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Migration Legislation Amendment (Temporary Safe Haven Visas) Bill 1999
Bills Digest No. 162 1998-99
Migration Legislation Amendment (Temporary Safe Haven Visas) Bill 1999
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Migration Legislation A mendment (Temporary Safe Haven Visas) Bill 1999
The Bill proposes:
- the creation of a class of visa, to be known as a ‘temporary safe haven visa’
- to prevent holders of temporary safe haven visas from applying for a visa other than a temporary safe haven visa, and
- to prevent holders, or former holders, of temporary safe haven visas from seeking merits review or judicial review of decisions by the Minister.
On 15 April 1999, the Migration Regulations were amended t o prescribe new visa class UJ and new visa subclass 448 - Kosovar Safe Haven (Temporary).(1)
On 5 April 1999, the Minister for Immigration and Multicultural Affairs, the Hon Philip Ruddock MP, announced that people currently in Australia (lawful ly) who were affected by the conflict in Kosovo would be able to apply to have their visas extended. In his press release, the Minister indicated that applications for extension of stay would be dealt with on a case-by-case basis.(2)
On 6 April 1999, the Prime Minister announced that the Government would give temporary sanctuary to 4,000 persons displaced from the Kosovo region of the Republic of Yugoslavia.(3) According to the Prime Minister’s announcement, these people were to be given temporary stay for 3 months in the first instance, with possible further extension of that period depending ‘…on the circumstances as they unfold in Kosovo’.
The Prime Minister stressed that these 4,000 entrants were being admitted separately, and in addition to, the Gove rnment’s Refugee program.
On 9 April 1999, the Minister for Immigration and Multicultural Affairs, the Hon Philip Ruddock MP, announced that officials of his Department, accompanied by a representative of the United Nations High Commissioner for Refugees, were travelling to the Former Yugoslavian Republic of Macedonia to begin identifying people to bring to Australia. The Minister indicated that Australia was seeking people who were forced to flee Kosovo after 26 March 1999, were fit to travel, and voluntarily agreed to be evacuated to Australia. At that stage, it was envisaged that the people would be taken to a reception facility at East Hills (near the Holsworthy army barracks) for medical screening before being taken to accommodation centres around Australia. (The first group of people was to be taken to the Brighton Barracks in Tasmania.) (4)
The Minister also announced that legislation to give effect to the Government’s policy was ‘at an advanced stage’.(5)
On 10 April 1999, the Minister issued a press release stating that Australia, in response to a request by the United Nations High Commissioner for Refugees, was suspending its plans to temporarily relocate displaced Kosovo Albanians.(6)
On 15 April 1999, regulations were made to prescribe new visa class UJ and visa subclass 448 Kosovar Safe Haven (Temporary).(7) The regulations were tabled in the Senate on 20 April 1999.
On 21 April 1999, the present Bill was introduced into the Senate.
Clause 4 operates retrospectively. It ensures that, if, during the period between 6 April 1999 and the commencement of this provision, a non-citizen who holds a temporary safe haven visa and who has not left Australia applies for a substantive visa and is not granted it, that person no longer has a valid application. The effect of this provision is to deny the applicant the right of merits review of that decision.
Clause 5 ensures that any visas granted under Class UJ (a temporary safe haven visa) would be subject to the provisions of this Act.
Item 3 of Schedule 1 inserts new section 37A. This provision creates a new class of temporary visas, to be known as temporary safe haven visas. The Minister will have the power, by notice published in the Gazette , to either extend, or shorten, the period of the visa [ new subsections 37A(2) and 37A(3) ]. The Minister does not have a duty to consider whether to extend the term of a temporary safe haven visa [ new subsection 37A(5) ]; accordingly, a decision by the Minister not to consider extending the term of a temporary safe haven visa is not reviewable.
Item 12 amends subsection 475(2) , to exclude, from judicial review by the Federal Court:
- a decision of the Minister not to exercise, or not to consider the exercise of his power to extend the term of a temporary safe haven visa under new subsection 37A(2) , and
- a decision by the Minister to shorten the visa period of a temporary safe haven visa under new subsection 37A(3) .
Irrespective of any other provision of the Principal Act, the visa will cease to have effect on the day specified in the Gazette notice [ new subsection 37A(4) ].
Item 4 of Schedule 1 will amend paragraph 46(1)(d) of the Act, to provide that a person to whom new section 91K applies is prevented from making a valid visa application.
A visa application that is not valid in accordance with section 46 of the Act cannot be considered by the Minister [ subsection 47(3) ]. As the non-consideration of a visa is not a decision to refuse to grant the visa [ subsection 47(4) ], it cannot be the subject of merits review, either internally (by the Migration Internal Review Office), or externally (by the Immigration Review Tribunal).
