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Thursday, 27 March 2014
Page: 3328


Mr MORRISON (CookMinister for Immigration and Border Protection) (09:24): I move:

That this bill be now read a second time.

The Migration Legislation Amendment Bill (No. 1) 2014 amends the Migration Act 1958(the act) and the Australian Citizenship Act 2007 (the citizenship act) to:

ensure that sections 48, 48A and 501E of the act can be correctly applied according to policy intention;

ensure that a bridging visa application is not an impediment to the exercise of the removal of the person under subsection 198(5) of the act;

apply the debt liability provisions of the act to all convicted people smugglers and illegal foreign fishers;

clarify the obligations of the Migration Review Tribunal and the Refugee Review Tribunal to give documents to an authorised recipient;

clarify the role of the authorised recipient, and the extent of the obligation to notify an authorised recipient of direct communications made with the person who appointed them;

provide access to, and use of, material and information obtained under a search warrant issued under the Crimes Act 1914 for certain purposes of the act and the citizenship act;

ensure that the procedural fairness requirements prescribed in the act will apply universally to all visa applications and provide for greater consistency in decision making; and

repeal provisions in the act which contain references to section 14 of the Electronic Transactions Act 1999.

The first schedule to the bill will ensure that sections 48, 48A and 501E of the act can be correctly applied according to policy intention.

Sections 48, 48A and 501E of the act limit or prohibit the making of valid visa applications by persons who have been refused a visa or who have held a visa that was cancelled.

Currently, section 48 limits further visa applications by a person in the migration zone who held a visa that was cancelled. This means a person whose visa has been cancelled at any time in the past will not be able to make a further visa application while they are in Australia. This is not consistent with the policy intention, which is to limit further visa applications if the person has held a visa that was cancelled only since last entering Australia.

In addition, the amendment will clarify that sections 48, 48A and 501E also apply to limit or prohibit the making of a further visa application by persons who were refused a visa for which a valid application was made on the person's behalf. This is irrespective of whether the person knew about, or understood the nature of, the application because the person lacked capacity due to a mental impairment, or because the person was a minor at the time of that application.

The amendment will ensure that, consistently with the policy intention, the application of sections 48, 48A and 501E will not be determined by reference to a retrospective and subjective assessment of the person's knowledge or understanding of the visa application made on their behalf. Instead, the application of these provisions can be determined by reference to the objective criterion of whether or not the person has been refused a visa since they last entered Australia as a matter of fact.

The amendment will protect the integrity of Australia's visa systems by ensuring that minors or mentally impaired persons who have been refused a visa and who do not otherwise have a lawful basis for remaining in Australia, cannot make or have made on their behalf, unmeritorious visa applications in order to prolong their stay in Australia. It also ensures that different members of the same family unit, some of whom may be minors or mentally impaired, who applied for visas together will receive consistent immigration outcomes and be bound by the same consequences.

Schedule 2— r emoval of unlawful noncitizens

The second schedule to the bill will clarify the interaction between section 195 and subsection 198(5) of the act. This is to ensure that a bridging visa application is not an impediment to the removal of a person under subsection 198(5) of the act.

Currently, subsection 198(5) of the act does not explicitly cover situations where a detainee has applied only for a bridging visa, which has resulted in a small cohort of detainees being unable to be removed from Australia. This amendment now clarifies the wording of subsection 198(5), to ensure the correct operation of removals policy intent.

In addition, these amendments put beyond doubt that a person cannot be removed if they have applied for a protection visa and the grant of the visa has not yet been refused or the application has not yet been finally determined. This puts beyond doubt that subsection 198(5) of the act does not apply to an unlawful noncitizen who has made a valid application for a protection visa.

These measures will apply to the removal of a detainee on or after the commencement of this schedule, including if the detainee was detained before that day.

Schedule 3—r ecovery of costs from certain persons

The third schedule to the bill will apply the debt liability provisions of the act to all convicted people smugglers and illegal foreign fishers.

On 9 November 2009, the relevant operative provisions of the Migration Amendment (Abolishing Detention Debt) Act 2009 commenced. These amendments removed liability for certain persons and liable third parties to the Commonwealth for the cost of keeping, maintaining, and transporting them while they were in immigration detention.

Under existing legislative arrangements, convicted people smugglers and illegal foreign fishers who are detained because of section 250 of the act, remain liable to the Commonwealth for their detention and removal costs. The act also contains a number of provisions that facilitate the recovery of these debts. However, under current provisions of the act, a person is not liable for costs arising from their immigration detention and removal if they were not initially detained because of section 250, or because they were not in immigration detention at the time of their conviction, or because they have since been granted a visa (for example, a criminal justice stay visa while in prison). Accordingly, the debt liability provisions cannot be applied to all people smugglers and illegal foreign fishers, regardless of how or if they were detained and whether they have been granted a visa.

This inability to apply the debt liability provisions of the act consistently to all convicted people smugglers and illegal foreign fishers, negates any financial disincentive to these persons to participate in people smuggling or illegal foreign fishing.

Changes to the act will make it clear that these provisions will apply either at the time of conviction or after the convicted people smuggler or illegal foreign fisher has completed serving the whole or part of their criminal sentence. These amendments will also clarify that detention transportation and removal costs are recoverable from a convicted people smuggler or illegal foreign fisher regardless of their current status or whether or not they were believed to be a people smuggler or illegal foreign fisher at the time of their immigration detention.

