Report 25 - Review of Migration Decisions 1985

Review of Migration Decisions, 1985

Summary of the report

The report was transmitted to the Government on 24 December 1985, and was tabled in the Parliament on 21 August 1986.

The Council considered that there was a need for a system of external review on the merits to be available in respect of many migration decisions. The proposals for reform recommended by the Council include, among other things:

• the structuring of discretionary powers in the migration area, where appropriate, by the embodiment in legislative form of identifiable principles and criteria,
• the provision of outlines of reasons for decisions by primary decision-makers,
• the establishment of a two-tier system of merits review comprising Immigration Adjudicators at the first level, and the Administrative Appeals Tribunal ('AAT') at the second level, with review by Adjudicators being a prerequisite to AAT review in most cases, and
• decisions taken personally by the Minister to be subject to review by the AAT, without prior review by Adjudicators.

The Council also specified the classes of decisions that it considered should be subject to review, in accordance with the proposed two-tier structure of merits review.

Response to the report

The Council has continued to advise the Government on the issue of review of migration decisions after Report No. 25.

In August 1986, the Council provided advice to the Attorney-General on a draft Cabinet Submission, concerning review of migration decisions, which had been prepared by the Department of Immigration and Ethnic Affairs. The Government decided that the proposals needed to be given further consideration, and in January 1987 the Department published a booklet to assist in consultations with the community on review of migration decisions. The Council provided comments on issues arising out of that discussion booklet (reproduced as Letter 15 in the Eleventh Annual Report 1986-87).

In September 1987 the Government set up the Committee to Advise on Australia's Immigration Policies ('CAAIP'), to inquire into the relationship between immigration and Australia's social, economic, cultural and demographic development. Review issues were a relatively small element of the CAAIP brief, although they caused some controversy. The CAAIP inquiry produced a model Migration Bill. While the Council, in its report, had recommended a two-tier external review system, the CAAIP recommended that applications be made direct to the AAT. The model Migration Bill included a right to statutory external review by the AAT of most migration decisions.

The Council wrote to the Attorney-General, setting down the Council's view on a review system in the migration area in the light of the CAAIP report. Coordination comments were also provided on a draft Cabinet Submission containing the Government's Response to the CAAIP report (reproduced as Letters 4 and 8 in the Thirteenth Annual Report 1988-89).

The Government decided against a two-tier external review system, as recommended by the Council, and also rejected the CAAIP model.

In April 1989, the Government introduced the Migration Legislation Amendment Bill 1989 into the Senate, with provision for statutory internal review of migration decisions and for external review by a new Immigration Review Tribunal ('IRT'). The Council provided advice to the Attorney-General on the review aspects of that Bill, expressing its concern at both the content and form of the proposed legislation (reproduced as Letter 16 in the Thirteenth Annual Report 1988-89).

Ultimately, the Council's recommendations were not adopted by the Government, apart from the general recommendation for statutory review of decisions and provision being made for interpreters before the IRT. The Council, nevertheless, recognised that the Bill made a number of important advances, in particular in the structuring of discretionary powers and the associated criteria in legislative form, and the provision for statutory review of decisions. So much had been recommended in Report No. 25. The Council also noted that the Government intended to conduct an independent review of the IRT after two years of operation.

The IRT was established by the Migration Legislation Amendment Act 1989, and commenced operation in 1989.

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