Item 5 of Schedule 1 amends paragraph 65(1)(a)(iii) of the Act, to prevent the Minister from granting a valid application for a visa to a person if he or she falls within the class of people to whom new section 91K applies.
Item 7 of Schedule 1 inserts new Subdivision AJ , concerning holders of temporary safe haven visas. New section 91H explains the policy rationale behind the enactment of the Subdivision, and provides that a person who ceases to hold a temporary safe haven visa is subject to removal from Australia under Division 8 of the Principal Act.
New section 91J provides that new Subdivision AJ applies to a non-citizen in Australia who holds a temporary safe haven visa, or has not left Australia since ceasing to hold such a visa.
New section 91K states that non-citizens to whom the subdivision applies are unable to make valid applications for visas other than a temporary safe haven visa.
New section 91L allows the Minister, if he or she considers it is in the public interest to do so, to determine that the prohibition in section 91K does not apply to a visa made by particular non-citizen. Only the Minister may exercise this power [ new subsection 91L(2) ], and there is no duty on him or her to consider whether he or she should do so [ new subsection 91L(6) ].
Any determinations made have to be laid before both Houses of Parliament, and time limits for tabling apply [ new subsections 91L(3), (4) and (5) ].
Item 13 amends paragraph 475(2)(e) of the Principal Act to provide that a decision by the Minister not to make a determination under section 91L, or a decision not to consider making such a determination , cannot be judicially-reviewed by the Federal Court.
Item 8 amends section 118 of the Principal Act to provide that the power to cancel a temporary safe haven visa does not affect or limit any other visa cancellation powers contained in the Act.
Item 9 amends section 198 to impose an obligation on an officer to remove, as soon as reasonably practicable, an unlawful non-citizen if:
- The non-cit izen is in immigration detention; and
- Subdivision AJ applies to him or her; and
- The Minister has either not made a determination under subsection 91L(1), or the person has made a valid application for a substantive visa that is capable of being granted in the migration zone before the period of the determination (7 days) expired.
Item 10 amends section 337 to provide that a decision by the Minister to refuse to grant, or to cancel, a temporary safe haven visa is neither internally reviewable, nor reviewable by the Immigration Review Tribunal.
Item 11 amends section 338 , as amended by Item 10 of Schedule 1 to the Migration Legislation Amendment Act (No.1) 1998 (the Amendment Act). When this section commences (on 1 June 1999), it will set out the types of decision capable of external merits review by the Migration Review Tribunal. Item 11 amends subsection 338(1) to exclude a decision to refuse to grant, or to cancel, a temporary safe haven visa. This Item will commence after the commencement of Schedule 1 to the Amendment Act.
Item 14 inserts new subsection 500A(1) , to give the Minister power to cancel a temporary safe haven visa if, in the Minister’s opinion, the person:
- has had an association with another person or organisation that the Minister reasonably suspects has been or is involved in criminal conduct
- the Minister is of the opinion that the person is not of good character (having regard to past and/or present criminal conduct, and
- the Minister considers that there is a significant risk that the person, if allowed to enter or remain in Australia, would: engage in criminal conduct in Australia, harass, stalk, molest or intimidate another person in Australia, vilify a segment of the Australian community, or incite discord in the Australia community.
The Minister may also cancel a visa if he or she considers that the person is a threat to national security, or the person’s presence in Australia will jeopardise Australia’s international relations.
New subsection 500A(3) provides that the Minister may refuse to grant to a person a temporary safe haven visa if the person has been sentenced to death or life imprisonment, or the person has been sentenced to a term of imprisonment for at least 12 months.
The powers in subsections 500A(1) and 500A(3) may only be exercised by the Minister personally. Where the Minister refuses to grant, or cancels, a temporary safe haven visa under these provisions, a statement must be tabled before both Houses of Parliament [ new subsection 500A(7) ]. Tabling requirements apply - new subsections 500A(7), (8) and (9) .
New subsection 500A(10) requires the Minister to notify the person of his or her decision. However, the failure to notify the person does not affect the validity of the decision. The rules of natural justice (ie informing the person of the allegations, and giving them an opportunity to respond to them) and the code of procedure in Subdivision AB of Division 3 of Part 2 are expressly excluded. The code of procedure, which is designed to ensure that visa applications are dealt with fairly, efficiently and quickly, imposes certain obligations on decision makers. The requirements include informing the applicant of reasons why a visa is not to be granted, and inviting the applicant to provide information as to why he or she should be granted a visa.
