarez' lawyer George Newhouse wrote in the Sydney Morning Herald:

In the coming days, the Senate will consider extending the courts' power to summarily dispose of immigration proceedings and to impose personal liability for legal costs on lawyers. The changes will deliver less impartial supervision of the department and administrative decisions. They will also require lawyers to certify at the start of proceedings that an application has merit and there will be strict time limits for judicial review. With legal aid and pro-bono lawyers exposed to tens or hundreds of thousands of dollars in penalties, many will be forced to leave applicants unrepresented.

The proposed legislative changes are surprising, given that the Palmer inquiry found the department has a "culture that is overly self-protective, a culture that is largely unwilling to challenge organisational norms or engage in genuine self-criticism or analysis". With its poor track record, now is not the time to strengthen the position of departmental officers when making decisions about incarcerating or removing individuals.

The act already limits the right to provide immigration advice to migration agents and restricts rights of appeal and judicial review. The cost and administrative burden of the migration agents licensing regime acts as a choke on legal centres and pro-bono lawyers and stops them from taking on migration cases.

Vivian Alvarez Solon's inability to get help from a local legal aid centre because of immigration licensing restrictions is one of the most serious, but unknown, failings of the Migration Act and contributed to her wrongful deportation.

Likewise, when lawyers visited Baxter on New Year's Eve in 2004 they were not able to see Cornelia Rau because of limits on their rights of access to detainees since the act requires mentally ill detainees to apply formally to see a lawyer.

In his report Mick Palmer recommended improved access to medical care. However, he could not address the act's impediments to obtaining legal advice or judicial review, and this has allowed the Government carte blanche to proceed with this further ratcheting down of legal rights.

The Migration Act is bloated and legalistic, and even a well-educated lay person would find it difficult to wade through its Byzantine regulations. People with limited English or a disability are incapable of understanding their basic rights under it, let alone its arcane provisions and regulations. After the string of recent errors there should be greater review and increased access to legal advice, not less.

Metcalfe has started a structural review of his department. But if the Government is serious about immigration reform, it needs to revisit the Migration Litigation Reform Bill 2005 to ensure it complements the department's new direction, and to change it so that it effectively deals with the real issues that plague our immigration system.

After the criticisms in the Palmer report, the Government's immigration processes are at a watershed. Why is it persisting with this legislation when it goes against recommendations for increased scrutiny and openness?

To propose further limits on legal services and judicial review after the wrongful detentions of Rau and Alvarez suggests that the Government has learned nothing from these tragic cases. These laws do nothing to confront the culture of denial and secrecy in the Immigration Department.

And former Democrats' advisor and Migration Agent Marianne Dickey writes in Online Opinion: (full article recommended for further reading!)

Advocates, who assist or encourage refugees and asylum seekers to seek judicial review of migration decisions, may be liable for the costs incurred under proposed changes to legislation.

The impact of the proposed legislation is already being felt, with community lawyers and legal advisers announcing they will be unable to take on pro bono work for asylum seekers once this Bill has been passed.

The Migration Litigation Reform Bill 2005 is one of a series of Bills which is aimed at restricting - some would say preventing - judicial review of migration decisions. Like all migration Bills, it is complex. But the fact that it should pass the government-controlled Senate easily means very little attention has been paid to its possible ramifications.

There is no doubt that the outcome of this legislation will be far reaching and potentially retrograde, especially for those already disadvantaged under the current system. It directly affects litigants, their advisers, legal representatives and migration agents

I tried to prime the media on 7 October for the issue with a furious press release. For the material I could draw on some revealing assessment figures from an article I wrote shortly after the Georgiou group had presented its case for detention policy changes to the Coalition caucus. I wrote in the release:

"While there is now overwhelming evidence since the Tampa affair that the DIMIA primary refugee assessors are stacked to such a level by political bias, that it can be said to be entirely corrupt, the Minister for Immigration, just fresh from the Vivian Alvarez debacles, has the audacity to push for this legislation."

"In 2002 Jesuit Priest Frank Brennan concluded that the DIMIA primary assessment had an average error rate of 75%, as shown by the number of cases overturned on appeals by the RRT."

"Last year, the DIMIA Primary Assessor erred 100% of the time in relation to the Hao Kiet Vietnamese, causing them untold grief as a result, by having them locked away in the Christmas Island refugee jail. It took the Vietnamese community tens of thousands of dollars and the refugees a 2-year imprisoned wait until under the threat of Federal Court action the DIMIA started to see some sense - and it took Ministerial intervention with many of the Vietnamese so the heat could be pointed away from also some shonky reviews by members of the RRT."

"And paralegals in Western Australia have confirmed to Project SafeCom that the re-proving of refugee claims for TPV holders caused an error rate for the DIMIA assessors of 95% of the time amongst the about 800 applications in the last year. This shocking error rate correlates to similar rates in other states for TPV holders, as confirmed by Ms Pamela Curr of the Melbourne Asylum Seeker Resource Centre."

