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Tuesday, 30 March 2004
Page: 22337


Senator BARTLETT (Leader of the Australian Democrats) (9:08 PM) —I move:

(1) Page 11 (after line 12), at the end of the bill, add:

Schedule 8—Amendment of the Migration Regulations 1994

[1] Schedule 2, after paragraph 447.511(b)

insert

; and (c) to remain in Australia until:

(i) if the holder applies for a Protection (Class XA) visa after the temporary visa is granted and while the temporary visa is in effect —the day on which the application is finally determined or withdrawn; and

(ii) in any other case—the end of 36 months after the temporary visa is granted or the end of a shorter period specified by the Minister in relation to the visa holder.

[2] Schedule 2, clause 451.511

substitute

451.511 Temporary visa permitting the holder:

(a) to travel to and enter Australia on 1 occasion, as specified by the Minister; and

(b) to remain in Australia until:

(i) if the holder applies for a Protection (Class XA) visa after the temporary visa is granted and while the temporary visa is in effect—the day on which the application is finally deter-mined or withdrawn; and

(ii) in any other case—the end of 60 months after the temporary visa is granted, or the end of a shorter period specified by the Minister in relation to the visa holder.

[3] Schedule 2, paragraph 785.511(b)

substitute

(b) for the holder of a Subclass 785 (Temporary Protection) (Class XC) visa—the day on which the application mentioned in paragraph 2.08F (1) (d) is finally determined or withdrawn; or

(c) for holder of a Subclass 785 (Temporary Protection) (Class XA) visa:

(i) if the holder applies for a Protection (Class XA) visa after the temporary visa is in effect—the day on which the application is finally deter-mined or withdrawn; and

(ii) in any other case—the end of 36 months after the temp-orary visa is granted or the end of a shorter period specified by the Minister in relation to the visa holder.

[4] Schedule 2, paragraph 866.214

omit

[5] Schedule 2, after clause 866.230

insert

866.231 (1) If subparagraphs 447.511 (c) (ii), 451.511 (b) (ii) and 785.511 (c) (ii), as in force when this subclause commences, are in force at the time of decision, subclause 866.215 (1) does not apply to an applicant who was granted a Subclass 785 (Temporary Protect-ion) visa before 27 September 2001.

(2) If subparagraphs 447.511 (c) (ii), 451.511 (b) (ii) and 785.511 (c) (ii), as in force when this subclause commences, are in force at the time of decision, subclause 866.215 (1) does not apply to an applicant who holds a Subclass 785 (Temporary Protection) visa and who, since last entering Australia, held a Subclass 447 (Secondary Move-ment Offshore Entry Temporary) visa or a 451 (Secondary Movement Relocation (Temporary)) visa.

This amendment adds an extra schedule to the bill, schedule 7, and amends the Migration Regulations. It highlights again the complexity of the Migration Act and, in this case, the Migration Regulations. I have run the proposed changes past a number of advisers and lawyers to make sure that they do what they are intended to do. I will probably still be told that they do not, but they are a reintroduction of regulations that were put forward by the government last year. I will not re-run the entire debate, but amendments were put forward that, amongst other things, sought to remove what was generally conceded to be an unintended consequence of legislation that went through in 2001—where people who had arrived before that date who were on a temporary protection visa and had not yet put in their application for a flow-on protection visa were caught in the changes that were made in 2001 and would only be entitled to a further temporary visa.

The regulations the government brought in were for those people who were already on a visa before the relevant date of 27 September 2001 and would have had their situation restored to what it was prior to that legislation going through. If they were then found to still be entitled to a protection visa, upon reapplication they would get a permanent visa. Those regs were brought in last year and contained that component. There was also a component that empowered the minister to give families whose temporary protection visas were out of sync—there are some in the country whose visas expire at different times—to grant a visa not for the normal three or five years but for the period of time to keep them in sync. Those regulations were disallowed, not because of those components but because there was a third component which sought to introduce temporary protection visas for all onshore applications, including for people that arrived or lodged their application for protection and including people that arrived with visas, usually tourist visas or education visas. That was something the Democrats, the Labor Party and the Senate did not support. They moved the disallowance to get at that bit. The regulations were written specifically in a way that intertwined the three measures to make it impossible to remove one without removing all three. At the time, I complained rather loudly and with annoyance about that fact, but to no avail.

The intention of this amendment is simply to reintroduce those components of the regulations which the government introduced last year. In a sense, I suppose one could say that we are trying to assist the government by bringing back measures that last year they saw fit to bring in themselves but that were knocked out by the Senate. It was a bit of collateral damage, I suppose you could say. It was frustrating to be put in that situation last year, and this is not an ideal mechanism for doing this, but it is basically the only mechanism that we have. I tried another mechanism before the regulations were disallowed, which was to move an amendment to legislation solely to address the problem of widening temporary protection visas for all onshore applicants. That was not supported by others in the Senate, much to my frustration, so we had to go with the disallowance. This is an attempt to undo part of that disallowance and to reinstate the components of the government's intent last year. I hope that the Senate sees fit to support it.