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Migration Amendment (Protection and Other Measures) Bill 2014

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2013 - 2014

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

MIGRATION AMENDMENT (PROTECTION AND OTHER MEASURES)

BILL 2014

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon. Scott Morrison MP)



Migration Amendment (Protection and Other Measures) Bill 2014

 

OUTLINE

 

The Migration Amendment (Protection and Other Measures) Bill 2014 (the Bill) amends the Migration Act 1958 (the Migration Act) to implement a range of measures which increase efficiency and enhance integrity in the onshore protection status determination process.  The measures in this Bill support an effective and coherent protection determination process which responds to the challenging domestic asylum seeker landscape.

Specifically, the Bill amends the Migration Act to:

·       make clear that it is an asylum seeker’s responsibility to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claim ;

·       provide for the Refugee Review Tribunal (RRT) to draw an unfavourable inference with regard to the credibility of claims or evidence that are raised by a protection visa applicant at the review stage for the first time, if the applicant has no reasonable explanation to justify why those claims and evidence were not raised before a primary decision was made;

·       create grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship, and does not have a reasonable explanation for doing so, including when an applicant provides bogus documents to establish their identity or either destroys or discards such evidence, or has caused that evidence to be destroyed or discarded;

·       clarify when an applicant who applies for a protection visa, where a criterion for the grant of a visa is that they are a member of the same family unit of a person who engages Australia’s protection obligations, is to make their application for a protection visa;

·       define the risk threshold for assessing Australia’s protection obligations under the International Covenant on Civil and Political Rights (ICCPR)and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) ;

·       simplify the legal framework relating to unauthorised maritime arrivals and transitory persons who can  make a valid application for a visa;

·       increase processing and administrative efficiency of the Migration Review Tribunal (MRT) and the RRT, including:

o    strengthening the powers of the Principal Member to issue guidance decisions and practice directions;

o    enabling the Tribunals to make an oral statement of reasons where there is an oral decision without the need for a written statement of reasons; and

o    introducing a power to dismiss an application where an applicant fails to appear before the Tribunal after being invited to do so, with an ability to reinstate the application where the applicant applies for reinstatement within a specified period of time; and 

·       make a technical amendment to put beyond doubt when a review of a decision that has been made in respect of an application under the Migration Act is ‘finally determined’.

 

Schedule 1 of the Bill contains amendments which contribute to the integrity and improve the efficiency of the onshore protection status determination process.  The measures clarify the responsibility of asylum seekers and encourage complete information to be provided upfront. The measures apply to all asylum seekers regardless of their mode of arrival.      

 

New section 5AAA makes clear that for the purposes of the Migration Act, it is an asylum seeker’s responsibility to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations (however arising) and to provide sufficient evidence to establish that claim .  This onus applies to a non-citizen for whom an assessment is undertaken for the purposes of assessing Australia’s protection obligations carried out by the Department of Immigration and Border Protection under the Migration Act, Migration Regulations or instrument, or any administrative process that occurs in relation to the Act relating to protection obligations. 

 

While the new section 5AAA places the responsibility to provide and substantiate claims on an asylum seeker, new section 423A is directed at encouraging asylum seekers to provide all claims and supporting evidence as soon as possible. The new section 423A requires the RRT to draw an inference unfavourable to the credibility of new claims or evidence provided to the RRT, where the applicant does not have a reasonable explanation to justify why the claims were not raised or the evidence was not presented before the primary decision was made on their protection visa application.

 

Amended section 91W and new section 91WA relate to the provision of documentary evidence of identity, nationality or citizenship for the purposes of a protection visa application and are integrity measures.  Establishing an asylum seeker’s identity is a critical factor in determining whether a non-citizen engages Australia’s protection obligations.  The amendments establish grounds to refuse the grant of a protection visa to a protection visa applicant who:

·       refuses or fails to provide evidence of identity, nationality or citizenship when requested to do so;

·       provides a bogus document in response to such a request or provides bogus documents for the purposes of their application; or

·       destroys or disposes of documentary evidence of identity, nationality, or citizenship, or causes such evidence to be destroyed or disposed of.

 

The refusal power will not apply if the applicant has a reasonable explanation and either produces documentary evidence of their identity, nationality or citizenship or has taken reasonable steps to provide such evidence.  It is not acceptable for the applicant to produce any document as documentary evidence of their identity, nationality or citizenship that is a bogus document.

 

New section 91WB will apply to a non-citizen (the family applicant) who applies for a protection visa and who is a member of the same family unit as a person who has been granted a protection visa (the family visa holder).  This amendment will ensure, despite anything else in the Migration Act, that the Minister must not grant the protection visa to the family applicant on the basis of a criterion in paragraph 36(2)(b) or (c) of the Migration Act unless the family applicant applied for the protection visa before the family visa holder was granted their protection visa.

 

Schedule 2 of the Bill contains amendments relating to clarifying the threshold for Australia’s non-refoulement obligations under the ICCPR and CAT. This Schedule inserts new section 6A into the Migration Act which makes clear that the Minister can only be satisfied that Australia has protection obligations (under the ICCPR or CAT) in respect of the non-citizen, if the Minister considers that it is more likely than not that the non-citizen will suffer significant harm if removed from Australia to a receiving country. The risk threshold of “more likely than not” means that there would be a greater than fifty percent chance that a person would suffer significant harm in the receiving country. This “risk threshold” applies to any assessment of these protection obligations made under the Migration Act, the Migration Regulations, or instrument, or any administrative processes occurring in relation to the Migration Act or the Migration Regulations or other instrument. The Bill also clarifies the definition of “receiving country” to ensure that there is always a country of reference when considering Australia’s protection obligations in respect of a person.

 

Schedule 3 of the Bill contains amendments relating to unauthorised maritime arrivals (as defined in the Migration Act) making a valid application for a visa.  These amendments ensure that an unauthorised maritime arrival who is an unlawful non-citizen, a bridging visa holder or the holder of a temporary visa prescribed for the purposes of this provision will be prevented from making a valid application for a visa unless the Minister determines that it is in the public interest to allow them to do so.  These amendments also provide that such a determination may have effect only for the period of time specified, have a different period of time specified for different classes of unauthorised maritime arrivals; and be varied or revoked by the Minister.  The amendments will also ensure that where section 46A of the Migration Act applies to an unauthorised maritime arrival, section 91K of the Migration Act will no longer apply.  The amendments make the statutory bar in section 46B, which applies to transitory persons, consistent with the amended bar in section 46A, to ensure that transitory persons are treated consistently with unauthorised maritime arrivals. These amendments will streamline the operation of the statutory bars and support the orderly management of visa applications.

 

Schedule 4 of the Bill contains amendments relating to the MRT and the RRT. These amendments apply to both Tribunals and seek to improve their processing and administration.  The powers of the Principal Member will be strengthened to enable them to issue practice directions to applicants at review and their representatives (including migration agents and legal practitioners), about the procedures they are to follow in relation to proceedings before the Tribunal. The directions will also provide for guidance on processing practices relating to the conduct of reviews.

 

To align and reduce inconsistencies through the harmonisation of decisions, the Principal Member will also be able to issue guidance decisions to members of the Tribunals.  Guidance decisions will not go to the conduct of the review, but relate to issues identified on review of a case that provide guidance for subsequent cases on review with like issues and like evidence. In conducting reviews of this kind, the Tribunal must comply with the guidance decision unless a Tribunal member is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances in the guidance decision. However, if a Tribunal member fails to comply with a guidance decision in making a decision, it will not invalidate that decision.

 

These amendments will also provide a power to the Tribunals to enable them to provide an oral statement of reasons where there is an oral decision. This discretionary provision will also provide that where an oral statement of reasons is given, a written statement of reasons is to be provided to the review applicant if they request it within a specified period or the Minister makes a request at any time.

 

The Tribunals will also be able to dismiss an application where an applicant fails to appear before the Tribunal after being invited to do so.  The Tribunals will have the power to reinstate an application that has been dismissed for non-attendance, if the applicant seeks reinstatement within a specified period and the Tribunal considers it appropriate to do so.

 

 

financial impact statement

 

The financial impact of the Bill is low. Any costs will be met from within existing resources of the Department of Immigration and Border Protection.

 

REGULATION impact statement

 

The Office of Best Practice Regulation has been consulted and assessed that a regulation impact statement is not required.  The advice reference is 17122.

 

statement OF COMPATIBILITY with Human rights

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations.  A copy of the Statement of Compatibility with Human Rights is at Attachment A .



Migration amendment (PROTECTION AND OTHER MEASURES) B ILL 2014

 

notes on individual clauses

 

Clause 1          Short title

1.               Clause 1 provides that the short title by which this Act may be cited is the

Migration Amendment (Protection and Other Measures) Act 2014 .

Clause 2          Commencement

 

2.               Subclause 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. 

Any other statement in column 2 has effect according to its terms.

3.               Table item 1 provides that sections 1 to 3 of this Act and anything in this Act not elsewhere covered by the table will commence on the day on which this Act receives the Royal Assent.

4.               Item 2 of the table provides that amendments in Schedule 1, Part 1 commence on the day after this Act receives the Royal Assent.

5.               Item 3 of the table provides that amendments in Schedule 1, Part 2 commence on a single day to be fixed by Proclamation.  However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

6.               Item 4 of the table provides that amendments in Schedule 1, Part 3 commence on the day after this Act receives the Royal Assent.

7.               Item 5 of the table provides that amendments in Schedule 2, items 1 to 4 commence on the day after this Act receives the Royal Assent.

8.               Item 6 of the table provides that amendments in Schedule 2, item 5 commences on the day after this Act receives the Royal Assent.  However, if the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 receives the Royal Assent before that day, the provision(s) do not commence at all.

9.               Item 7 of the table provides that amendments in Schedule 2, item 6 commences on the day after this Act receives the Royal Assent.

10.           Item 8 of the table provides that amendments in Schedule 2, Part 2 commence immediately after the commencement of Schedule 1 to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014.  However, if that Schedule does not commence, the provision(s) do not commence at all.

11.           Item 9 of the table provides that amendments in Schedule 3 commence on a single day to be fixed by Proclamation.  However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 

12.           Item 10 of the table provides that amendments in Schedule 4 commence on a single day to be fixed by Proclamation.  However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 

13.           The note after subclause 2(1) states that this table relates only to the provisions of this Act as originally enacted.  It will not be amended to deal with any later amendments of this Act.

14.           Subclause 2(2) provides that any information in column 3 of the table is not part of this Act.  Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3          Schedule(s)

 

15.           This clause provides that each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned and any other item in a Schedule to this Act has effect according to its terms.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

SCHEDULE 1 - Amendments relating to protection visas

 

Part 1 - Amendments commencing on day after Royal Assent

 

Migration Act 1958

 

Item 1             After section 5

 

16.           This item inserts new section 5AAA after section 5 of Part 1 of the Migration Act.

17.           New subsection 5AAA(1) provides that this section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

18.           New subsection 5AAA(2) provides that for the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

19.           New subsection 5AAA(3) provides that the purposes of this Act include:

·       the purposes of a regulation or other instrument under this Act; and

·       the purposes of any administrative process that occurs in relation to:

o    this Act; or

o    a regulation or instrument under this Act.

20.           New subsection 5AAA(4) provides that to remove doubt, the Minister does not have any responsibility or obligation to:

·       specify, or assist in specifying, any particulars of the non-citizen’s claim; or

·       establish, or assist in establishing, the claim. 

21.           This amendment makes clear that for the purposes of the Migration Act, it is an asylum seeker’s responsibility to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations (however arising) and to provide sufficient evidence to establish that claim.  To remove any doubt, the Minister does not have any responsibility to make a case for protection on behalf of that asylum seeker.

22.           This amendment applies to an asylum seeker for whom an assessment is undertaken for the purposes of assessing Australia’s protection obligations under the Migration Act, Migration Regulations or instrument and for any administrative process that occurs in relation to the Migration Act, the Migration Regulations or instrument under the Migration Act relating to protection obligations.  



 

Part 2 - Amendments commencing on Proclamation

 

Migration Act 1958

 

Item 2             Subsection 5(1)

 

23.           This item inserts the definition of bogus document in subsection 5(1) of Part 1 of the Migration Act.

24.           The definition provides that a bogus document , in relation to a person, means a document that the Minister reasonably suspects is a document that:

·       purports to have been, but was not, issued in respect of the person; or

·       is counterfeit or has been altered by a person who does not have authority to do so; or

·       was obtained because of a false or misleading statement, whether or not made knowingly.

25.           The term bogus document is currently a term defined in section 97 of Subdivision C of Division 3 of Part 2 of the Migration Act.

26.           This amendment moves the definition of bogus document from section 97 to subsection 5(1) of Part 1 of the Migration Act.  It does not amend the existing definition but shifts the existing definition to a more appropriate location.  To acknowledge this move, a note is inserted by item 13 of Schedule 1 to the Bill to state that the term is defined in subsection 5(1) of the Migration Act.     

27.           The purpose of the amendment is to broaden the contextual application of the term in the Migration Act.  The term bogus document will be used in section 91W as amended by items 4, 5, 6, 7, 8, 9 and 10 of Schedule 1 and in new subsection 91WA(3) as inserted by item 11 of Schedule 1 to the Bill.     

Item 3             Subparagraph 65(1)(a)(iii)

28.               This item inserts “91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit)” after “section 40 (circumstances when granted)” in subparagraph 65(1)(a)(iii) of Subdivision AC of Division 3 of Part 2 of the Migration Act.  

29.               Section 65 of the Migration Act is the Minister’s power to make a decision to grant or refuse to grant a visa.  Amongst other things, before granting a visa, the Minister is to be satisfied that the grant of the visa is not prevented by sections of the Migration Act mentioned subparagraph 65(1)(a)(iii).    

30.               This amendment is consequential to the amendments made to section 91W by items 4, 5, 6, 7, 8, 9 and 10 of Schedule 1, and the insertion of new sections 91WA and 91WB by item 11 of Schedule 1 to the Bill, which are sections providing for refusal grounds that will prevent the Minister granting a visa to an applicant.      

