2008

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					2008

The Parliament of the
Commonwealth of Australia

THE SENATE



Presented and read a first time




Migration Legislation Amendment Bill
(No. 2) 2008
No.           , 2008
(Immigration and Citizenship)




A Bill for an Act to amend the law relating to
migration, and for related purposes
Contents
                 1        Short title.............................................................................................1
                 2        Commencement ..................................................................................1
                 3        Schedule(s)..........................................................................................2

Schedule 1—Amendments relating to merits review                                                                                  3
          Migration Act 1958                                                                                                     3

Schedule 2—Amendments relating to judicial review                                                                                5
          Migration Act 1958                                                                                                     5

Schedule 3—Amendments relating to appeals against extension
           of time decisions                                                                                                     8
          Migration Act 1958                                                                                                     8




i   Migration Legislation Amendment Bill (No. 2) 2008                     No.         , 2008
 1   A Bill for an Act to amend the law relating to
2    migration, and for related purposes
 3   The Parliament of Australia enacts:
 4   1 Short title
5               This Act may be cited as the Migration Legislation Amendment Act
6               (No. 2) 2008.

 7   2 Commencement
 8          (1) Each provision of this Act specified in column 1 of the table
 9              commences, or is taken to have commenced, in accordance with
10              column 2 of the table. Any other statement in column 2 has effect
11              according to its terms.
12




                     Migration Legislation Amendment Bill (No. 2) 2008   No.   , 2008   1
     Schedule 3 Amendments relating to appeals against extension of time decisions




     Commencement information
     Column 1               Column 2                                             Column 3
     Provision(s)           Commencement                                         Date/Details
     1. Sections 1 to 3     The day on which this Act receives the
     and anything in        Royal Assent.
     this Act not
     elsewhere covered
     by this table
     2. Schedules 1, 2      A single day to be fixed by Proclamation.
     and 3                  However, if any of the provision(s) do not
                            commence within the period of 6 months
                            beginning on the day on which this Act
                            receives the Royal Assent, they commence
                            on the first day after the end of that period.
1                   Note:      This table relates only to the provisions of this Act as originally
2                              passed by both Houses of the Parliament and assented to. It will not be
3                              expanded to deal with provisions inserted in this Act after assent.

4             (2) Column 3 of the table contains additional information that is not
5                 part of this Act. Information in this column may be added to or
6                 edited in any published version of this Act.

 7   3 Schedule(s)
 8                  Each Act that is specified in a Schedule to this Act is amended or
 9                  repealed as set out in the applicable items in the Schedule
10                  concerned, and any other item in a Schedule to this Act has effect
11                  according to its terms.
12




     2      Migration Legislation Amendment Bill (No. 2) 2008       No.      , 2008
                                           Amendments relating to judicial review Schedule 2




 1
 2   Schedule 1—Amendments relating to merits
3          review
4

 5   Migration Act 1958
 6   1 Subsection 359(2)
 7           After “may invite”, insert “, either orally (including by telephone) or in
 8           writing,”.
 9   Note:   The heading to section 359 is altered by omitting “additional”.

10   2 Subsection 359(2)
11           Omit “additional”.

12   3 Subsection 359(3)
13           Omit “If an invitation”, substitute “If a written invitation under
14           subsection (2)”.

15   4 Paragraph 359B(1)(a)
16           Repeal the paragraph, substitute:
17                (a) invited in writing under section 359 to give information; or

18   5 Subsection 359B(1)
19           Omit “additional” (last occurring).

20   6 Subsection 359B(2)
21           Omit “additional”.

22   7 Paragraph 359C(1)(a)
23           Repeal the paragraph, substitute:
24                (a) is invited in writing under section 359 to give information;
25                     and
26   Note:   The heading to section 359C is altered by omitting “additional”.

27   8 Subsection 359C(1)
28           Omit “additional” (last occurring).




                      Migration Legislation Amendment Bill (No. 2) 2008         No.   , 2008   3
     Schedule 3 Amendments relating to appeals against extension of time decisions




 1   9 Subsection 424(2)
 2            After “may invite”, insert “, either orally (including by telephone) or in
 3            writing,”.
 4   Note:    The heading to section 424 is altered by omitting “additional”.

 5   10 Subsection 424(2)
 6            Omit “additional”.

 7   11 Subsection 424(3)
 8            Omit “The invitation”, substitute “A written invitation under
 9            subsection (2)”.

10   12 Paragraph 424B(1)(a)
11            Repeal the paragraph, substitute:
12                 (a) invited in writing under section 424 to give information; or

13   13 Subsection 424B(1)
14            Omit “additional” (last occurring).

15   14 Subsection 424B(2)
16            Omit “additional”.

17   15 Paragraph 424C(1)(a)
18            Repeal the paragraph, substitute:
19                 (a) is invited in writing under section 424 to give information;
20                      and
21   Note:    The heading to section 424C is altered by omitting “additional”.

22   16 Subsection 424C(1)
23            Omit “additional” (last occurring).

24   17 Application
25            The amendments made by this Schedule apply to invitations made by
26            the Migration Review Tribunal and the Refugee Review Tribunal on or
27            after the commencement of this Schedule.
28




     4       Migration Legislation Amendment Bill (No. 2) 2008       No.    , 2008
                                      Amendments relating to judicial review Schedule 2




 1
 2   Schedule 2—Amendments relating to judicial
3          review
4

 5   Migration Act 1958
 6   1 Subsection 477(1)
 7         Omit “28 days of the actual (as opposed to deemed) notification of the
 8         decision”, substitute “35 days of the date of the migration decision”.

