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Migration Amendment Bill 1991



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House: House of Representatives

Portfolio: Immigration, Local Government and Ethnic Affairs

Purpose

To introduce a new category of entrant and a regime for dealing with such entrants, including where they may be sent. The Bill will also make certain other amendments which relate to the period of grace, entry visas, the grounds under which a non-citizen may become an illegal entrant, and the character or conduct of applicants for visa or entry permits.

Background

Subject to basically four exceptions, the only people who have an unrestricted right to enter and remain in Australia are Australian citizens and others have to obtain permission which in most cases means that a visa or an entry permit has to be obtained. The four main groups of people exempted from the requirement of having either a visa or entry permit are: New Zealand citizens; citizens of other Commonwealth countries who have been given permanent residence in either Australia or New Zealand; diplomats and their families; and certain military personnel.

Others, such as `boat people', who enter Australia without a visa or entry permit are illegal entrants. Persons can also become illegal entrants under certain other circumstances, including by breaching the conditions of an entry permit, making false representations for the purpose of gaining entry; suffering from a prescribed disease; or having been convicted of certain crimes. Illegal entrants are liable to deportation and/or a period of imprisonment.

The Migration Act 1958 (the Principal Act) contains a number of provisions dealing with the deportation of illegal entrants. For example, where an illegal entrant has been in Australia for longer than the period of grace (28 days) the Minister must order the deportation of the person. The period of grace is intended to allow an illegal entrant either to leave Australia or apply to regularise their stay. The 28 days stops running as soon as an appeal is lodged or review of a decision is sought in the Federal Court. Once the Minister issues a deportation order it cannot be revoked.

People, such as boat people, who come to Australia without the correct documentation and are granted a temporary entry permit may apply for recognition as a refugee and on that basis seek permanent residence. Refugee status is determined in accordance with the Geneva Convention relating to the Status of Refugees. A refugee is defined at international law as `a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or, owing to such fear, 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, is unable or owing to such fear, unwilling to return to it'. Refugee status is considered by the Committee for the Determination of Refugee Status which makes recommendations to the Minister who has the final responsibility for the grant of refugee status.

Since World War Two, more than 430 000 refugees and displaced people have settled in Australia - from Europe, Asia, the Middle East, Central and South America and Africa. Among them (by 1985) had been: 170 000 people from Europe (including 63 400 from Poland, 34 700 from Latvia, Estonia and Lithuania and 23 500 from Yugoslavia); 14 000 Hungarians; 5 700 Czechoslovakians; 13 300 White Russians; over 100 000 Indo-Chinese; and 22 800 East Europeans (from 1978). Other groups accepted included 18 100 Lebanese; 2 500 others from the Middle East; 6 300 Timorese; 4 800 Soviet Jews; 2 800 Latin Americans; and 250 Africans. 1 In 1989-90, refugees and special humanitarian program arrivals (the special humanitarian program covers persons whether in their own country or outside of it, who are ineligible for refugee status but who are suffering or have a well

founded fear of persecution) totalled 11 948 compared with 10 887 arrivals in 1988-89. 2 The principal source countries for refugee and special humanitarian program arrivals in 1989-90 were Vietnam (5 679), El Salvador (1 848), USSR (1 065) and Lebanon (484). 3

Main Provisions

Where an illegal entrant withdraws an application for an entry permit, internal review, or review by the Federal Court, the period starting from when they made the application and ending when they withdrew it will be excluded for the purposes of calculating the period of grace (clause 4).

New subsections 17(1)-(3B) will be substituted into the Principal Act by clause 6. Proposed subsections 17(1)-(3B) provide that an entry visa may be granted to a person who has entered Australia or is in another country. The holder of a valid entry visa may enter Australia and where they leave Australia, re-enter, provided the visa is still valid. The holder of a valid entry visa may enter Australia only if they:

*travelled to Australia by aircraft and disembarked at a proclaimed airport; or

*travelled to Australia on a pre-cleared flight and did not land at any other country before disembarkation.

An entry visa is not to be granted to a statutory visitor (i.e. a non-citizen who's presence is required in Australia in connection with the Extradition Act 1988 or the Mutual Assistance in Criminal Matters Act 1987).

A new section 18 will be substituted into the Principal Act by clause 7. Proposed section 18 provides that while the holder of an entry visa is not in Australia, the entry visa will have effect as if it were a travel-only visa (i.e. any visa except an entry visa) until the holder enters Australia. When the holder of an entry visa enters or re-enters Australia, the entry visa will have effect as if it were an entry permit. If an entry visa is granted in Australia, it will have effect as if it were an entry permit. An entry visa will have effect subject to any conditions to which it is subject.

Clause 8 will amend section 20 of the Principal Act which deals with certain grounds under which a non-citizen may become an illegal entrant. Whether a person has ever made a false or misleading statement in a declaration about their character or conduct will be inserted as a ground under which a non-citizen may become an illegal entrant (proposed paragraph 20(1)(ca). Entering Australia suffering from a prescribed disease or a prescribed physical or mental condition is a ground under which a non-citizen may become an illegal entrant (subparagraph 20(1)(d)(i)). Proposed subsection 20(1A) provides that subparagraph 20(1)(d)(i) will not apply to a person who is the holder of a valid permanent entry permit before leaving Australia, is the holder of a prescribed visa allowing them to return to Australia and apply for a permanent entry permit, and was suffering from a prescribed disease or prescribed physical or mental condition when they left Australia, or developed it after leaving Australia. Subparagraph 20(1)(d)(i) will apply where such a person was suffering from the disease or condition when they were first granted a permanent entry permit and did not disclose the fact.