 

 

Item 4             Section 91W (heading)

31.           This item repeals the heading of section 91W of Subdivision AL of Division 3 of Part 2 of the Migration Act and substitutes a new heading for section 91W - “Evidence of identity and bogus documents”.

32.           This amendment updates the heading of the section to reflect amendments to section 91W to establish a ground for refusal relating to evidence of identity and bogus documents.  

Item 5             Subsection 91W(2)

33.           This item omits “If” in subsection 91W(2) of Subdivision AL of Division 3 of Part 2 of the Migration Act, and substitutes “The Minister must refuse to grant the protection visa to the applicant if”.

34.           Subsection 91W(1) currently provides that the Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.  

35.           Subsection 91W(2) currently provides that if:

·       the applicant has been given a request under subsection (1); and

·       the applicant refuses or fails to comply with the request; and

·       the applicant does not have a reasonable explanation for refusing or failing to comply with the request; and

·       when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s identity, nationality or citizenship in the event that the applicant refuses or fails to comply with the request;

then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s identity, nationality or citizenship.  

36.           Together with the amendments in items 4, 6, 7, 8, 9 and 10 of Schedule 1 to the Bill, section 91W is strengthened to make non-compliance with, or providing a bogus document in response to, a request for documentary evidence of identity, nationality or citizenship under subsection 91W(1) a refusal ground for a protection visa.  Specifically, it is intended that the Minister must refuse a protection visa to an applicant if the applicant:

·       fails or refuses to comply with a request under subsection 91W(1) where the circumstances in 91W(2) have been met; or

·       produces bogus documents in response to a request under subsection 91W(1).

37.           The amendments in item 8 of Schedule 1 to the Bill ensure that before a protection visa is refused, an applicant is to be warned of the consequence that if they fail or refuse to comply with, or produce a bogus document in response to a request under subsection 91W(1) to provide documentary evidence of their identity, nationality or citizenship the protection visa will be refused. 

38.           However, item 10 of Schedule 1 to the Bill which inserts new subsection 91W(3) has the effect that the requirement to refuse in subsection 91W(2) does not apply if the Minister is satisfied that the applicant:

·       has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and

·       either:

o    produces documentary evidence of his or her identity, nationality or citizenship; or

o    has taken reasonable steps to produce such evidence.

Item 6             Paragraph 91W(2)(b)

39.           This item inserts “, or produces a bogus document in response to the request” after “request” in paragraph 91W(2)(b) of Subdivision AL of Division 3 of Part 2 of the Migration Act.

Item 7             Paragraph 91W(2)(c)

40.           This item inserts “, or for producing the bogus document” after “request” in paragraph 91W(2)(c) of Subdivision AL of Division 3 of Part 2 of the Migration Act.

Item 8             Paragraph 91W(2)(d)

41.           This item repeals paragraph 91W(2)(d) of Subdivision AL of Division 3 of Part 2 of the Migration Act, and substitutes new paragraph 91W(2)(d).

42.           New paragraph 91W(2)(d) provides that when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:

·       refuses or fails to comply with the request; or

·       produces a bogus document in response to the request.  

43.           This amendment ensures that an applicant is warned of the consequence of a visa refusal if they fail or refuse to comply with a request under subsection 91W(1), or produces a bogus document in response to a request under subsection 91W(1).  

Item 9             Subsection 91W(2)

44.           This item omits all the words after paragraph 91W(2)(d) of Subdivision AL of Division 3 of Part 2 of the Migration Act.

45.           This amendment is consequential to the amendments in items 5 and 8 of Schedule 1 to the Bill.

Item 10           At the end of section 91W

46.           This item adds new subsections 91W(3) and 91W(4) at the end of section 91W of Subdivision AL of Division 3 of Part 2 of the Migration Act.

47.           New subsection 91W(3) provides that subsection (2) does not apply if the Minister is satisfied that the applicant:

·       has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and

·       either:        

o    produces documentary evidence of his or her identity, nationality or citizenship; or

o    has taken reasonable steps to produce such evidence.

48.           The purpose of this amendment is to give an applicant who fails or refuses to comply with, or  produces bogus documents in response to, a request under subsection 91W(1) an opportunity to comply with the request to provide documentary evidence of identity, nationality or citizenship.  The effect of subsection 91W(3) is that if an applicant satisfies that subsection the applicant will not be refused a protection visa under subsection 91W(2) of the Migration Act.

49.           New subsection 91W(4) provides that for the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.

Item 11           After section 91W

50.           This item inserts new sections 91WA and 91WB after section 91W of Subdivision AL of Division 3 of Part 2 of the Migration Act.

New section 91WA

51.           This item inserts new section 91WA - “Providing bogus documents or destroying identity documents”.

52.           New subsection 91WA(1) provides that the Minister must refuse to grant a protection visa to an applicant for a protection visa if:

·       the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

·       the Minister is satisfied that the applicant:

o    has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

o    has caused such documentary evidence to be destroyed or disposed of.

53.           New subsection 91WA(2) provides that new subsection 91WA(1) does not apply if the Minister is satisfied that the applicant:

·       has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

·       either:

o    provides documentary evidence of his or her identity, nationality or citizenship; or

o    has taken reasonable steps to provide such evidence.

54.           New subsection 91WA(3) provides that for the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

55.           The purpose of new section 91WA is to encourage an applicant to comply and assist with authenticating their identity, nationality or citizenship by providing a reasonable explanation for providing a bogus document or for the destruction or disposal of the documentary evidence and either providing documentary evidence of their identity, nationality or citizenship or having taken reasonable steps to provide evidence.  It would not be acceptable for the applicant to produce any document as documentary evidence of their identity, nationality or citizenship that is a bogus document.

56.           The effect of subsection 91WA(2) is that if an applicant satisfies that subsection, the applicant will not be refused a protection visa under subsection 91WA(1) of the Migration Act. 

57.           The purpose of this amendment is to ensure a protection visa applicant provides documentary evidence of their identity, nationality or citizenship wherever possible to do so and to discourage applicants from providing false identity documents, or destroying or discarding existing, genuine documents.   

New section 91WB

58.           This item inserts new section 91WB - “Application for protection visa by member of same family unit”.

59.           New subsection 91WB(1) provides that this section applies to a non-citizen in Australia (the family applicant):

·       who applies for a protection visa; and

·       who is a member of the same family unit as a person (the family visa holder) who has been granted a protection visa.

60.           New subsection 91WB(2) provides that despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa.

61.           Currently there is a lack of clarity about whether a family applicant can apply for a protection visa on the basis of being in the same family unit as the family visa holder after the grant of a protection visa to the family visa holder.  The amendment makes it clear that a family applicant must apply for a protection visa before the family visa holder has been granted a protection visa, in order to be granted a protection visa on grounds of membership of the family unit.  

62.           The purpose and effect of this amendment is to ensure that a family applicant cannot be granted a protection visa on the basis of being a member of the same family unit as the family visa holder if they apply after the family visa holder has been granted a protection visa. 

63.           The definition of a ‘member of the same family unit’ under the Migration Act remains unchanged and continues to apply to protection visa applicants.  Members of the same family unit will continue to be able to apply on the same application, or combine existing applications for a protection visa.

Item 12           Section 97 (definition of bogus document)

64.               This item repeals the definition of the term bogus document used in section 97 of Subdivision C of Division 3 of Part 2 of the Migration Act.

65.               Section 97 currently provides that bogus document in relation to a person, means a document that the Minister reasonably suspects is a document that:

·       purports to have been, but was not, issued in respect of the person; or

·       is counterfeit or has been altered by a person who does not have authority to so do; or

·       was obtained because of a false or misleading statement, whether or not made knowingly.

66.               The amendment is consequential to the amendments to section 91W and the insertion of new section 91WA.  Item 13 inserts a note to alert readers that the location of this term is in subsection 5(1) of the Migration Act.

Item 13           At the end of section 97

67.               This item adds a note at the end of section 97 of Subdivision C of Division 3 of Part 2 of the Migration Act.

68.               The note states that Bogus document is defined in subsection 5(1).

69.               This amendment is consequential to the amendments made to section 91W and the insertion of new section 91WA.   

Item 14           After section 423

70.               This item inserts new section 423A “How Tribunal is to deal with new claims or evidence” after section 423 of Division 4 of Part 7 of the Migration Act.

71.               New subsection 423A(1) provides that this section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision ) in relation to a protection visa, the applicant:

·       raises a claim that was not raised in the application before the primary decision was made; or

·       presents evidence in the application that was not presented in the application before the primary decision was made.

72.               New subsection 423A(2) provides that in making a decision on the review application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made. 

73.               The effect of this amendment is that the RRT is to draw an unfavourable inference in respect of the credibility of an applicant’s claims or evidence, if the claims or evidence were not raised in the application before the primary decision was made and the applicant does not have a reasonable explanation for the delay.  It is required that all relevant information is provided by the applicant to the Minister in their application, including any additional information that may be submitted to the Minister, prior to the primary decision being made.  A claim may be raised, or evidence may be presented in the application by way of, but not limited to, details in the application form, at an interview, in a response to a request, or information volunteered by the applicant at any stage prior to the primary decision.     

74.               This amendment supports new section 5AAA (Non-citizen’s responsibility in relation to protection claims) inserted by item 1 of Schedule 1 to the Bill.  The purpose is to ensure that protection visa applicants are forthcoming with all of their claims and evidence as soon as possible.   



 

Part 3 - Application

 

Item 15           Application of amendments

 

75.               Subitem 15(1) provides that section 5AAA of the Migration Act 1958 made by Part 1 of this Schedule applies in relation to an application:

·       made on or after the commencement of that Part; or

·       made before the commencement of that Part but not finally determined as at the commencement of that Part. 

76.               Subitem 15(2) provides that section 5AAA of the Migration Act 1958 made by Part 1 of this Schedule applies in relation to an administrative process:

·       starting on or after the commencement of that Part; or

·       starting before the commencement of that Part but not completed as at the commencement of that Part.  

77.               Subitem 15(3) provides that sections 91W, 91WA and 91WB of the Migration Act 1958 as amended by Part 2 of this Schedule apply in relation to an application for a protection visa:

·       made on or after the commencement of that Part; or

·       made before the commencement of that Part but not finally determined as at the commencement of that Part.   

78.               Subitem 15(4) provides that section 423A of the Migration Act 1958 as amended by Part 2 of this Schedule applies to an application for a protection visa made on or after the commencement of Part 1 of this Schedule.



 

SCHEDULE 2 - Amendments relating to Australia’s protection obligations under certain international instruments

Part 1 - Amendments commencing on the day after Royal Assent

 

Migration Act 1958

 

Item 1             Subsection 5(1) (definition of Covenant )

 

79.               This item omits “, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986 ” and substitutes the words “done at New York on 16 December 1966” in the definition of Covenant in subsection 5(1) of Part 1 of the Migration Act.

80.               This is a consequential amendment as a result of the amendments made by item 4 below, which inserts references to the ICCPR and CAT. The purpose of this amendment is to ensure that references to the ICCPR are used consistently throughout the Migration Act and are defined in a way which is consistent with references to other international instruments and reflects current drafting practices.

Item 2             Subsection 5(1) (at the end of the definition of Covenant )

81.               This item adds a new note at the end of the definition of Covenant in subsection 5(1) of Part 1 of the Migration Act.

82.               This note provides that the International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23([1980] ATS 23) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website ( http://www.austlii.edu.au ).

83.               This is a consequential amendment as a result of the amendments made by item 4 below, which inserts references to the CAT and ICCPR. The purpose of this amendment is to ensure that references to the ICCPR are used consistently throughout the Migration Act and are defined in a way which is consistent with references to other international instruments and reflects current drafting practices.

Item 3             Subsection 5(1) (definition of receiving country )

84.               This item repeals the definition of receiving country in subsection 5(1) of Part 1 of the Migration Act and substitutes a new definition.

85.               Currently, the definition of receiving country in subsection 5(1) provides that a receiving country, in relation to a non-citizen, means:

·       a country of which the non-citizen is a national; or

·       if the non-citizen has no country of nationality - the country of which the non-citizen is an habitual resident;

to be determined solely by reference to the law of the relevant country.



 

86.               The new definition of receiving country , in relation to a non-citizen means:

·       a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

·       if the non-citizen has no country of nationality - a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

87.               The purpose of this amendment is to clarify the definition of receiving country to ensure that there is always a country of reference regardless of the fact that a non-citizen may be stateless or that their country of nationality or habitual residence may not in fact accept their return.  The intention is to prevent a finding being made that there is no receiving country, as the result of that would be that the person could not meet the protection visa criterion, or could not be found to engage protection obligations, which is detrimental to the applicant and not the intended operation of the provision.  Clarifying the intended operation of the provision will mean that people, stateless persons in particular, are not refused Australia’s protection where they would otherwise be entitled to it.

88.               It is intended that this will clarify the original scope of this definition, which was to include countries in which non-citizens had formerly habitually resided, but to which they are unable to return. Where the person does not have a country of nationality, this is to be determined not solely by the reference to the laws of the relevant country, but by a range of factors such as the length of stay in the country and cultural, family and other ties to the community.

Item 4              After section 6

 

89.               This item inserts new section 6A after section 6 of Part 1 of the Migration Act.

90.               New section 6A deals with determining whether Australia has protection obligations in relation to a non-citizen.

91.               New subsection 6A(1) provides that this section applies for the purposes of determining whether Australia has protection obligations in relation to a non-citizen in Australia under:

·       this Act; or

·       the regulations or other instrument made under this Act; or

·       an administrative process that occurs in relation to:

o     this Act;

o     a regulation or other instrument made under this Act.

92.               New subsection 6A(2) provides that the Minister can only be satisfied that Australia has protection obligations in respect of the non-citizen if the Minister considers that it is more likely than not that the non-citizen will suffer significant harm if the non-citizen is removed from Australia to a receiving country.

93.               New subsection 6A(3) provides that a non-citizen will suffer significant harm if:

·       the non-citizen will be arbitrarily deprived of his or her life; or

·       the death penalty will be carried out on the non-citizen; or

·       the non-citizen will be subjected to torture; or

·       the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

·       the non-citizen will be subjected to degrading treatment or punishment.

