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Border Protection Legislation Amendment Bill 1999

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1998-99

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

Border Protection Legislation Amendment Bill 1999

 

 

Schedule of the amendment made by the Senate

 

 

 

 

 

(1)     Schedule 1, page 45 (after line 4), at the end of the Schedule, add:

Part 6—Amendments to prevent forum shopping

65  At the end of section 36

Add:

Protection obligations

             (3)  Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

             (4)  However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

             (5)  Also, if the non-citizen has a well-founded fear that:

                     (a)  a country will return the non-citizen to another country; and

                     (b)  the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

subsection (3) does not apply in relation to the first-mentioned country.

Determining nationality

             (6)  For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

             (7)  Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

66  Paragraph 46(1)(d)

After “91K (temporary safe haven visa),”, insert “91P (non-citizens with access to protection from third countries),”.

67  After Subdivision AJ of Division 3 of Part 2

Insert:

Subdivision AK —Non-citizens with access to protection from third countries

91M   Reason for this Subdivision

                   This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.

Note:          For protection visas, see section 36.

91N  Non-citizens to whom this Subdivision applies

             (1)  This Subdivision applies to a non-citizen at a particular time if, at that time, the non-citizen is a national of 2 or more countries.

             (2)  This Subdivision also applies to a non-citizen at a particular time if, at that time:

                     (a)  the non-citizen has a right to re-enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country (the available country ) apart from:

                              (i)  Australia; or

                             (ii)  a country of which the non-citizen is a national; or

                            (iii)  if the non-citizen has no country of nationality—the country of which the non-citizen is an habitual resident; and

                     (b)  the non-citizen has ever resided in the available country for a continuous period of at least 7 days or, if the regulations prescribe a longer continuous period, for at least that longer period; and

                     (c)  a declaration by the Minister is in effect under subsection (3) in relation to the available country.

             (3)  The Minister may, after considering any advice received from the Office of the United Nations High Commissioner for Refugees:

                     (a)  declare in writing that a specified country:

                              (i)  provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

                             (ii)  provides protection to persons to whom that country has protection obligations; and

                            (iii)  meets relevant human rights standards for persons to whom that country has protection obligations; or

                     (b)  in writing, revoke a declaration made under paragraph (a).

             (4)  A declaration made under paragraph (3)(a):

                     (a)  takes effect when it is made by the Minister; and

                     (b)  ceases to be in effect if and when it is revoked by the Minister under paragraph (3)(b).

             (5)  The Minister must cause a copy of a declaration, or of a revocation of a declaration, to be laid before each House of the Parliament within 2 sitting days of that House after the Minister makes the declaration or revokes the declaration.

Determining nationality

             (6)  For the purposes of this section, the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

             (7)  Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

91P   Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

             (1)  Despite any other provision of this Act but subject to section 91Q, if:

                     (a)  this Subdivision applies to a non-citizen at a particular time; and

                     (b)  at that time, the non-citizen applies, or purports to apply, for a visa; and

                     (c)  the non-citizen is in the migration zone and has not been immigration cleared at that time;

neither that application, nor any other application the non-citizen makes for a visa while he or she remains in the migration zone, is a valid application.

             (2)  Despite any other provision of this Act but subject to section 91Q, if:

                     (a)  this Subdivision applies to a non-citizen at a particular time; and

                     (b)  at that time, the non-citizen applies, or purports to apply, for a protection visa; and

                     (c)  the non-citizen is in the migration zone and has been immigration cleared at that time;

neither that application, nor any other application made by the non-citizen for a protection visa while he or she remains in the migration zone, is a valid application.

91Q   Minister may determine that section 91P does not apply to a non-citizen

             (1)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91P does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.

             (2)  For the purposes of subsection (1), the matters that the Minister may consider include information that raises the possibility that, although the non-citizen satisfies the description set out in subsection 91N(1) or (2), the non-citizen might not be able to avail himself or herself of protection from the country, or any of the countries, by reference to which the non-citizen satisfies that description.

             (3)  The power under subsection (1) may only be exercised by the Minister personally.

             (4)  If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

             (5)  A statement under subsection (4) is not to include:

                     (a)  the name of the non-citizen; or

                     (b)  any information that may identify the non-citizen; or

                     (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

             (6)  A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

68  At the end of section 198

Add:

             (9)  An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

                     (a)  the non-citizen is a detainee; and

                     (b)  Subdivision AK of Division 3 of this Part applies to the non-citizen; and

                     (c)  either:

                              (i)  the non-citizen has not been immigration cleared; or

                             (ii)  the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

                     (d)  either:

                              (i)  the Minister has not given a notice under subsection 91Q(1) to the non-citizen; or

                             (ii)  the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

69  Paragraph 475(2)(e)

After “91L,”, insert “91Q,”.

70  Application of amendments

The amendments made by this Part apply to applications, or purported applications, for a visa made after the commencement of this item.

 

 

 

 

HARRY EVANS

Clerk of the Senate

 

The Senate

25 November 1999