"This is the context where several Liberal MP's have been trying to 'sell the line' that endless periods spent in detention is a result of the many court appeals that are possible for refugees. These MP's are peddling this entirely false notion to push for the legislation, but they fail to be open and accountable for the fact that it was the shocking errors made by the DIMIA that caused this detention in the first place."

Project SafeCom spokesman Jack H Smit said, that "this legislation was pushed immediately following the party room meeting that considered the demands by Petro Georgio's group - and in the weeks following the 31 May party meeting, MP's such as the treasurer Peter Costello, Mal Washer (Moore), Malcolm Turnbull (Wentworth) declared that this legislation would "fix the problem" while Attorney-General Philip Ruddock at the time expressed he would introduce this legislation using the Senate marority after July 1 this year."

"This week we can again witness the serious problems with the DIMIA culture, but the fact that these MPs peddle the false notion that taking away justice of court reviews will fix the problem of detention, shows that the same culture pervades the Howard administration. It is politicians who should be brought to account. Since Tampa they are the authors of the poisoned climate for unannounced refugees coming to our country."

Senate Inquiry

The Bill was announced by the Immigration Minister Amanda Vanstone in a press release on 10 March - of course as one that would reduce the workload of the courts and a reduction to the huge blow-out of the costs of the Immigration Department's litigation budget, referring to the unmeritorious claims put by lawyers and shonky migration agents. Nobody in government however, informs the public about the consultations of this same Department with translation services, such as those used for (against?) the Bakhtiary family.

The Senate Legal and Constititutional Committee soon afterwards launched their Inquiry, and on the parliamentary website are the 25 submissions received from legal as well as advocacy centres. The documents are worth exploring, and the Senate Report was issued on May 11, 2005.

Text of the Bill

Here's the full text of the Bill from the Parliament website:

Migration Litigation Reform Bill 2005

WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Date Introduced: 10 March 2005
House: House of Representatives
Portfolio: Attorney-General


Schedule 1 commences on a day to be fixed by Proclamation or, if this does not occur within six months of Royal Assent, on the first day after that period.  Schedule 2 commences on Royal Assent


To amend the Migration Act 1958, the Federal Court of Australia Act 1976, the Federal Magistrates Act 1999 and the Judiciary Act 1903 to assist courts in managing their migration litigation workload.


Given the short time between introduction of this Bill and scheduled debate in the House of Representatives, this digest is a draft covering key points only. It will be revised to include a more comprehensive discussion in time for further consideration of the Bill by the Parliament.

Readers are directed to Bills Digest No. 118 of 2003-04(1) on the Migration Amendment (Judicial Review) Bill 2004 (the '2004 Bill'). The 2004 Bill contained similar (although not identical) reforms to the 2005 Bill. The digest on the 2004 Bill includes extensive background and a detailed reading list.

The 2004 Bill was also the subject of an inquiry(2) by the Senate Legal and Constitutional Legislation Committee.  The 2004 Bill lapsed when Parliament was prorogued for the October 2004 federal election.

Main Provisions

The main proposals in the Bill are to:

  • Direct migration cases to the Federal Magistrates Court (FMC)
    • The Federal Court will have limited jurisdiction in migration matters, restricted to complex cases referred by the FMC and review of decisions to cancel the visas of, or deport, people on 'character' grounds
    • Nearly all migration cases remitted from the High Court will be channelled directly to the FMC
  1. (Item 17)
  • Ensure identical grounds of review in migration cases
    • The grounds of review in migration matters in the FMC will be the same as those in the High Court under s75(v) of the Constitution. Section 75 of the Constitution states that the High Court has 'original jurisdiction' (i.e. the authority to hear cases) in all matters:

       (v) in which a writ of Mandamus [directing that an officer do a certain action] or prohibition [preventing an officer from doing a certain action] or an injunction [halting a current or future action for a period of time] is sought against an officer of the Commonwealth.
  1. (Item 17)
  • Impose uniform time limits in migration cases
    • Applications to the FMC, Federal Court and the High Court must be made within 28 days of actual (rather than deemed) notification of a decision.  The 28 day time limit can be extended by a further 56 days if a request for further time is made within 84 days of actual notification of the decision.
  1. (Item 18 and Items 30-33)
  • Facilitate quicker handling of migration cases
    • Require applicants to disclose previous applications for judicial review of the same migration decision
    • Expressly provide for the High Court to remit migration and other cases 'on the papers' (i.e. without a hearing)
  1. (Items 10 and 37)
  • Deter unmeritorious applications
    • Allow the High Court, Federal Court and FMC to dispose of a matter summarily on their own initiative if satisfied that there are no reasonable prospects of success
    • Prohibit lawyers, migration agents and others from encouraging unmeritorious migration litigation, with the risk of a personal costs order for contravening this prohibition.