94.               New subsection 6A(4) provides that in this section:

protection obligations means any obligations that may arise because Australia is a party to:

·       the Covenant; or

·       the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.

95.               Note 1 to subsection 6A(4) provides that, in relation to paragraph 6A(4)(a), for the definition of Covenant, see subsection 5(1) of the Migration Act.

96.               Note 2 to subsection 6A(4) provides that, in relation to paragraph 6A(4)(b), the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the Austlii website ( http://www.austlii.edu.au ).

97.               The purpose of these amendments is to clarify Australia’s non-refoulement obligations under the CAT and ICCPR and define the risk threshold for assessing Australia’s non-refoulement obligations under the CAT and ICCPR in line with the higher threshold that was intended when the complementary protection framework was inserted into the Migration Act. The Full Federal Court’s decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 found that the threshold to be applied to assessing complementary protection claims is whether there is a “real chance” of significant harm, the same threshold that applies to the assessment of claims under the Refugees Convention. The Government’s position is that the risk threshold applicable to the non-refoulement obligations under the CAT and ICCPR is “more likely than not”. “More likely than not” means that there would be a greater than fifty percent chance that a person would suffer significant harm in the receiving country. The risk threshold applies to any assessment of Australia’s protection obligations under the CAT or ICCPR made under the Migration Act, the Migration Regulations or other instrument, or any administrative processes occurring in relation to the Migration Act or the Migration Regulations or other instrument made under the Migration Act.

98.               It is intended that this provision will codify Australia’s interpretation of the likelihood of harm and the types of harm necessary to engage non-refoulement obligations under the CAT and ICCPR.

99.               Currently, in the Migration Act, Australia’s non-refoulement obligations under the CAT and ICCPR are only reflected in the context of Protection visas. This provision is intended to apply more broadly and to include all other processes under the Act and the Regulations as well as administrative processes connected with the administration of the Migration Act, the Migration Regulations or other instrument made under the Migration Act.

100.           It is not intended that these amendments apply to assessments of protection obligations under the Refugees Convention as amended by the Refugees Protocol.

Item 5              Paragraph 36(2)(aa)

101.           This item repeals paragraph 36(2)(aa) in section 36 of Subdivision A of Division 3 of Part 2 of the Migration Act and substitutes new paragraph 36(2)(aa). 

102.           Currently, paragraph 36(2)(aa) of the Migration Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a) (which relates to obligations under the Refugees Convention)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.

103.           This provision provides the statutory basis for grant of a protection visa on “complementary protection grounds”.

104.           New paragraph 36(2)(aa) of the Migration Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister considers that it is more likely than not that the non-citizen will suffer significant harm if the non-citizen is removed from Australia to a receiving country.

105.           The amendment made by this item is similar to the amendments made by item 4 above, which provides that Australia only has protection obligations, under the CAT and ICCPR, if it is more likely than not that a non-citizen would suffer significant harm if removed from Australia to a receiving country.

106.           The purpose of this amendment is to restore the risk threshold for complementary protection to the higher threshold that was intended when the complementary protection framework was inserted into the Migration Act. The Full Federal Court’s decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 found that the threshold to be applied to assessing complementary protection claims is whether there is a “real chance” of significant harm, the same threshold that applies to the assessment of claims under the Refugees Convention. The Government’s position is that the risk threshold applicable to the non-refoulement obligations under the ICCPR and CAT is “more likely than not”.

107.           The amendments made by this item will commence on the day after the Royal Assent, unless the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 receives the Royal Assent before that day. This is because the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 repeals paragraph 36(2)(aa) and it is not intended that it be replaced by these amendments.

Item 6              Application

 

108.           Subitem 6(1) provides that amendments made by this Part apply in relation to an assessment under:

·       the Migration Act 1958 ; or

·       a regulation or other instrument made under that Act; or

·       an administrative process that occurs in relation to that Act, regulation or other instrument;

of whether Australia has protection obligations in respect of a person, regardless of whether the assessment is made as a result of an application for a visa by a person. 

109.           Subitem 6(2) provides that Subitem 6(1) covers the following assessments:

·       an assessment made on or after the day this item commences;

·       if an assessment is made as a result of an application for a visa - an assessment that begins before the day this item commences, if the application has not been finally determined before that day;

·        if an assessment is made as part of an administrative process - an assessment that begins before the day this item commences, if the administrative process has not been completed before that day.

 

 

 



 

Part 2 - Contingent amendments

 

Migration Act 1958

 

Item 7              Subsection 5(1)

 

110.           The amendments made by this item are contingent on the commencement of the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 , which repeals the definitions below. This Bill seeks to reinsert these definitions, unchanged, as they are necessary for new section 6A to operate effectively.

111.           These amendments commence immediately after the commencement of Schedule 1 to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 . However, if that schedule does not commence, the amendments made by this item do not commence at all.

112.           This item inserts the following definitions in subsection 5(1) of Part 1 of the Migration Act, which have been in effect and only cease upon commencement of the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 , to give effect to new section 6A which clarifies the risk threshold and types of harm that engage Australia’s non-refoulement obligations under the CAT and ICCPR for assessments made under the Migration Act, the Migration Regulations or other instrument, or any administrative processes occurring in relation to the Migration Act or the Migration Regulations:

Covenant means the International Covenant on Civil and Political Rights done at New York on 16 December 1966.

Note:   The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website ( http://www.austlii.edu.au ).

Cruel or inhuman treatment or punishment means an act or omission by which:

·       severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

·       pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

 

·       that is not inconsistent with Article 7 of the Covenant; or

·       arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

Degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

·       that is not inconsistent with Article 7 of the Covenant; or

·       that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

Receiving country, in relation to a non-citizen, means:

·       a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

·       if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

Significant harm means harm of a kind mentioned in subsection 6A(3).

Torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

·       for the purpose of obtaining from the person or from a third person information or a confession; or

·       for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

·       for the purpose of intimidating or coercing the person or a third person; or 

·       for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

·       for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

Item 8              Application

 

113.           Subitem 8(1) provides that amendments made by this Part apply in relation to an assessment under:

·       the Migration Act 1958 ; or

·       a regulation or other instrument made under that Act; or

·       an administrative process that occurs in relation to that Act, regulation or other instrument;

of whether Australia has protection obligations in respect of a person, regardless of whether the assessment is made as a result of an application for a visa by a person. 

114.           Subitem 8(2) provides that subitem 8(1) covers the following assessments:

·       an assessment made on or after the day this item commences; or

·       if an assessment is made as a result of an application for a visa - an assessment that begins before the day this item commences, if the application has not been finally determined before that day;

·       if an assessment is made as part of an administrative process - an assessment that begins before the day this item commences, if the administrative process has not been completed before that day.

SCHEDULE 3 - Unauthorised maritime arrivals and transitory persons

Part 1 - Amendments

Migration Act 1958

Item 1             Paragraph 46A(1)(b)

115.           This item repeals paragraph 46A(1)(b) of Subdivision AA of Division 3 of Part 2 of the Migration Act and substitutes a new paragraph 46A(1)(b). 

116.           Currently paragraph 46A(1)(b) provides that an application for a visa is not a valid application if it is made by an unauthorised maritime arrival who is in Australia and is an unlawful non-citizen. 

117.           New paragraph 46A(1)(b) provides that an application for a visa is not a valid application if it is made by an unauthorised maritime arrival who is in Australia and either:

·       is an unlawful non-citizen; or

·       holds a bridging visa or a temporary visa of a class prescribed for the purposes of this subparagraph.

118.           This amendment will broaden the statutory bar in section 46A of the Migration Act to also apply to unauthorised maritime arrivals who hold bridging visas or temporary visas which have been prescribed for the purpose of subparagraph 46A(1)(b)(ii).

119.           Unauthorised maritime arrivals who are in Australia and are either unlawful non-citizens or hold a bridging visa or a temporary visa of a class prescribed for subparagraph 46A(1)(b)(ii) cannot make a valid application for a visa unless the Minister has made a written determination under subsection 46A(2).

120.           The reason for broadening section 46A of the Migration Act is to allow for unauthorised maritime arrivals to be granted bridging visas (or other temporary visas) while their asylum claims are being assessed. Extending section 46A to include bridging visas and other temporary visas will support the orderly management of visa applications from unauthorised maritime arrivals and in some cases, their release from detention.

Item 2             After subsection 46A(2)

121.           This item inserts new subsections 46A(2A), 46A(2B) and 46A(2C) after subsection 46A(2) of Subdivision AA of Division 3 of Part 2 of the Migration Act.

122.           New subsection 46A(2A) provides that a determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.

123.           New subsection 46A(2B) provides that the period specified in a determination may be different for different classes of unauthorised maritime arrivals.

124.           New subsections 46A(2A) and 46A(2B) will provide the Minister with the ability to make a determination in relation to an unauthorised maritime arrival for a specified period of time which may be a different period of time for different classes of unauthorised maritime arrivals.  New subsections 46A(2A) and 46A(2B) do not require the Minister to set a period of time for every determination.

125.           New subsection 46A(2C) provides that the Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.

126.           New subsection 46A(2C) clarifies that the Minister may, in writing, vary or revoke a determination made under subsection 46A(2) if the Minister thinks that it is in the public interest to do so.  While this power is already presumed to exist, a new subsection has been added to make this intention expressly clear.

127.           Consistent with the making of a determination under subsection 46A(1), the effect of the amendment is that the Minister may only vary an existing determination, or revoke the determination, if the Minister thinks it is in the public interest to do so.

128.           New subsection 46A(2C) will also apply to a determination which was made under subsection 46A(2) prior to the commencement of Schedule 3 to the Bill which is still in effect after the commencement of Schedule 3 to the Bill.

129.           The amendments in this item provide the Minister and the Department with more flexibility to address the specific issues relevant to individuals and cohorts, including the majority of unauthorised maritime arrivals who are present in Australia but have not been permitted to make a valid application for a protection visa.  These amendments are intended to allow for more efficient management of unauthorised maritime arrivals who are in Australia as well as any other future arrivals.

130.           The new powers in subsections 46A(2A), 46A(2B) and 46A(2C) will also be exercisable in respect of determinations previously made by the Minister under subsection 46A(2) which are in effect at the time of commencement of Schedule 3 to the Bill.

131.           This item does not render invalid any determination previously made by the Minister in respect of an unauthorised maritime arrival under subsection 46A(2) which is still in effect at the time of commencement of Schedule 3 to the Bill.

Item 3             Subsection 46A(3)

132.           This item inserts “or (2C)” after “subsection (2)” in subsection 46A(3) of Subdivision AA of Division 3 of Part 2 of the Migration Act.

133.           Subsection 46A(3) currently provides that the power under subsection 46A(2) may only be exercised by the Minister personally.

134.           New subsection 46A(3) provides that the power under subsection 46A(2) or subsection 46A(2C) may only be exercised by the Minister personally.

135.           Consistent with the making of a determination under subsection 46A(2), the effect of this amendment is that the power under new subsection 46A(2C) to vary or revoke a determination may only be exercised by the Minister personally.

Item 4             Subsection 46A(4)

136.           This item repeals subsection 46A(4) of Subdivision AA of Division 3 of Part 2 of the Migration Act and substitutes a new subsection 46A(4).

137.           Subsection 46A(4) currently provides that if the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:

·       sets out the determination; and

·       sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

138.           New subsection 46A(4) provides that if the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:

·       sets out the determination, the determination as varied or the instrument of revocation; and

·       sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

139.           Consistent with the making of a determination under subsection 46A(2), the effect of this amendment is that if the Minister varies or revokes a determination, the same tabling requirements for making a determination apply to a variation or revocation of a determination.

Item 5             Subsection 46A(7)

140.           This item inserts “or (2C)” after “subsection (2)” in subsection 46A(7) of Subdivision AA of Division 3 of Part 2 of the Migration Act.

141.           Currently, subsection 46A(7) provides that the Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.

142.           New subsection 46A(7) provides that the Minister does not have a duty to consider whether to exercise the power under subsection 46A(2) or subsection 46A(2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.

143.           Consistent with the making of a determination under subsection 46A(2), the effect of this amendment is that the Minister does not have a duty to consider whether to exercise the power under new subsection 46A(2C), whether or not the Minister is requested to do so.

Item 6             Paragraph 46B(1)(b)

144.           This item repeals paragraph 46B(1)(b) of Subdivision AA of Division 3 of Part 2 of the Migration Act and substitutes a new paragraph 46B(1)(b).

145.           Currently paragraph 46B(1)(b) provides that an application for a visa is not a valid application if it is made by a transitory person who is in Australia and is an unlawful non-citizen.

146.           New paragraph 46B(1)(b) provides that an application for a visa is not a valid application if it is made by a transitory person who is in Australia and either:

·       is an unlawful non-citizen; or

·       holds a bridging visa or a temporary visa of a class prescribed for the purposes of subparagraph 46B(1)(b)(ii).

147.           This amendment will broaden the statutory bar in section 46B of the Migration Act to also apply to transitory persons who hold bridging visas or temporary visas which have been prescribed for the purpose of subparagraph 46(1)(b)(ii).

148.           Transitory persons who are in Australia and are either unlawful non-citizens or hold a bridging visa or a temporary visa of a class prescribed for subparagraph 46B(1)(b)(ii) cannot make a valid application for a visa unless the Minister has made a written determination under subsection 46B(2).

149.           The reason for broadening section 46B of the Migration Act is to ensure consistency with new section 46A so that transitory persons are subject to the same restrictions on making valid visa applications as unauthorised maritime arrivals.

Item 7             After subsection 46B(2)

150.           This item inserts new subsections 46B(2A), 46B(2B), and 46B(2C) after subsection 46B(2) of Subdivision AA of Division 3 of Part 2 of the Migration Act.

151.           New subsection 46B(2A) provides that a determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.

152.           New subsection 46B(2B) provides that the period specified in a determination may be different for different classes of transitory persons.

153.           New subsections 46B(2A) and 46B(2B) will provide the Minister with the ability to make a determination in relation to a transitory person for a specified period of time which may be a different period of time for different classes of transitory persons.  New subsections 46B(2A) and 46B(2B) do not require the Minister to set a period of time for every determination.