A new Division 4A (proposed sections 54A-54H) of Part 2 of the Principal Act dealing with the establishment of a new category of entrant and regime for dealing with such entrants will be inserted into the Principal Act by clause 12. Proposed section 54A provides that the Minister may, by Gazettal, nominate areas to which unprocessed persons may be taken. Proposed section 54B provides that if an authorised officer reasonably supposes that a person would on entry to Australia become an illegal entrant and, in the officer's opinion, it is inconvenient to decide immediately whether or not to grant them an entry permit:

*the person will become an unprocessed person; and

*at the direction of an officer, the person may be removed from the ship on which they travelled to Australia, or if they travelled by air, from the airport; and

*at the direction of an officer, the person may be taken to a processing area.

Unprocessed persons are to be taken not to have entered Australia until they have been granted an entry permit and left a processing area.

Within seven days of an unprocessed person being taken to a processing area, an authorised officer may serve on the master, owner, agent or charterer of the vessel on which the unprocessed person travelled to Australia a notice that if the unprocessed person becomes a prohibited person they:

*may be required to remove the person from Australia, at their expense, whether or not the prohibited person is able or willing to meet the cost of their own removal; and

*may be liable to pay the Commonwealth the cost of transporting the person and a custodian to a processing area, or between processing areas, the daily cost of maintaining the person until they are removed from Australia and the cost of transporting the person and a custodian from the processing area, or the place where they have been kept in custody, to the vessel on which they are to leave Australia.

Proposed section 54C provides that an officer may keep an unprocessed person in custody until they have been transported to a processing area, or while they are being transported between processing areas and prevent them from leaving a processing area until they have been granted an entry permit or become a prohibited person.

An unprocessed person will become a prohibited person if they give an officer a written request to leave Australia, do not apply for an entry permit before the end of the prescribed period, or are refused an entry permit (proposed section 54D).

Proposed section 54E provides that where an unprocessed person becomes a prohibited person, the master, owner, agent or charterer of the vessel on which the prohibited person travelled to Australia, will be liable to pay the Commonwealth:

*the cost of transporting the prohibited person and a custodian to the processing area, or between processing areas;

*the daily cost of maintaining in custody the prohibited person until they are removed from Australia; and

*the cost of transporting the prohibited person and a custodian from a processing area or a place of custody to the vessel on which they are to leave Australia.

The above costs will not be payable where the master, owner, agent charter has not been given notice, within seven days of the prohibited person being taken to a processing area as an unprocessed person, that they will be liable to pay those costs.

A prohibited person is to be removed from Australia as soon as practicable and may be kept in custody as directed by an officer until so removed. When an unprocessed person becomes a prohibited person an officer may serve in writing, a notice on the master, owner, agent or charterer of the vessel on which the prohibited person travelled to Australia, requiring them to remove the person from Australia at no cost to the Commonwealth and whether or not the prohibited person is able or willing to meet the cost of their own removal. The master, owner, agent or charterer is:

*within 72 hours of being given notice, to notify an officer that they are willing to accept the person and;

*remove the prohibited person from Australia at no cost to the Commonwealth, whether or not the prohibited person is able or willing to meet the cost of their own removal. The penalty for a breach of this provision will be a maximum fine of $10 000.

The above requirements will not apply to a master, owner, agent or charterer unless they have been served with a notice within seven days of the person first having been taken to a processing area as an unprocessed person and a prohibited person (proposed section 54F).

Proposed section 54G provides that an officer may, without warrant, arrest an unprocessed or prohibited person and take them to a processing area, or hold them in custody, if they:

*leave a processing area without being authorised; or

*refuse or fail to return to a processing area after being authorised to be temporarily absent; or

*escape from custody.

The effect of clause 13 will be to allow an illegal entrant to be deported before the end of the period of grace if they so consent.

Clause 15 will increase the maximum penalty which may be imposed on the master, owner, agent, charterer or operator of a vessel for carriage of persons to Australia without appropriate entry documentation from $5 000 to $10 000.

Clause 18 provides that a person who is taken into custody under sections 88 or 89 of the Principal Act (basically, these sections deal with the holding in custody of stowaways, or persons without appropriate entry documentation, on aircraft or ships) may be taken to a processing area. In addition, if such persons are taken to a processing area, they will become subject to proposed Division 4A of Part 2 of the Principal Act and they will be taken to have ceased to be in custody under sections 88 or 89 of the Principal Act.

A new section 107A will be inserted into the Principal Act by clause 19 that will require, in prescribed circumstances, an applicant for a visa or entry permit to make a declaration about their character, conduct, or both.

Clause 24 will increase the maximum penalty which may be prescribed under the regulations in relation to the carriage of persons to Australia who do not have appropriate documents from $1 500 to $3 000.

References

1. F. Frost, B. Martin D. Spooner, The Role of the Commonwealth in Safeguarding Human Rights with Special Reference to Refugees, Parliamentary Research Service, August 1990, pp. 9 and 10.

2. Bureau of Immigration Research, Immigration Update, September 1990, p. 23.

3. Ibid.

Bills Digest Service 23 April 1991

Parliamentary Research Service

For further information, if required, contact the Law and Government Group on 06 2772430.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1991

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Published by the Department of the Parliamentary Library, 1991.