By Jason Donnelly -
Snapshot
- There is significant inconsistency in the application of statutory objectives within Australia’s immigration and appeals system.
- Delegates of the Minister for Immigration are primarily guided by the national interest, while statutory members of the Administrative Appeals Tribunal have a broader set of objectives. This divergence raises concerns about fairness and consistency in decision-making.
- The proposed harmonising of statutory objectives for both decision-makers would emphasise the just resolution of immigration matters quickly, cost-effectively and efficiently in accordance with the law. This approach aims to ensure fairness, streamline processes and maintain public trust in the immigration system.
There is an unacceptable dichotomy in the application of statutory objectives between delegates of the Minister for Immigration, Citizenship and Multicultural Affairs (the ‘Minister’) and statutory members of the Administrative Appeals Tribunal (the ‘Tribunal’).
This article explores the differing statutory objectives under the Migration Act 1958 (Cth) (‘Migration Act’) and the Administrative Appeals Tribunal Act 1975 (the ‘Tribunal Act’). The article examines key judicial commentary concerning both statutes and concludes that all administrative decision-makers administering the Migration Act should be bound by the same legislative objectives.
The legal regime
In exercising powers under the Migration Act, delegates of the Minister are generally bound to advance the statutory objectives contained in s 4 of the Act. Subsection 4(1) of the Migration Act provides that the object of the Act is ‘to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.
The High Court of Australia has previously concluded that what is in the national interest is largely a political question (Plaintiff S156/2013 v Minister for Immigration and Border Protection [2014] HCA 22 at [40]).
Statutory members of the Tribunal, however, are bound by a more extensive range of statutory objectives. Section 2A of the Tribunal Act provides that in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is accessible, fair, just, economical, informal and quick, proportionate to the importance and complexity of the matter, and promotes public trust and confidence in the decision-making of the Tribunal.