154.           New subsection 46B(2C) provides that the Minister may, in writing, vary or revoke a determination made under subsection 46B(2) if the Minister thinks that it is in the public interest to do so.

155.           New subsection 46B(2C) clarifies that the Minister may, in writing, vary or revoke a determination made under subsection 46B(2) if the Minister thinks that it is in the public interest to do so.  While this power is already presumed to exist, a new subsection has been added to make this intention expressly clear.

156.           Consistent with the making of a determination under subsection 46B(1), the effect of the amendment is that the Minister may only vary an existing determination, or revoke the determination, if the Minister thinks it is in the public interest to do so.

157.           New subsection 46B(2C) will also apply to a determination which was made under subsection 46B(2) prior to the commencement of Schedule 3 to the Bill which is still in effect after the commencement of Schedule 3 to the Bill.

158.           The amendments in this item are to ensure consistency with the amendments to section 46A (inserted by items 1 to 5 of Schedule 3 to the Bill) so that the Minister has the same powers and obligations in respect of transitory persons as unauthorised maritime arrivals.

159.           The new powers in subsections 46B(2A), 46B(2B) and 46B(2C) will also be exercisable in respect of determinations previously made by the Minister under subsection 46B(2) which are in effect at the time of commencement of Schedule 3 to the Bill.

160.           This item does not render invalid any determination previously made by the Minister in respect of a transitory person under subsection 46B(2) which is still in effect at the time of commencement of Schedule 3 to the Bill.

Item 8             Subsection 46B(3)

161.           This item inserts “or (2C)” after “subsection (2)” in subsection 46B(3) of Subdivision AA of Division 3 of Part 2 of the Migration Act.

162.           Subsection 46B(3) currently provides that the power under subsection 46B(2) may only be exercised by the Minister personally.

163.           New subsection 46B(3) provides that the power under subsection 46B(2) or subsection 46B(2C) may only be exercised by the Minister personally.

164.           Consistent with the making of a determination under subsection 46B(2), the effect of this amendment is that the power under new subsection 46B(2C) to vary or revoke a determination may only be exercised by the Minister personally.

Item 9             Subsection 46B(4)

165.           This item repeals subsection 46B(4) of Subdivision AA of Division 3 of Part 2 of the Migration Act and substitutes a new subsection 46B(4).

166.           Subsection 46B(4) currently provides that if the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:

·       sets out the determination; and

·       sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

167.           New subsection 46B(4) provides that if the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:

·       sets out the determination, the determination as varied or the instrument of revocation; and

·       sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

168.           Consistent with the making of a determination under subsection 46B(2), the effect of this amendment is that if the Minister varies or revokes a determination, the same tabling requirements for making a determination apply to a variation or revocation of a determination.

Item 10           Subsection 46B(7)

169.           This item inserts “or (2C)” after “subsection (2)” in subsection 46B(7) of Subdivision AA of Division 3 of Part 2 of the Migration Act.

170.           Currently, subsection 46B(7) provides that the Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances.

171.           New subsection 46B(7) provides that the Minister does not have a duty to consider whether to exercise the power under subsection 46B(2) or subsection 46B(2C) in respect of any transitory person whether the Minister is requested to do so by the transitory person or any other person, or in any other circumstances.

172.           Consistent with the making of a determination under subsection 46B(2), the effect of this amendment is that the Minister does not have a duty to consider whether to exercise the power under new subsection 46B(2C), whether or not the Minister is requested to do so.

Item 11           Section 91H

173.           This item omits the words “non-citizen who holds” from section 91H of Subdivision AJ of Division 3 of Part 2 of the Migration Act and substitutes the words “non-citizen (other than an unauthorised maritime arrival or a transitory person) who holds”. 

174.           Currently, section 91H provides that Subdivision AJ is enacted because the Parliament considers that a non-citizen who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8.

175.           New section 91H provides that Subdivision AJ is enacted because the Parliament considers that a non-citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa.  Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8.

176.           This amendment is consequential to the amendment in item 13 of Schedule 3 to the Bill.

Item 12           Section 91J

177.           This item inserts “(1)” before “This” in section 91J of Subdivision AJ of Division 3 of Part 2 of the Migration Act.

178.           This amendment is consequential to the amendment in item 13 of Schedule 3 to the Bill.

Item 13           At the end of section 91J

179.           This item adds new subsection 91J(2) at the end of section 91J in Subdivision AJ of Division 3 of Part 2 of the Migration Act.

180.           Currently, section 91J provides that Subdivision AJ applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen:

·       holds a temporary safe haven visa; or

·       has not left Australia since ceasing to hold a temporary safe haven visa.

181.           New subsection 91J(2) provides that this Subdivision does not apply to an unauthorised maritime arrival or a transitory person.

182.           A note after new subsection 91J(2) states that unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B.

183.           The amendments in items 11 to 13 of Schedule 3 to the Bill are intended to ensure that visa applications by unauthorised maritime arrivals and transitory persons are only affected by the statutory bars in sections 46A and 46B respectively and not by Subdivision AJ.

184.           These amendments are to streamline the operation of the statutory bars applicable to unauthorised maritime arrivals and transitory persons and in particular in relation to the majority of unauthorised maritime arrivals who are in Australia. Most unauthorised maritime arrivals and some transitory persons who arrived in Australia before 19 July 2013 have been granted a temporary safe haven visa and a Bridging E (Class WE) visa (BVE) under section 195A of the Migration Act and once the amendments to section 46A and section 46B commence would otherwise be subject to two provisions that prevent them from making a valid application for a visa. This is inefficient and administratively complex.

185.           These items make amendments to ensure there will be only one provision that prevents an unauthorised maritime arrival or a transitory person from making a valid application for a visa, simplifying the legal framework and supporting the orderly management of visa applications.



 

Part 2 - Application and transitional

Item 14           Definitions

186.           This item provides that in this Part:

·       amended Act means the Migration Act 1958 as in force on and after the commencement time.

·       commencement time means the commencement of this Schedule.

·       old Act means the Migration Act 1958 as in force immediately before the commencement time.   

Item 15           Transitional arrangements for unauthorised maritime arrivals who hold or have held temporary safe haven visas

187.           Subitem 15(1) provides that this item applies in relation to an unauthorised maritime arrival to whom Subdivision AJ of Division 3 of Part 2 of the old Act applies immediately before the commencement time.

188.           Subitem 15(2) provides that on or after the commencement time:

·       that Subdivision of the old Act ceases to apply to the unauthorised maritime arrival; and

·       subject to subitem (3), section 46A of the amended Act applies in relation to an application for a visa by the unauthorised maritime arrival made on or after the commencement time.

189.           The effect of this subitem is that an application for a visa by an unauthorised maritime arrival which was made on or after commencement time will only be affected by section 46A and not by Subdivision AJ.

190.           Subitem 15(3) provides that for the purposes of subitem 15(2), section 46A of the amended Act applies as if each of the following classes of visa were a class of temporary visa prescribed for the purposes of subparagraph 46A(1)(b)(ii) of the amended Act on and after the commencement time:

·       a temporary safe haven visa;

·       a temporary humanitarian concern visa;

·       a temporary protection visa. 

191.           The effect of this amendment is that in relation to an unauthorised maritime arrival to whom Subdivision AJ of Division 3 of Part 2 of the old Act applied immediately before commencement time, subsection 46A(1) of the amended Act applies as though the temporary safe haven visa, temporary humanitarian concern visa or temporary protection visa was prescribed.  This means that in relation to such an unauthorised maritime arrival, who is in Australia and holds a temporary safe haven visa, temporary humanitarian concern visa or a temporary protection visa on or after commencement time, they will not be able to make a valid application for a visa, unless the Minister has made a determination to allow them to do so. 

Item 16           Transitional arrangements for transitory persons who hold or have held temporary safe haven visas

192.           Subitem 16(1) provides that this item applies in relation to a transitory person to whom Subdivision AJ of Division 3 of Part 2 of the old Act applies immediately before the commencement time.

193.           Subitem 16(2) provides that on and after the commencement time:

·       that Subdivision of the old Act ceases to apply to the transitory person; and

·       subject to subitem (3), section 46B of the amended Act applies in relation to an application for a visa by the transitory person made on or after the commencement time. 

194.           The effect of this subitem is that an application for a visa by a transitory person which was made on or after commencement time will only be affected by section 46B and not by Subdivision AJ.

195.           Subitem 16(3) provides that for the purposes of subitem 16(2), section 46B of the amended Act applies as if each of the following classes of visa were a class of temporary visa prescribed for the purposes of subparagraph 46B(1)(b)(ii) of the amended Act on and after the commencement time:

·       a temporary safe haven visa;

·       a temporary humanitarian concern visa;

·       a temporary protection visa.

196.           The effect of this amendment is that in relation to a transitory person to whom Subdivision AJ of Division 3 of Part 2 of the old Act applied immediately before commencement time, subsection 46B(1) of the amended Act applies as though the temporary safe haven visa, temporary humanitarian concern visa or temporary protection visa was prescribed.  This means that in relation to such a transitory person, who is in Australia and holds a temporary safe haven visa, temporary humanitarian concern visa or a temporary protection visa on or after commencement time, they will not be able to make a valid application for a visa, unless the Minister has made a determination to allow them to do so.

 

 

 



 

SCHEDULE 4 - Amendments relating to the Migration Review Tribunal and Refugee Review Tribunal

Part 1 - Amendments

Migration Act 1958

Item 1             Subsection 5(9)

197.           This item inserts the words “subject to subsection 5(9A)” after “For the purposes of this Act,” in subsection 5(9) of Part 1 of the Migration Act.

198.           Subsection 5(9) of the Migration Act provides that for the purposes of this Act, an application is finally determined when either:

·       a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or Part 7; or

·       a decision that has been made in respect of the application was subject to some form of review under Part 5 or Part 7, but the period within which such a review could be instituted has ended without such a review having been instituted as prescribed.

199.           The purpose of this amendment is to put beyond doubt when a review of a decision that has been made in respect of an application under the Migration Act is finally determined by explicitly stating that subsection 5(9) of the Migration Act is subject to the provisions in subsection 5(9A).  Subsection 5(9A) is also amended to ensure consistency with subsection 5(9).

Item 2             Subsection 5(9A)

200.           This item omits “Without limiting subsection (9), if” and substitutes the word “If” in subsection 5(9A) of Part 1 of the Migration Act.

201.           Subsection 5(9A) of the Migration Act currently provides that without limiting subsection (9), if a review of a decision that has been made in respect of an application under this Act is instituted under Part 5 or 7 as prescribed, the application is finally determined when a decision on the review in respect of the application is taken to have been made as provided by any of the following provisions:

·       subsection 368(2) (Migration Review Tribunal written decisions);

·       subsection 368D(1) (Migration Review Tribunal oral decisions);

·       subsection 430(2) (Refugee Review Tribunal written decisions);

·       subsection 430D(1) (Refugee Review Tribunal oral decisions).

202.           Schedule 1 of the Migration Amendment Act 2014 (which commenced on 28 May 2014) inserted subsection 5(9A) into the Migration Act to refer directly to the provisions under which the MRT and the RRT are taken to have made a decision on a review, which is final and which renders the application finally determined.

203.           Subsection 5(9A) is amended to put beyond doubt that when a decision on a review is taken to be made, as provided for in paragraphs 5(9A)(a), (b), (c) or (d), it renders the application finally determined.

Item 3             Section 337

204.           This item inserts a new definition of decision on a review in section 337 of Division 1 of Part 5 of the Migration Act.           

205.           The new definition in section 337 provides that any of the following decisions of the MRT in relation to an application for review of an MRT-reviewable decision is a decision on a review:

·       a decision to affirm the MRT-reviewable decision;

·       a decision to vary the MRT-reviewable decision;

·       a decision under paragraph 349(2)(c) to remit a matter in relation to the MRT-reviewable decision for reconsideration;

·       a decision to set the MRT-reviewable decision aside and substitute a new decision;

·       a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm a decision to dismiss the application.

206.           This amendment provides an exhaustive definition of a decision on a review in relation to an application for review of an MRT-reviewable decision.

Item 4             At the end of subsection 349(2)       

207.           This item adds new paragraph 349(2)(e) at the end of subsection 349(2) of Division 3 of Part 5 of the Migration Act. 

208.           New paragraph 349(2)(e) of the Migration Act provides that if the applicant fails to appear - the MRT may exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

209.           Section 349 of the Migration Act sets out powers of the MRT.  Subsection 349(2)  currently provides the MRT may:

·       affirm the decision; or

·       vary the decision; or   

·       if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the MRT as are permitted by the regulations; or

·       set the decision aside and substitute a new decision.

210.           New paragraph 349(2)(e) of the Migration Act provides a new power for the MRT to dismiss or reinstate an application under section 362B (as amended by item 11 below) if an applicant fails to appear before the MRT after being invited to do so under section 360 of the Migration Act.

Item 5             Subsection 353A(2)

211.           This item repeals subsection 353A(2) of Division 4 of Part 5 of the Migration Act and substitutes new subsection 353A(2).

212.           Subsection 353A(1) of the Migration Act provides that the Principal Member may, in writing, give directions, not inconsistent with this Act or the regulations, as to:

·       the operation of the MRT; and

·       the conduct of reviews by the MRT.

213.           Subsection 353A(2) of the Migration Act currently provides that in particular, directions may relate to the application of efficient processing practices to the conduct of reviews by the MRT.

214.           New subsection 353A(2) of the Migration Act provides that without limiting subsection (1), the directions may:

·       relate to the application of efficient processing practices in the conduct of reviews by the MRT; or

·       set out procedures to be followed by applicants and their representatives in relation to proceedings before the MRT.

215.           New subsection 353A(2) of the Migration Act strengthens the power in section 353A for the Principal Member to issue Practice Directions to an applicant to a review and their representatives (including migration agents and legal practitioners) as to the procedures they are to follow in relation to proceedings before the MRT. The Practice Directions will also provide for guidance on processing practices relating to the conduct of reviews.

Item 6             Subsection 353A(3)

216.           This item inserts “(or a decision under paragraph 362B(1A)(b) or (1C)(a))” after the word “review” in subsection 353A(3) of Division 4 of Part 5 of the Migration Act.