 9   2 Subsections 477(2), (3) and (4)
10         Repeal the subsections, substitute:
11         (2) The Federal Magistrates Court may, by order, extend that 35 day
12             period as the Federal Magistrates Court considers appropriate if:
13              (a) an application for that order has been made in writing to the
14                   Federal Magistrates Court specifying why the applicant
15                   considers that it is necessary in the interests of the
16                   administration of justice to make the order; and
17              (b) the Federal Magistrates Court is satisfied that it is necessary
18                   in the interests of the administration of justice to make the
19                   order.
20         (3) In this section:
21             date of the migration decision means:
22              (a) in the case of a migration decision made under subsection
23                   43(1) of the Administrative Appeals Tribunal Act 1975—the
24                   date of the written decision under that subsection; or
25              (b) in the case of a written migration decision made by the
26                   Migration Review Tribunal or the Refugee Review
27                   Tribunal—the date of the written statement under subsection
28                   368(1) or 430(1); or
29              (c) in the case of an oral migration decision made by the
30                   Migration Review Tribunal or the Refugee Review
31                   Tribunal—the date of the oral decision; or
32              (d) in any other case—the date of the written notice of the
33                   decision or, if no such notice exists, the date that the Court
34                   considers appropriate.




                   Migration Legislation Amendment Bill (No. 2) 2008   No.   , 2008   5
     Schedule 3 Amendments relating to appeals against extension of time decisions




 1            (4) For the purposes of subsection (1), the 35 day period begins to run
 2                despite a failure to comply with the requirements of any of the
 3                provisions mentioned in the definition of date of the migration
 4                decision in subsection (3).
5             (5) To avoid doubt, for the purposes of subsection (1), the 35 day
6                 period begins to run irrespective of the validity of the migration
7                 decision.

 8   3 Subsection 477A(1)
 9           Omit “28 days of the actual (as opposed to deemed) notification of the
10           decision”, substitute “35 days of the date of the migration decision”.

11   4 Subsections 477A(2), (3) and (4)
12           Repeal the subsections, substitute:
13            (2) The Federal Court may, by order, extend that 35 day period as the
14                Federal Court considers appropriate if:
15                 (a) an application for that order has been made in writing to the
16                     Federal Court specifying why the applicant considers that it
17                     is necessary in the interests of the administration of justice to
18                     make the order; and
19                 (b) the Federal Court is satisfied that it is necessary in the
20                     interests of the administration of justice to make the order.
21            (3) In this section:
22                date of the migration decision has the meaning given by
23                subsection 477(3).
24            (4) For the purposes of subsection (1), the 35 day period begins to run
25                despite a failure to comply with the requirements of any of the
26                provisions mentioned in the definition of date of the migration
27                decision in subsection 477(3).
28            (5) To avoid doubt, for the purposes of subsection (1), the 35 day
29                period begins to run irrespective of the validity of the migration
30                decision.

31   5 Subsection 486A(1)
32           Omit “28 days of the actual (as opposed to deemed) notification of the
33           decision”, substitute “35 days of the date of the migration decision”.



     6      Migration Legislation Amendment Bill (No. 2) 2008   No.   , 2008
                                      Amendments relating to judicial review Schedule 2




 1   6 Subsections 486A(1A), (2) and (3)
 2         Repeal the subsections, substitute:
 3         (2) The High Court may, by order, extend that 35 day period as the
 4             High Court considers appropriate if:
 5              (a) an application for that order has been made in writing to the
 6                  High Court specifying why the applicant considers that it is
 7                  necessary in the interests of the administration of justice to
 8                  make the order; and
 9              (b) the High Court is satisfied that it is necessary in the interests
10                  of the administration of justice to make the order.
11         (3) In this section:
12             date of the migration decision has the meaning given by
13             subsection 477(3).
14         (4) For the purposes of subsection (1), the 35 day period begins to run
15             despite a failure to comply with the requirements of any of the
16             provisions mentioned in the definition of date of the migration
17             decision in subsection 477(3).
18         (5) To avoid doubt, for the purposes of subsection (1), the 35 day
19             period begins to run irrespective of the validity of the migration
20             decision.

21   7 Application
22   (1)   The amendments made by this Schedule apply to applications under
23         section 477, 477A or 486A of the Migration Act 1958 made on or after
24         the commencement of this Schedule.
25   (2)   If the application relates to a migration decision made before the
26         commencement of this Schedule, for the purposes of applying
27         sections 477, 477A and 486A of the Migration Act 1958, treat the date
28         of the migration decision as the date of that commencement.
29




                   Migration Legislation Amendment Bill (No. 2) 2008   No.   , 2008     7
     Schedule 3 Amendments relating to appeals against extension of time decisions




 1
 2   Schedule 3—Amendments relating to appeals
 3         against extension of time decisions
 4

 5   Migration Act 1958
 6   1 At the end of section 476A
 7           Add:
 8            (3) Despite section 24 of the Federal Court of Australia Act 1976, an
 9                appeal may not be brought to the Federal Court from:
10                  (a) a judgment of the Federal Magistrates Court that makes an
11                      order or refuses to make an order under subsection 477(2); or
12                 (b) a judgment of the Federal Court that makes an order or
13                      refuses to make an order under subsection 477A(2).
14            (4) Despite section 33 of the Federal Court of Australia Act 1976, an
15                appeal may not be brought to the High Court from a judgment of
16                the Federal Court that makes an order or refuses to make an order
17                under subsection 477A(2).
18            (5) In this section:
19                judgment has the same meaning as in the Federal Court of
20                Australia Act 1976.

21   2 Application
22           The amendment made by this Schedule applies to judgments made on
23           or after the commencement of this Schedule that make an order or
24           refuse to make an order under subsection 477(2) or 477A(2) of the
25           Migration Act 1958.




     8      Migration Legislation Amendment Bill (No. 2) 2008   No.   , 2008

				
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