Schedule 4—a uthorised recipients

The fourth schedule to the bill will clarify the obligation of the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) to give documents to an authorised recipient. The amendments also clarify the role of an authorised recipient and remove the requirement to notify an authorised recipient of direct oral communications made with the person who authorised them.

The first amendment addresses the full Federal Court's decision in SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27, in which the full Federal Court found that the MRT or the RRT's obligation to give documents to an authorised recipient does not extend to review applications which have not been properly made. The amendment will put it beyond doubt that where an authorised recipient has been authorised by a review applicant to receive documents on their behalf, the MRT or the RRT must, consistent with the review applicant's wish, give documents relating to the review to the authorised recipient, even if the review application itself was not properly made.

The second amendment is to clarify the intended operation of the provisions relating to authorised recipients. Currently, the act provides that an authorised recipient can do things on behalf of an applicant or a person that consist of, or include, receiving documents in connection with the application or matters arising under the act or the Migration Regulations 1994. This is broader than the policy intention for the role of an authorised recipient, which is only to receive documents and not do anything else on behalf of the applicant or person, and has led to comments by the full Federal Court in MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156 that the relevant provision means that an authorised recipient is 'constituted effectively as the agent of the visa applicant'.

The amendment therefore clarifies that an authorised recipient is authorised to only receive documents and to update their own address for the purpose of receiving documents. If an applicant or person has an intention to allow another person to do additional things on their behalf, evidence must be provided to the department or the tribunal separately to the authorisation of that person as an authorised recipient.

Finally, the amendments remove the current requirement to notify an authorised recipient of direct oral communications made with the applicant or person. This is a consequential amendment to the clarification of the role of an authorised recipient. If an authorised recipient is only authorised to receive documents, then there is no longer a reason or a need to inform the authorised recipient of communications made directly with the applicant or person. However, this would not prevent the department or the tribunal, under policy, from informing the authorised recipient of relevant and important direct communications made with the applicant or person, in circumstances where the authorised recipient has also been given separate authority to act for the applicant or person, other than to receive documents.

Schedule 5—Crimes Act w arrants

The fifth schedule to the bill will provide access to, and use of, material and information obtained under a search warrant issued under the Crimes Act 1914 for certain purposes of the act and Citizenship Act.

These amendments overcome the limitation on receiving and using information obtained under a search warrant issued under division 2 of part 1AA of the Crimes Act 1914 for the purposes of making certain administrative decision under the act or Citizenship Act.

The purposes for which the material and information can be received and used in the context of the act are:

making a decision, or assisting in making a decision, to grant or refuse to grant a visa;

making a decision, or assisting in making a decision, to cancel a visa;

making a decision, or assisting in making a decision, to revoke a cancellation of a visa; and

making a decision in relation to the detention, removal, or deportation of a noncitizen from Australia.

The purposes for which the material and information can be received and used in the context of the citizenship act are:

making a decision, or assisting in making a decision, to approve or refuse to approve a person becoming an Australian citizen;

making a decision, or assisting in making a decision, to revoke a person's Australian citizenship;

making a decision, or assisting in making a decision, to cancel an approval given to a person under section 24 of the Citizenship Act.

The Department of Immigration and Border Protection has a critical role to play in ensuring fair and reasonable decisions are made regarding people entering or the detention, removal or deportation of a person from Australia to ensure compliance with immigration laws. It is in the public interest that, where available, immigration decision makers are able to use and share information that help inform lawful decisions.

Immigration criminal investigators have at their disposal legitimately obtained material that could be made available to administrative decision makers if supported through appropriate legislation. The bill seeks to facilitate the use and sharing of material or information obtained under a section 3E Crimes Act 1914 search warrant.

The amendment proposes to use material already in the possession of the department, as well as enabling other agencies to provide material obtained under a warrant, for certain visa and citizenship decisions. The amendment would not further extend coercive powers or administrative responsibilities, simply provide further information to administrative officers for more effective decision making.

Schedule 6 —p rocedural fairness requirements and removing redundant references

Part 1 of the sixth schedule to the bill will remove the current distinction between applications for visas that can be granted when the applicant is in the migration zone and which are subject to merits review by the MRT or the RRT, for which the act requires an opportunity to be given to the visa applicant to comment on certain adverse information before a decision to refuse can be made, and applications for other types of visas.

The amendment addresses the finding of the High Court in the case of Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (Saeed) that although the act does not require an opportunity to comment to be given to applicants for visas not subject to MRT or RRT review, nevertheless there is a requirement under the common law to provide the visa applicant with an opportunity to comment before a decision can be made on the visa application. The Saeed decision means that procedural fairness must be given to all visa applicants. The only difference is whether the statutory or the common law procedural fairness requirements apply, depending on the visa applied for.

The amendment therefore removes the current distinction between applications for visas. In other words, the amendment will ensure that the procedural fairness requirements prescribed in the act will apply universally to all visa applications and provide for greater consistency in decision making.

Part 2 of the sixth schedule to the bill will repeal provisions in the act which contain references to section 14 of the Electronic Transactions Act 1999 (the ET Act). These provisions have become redundant following the amendment to the ET Act in 2011 which restructured and renumbered provisions in the ET Act, and the subsequent amendment made in 2013 to the Electronic Transactions Regulations 2000.

I commend the bill to the chamber.

Debate adjourned.