217.           Subsection 353A(3) of the Migration Act provides that the MRT should, as far as practicable, comply with the directions. However, non-compliance by the MRT with any direction does not mean that the MRT’s decision on a review is an invalid decision.

218.           This amendment is consequential to the amendments made by item 11 below, which apply if an applicant is invited under section 360 to appear before the MRT but does not appear.  Item 11 includes an amendment that will provide for the MRT to dismiss an application under new paragraph 362B(1A)(b) and reinstate an application under new paragraph 362B(1C)(a).  Neither of these decisions will be a decision on a review but they are not to be invalidated if the MRT does not comply with a Practice Direction.  As such this item inserts a reference to paragraph 362B(1A)(b) and paragraph 362B(1C)(a) to put it beyond doubt that they are not to be invalidated if the MRT does not comply with a Practice Direction. 

Item 7             After section 353A

219.           This item inserts new section 353B after section 353A of Division 4 of Part 5 of the Migration Act.

220.           New subsection 353B(1) of the Migration Act provides that the Principal Member may, in writing, direct that a decision (the guidance decision ) of the MRT specified in the direction is to be complied with by the MRT in reaching a decision on a review of an MRT-reviewable decision of a kind specified in the direction.

221.           New subsection 353B(2) of the Migration Act provides that in reaching a decision on a review of a decision of that kind, the MRT must comply with the guidance decision unless the MRT is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

222.           New subsection 353B(3) of the Migration Act provides that non-compliance by the MRT with a guidance decision does not mean that the MRT’s decision on a review is an invalid decision.

223.           Guidance decisions would be issued by the Principal Member of the MRT in relation to identifiable common issues in matters before the MRT, and Members of the MRT would be expected to follow them unless the facts or circumstances in the current matter before them could be distinguished. The purpose of this provision is therefore to promote consistency in decision-making between different members of the MRT in relation to common issues and/or the same or similar facts or circumstances.

Item 8             Section 359AA

224.           This item inserts “(1)” before “If” in section 359AA of the Migration Act.

225.           This is a consequential amendment to item 9 below which inserts new subsection 359AA(2) in the Migration Act.

Item 9             At the end of section 359AA

226.           This item adds subsection 359AA(2) at the end of section 359AA in Division 5 of Part 5 of the Migration Act.

227.           Section 359AA of the Migration Act provides that if an applicant is appearing before the MRT because of an invitation under section 360:

·       the MRT may orally give to the applicant clear particulars of any information that the MRT considers would be the reason, or part of the reason, for affirming the decision that is under review; and

·       if the MRT does so, the MRT must:

o    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

o    orally invite the applicant to comment on or respond to the information; and

o    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

o    if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the MRT considers that the applicant reasonably needs additional time to comment on or respond to the information.

228.           New subsection 359AA(2) of the Migration Act provides that a reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

229.           The effect of this amendment is that the codified natural justice requirement in section 359AA of the Migration Act does not apply if the decision under review is taken to be affirmed under new subsection 362B(1F).

230.           Subsection 357A(1) provides that Division 5 of Part 5 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  Subsection 362B(1F), inserted by item 11 below, provides that if the MRT confirms a decision to dismiss an application for an applicant’s failure to appear before the Tribunal, the decision under review is taken to be affirmed.  Subsection 362B(1F) is also included in Division 5 of Part 5 of the Migration Act which deals with the conduct of review by the MRT. 

231.           As such, the requirements of natural justice regarding the MRT confirming a decision to dismiss an application for an applicant’s failure to appear before the MRT are provided for within certain sections of Division 5 of Part 5 of the Migration Act, such as section 362B.  Not applying the requirements in section 359AA to new subsection 362B(1F) does not provide for the common law natural justice hearing rule to apply to new subsection 362B(1F).

Item 10                       At the end of section 359A

232.           This item adds new subsection 359A(5) at the end of section 359A of Division 5 of Part 5 of the Migration Act. 

233.           New subsection 359A(5) of the Migration Act provides that a reference in section 359A to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

234.           Subsection 359A(1) of the Migration Act provides that subject to subsections (2) and (3), the MRT must:

·       give to the applicant, in the way that the MRT considers appropriate in the circumstances, clear particulars of any information that the MRT considers would be the reason, or part of the reason, for affirming the decision that is under review; and 

·       ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision under review; and

·       invite the applicant to comment on or respond to it.

235.           The effect of this amendment is that the codified natural justice requirement in section 359A of the Migration Act does not apply if the decision under review is taken to be affirmed under new subsection 362B(1F).

236.           Subsection 357A(1) provides that Division 5 of Part 5 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  Subsection 362B(1F), inserted by item 11 below, provides that if the MRT confirms a decision to dismiss an application for an applicant’s failure to appear before the MRT, the decision under review is taken to be affirmed.  Subsection 362B(1F) is also included in Division 5 of Part 5 of the Migration Act which deals with the conduct of review by the MRT. 

237.           As such, the requirements of natural justice regarding the MRT confirming a decision to dismiss an application for an applicant’s failure to appear before the MRT are provided for within certain sections of Division 5 of Part 5 of the Migration Act, such as section 362B.  Not applying the requirements in section 359A to new subsection 362B(1F)  does not provide for the common law natural justice hearing rule to apply to new subsection 362B(1F).

Item 11           Subsection 362B(1)

238.           This item repeals subsection 362B(1) of  Division 5 of Part 5 of the Migration Act and substitutes new subsections 362B(1), (1A), (1B), (1C), (1D), (1E), (1F) and (1G) and a new subheading to subsection 362B(2). 

239.           Subsection 362B(1) of the Migration Act currently provides that if the applicant:

·       is invited under section 360 to appear before the MRT; and

·       does not appear before the MRT on the day on which, or the time and place at which, the applicant is scheduled to appear;

the MRT may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

Scope

240.           New subsection 362B(1) of the Migration Act provides:

This section applies if the applicant:

·       is invited under section 360 to appear before the MRT; but

·       does not appear before the MRT on the day on which, or at the time and place at which, the applicant is scheduled to appear.

241.           The purpose of this amendment is to clarify to whom new section 362B of the Migration Act applies.

Tribunal may make a decision on the review or dismiss proceedings

242.           New subsection 362B(1A) of the Migration Act provides that the MRT may:

·       by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

·       by written statement under section 362C, dismiss the application without any further consideration of the application or information before the MRT.

243.           Note 1 to new subsection 362B(1A) provides that under section 368A, the MRT must notify the applicant of a decision on the review.

244.           Note 2 to new subsection 362B(1A) provides that under section 362C, the MRT must notify the applicant of a decision to dismiss the application.

245.           The purpose of this amendment is to clarify that if the applicant fails to appear before the MRT in response to an invitation under section 360 of the Migration Act, the MRT has the option of dismissing the application or making a decision on the review, as is the case under current subsection 362B(1).

Reinstatement of application or confirmation of dismissal

246.           New subsection 362B(1B) of the Migration Act provides that if the MRT dismisses the application, the applicant may, within 7 days after receiving notice of the decision under section 362C, apply to the MRT for reinstatement of the application.

247.           The note to new subsection 362B(1B) provides that section 379C sets out when a person (other than the Secretary) is taken to have received a document from the MRT for the purposes of this Part.  

248.           The purpose of this provision is to clarify that if the MRT dismisses an application for review due to the applicant’s failure to appear, the applicant can apply for reinstatement of the application within 7 days of being notified of that decision.  Section 379C provides when the applicant will be taken to have received the document, and as such when the time to apply for reinstatement will commence.

249.           New subsection 362B(1C) of the Migration Act provides that on application for reinstatement in accordance with subsection 362B(1B), the MRT must:

·       if it considers it appropriate to do so - reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or

·       confirm the decision to dismiss the application, by written statement under section 368.

250.           Note 1 to new subsection 362B(1C) provides that under section 362C, the MRT must notify the applicant of a decision to reinstate the application.

251.           Note 2 to new subsection 362B(1C) provides that u nder section 368A, the MRT must notify the applicant of a decision to confirm the dismissal of the application.

252.           The purpose of this amendment is to require the MRT to either reinstate the application or confirm the decision to dismiss the application, if the applicant has applied for reinstatement of the application.

253.           New subsection 362B(1D) of the Migration Act provides that if the MRT reinstates the application:

·       the application is taken never to have been dismissed; and

·       the MRT must conduct (or continue to conduct) the review accordingly.

254.           The purpose of this amendment is to clarify the status of an application that has been reinstated under new subsection 362B(1C) of the Migration Act, and to clarify the MRT’s obligation to review (or to continue to review) the decision.

255.           New subsection 362B(1E) of the Migration Act provides that if the applicant fails to apply for reinstatement within the 7 day period mentioned in subsection 362B(1B), the MRT must confirm the decision to dismiss the application, by written statement under section 368.

256.           The note to new subsection 362B(1E) provides that under section 368A, the MRT must notify the applicant of a decision to confirm the dismissal of the application.

257.           The purpose of this amendment is to clarify that the MRT must confirm its earlier decision to dismiss the application if the applicant has not applied for reinstatement of the application within 7 days of being notified of that decision.

258.           New subsection 362B(1F) of the Migration Act provides that if the MRT confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

259.           That is, a decision on review is taken, as a matter of law, to have been affirmed for the purposes of paragraph 349(2)(a) of the Migration Act (which provides that the MRT may affirm the decision under review).

260.           New subsection 362B(1G) of the Migration Act provides that to avoid doubt, the MRT cannot give a decision orally under subsection 362B (1A), (1C) or (1E).

261.           The purpose of this amendment is to clarify that a decision under subsection 362B(1A) (to make a decision on the review or dismiss the application), subsection 362B(1C) (to reinstate the application or confirm the decision to dismiss the application) or subsection 362B(1E) (to confirm the decision to dismiss the application) cannot be given orally.

262.           Subsection 362B(2) of the Migration Act currently provides that this section does not prevent the MRT from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.  A new subheading is provided before current subsection 362B(2) that states “ Other measures to deal with failure of applicant to appear”.

263.           The purpose of the new subheading is to set out the measures, other than those in subsection 362B(1) of the Migration Act, that the MRT can take to deal with an applicant’s failure to appear before it.

264.           The amendment to subsection 362B(1) and the new subheading are to work in conjunction with current subsection 362B(2) so that the MRT is not prevented from rescheduling the applicant’s appearance before it, or from delaying the decision on the review in order to enable the applicant’s appearance before it as rescheduled.

Item 12           After section 362B

265.           This item adds new section 362C - “Failure to appear - Tribunal’s decisions, written statements and notifying the applicant” after section 362B of Division 5 of Part 5 of the Migration Act.

Decisions to which this section applies

266.           New subsection 362C(1) of the Migration Act provides that this section applies in relation to the following decisions (each of which is a non-appearance decision ):

·       a decision to dismiss an application under paragraph 362B(1A)(b);

·       a decision reinstate an application under paragraph 362B(1C)(a) and to give directions (if any) under that paragraph. 

267.           The note to new subsection 362C(1) provides that for similar provisions applying to a decision to confirm the dismissal of an application under section 362B, see section 368 and 368A.

268.           The purpose of this amendment is to clarify the decisions to which new section 362C of the Migration Act applies.

Written statement of decision

269.           New subsection 362C(2) of the Migration Act provides that if the MRT makes a non-appearance decision, the MRT must make a written statement that:

·       sets out the decision; and

·       sets out the reasons for the decision; and

·       in the case of a decision to reinstate an application:

o    sets out the findings on any material questions of fact; and

o    refers to the evidence or any other material on which the findings of fact were based; and

·       records the day and time the statement is made.

270.           The purpose of this amendment is to require the MRT to make a written statement for a decision to dismiss an application where the applicant has failed to appear before the MRT and a written statement for a decision to reinstate an application (if such a decision has been made).

271.           New subsection 362C(3) of the Migration Act provides that a non-appearance decision is taken to have been made:

·       by the making of the written statement; and

·       on the day, and at the time, the written statement is made.

272.           The purpose of this amendment is to clarify when, and how, a decision to dismiss an application or a decision to reinstate an application is taken to have been made by the MRT.

273.           New subsection 362C(4) of the Migration Act provides that the MRT has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.

274.           The note to new subsection 362C(4) provides that if the application is reinstated, the application is taken never to have been dismissed as provided for in subsection 362B(1D)).

275.           The purpose of this amendment is to clarify that once the MRT makes a written statement in relation to a decision to dismiss an application or a decision to reinstate an application, the Tribunal cannot consider the matter further.  The note clarifies though that if the application is reinstated then the application is taken never to have been dismissed and in accordance with subsection 362B(1D), the MRT must conduct, or continue to conduct, the review accordingly.

Notice to applicant

276.           New subsection 362C(5) of the Migration Act provides that the MRT must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection 362C(2).  The copy must be given to the applicant:

·       within 14 days after the day on which the decision is taken to have been made; and

·       by one of the methods specified in section 379A.

277.           The purpose of this amendment is to clarify the method by which, and the time within which, the MRT must notify an applicant of a decision to either dismiss an application or a decision to reinstate an application.

278.           New subsection 362C(6) of the Migration Act provides that in the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F).

279.           The purpose of this amendment is to clarify that if the MRT makes a decision to dismiss the application, the written statement referred to in subsection 362C(2) must be accompanied by a statement describing the effect of subsections 362B(1B) to (1F). These provisions concern the reinstatement of an application and are inserted by item 11 above.

Notice to Secretary

280.           New subsection 362C(7) of the Migration Act provides that a copy of the written statement made under subsection 362C(2) must also be given to the Secretary:

·       within 14 days after the day on which the decision is taken to have been made; and

·       by one of the methods specified in section 379B.

281.           The purpose of this amendment is to clarify the method by which, and the time within which, the MRT must notify the Secretary of a decision to either dismiss an application or a decision to reinstate an application.

Validity etc. not affected by procedural irregularities

282.           New subsection 362C(8) of the Migration Act provides that the validity of a non-appearance decision, and the operation of subsection 362C(4), are not affected by:

·       a failure to record, under paragraph 362C(2)(d), the day and time when the written statement was made; or

·       a failure to comply with subsection 362C(5), (6) or (7).