New subsection 500A(12) provides that where the Minister refuses to grant a temporary safe haven visa to a person under subsection 500A(1) or (3), the Minister is taken to have refused to grant a temporary safe haven visa to each immediate family member of that person.
New subsection 500A(13) provides that if a person’s temporary safe haven visa is cancelled under subsection 500A(1) or (3), the temporary safe haven visas of each member of the immediate family of that person are automatically cancelled.
For the purposes of subsections 500A(12) and (13) , ‘immediate family’ means a spouse, child or parent of the person whose visa is refused or cancelled.(8)
The proposals contained in the Bill illustrate some of the tensions between the Government’s clearly expressed policy that th e stay of people displaced from Kosovo be a temporary one, and the principles of international refugee law.
Can the Government exclude a holder of a temporary safe haven visa from making an application for a protection visa?
The Bill purports to prevent a holder of a temporary safe haven visa present in Australia from making an application for a substantive visa, including a protection visa (that is, an application for refugee status), unless the Minister otherwise determines under section 91L.
In relation to people who are off-shore, Australia can choose to offer protection to whomsoever it chooses, irrespective of whether that person meets the definition of ‘refugee’ in the UN Convention Relating to the Status of Refugees (the Refugee Convention).(9) However, once a person enters Australia and applies for refugee status, the obligation arises to protect that person until their application for refugee status has been determined.
By preventing a holder of a temporary safe haven visa from applying for a protection visa, the Bill ensures that Australia’s obligations under the Refugee Convention are not invoked. This has potentially serious implications, particularly in the context of deciding whether it is safe to send the holders of temporary safe haven visas back to their country of origin.
The Bill will allow the Minister, by notice in the Gazette , to shorten the period of a temporary safe haven visa. A decision to do so will not be subject to either merits review, or judicial review. Given that temporary safe haven visas will be granted for a period of three months in the first instance, such a provision would appear to be unnecessary. In addition, the knowledge that the Minister may shorten the period of a temporary safe haven visa at any time has the potential to provoke anxiety amongst the visa holders.
The Refugee Convention imposes on States Parties the obligation of ‘non-refoulment’. In other words, a State who is party to the Convention is obliged to ensure that a refugee (within the terms of the Convention) is not sent back to their country of origin if there is a real chance that the person will face persecution on the basis of their race, religion, nationality, political opinion or membership of a particular social group. The principle of non-refoulment also applies in cases where a person’s application for refugee status has not yet been determined.
As holders of temporary safe haven visas will not be entitled to apply for a protection visa, they will not be considered as if they were applicants for refugee status, and, arguably, Australia is not obliged to observe the principle of non-refoulment in respect of them.
This is somewhat problematic, given that it is arguable that, but for their having been granted a temporary safe haven visa, people displaced from Kosovo would otherwise be able to successfully apply for the grant of a protection visa, on the basis of a well-founded fear of persecution for the reason of their membership of a particular social or religious group.(10)
It should be noted that Bill allows the Minister for Immigration and Multicultural Affairs to extend the term of a temporary safe haven visa, and to determine that the holder of a temporary safe haven visa may apply for a substantive visa. It is hoped that the Minister will give consideration to these options, particularly given that it is unlikely that the people displaced from Kosovo will be able to be safely returned there for a significant period of time.
1. Migration Amendment Regulations 1999 (No. 2) SR 1999 No. 58.
2. The Hon Philip Ruddock MP, ‘Extension of stay’, Press release, 5 April 1999.
3. The Hon John Howard MP, Transcript of press conference, Parliament House, 6 April 1998.
4. The Hon Philip Ruddock MP, ‘Arrangements for Kosovo Temporary Entrants’, Transcript of press conference, 9 April 1999.
6. The Hon Philip Ruddock MP, ‘Temporary relocation arrangements paused’, Press release, 10 April 1999.
7. Migration Amendment Re gulations 1999 (No. 2) SR 1999 No. 58.
8. Migration Regulations 1994 , reg. 1.12AA
9. Article 1A(2) of the Refugee Convention states that a refugee is any person who:
‘…owing to a well-founded fear of being persecuted for reasons of race, religion, nationa lity, or membership of a particular social group or political opinion, is outside the country of his nationality and is unable to, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’
Article 1A(2) needs to be read with the Protocol Relating to the Status of Refugees , which extends the operation of the definition to events occurring after 1 January 1951.
10. In a number of cases, the Refugee Review Tribunal has held that Kosovo Albanian protection visa applicants are refugees, and remitted their applications to the Department for reconsideration - V98/08948 (24 September 1998); V97/06872 (12 March 1998) and N98/25024 (21 October 1998).
23 April 1999
B ills Digest Service
Information and Research Services
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