General Comments

Migration Litigation Workload

The Explanatory Memorandum notes that:

  1. 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.
  2. 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.(3) 

In October 2003 the Government commissioned the Migration Litigation Review conducted by Hilary Penfold QC to inquire into more efficient management of migration cases.  According to the Second Reading Speech, the measures in the 2005 Bill have been drawn from recommendations by the Review. Bills Digest no 118 noted in relation to the 2004 Bill that:

  1. The Government has asked Parliament to approve the current Bill without releasing the Migration Litigation Review.  There has been no public indication of what its conclusions and recommendations were. This prevents any assessment either of the adequacy of the Review in addressing the issue of migration caseload or the adequacy of the Bill as a response to the Review.(4)

The findings of the Review have yet to be released. In other words, the Government has still not revealed publicly the detailed analysis from the Review on which the proposals in the 2005 Bill are based. 

The table below shows figures for judicial review applications in migration matters in various courts from 1997 to 2005.  As Bills Digest no.118 noted, there was a large increase in applications in 2002/03 after the government prohibited 'representative' actions in migration matters, causing the single Muin case to be split into an additional 1350 matters, which were filed in the High Court in that financial year.(5) After the distorting effect of the Muin case on migration matters passed, numbers of migration applications have declined dramatically.  The extent to which the reforms proposed in the Bill are now necessary is unclear.

The FMC, which commenced hearings in 2000, received jurisdiction in migration matters in 2001. As the Second Reading Speech notes, 8 additional magistrates have been appointed to the FMC. The graph below indicates that the FMC is playing the role intended for it, taking on a substantial part of the burden in migration matters from the Federal Court and the High Court.

Judicial review of migration decisions

Specific Comments

Time limits and 'Purported decisions'

  • As explained in Bills Digest no 118, in Plaintiff S157 the High Court said that a decision under the Migration Act affected by 'jurisdictional error' (i.e. a significant mistake') was not a valid decision under the Act.  So appeals from such a decision could not be caught by the time limits in the Act.  The High Court called migration decisions with such mistakes 'purported' decisions.
    • The 2005 Bill amends the Migration Act so that it specifically includes 'purported decisions'. Any time limits on appealing in the Act will now apply to 'purported' decisions.
    • Logically, however, it is difficult to see how this can be effective. The High Court has said that 'purported' decisions are outside the scope of the Migration Act. So amending the Migration Act itself cannot bring them within its scope.
  • A 'purported' decision is defined by the Bill to include anything listed in s474(3) of the Migration Act. So, for example, purported 'conduct preparatory to making a decision', a purported 'failure or refusal to make a decision' or a purported 'refusal to do any other act or thing would all be subject to the time limits and other restrictions on judicial review in the Migration Act
    • the wide definition of 'purported' decision may make it difficult for people to recognise that some decision or action, or inaction, has occurred which has started time limits running for lodging an appeal
    • the consequence may be that people may seek to lodge 'precautionary' appeals in case they have been the subject of a 'purported' decision without this being obvious to them.   This will be all the more difficult, however, because of the proposal in the Bill to 'penalise' unmeritorious applications. In practice, therefore,  applicants may be caught between, on the one hand, a vague definition of 'migration decision' linked to strict time limits for appealing and, on the other hand, a prohibition on appealing if there are 'no reasonable prospects' for success, linked to personal costs orders.

The Constitution and time limits

  1. See the discussion at pp13-14 of Bills Digest No 118.

Remitting migration matters to the FMC from the High Court

Pursuant to section 44 of the Judiciary Act 1903, the High Court could remit any matter, on its own motion or on application of the parties, in full or in part, and whether or not the matter originated in the High Court.  Importantly however, the Migration Legislation Amendment (Judicial Review) Act 2001, which commenced in September 2001, removed the power of the High Court to remit matters that relate to immigration decisions where those decisions a) have a merits review process attached,(6) and b) are subject to the Minister's discretion to substitute a more favourable decision.(7) It follows that these constitutionally entrenched matters must now be reviewed by the High Court itself.

  • The Bill does not change this position, but simply directs the High Court to remit other migration matters directly to the FMC.

Prohibition on unmeritorious applications

  • This proposal may raise constitutional issues, especially the possible intrusion of the legislature into the 'judicial power' of the Commonwealth, in contravention of Chapter III of the Constitution
    • The Bill gives discretion to courts to decide whether an unmeritorious application has been brought and whether a personal costs order should be made against the applicant, his or her lawyer or migration agent.  However it directs courts to consider whether a personal costs order should be made.  This could potentially amount to an unconstitutional intrusion into federal judicial power.
  • Parliament may also wish to consider a number of policy issues raised by this proposal
    • Whether this would discourage lawyers and/or migration agents offering advice to potential applicants, leading to more unrepresented (and potentially less meritorious) applications. A practical issue may be whether applicants with no ability to pay in any case if a decision goes against them would be discouraged by the threat of a personal costs order
    • Whether this may provoke a significant number of cases about whether an unmeritorious application has been made.
  • The provisions in the Bill allowing summary judgments at the initiative of the High Court, Federal Court or FMC apply not just to migration matters but to all matters.  It is suggested that Parliament should seek specific advice on the full implications of this proposal.

Further reading


  3. Explanatory Memorandum, p. 1.
  4. Bills Digest no 118 2003-04, p. 9.
  5. Ibid, p. 2.
  6. Subsections 476(4) and (1) of the Migration Act.
  7. Subsections 476(4) and (2) of the Migration Act.