283.           The purpose of this amendment is to clarify that the validity of a decision to dismiss an application or the validity of a decision to reinstate an application, are not affected by a failure to record the day and time when the written statement was made, or a failure to comply with new subsections 362C(5), (6) or (7) of the Migration Act. The operation of new subsection 362C(4) (concerning the MRT’s lack of power to vary or revoke a non-appearance decision after the day and time when the written statement is made) is also unaffected by failure of the MRT to comply with any of those provisions.

Item 13                       Subsection 368(1) 

284.           This item inserts “(other than an oral decision)” after “decision on a review” in subsection 368(1) of Division 6 of Part 5 of the Migration Act.

285.           This amendment is consequential to the amendment made by item 17 below.

Item 14                       Paragraphs 368(1)(e) and (f)

286.           This item repeals paragraphs 368(1)(e) and (f) in subsection 368(1) of Division 6 of Part 5 of the Migration Act and substitutes new paragraphs 368(1)(e) and (f).

287.           Subsection 368(1) of the Migration Act sets out the requirements of a written statement which the MRT must make when the MRT makes a decision on a review. 

288.           Current paragraphs 368(1)(e) and (f) provide that where the MRT makes its decision on a review, the MRT must, subject to paragraphs 375A(2)(b) and 376(3)(b), make a written statement that:

·          unless the decision is given orally - records the day and time the statement is made; and

·          if the decision is given orally - records the day and time the decision is given orally.

289.           New paragraphs 368(1)(e) and (f), in combination with the amendment in item 13 above, provide that where the MRT makes its decision on a review (other than an oral decision), the MRT must, subject to paragraphs 375A(2)(b) and 376(3)(b), prepare a written statement that:

·       in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application - indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and

·       records the day and time the statement is made.

290.           The purpose of this amendment is to clarify that if the MRT makes a decision to confirm the dismissal of an application, the written statement under section 368 of the Migration Act must note that the decision under review is taken to be affirmed in accordance with new subsection 362B(1F). The day and time the statement is made must also be recorded.  The amendment is also made as a consequence of the amendment made by item 17 below which will confine the requirements in regards to an oral decision to section 368D so that there is no longer a need to provide for an oral decision in section 368.

Item 15           At the end of subsection 368(1)

291.           This item inserts a note at the end of subsection 368(1) of Division 6 of Part 5 of the Migration Act.

292.           The note provides that decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under section 368. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the MRT.

293.           The purpose of this amendment is to remind the reader that the making of a decision on a review without giving the applicant a further opportunity to appear before the MRT and a decision to confirm the decision to dismiss the application must be made by a written statement and cannot be made orally.

Item 16           Paragraph 368(4)(a)

294.           This item repeals current paragraph 368(4)(a) of section 368 of Division 6 of Part 5 of the Migration Act, and substitutes a new paragraph 368(4)(a).

295.           Paragraph 368(4)(a) of the Migration Act currently provides that the validity of a decision on a review, and the operation of subsection 368(2A), are not affected by a failure to record, under paragraph (1)(e) or (f), the day and time when the written statement was made or the decision was given orally (as the case requires).

296.           New paragraph 368(4)(a) of the Migration Act provides that the validity of a decision on a review, and the operation of subsection 368(2A), are not affected by a failure to record, under paragraph (1)(f), the day and time when the written statement was made.

297.           This is a consequential amendment to item 14 above which repeals current paragraphs 368(1)(e) and (f) of the Migration Act, and substitutes new paragraphs 368(1)(e) and (f).

Item 17           Section 368D

298.           This item repeals current section 368D of Division 6 of Part 5 of the Migration Act, and substitutes new section 368D - “Tribunal’s decisions given orally”.

How and when oral decisions are taken to have been made

299.           New subsection 368D(1) of the Migration Act provides a decision on a review that is given orally by the MRT is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.

300.           The purpose of this amendment is to clarify when an oral decision by the MRT is taken to have been made and notified to the review applicant.

Statement in relation to oral decision

301.           New subsection 368D(2) of the Migration Act provides that if a decision on a review is given orally, the MRT must:

·       make an oral statement that:

o    describes the decision of the MRT on the review; and

o    describes the reasons for the decision; and

o    describes the findings on any material questions of fact; and

o    refers to the evidence or any other material on which the findings of fact were based; and

o    identifies the day and time the decision is given orally; or

·       make a written statement that:

o    sets out the decision of the MRT on the review; and

o    sets out the reasons for the decision; and

o    sets out the findings on any material questions of fact; and

o    refers to the evidence or any other material on which the findings of fact were based; and

o    records the day and time the decision is given orally.

302.           The purpose of this amendment is to clarify the obligations of the MRT in relation to the making of an oral decision (in relation to an oral statement or a written statement which contains the reasons for the decision).  This includes providing an option for the MRT to make an oral statement, which includes the reasons for the decision, instead of a written statement.  Currently section 368D only provides for the MRT to make a written statement under subsection 368(1) where a decision on review is given orally.

303.           New subsection 368D(3) of the Migration Act provides that the MRT has no power to vary or revoke the decision after the day and time the decision is given orally.

304.           The purpose of this amendment is to clarify that after the MRT gives a decision orally, it has no power to consider the matter further and reflects the current requirements in section 368D.

Written statement to be provided on request of applicant

305.           New subsection 368D(4) of the Migration Act provides that if the MRT makes an oral statement under paragraph 368D(2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the MRT must:

·       reduce the oral statement to writing; and

·       within 14 days after the day the request is received by the MRT, give a copy of the written statement:

o    to the applicant by one of the methods specified in section 379A; and

o    to the Secretary by one of the methods specified in section 379B.

306.           The purpose of this amendment is to clarify the obligations of the MRT where an oral statement has been made under new paragraph 368D(2)(a) of the Migration Act, and the applicant has made a written request for the statement to be provided in writing.  The amendment provides an opportunity for an applicant to request a written statement.

307.           The amendment does not preclude the MRT, at its discretion and where it considers it appropriate, from providing a written statement in other circumstances.  The amendment also does not prevent a court ordering such a written statement to be provided.  However, the MRT is obliged to provide a written statement to an applicant only where the applicant has made a request in accordance with new subsection 368D(4). 

Written statement to be provided on request of Minister

308.           New subsection 368D(5) of the Migration Act provides that if the MRT makes an oral statement under paragraph 368D(2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the MRT must:

·       reduce the oral statement to writing; and

·       within 14 days after the day the request is received by the MRT, give a copy of the written statement:

o    to the Secretary by one of the methods specified in section 379B; and

o    to the applicant by one of the methods specified in section 379A. 

309.           The purpose of this amendment is to clarify the obligations of the MRT where an oral statement has been made under new paragraph 368D(2)(a) of the Migration Act, and the Minister makes a written request for the oral statement to be provided in writing.

Return of documents etc.

310.           New subsection 368D(6) of the Migration Act provides that after the MRT makes a statement under subsection 368D(2), the MRT must:

·       return to the Secretary any document that the Secretary has provided in relation to the review; and

·       give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

311.           The purpose of this amendment is to clarify the obligations of the MRT in relation to the return and giving of certain documents concerning the review to the Secretary of the Department of Immigration and Border Protection.

Validity etc. not affected by procedural irregularities

312.           New subsection 368D(7) of the Migration Act provides that the validity of a decision on a review, and the operation of subsection 368D(3), are not affected by:

·       a failure to identify or record, under subsection 368D(2), the day and time when the decision was given orally; or

·       a failure to comply with subsection 368D(4), (5) or (6).

313.           The note to new subsection 368D(7) provides that decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under section 368. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the MRT.

314.           The purpose of this amendment is to clarify that the validity of a review decision is not affected by a failure to identify or record the day and time when the decision was given orally, or a failure to comply with new subsection 368D(4), (5), or (6) of the Migration Act. The operation of new subsection 368D(3) (MRT’s lack of power to vary or revoke a decision after the day and time the decision is given orally) is also unaffected by failure to comply with any of those provisions.

Item 18           Section 410

315.           This item inserts a new definition of decision on a review in section 410 of Division 1 of Part 7 of the Migration Act.           

316.           The new definition in section 410 provides that any of the following decisions of the RRT in relation to an application for review of an RRT-reviewable decision is a decision on a review:

·       a decision to affirm the RRT-reviewable decision;

·       a decision to vary the RRT-reviewable decision;

·       a decision under paragraph 415(2)(c) to remit a matter in relation to the RRT-reviewable decision for reconsideration;

·       a decision to set the RRT-reviewable decision aside and substitute a new decision;

·       a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm a decision to dismiss the application.

317.           This amendment provides an exhaustive definition of a decision on a review in relation to an application for review of an RRT-reviewable decision.

Item 19           At the end of subsection 415(2)

318.           This item adds new paragraph 415(2)(e) at the end of subsection 415(2) of Division 2 of Part 7 of the Migration Act. 

319.           New paragraph 415(2)(e) provides that if the applicant fails to appear - the RRT may exercise a power under section 426A in relation to the dismissal or reinstatement of an application.

320.           Section 415 sets out powers of the RRT.  Subsection 415(2) currently provides the RRT may:

·       affirm the decision; or

·       vary the decision; or   

·       if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the RRT as are permitted by the regulations; or

·       set the decision aside and substitute a new decision.

321.           New paragraph 415(2)(e) of the Migration Act provides a new power for the RRT to dismiss or reinstate an application under section 426A (as amended by item 26 below) if an applicant fails to appear before the RRT after being invited to do so under section 425 of the Migration Act.

Item 20           Subsection 420A(2)

322.           This item repeals subsection 420A(2) of Division 3 of Part 7 of the Migration Act and substitutes new subsection 420A(2).

323.           Subsection 420A(1) of the Migration Act provides that the Principal Member may, in writing, give directions, not inconsistent with this Act or the regulations, as to:

·       the operation of the RRT; and

·       the conduct of reviews by the RRT.

324.           Subsection 420A(2) of the Migration Act currently provides that in particular, directions may relate to the application of efficient processing practices to the conduct of reviews by the RRT.

325.           New subsection 420A(2) of the Migration Act provides that without limiting subsection (1), the directions may:

·       relate to the application of efficient processing practices in the conduct of reviews by the RRT; or

·       set out procedures to be followed by applicants and their representatives in relation to proceedings before the RRT.   

326.           New subsection 420A(2) of the Migration Act strengthens the power in section 420A for the Principal Member to issue Practice Directions to an applicant to a review and their representatives (including migration agents and legal practitioners) as to the procedures they are to follow in relation to proceedings before the RRT. The Practice Directions will also provide for guidance on processing practices relating to the conduct of reviews.

Item 21           Subsection 420A(3)

327.           This item inserts “(or a decision under paragraph 426A(1A)(b) or (1C)(a))” after the word “review” in subsection 420A(3) of Division 3 of Part 7 of the Migration Act.

328.           Subsection 420A(3) of the Migration Act provides that the RRT should, as far as practicable, comply with the directions.  However, non-compliance by the RRT with any direction does not mean that the RRT’s decision on a review is an invalid decision.

329.           This amendment is consequential to the amendments made by item 26 below, which apply if an applicant is invited under section 425 to appear before the RRT but does not appear.  Item 26 includes an amendment that will provide for the RRT to dismiss an application under new paragraph 426A(1A)(b) and reinstate an application under new paragraph 426A(1C)(a).  Neither of these decisions will be a decision on a review but they are not to be invalidated if the RRT does not comply with a Practice Direction.  As such this item inserts a reference to paragraph 426A(1A)(b) and paragraph 426A(1C)(a) to put it beyond doubt that they are not to be invalidated if the RRT does not comply with a Practice Direction.

Item 22           After section 420A

330.           This item inserts new section 420B after section 420A of Division 3 of Part 7 of the Migration Act.

331.           New subsection 420B(1) of the Migration Act provides that the Principal Member may, in writing, direct that a decision (the guidance decision ) of the RRT specified in the direction is to be complied with by the RRT in reaching a decision on a review of an RRT-reviewable decision of a kind specified in the direction.

332.           New subsection 420B(2) of the Migration Act provides that in reaching a decision on a review of a decision of that kind, the RRT must comply with the guidance decision unless the RRT is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

333.           New subsection 420B(3) of the Migration Act provides that non-compliance by the RRT with a guidance decision does not mean that the RRT’s decision on a review is an invalid decision.

334.           Guidance decisions would be issued by the Principal Member of the RRT in relation to identifiable common issues in matters before the RRT, and Members of the RRT would be expected to follow them unless the facts or circumstances in the current matter before them could be distinguished. The purpose of this provision is therefore to promote consistency in decision-making between different members of the RRT in relation to common issues and/or the same or similar facts or circumstances.

Item 23           Section 424AA

335.           This item inserts “(1)” before “If” in section 424AA of the Migration Act.

336.           This is a consequential amendment to item 24 below which inserts new subsection 424AA(2) in the Migration Act.

Item 24           At the end of section 424AA

337.           This item adds new subsection 424AA(2) at the end of section 424AA in Division 4 of Part 7 of the Migration Act.

338.           Section 424AA of the Migration Act provides that if an applicant is appearing before the RRT because of an invitation under section 425:

·       the RRT may orally give to the applicant clear particulars of any information that the RRT considers would be the reason, or part of the reason, for affirming the decision that is under review; and

·       if the RRT does so, the RRT must:

o    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

o    orally invite the applicant to comment on or respond to the information; and

o    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

o    if the applicant seeks additional time to comment on or respond to the information - adjourn the review, if the RRT considers that the applicant reasonably needs additional time to comment on or respond to the information.

339.           New subsection 424AA(2) of the Migration Act provides that a reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

340.           The effect of this amendment is that the codified natural justice requirement in section 424AA of the Migration Act does not apply if the decision under review is taken to be affirmed under new subsection 426A(1F).

341.           Subsection 422B(1) provides that Division 4 of Part 7 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  Subsection 426A(1F), inserted by item 26 below, provides that if the RRT confirms a decision to dismiss an application for an applicant’s failure to appear before the RRT, the decision under review is taken to be affirmed.  Subsection 426A(1F) is also included in Division 4 of Part 7 of the Migration Act which deals with the conduct of review by the RRT. 

342.           As such, the requirements of natural justice regarding the RRT confirming a decision to dismiss an application for an applicant’s failure to appear before the RRT are provided for within certain sections of Division 4 of Part 7 of the Migration Act, such as section 426A.  Not applying the requirements in section 424AA to new subsection 426A(1F)  does not provide for the common law natural justice hearing rule to apply to new subsection 426A(1F).

Item 25           At the end of section 424A

343.           This item adds new subsection 424A(4) at the end of section 424A of Division 4 of Part 7 of the Migration Act. 

344.           New subsection 424A(4) of the Migration Act provides that a reference in section 424A to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

345.           Subsection 424A(1) of the Migration Act provides that subject to subsections (2A) and (3), the RRT must:

·       give to the applicant, in the way that the RRT considers appropriate in the circumstances, clear particulars of any information that the RRT considers would be the reason, or part of the reason, for affirming the decision that is under review; and

·       ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision under review; and

·       invite the applicant to comment on or respond to it.

346.           The effect of this amendment is that the codified natural justice requirement in section 424A of the Migration Act does not apply if the decision under review is taken to be affirmed under new subsection 426A(1F).

347.           Subsection 422B(1) provides that Division 4 of Part 7 of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.  Subsection 426A(1F), inserted by item 26 below, provides that if the RRT confirms a decision to dismiss an application for an applicant’s failure to appear before the RRT, the decision under review is taken to be affirmed.  Subsection 426A(1F) is also included in Division 4 of Part 7 of the Migration Act which deals with the conduct of review by the RRT. 

348.           As such, the requirements of natural justice regarding the RRT confirming a decision to dismiss an application for an applicant’s failure to appear before the RRT are provided for within certain sections of Division 4 of Part 7 of the Migration Act, such as section 426A.  Not applying the requirements in section 424A to new subsection 426A(1F)  does not provide for the common law natural justice hearing rule to apply to new subsection 426A(1F).

Item 26           Subsection 426A(1)

349.           This item repeals subsection 426A(1) of Division 4 of Part 7 of the Migration Act and substitutes new subsections 426A(1), (1A), (1B), (1C), (1D), (1E), (1F) and (1G) and a new subheading to subsection 426A(2).

350.           Subsection 426A(1) of the Migration Act currently provides that if the applicant:

·       is invited under section 425 to appear before the RRT; and

·       does not appear before the RRT on the day on which, or the time and place at which, the applicant is scheduled to appear;

the RRT may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

Scope

351.           New subsection 426A(1) of the Migration Act provides:

This section applies if the applicant:

·       is invited under section 425 to appear before the RRT; but

·       does not appear before the RRT on the day on which, or at the time and place at which, the applicant is scheduled to appear.

352.           The purpose of this amendment is to clarify to whom new section 426A of the Migration Act applies.

Tribunal may make a decision on the review or dismiss proceedings

353.           New subsection 426A(1A) of the Migration Act provides that the RRT may:

·       by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

·       by written statement under section 426B, dismiss the application without any further consideration of the application or information before the RRT.

354.           Note 1 to new subsection 426A(1A) provides that under section 430A, the RRT must notify the applicant of a decision on the review.

355.           Note 2 to new subsection 426A(1A) provides that under section 426B, the RRT must notify the applicant of a decision to dismiss the application.

356.           The purpose of this amendment is to clarify that if the applicant fails to appear before the RRT in response to an invitation under section 425 of the Migration Act, the RRT has the option of dismissing the application or making a decision on the review, as is the case under current subsection 426A(1).

Reinstatement of application or confirmation of dismissal

357.           New subsection 426A(1B) of the Migration Act provides that if the RRT dismisses the application, the applicant may, within 7 days after receiving notice of the decision under section 426B, apply to the RRT for reinstatement of the application.

358.           The note to new subsection 426A(1B) provides that section 441C sets out when a person (other than the Secretary) is taken to have received a document from the RRT for the purposes of this Part.  

359.           The purpose of this provision is to clarify that if the RRT dismisses an application for review due to the applicant’s failure to appear, the applicant can apply for reinstatement of the application within 7 days of being notified of that decision.  Section 441C provides when the applicant will be taken to have received the document, and as such when the time to apply for reinstatement will commence.

360.           New subsection 426A(1C) of the Migration Act provides that on application for reinstatement in accordance with subsection 426A(1B), the RRT must:

·          if it considers it appropriate to do so - reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

 

·          confirm the decision to dismiss the application, by written statement under section 430.

361.           Note 1 to new subsection 426A(1C) provides that under section 426B, the RRT must notify the applicant of a decision to reinstate the application.

362.           Note 2 to new subsection 426A(1C) provides that u nder section 430A, the RRT must notify the applicant of a decision to confirm the dismissal of the application.

363.           The purpose of this amendment is to require the RRT to either reinstate the application or confirm the decision to dismiss the application, if the applicant has applied for reinstatement of the application.

364.           New subsection 426A(1D) of the Migration Act provides that if the RRT reinstates the application:

·       the application is taken never to have been dismissed; and

·       the RRT must conduct (or continue to conduct) the review accordingly.

365.           The purpose of this amendment is to clarify the status of an application that has been reinstated under new subsection 426A(1C) of the Migration Act, and to clarify the RRT’s obligation to review (or to continue to review) the decision.

366.           New subsection 426A(1E) of the Migration Act provides that if the applicant fails to apply for reinstatement within the 7 day period mentioned in subsection 426A(1B), the RRT must confirm the decision to dismiss the application, by written statement under section 430.

367.           The note to new subsection 426A(1E) provides that under section 430A, the RRT must notify the applicant of a decision to confirm the dismissal of the application.

368.           The purpose of this amendment is to clarify that the RRT must confirm its earlier decision to dismiss the application if the applicant has not applied for reinstatement of the application within 7 days of being notified of that decision.

369.           New subsection 426A(1F) of the Migration Act provides that if the RRT confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

370.           That is, a decision on review is taken, as a matter of law, to have been affirmed for the purposes of paragraph 415(2)(a) of the Migration Act (which provides that the RRT may affirm the decision under review).

371.           New subsection 426A(1G) of the Migration Act provides that to avoid doubt, the RRT cannot give a decision orally under subsection 426A(1A), (1C) or (1E).

372.           The purpose of this amendment is to clarify that a decision under subsection 426A(1A) (to make a decision on the review or dismiss the application), subsection 426A(1C) (to reinstate the application or confirm the decision to dismiss the application) or subsection 426A(1E) (to confirm the decision to dismiss the application) cannot be given orally.

373.           Subsection 426A(2) of the Migration Act currently provides that this section does not prevent the RRT from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.  A new subheading is provided before current subsection 426A(2) that states “Other measures to deal with failure of applicant to appear”.

374.           The purpose of the new subheading is to set out the measures, other than those in subsection 426A(1) of the Migration Act, that the RRT can take to deal with an applicant’s failure to appear before it.

375.           The amendment to subsection 426A(1) and the new subheading are to work in conjunction with current subsection 426A(2) so that the RRT is not prevented from rescheduling the applicant’s appearance before it, or from delaying the decision on the review in order to enable the applicant’s appearance before it as rescheduled.

Item 27           After section 426A

376.           This item adds new section 426B - “Failure to appear - Tribunal’s decisions, written statements and notifying the applicant” after section 426A of Division 4 of Part 7 of the Migration Act.

Decisions to which this section applies

377.           New subsection 426B(1) of the Migration Act provides that this section applies in relation to the following decisions (each of which is a non-appearance decision ):

·       a decision to dismiss an application under paragraph 426A(1A)(b);

·       a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph. 

378.           The note to new subsection 426B(1) provides that for similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.

379.           The purpose of this amendment is to clarify the decisions to which new section 426B of the Migration Act applies.

Written statement of decision

380.           New subsection 426B(2) of the Migration Act provides that if the RRT makes a non-appearance decision, the RRT must make a written statement that:

·       sets out the decision; and

·       sets out the reasons for the decision; and

·       in the case of a decision to reinstate an application:

o    sets out the finding on any material questions of fact; and

o    refers to the evidence or any other material on which the findings of fact were based; and

·       records the day and time the statement is made.

381.           The purpose of this amendment is to require the RRT to make a written statement for a decision to dismiss an application where the applicant has failed to appear before the RRT and a written statement for a decision to reinstate an application (if such a decision has been made).

382.           New subsection 426B(3) of the Migration Act provides that a non-appearance decision is taken to have been made:

·       by the making of the written statement; and

·       on the day, and at the time, the written statement is made.

383.           The purpose of this amendment is to clarify when, and how, a decision to dismiss an application or a decision to reinstate an application is taken to have been made by the RRT.

384.           New subsection 426B(4) of the Migration Act provides that the RRT has no power to vary or revoke a non-appearance decision after the day and time the written statement is made.

385.           The note to new subsection 426B(4) provides that if the application is reinstated, the application is taken never to have been dismissed as provided for in subsection 426A(1D).

386.           The purpose of this amendment is to clarify that once the RRT makes a written statement in relation to a decision to dismiss an application or a decision to reinstate an application, the RRT cannot consider the matter further.  The note clarifies though that if the application is reinstated then the application is taken never to have been dismissed and in accordance with subsection 462A(1D), the RRT must conduct, or continue to conduct, the review accordingly.

Notice to applicant

387.           New subsection 426B(5) of the Migration Act provides that the RRT must notify the applicant of a non-appearance decision by giving the applicant a copy of the written statement made under subsection 426B(2).  The copy must be given to the applicant:

·       within 14 days after the day on which the decision is taken to have been made; and

·       by one of the methods specified in section 441A.

388.           The purpose of this amendment is to clarify the method by which, and the time within which, the RRT must notify an applicant of a decision to either dismiss an application or a decision to reinstate an application.

389.           New subsection 426B(6) of the Migration Act provides that in the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).

390.           The purpose of this amendment is to clarify that if the RRT makes a decision to dismiss the application, the written statement referred to in subsection 426B(2) must be accompanied by a statement describing the effect of subsections 426A(1B) to (1F). These provisions concern the reinstatement of an application and are inserted by item 26 above.

Notice to Secretary

391.           New subsection 426B(7) of the Migration Act provides that a copy of the written statement made under subsection 426B(2) must also be given to the Secretary:

·       within 14 days after the day on which the decision is taken to have been made; and

·       by one of the methods specified in section 441B.

392.           The purpose of this amendment is to clarify the method by which, and the time within which, the RRT must notify the Secretary of a decision to either dismiss an application or a decision to reinstate an application.

Validity etc. not affected by procedural irregularities

393.           New subsection 426B(8) of the Migration Act provides that the validity of a non-appearance decision, and the operation of subsection 426B(4), are not affected by:

·       a failure to record, under paragraph 426B(2)(d), the day and time when the written statement was made; or

·       a failure to comply with subsection 426B(5), (6) or (7).

394.           The purpose of this amendment is to clarify that the validity of a decision to dismiss an application or the validity of a decision to reinstate an application, are not affected by a failure to record the day and time when the written statement was made, or a failure to comply with new subsections 426B(5), (6) or (7) of the Migration Act. The operation of new subsection 426B(4) (concerning the RRT’s lack of power to vary or revoke a non-appearance decision after the day and time when the written statement is made) is also unaffected by failure of the RRT to comply with any of those provisions.

Item 28           Subsection 430(1)

395.           This item inserts “(other than an oral decision)” after “decision on a review” in subsection 430(1) of Division 5 of Part 7 of the Migration Act.

396.           This amendment is consequential to the amendment made by item 32 below.

Item 29           Paragraphs 430(1)(e) and (f)

397.           This item repeals paragraphs 430(1)(e) and (f) in subsection 430(1) of Division 5 of Part 7 of the Migration Act and substitutes new paragraphs 430(1)(e) and (f).

398.           Subsection 430(1) of the Migration Act sets out the requirements of a written statement which the RRT must make when the RRT makes a decision on a review.    

399.           Current paragraphs 430(1)(e) and (f) provide that where the RRT makes its decision on a review, the RRT must make a written statement that:

·          unless the decision is given orally - records the day and time the statement is made; and

·          if the decision is given orally - records the day and time the decision is given orally.

400.           New paragraphs 430(1)(e) and (f), in combination with the amendment in item 28 above, provide that where the RRT makes its decision on a review (other than an oral decision), the RRT must make a written statement that:

·       in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application - indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

·       records the day and time the statement is made.

401.           The purpose of this amendment is to clarify that if the RRT makes a decision to confirm the dismissal of an application, the written statement under section 430 of the Migration Act must note that the decision under review is taken to be affirmed in accordance with new subsection 426A(1F). The day and time the statement is made must also be recorded.  The amendment is also made as a consequence of the amendment made by item 32 below which will confine the requirements in regards to an oral decision to section 430D so that there is no longer a need to provide for an oral decision in section 430. 

Item 30           At the end of subsection 430(1)

402.           This item inserts a note at the end of subsection 430(1) of Division 5 of Part 7 of the Migration Act.

403.           The note provides that decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under section 430. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the RRT.

404.           The purpose of this amendment is to remind the reader that the making of a decision on a review without giving the applicant a further opportunity to appear before the RRT and a decision to confirm the decision to dismiss the application must be made in writing and cannot be made orally.

Item 31           Paragraph 430(4)(a)

405.           This item repeals current paragraph 430(4)(a) of section 430 of Division 5 of Part 7 of the Migration Act, and substitutes a new paragraph 430(4)(a).

406.           Paragraph 430(4)(a) of the Migration Act currently provides that the validity of a decision on a review, and the operation of subsection 430(2A), are not affected by a failure to record, under paragraph 430(1)(e) or (f), the day and time when the written statement was made or the decision was given orally (as the case requires).

407.           New paragraph 430(4)(a) of the Migration Act provides that the validity of a decision on a review, and the operation of subsection 430(2A), are not affected by a failure to record, under paragraph 430(1)(f), the day and time when the written statement was made.

408.           This is a consequential amendment to item 29 above which repeals current paragraphs 430(1)(e) and (f) of the Migration Act, and substitutes new paragraphs 430(1)(e) and (f).

Item 32           Section 430D

409.           This item repeals current section 430D of Division 5 of Part 7 of the Migration Act and substitutes new section 430D - “Refugee Review Tribunal’s oral decision and oral statement”.

How and when oral decisions are taken to have been made

410.           New subsection 430D(1) of the Migration Act provides that a decision on a review that is given orally by the RRT is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.

411.           The purpose of this amendment is to clarify when an oral decision by the RRT is taken to have been made and notified to the review applicant.

Statement in relation to oral decision

412.           New subsection 430D(2) of the Migration Act provides that if a decision on a review is given orally, the RRT must:

·       make an oral statement that:

o    describes the decision of the RRT on the review; and

o    describes the reasons for the decision; and

o    describes the findings on any material questions of fact; and

o    refers to the evidence or any other material on which the findings of fact were based; and

o    identifies the day and time the decision is given orally; or

·       make a written statement that:

o    sets out the decision of the RRT on the review; and

o    sets out the reasons for the decision; and

o    sets out the findings on any material questions of fact; and

o    refers to the evidence or any other material on which the findings of fact were based; and

o    records the day and time the decision is given orally.

413.           The purpose of this amendment is to clarify the obligations of the RRT in relation to the making of an oral decision (in relation to an oral statement or a written statement which contains the reasons for the decision). This includes providing an option for the RRT to make an oral statement, which includes the reasons for the decision, instead of a written statement. Currently section 430D only provides for the RRT to make a written statement under subsection 430(1) where a decision on review is given orally.

414.           New subsection 430D(3) of the Migration Act provides that the RRT has no power to vary or revoke the decision after the day and time the decision is given orally.

415.           The purpose of this amendment is to clarify that after the RRT gives a decision orally, it has no power to consider the matter further and reflects the current requirements in section 430D.

Written statement to be provided on request of applicant

416.           New subsection 430D(4) of the Migration Act provides that if the RRT makes an oral statement under paragraph 430D(2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the RRT must:

·       reduce the oral statement to writing; and

·       within 14 days after the day the request is received by the RRT, give a copy of the written statement:

o    to the applicant by one of the methods specified in section 441A; and

o    to the Secretary by one of the methods specified in section 441B.

417.           The purpose of this amendment is to clarify the obligations of the RRT where an oral statement has been made under new paragraph 430D(2)(a) of the Migration Act, and the applicant has made a written request for the statement to be provided in writing.  The amendment provides an opportunity for an applicant to request a written statement.

418.           The amendment does not preclude the RRT, at its discretion and where it considers it appropriate, from providing a written statement in other circumstances.  The amendment also does not prevent a court ordering such a written statement to be provided.  However, the RRT is obliged to provide a written statement to an applicant only where the applicant has made a request in accordance with new subsection 430D(4). 

 

Written statement to be provided on request of Minister

419.           New subsection 430D(5) of the Migration Act provides that if the RRT makes an oral statement under paragraph 430D(2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the RRT must:

·       reduce the oral statement to writing; and

·       within 14 days after the day the request is received by the RRT, give a copy of the written statement:

o    to the Secretary by one of the methods specified in section 441B; and

o    to the applicant by one of the methods specified in section 441A. 

420.           The purpose of this amendment is to clarify the obligations of the RRT where an oral statement has been made under new paragraph 430D(2)(a) of the Migration Act, and the Minister makes a written request for the oral statement to be provided in writing.

Return of documents etc.

421.           New subsection 430D(6) of the Migration Act provides that after the RRT makes a statement under subsection 430D(2), the RRT must:

·       return to the Secretary any document that the Secretary has provided in relation to the review; and

·       give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

422.           The purpose of this amendment is to clarify the obligations of the RRT in relation to the giving of certain documents concerning the review to the Secretary of the Department of Immigration and Border Protection.

Validity etc. not affected by procedural irregularities

423.           New subsection 430D(7) of the Migration Act provides that the validity of a decision on a review, and the operation of subsection 430D(3), are not affected by:

·       a failure to identify or record, under subsection 430D(2), the day and time when the decision was given orally; or

·       a failure to comply with subsection 430D(4), (5) or (6).

424.           The note to new subsection 430D(7) provides that decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under section 430. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the RRT.

425.           The purpose of this amendment is to clarify that the validity of a review decision is not affected by a failure to identify or record the day and time when the decision was given orally, or a failure to comply with new subsection 430D(4), (5), or (6) of the Migration Act. The operation of new subsection 430D(3) (RRT’s lack of power to vary or revoke a decision after the day and time the decision is given orally) is also unaffected by failure to comply with any of those provisions.

Item 33           Subsection 477(3) (paragraphs (b) and (c) of the definition of date of the migration decision )

426.           This item repeals paragraphs (b) and (c) of the definition of date of the migration decision in subsection 477(3) of Division 2 of Part 8 of the Migration Act.

427.           Paragraph 477(3)(b) and (c) are substituted to provide that date of the migration decision :

·       in the case of a migration decision made by the MRT - the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

·       in the case of a migration decision made by the RRT - the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1).

 

 

 

 



 

Part 2 - Application

Item 34                       Application of amendments

General rule

428.           Subitem 34(1) of Part 2 of Schedule 4 provides that subject to subitem 34(2), the amendments made by Part 1 of Schedule 4 apply in relation to an application to the MRT or the RRT for review of a decision if:

·          the application is made on or after the commencement of Schedule 4; or

·          the application was made before the commencement of Schedule 4, but a decision on the review had not been made as at the commencement of Schedule 4.

Amendments relating to dismissal of Tribunal applications

429.           Subitem 34(2) of Part 2 of Schedule 4 provides that the amendments of the Migration Act made by Part 1 of Schedule 4 that are covered by subitem 34(3) apply in relation to an application to the MRT or the RRT for review of a decision if:

·          the application is made on or after the commencement of Schedule 4; or

·          both:

o    the application was made before the commencement of Schedule 4, but a decision on the review had not been made as at the commencement of Schedule 4; and

o    on or after the commencement of Schedule 4, the applicant is invited to appear before the MRT under section 360 of the Migration Act, or the RRT under section 425 of the Migration Act, as the case may be, for the purposes of the review.

430.           Subitem 34(3) provides that the following amendments of the Migration Act made by Part 1 of Schedule 4 are covered by subitem 34(3):

·          amendments of sections 337, 349, 359AA, 359A, 362B, 410, 415, 424AA, 424A and 426A;

·          the insertion of new sections 362C and 426B.

 



Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Protection and Other Measures) Bill 2014

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

Specifically, the Bill amends the Migration Act to:

·       make clear that it is an asylum seeker’s responsibility to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claim ;

·       provide for the Refugee Review Tribunal (RRT) to draw an unfavourable inference with regard to the credibility of claims or evidence that are raised by a protection visa applicant at the review stage for the first time, if the applicant has no reasonable explanation to justify why those claims and evidence were not raised before a primary decision was made;

·       create grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship, and does not have a reasonable explanation for doing so, including when an applicant provides bogus documents to establish their identity or either destroys or discards such evidence, or has caused that evidence to be destroyed or discarded;

·       clarify when an applicant who applies for a protection visa, where a criterion for the grant of a visa is that they are a member of the same family unit of a person who engages Australia’s protection obligations, is to make their application for a protection visa;

·       define the risk threshold for assessing Australia’s protection obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);

·       simplify the legal framework relating to unauthorised maritime arrivals and transitory persons who can  make a valid application for a visa;

·       increase processing and administrative efficiency of the Migration Review Tribunal (MRT) and the RRT, including:

o    strengthening the powers of the Principal Member to issue guidance decisions and practice directions;

o    enabling the Tribunals to make an oral statement of reasons where there is an oral decision without the need for a written statement of reasons; and

o    introducing a power to dismiss an application where an applicant fails to appear before the Tribunal after being invited to do so, with an ability to reinstate the application where the applicant applies for reinstatement within a specified period of time; and

o    make a technical amendment to put beyond doubt when a review of a decision that has been made in respect of an application under the Migration Act is ‘finally determined’.

These measures aim to increase efficiency and improve integrity across the whole protection status determination process, including during review.

Human rights implications - Overview

Australia has obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) not to return a person to a country in certain circumstances. The Government is of the view that provided Australia’s international obligations are satisfied, the Government has the ability to decide how it processes claims. The ICCPR or CAT does not specify how this should occur. Australia can determine how this occurs and the measures in the Bill are articulating how this will occur under the Migration Act 1958 . Australia’s implementation of the below obligations are further complemented by the Minister for Immigration and Border Protection exercising his or her non-compellable powers under the Migration Act 1958 to grant a visa.

Non refoulement and freedom from torture or cruel, inhuman or degrading treatment or punishment

Article 3 of the CAT states:

No State party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Articles 6 and 7 of the ICCPR also impose on Australia an implied non refoulement obligation.  Article 6 of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

The amendments do not substantively alter the rights and interests of persons whom these amendments would affect as their claims will continue to be assessed in light of all of Australia’s non refoulement obligations. Anyone who is found to engage Australia’s non refoulement obligations will not be removed in breach of those obligations. The form of administrative arrangements in place to support Australia meeting its non refoulement obligations is a matter for the Government.

The Bill makes several changes to the framework of administrative measures which implement Australia’s non refoulement obligations; it does not, however, affect the substance of Australia’s adherence to these obligations. The provisions in the Bill restore the Government’s intention following judicial interpretation of certain provisions, express the Parliament’s preference for a certain interpretation when more than one may be valid in international law, and streamlines processing systems.  

Best interests of the child

Article 3 of the Convention on the Rights of the Child (CRC) stat es that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The Government is committed to act in accordance with Article 3 of the CRC.  It is Government policy to discourage unauthorised arrivals from taking potentially life threatening avenues to achieve resettlement for their families in Australia .

Treating the best interests of the child as a primary consideration will take place on a case-by-case basis. Other considerations may also be primary considerations such as the integrity of the migration programme. The obligation in the CRC in relation to the best interests of the child does not amount to a right to remain in Australia if a person has no other lawful authority to stay, but should be taken into account when arranging removal.

The Government has policies and procedures to give effect to this obligation and is committed to acting in a manner consistent with the CRC.

Non-citizen’s responsibility in relation to protection claims  

Section 5AAA inserts a new provision into the Migration Act 1958 that clearly articulates a non-citizen’s responsibility in relation to protection claims. Consistent with requirements in other resettlement countries, and guidelines from the United Nations High Commissioner for Refugees, this provision places the responsibility for making claims for protection and providing sufficient evidence to establish the claim, on those who are seeking protection. The provision clarifies that it is not the responsibility of the decision-maker to make a case for protection on behalf of a person.

Article 22(1) of the CRC states:

States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

Article 4(1) of the Convention on the Rights of Persons with Disabilities (CRPD) states:

States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake ….

Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD) states:

1. States Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.



2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

Non-citizens claiming protection in Australia, including unaccompanied minors or vulnerable people, who are not able to articulate their claims clearly or provide supporting evidence may arrange private application assistance from a Registered Migration Agent. In addition, people claiming protection who have arrived lawfully and are disadvantaged and face financial hardship may be eligible for assistance with their primary application under the Immigration Advice and Application Assistance Scheme (IAAAS). The Government will provide a small amount of additional support to illegal arrivals who are considered vulnerable, including unaccompanied minors and the Department of Immigration and Border Protection is currently considering the most effective and efficient way to provide this support.  Departmental policy and procedures for decision makers will take into consideration whether an application is from a person identified as vulnerable, and relevant non-citizens will be made aware of the consequences of the amendments including the responsibility for applicants to substantiate their claims and the consequences of not providing all claims and information at the earliest opportunity. In light of the above, the Government is of the view that the aim of encouraging individuals to specify the particulars of their claim as early as possible is legitimate and should be applied to all persons seeking protection in Australia. As such section 5AAA is a reasonable and proportionate measure in achieving this aim and to the extent that this measure may engage the above Articles any limitation is reasonable, necessary and proportionate.

 

How the RRT is to deal with new claims or evidence

This Bill introduces a new provision, section 423A, that applies to the RRT and affects claims or evidence presented by a protection visa applicant for the first time at the review stage. Where claims and evidence are raised at the RRT for the first time, they are to be accompanied by a reasonable explanation detailing why they were not raised before a primary decision was made. Where the RRT is not satisfied with that explanation, an inference unfavourable to the credibility of the claim or evidence will be made. This measure is intended to encourage all protection visa applicants to raise their claims and provide supporting evidence as soon as possible, in order to avoid unnecessary delays in deciding an application.

Article 2(1) of the ICCPR states: 

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 14(1) of the ICCPPR states:

 All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Article 26 of the ICCPR states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

This measure meets Australia’s non refoulement obligations under the CAT and ICCPR, specified in the overview of this statement. A protection visa applicant has ample opportunity to present claims and supporting evidence to justify claims to international protection before a primary decision is made on their application. Claims and evidence may be provided when the application is lodged, during interview, on request from a decision-maker, or at the applicant’s own initiative at any point before a primary decision has been made.

The new section 423A does not curtail an applicant’s ability to make or substantiate their claims to protection, but specifies when a claim is to be made. Where a claim can be made before the review stage, it ought to be made then. Further, the measure does not prevent the later presentation of new claims and supporting evidence. Rather, it specifies that they must be accompanied by a reasonable explanation in order to be assessed as credible. It is acknowledged that genuine claims and supporting evidence may arise in the interval between a primary decision being made and an application for review being finalised. Before an RRT member is able to assess whether claims and evidence presented at the review stage are new, they must have regard to all claims and evidence presented, as is currently the case. However, where new claims and evidence are not accompanied by a reasonable explanation, the RRT will draw an adverse credibility inference regarding those claims or evidence.

The insertion of section 423A may be said to engage Articles 2(1), 14(1) and 26 of the ICCPR in that the RRT are treating these applicants in a different manner to other applicants seeking review for other visas. As previously mentioned, procedures relating to the determination of non refoulement obligations are not specifically regulated in international instruments. The purpose of this  amendment is both reasonable and proportionate in achieving its aim which is for the applicant to establish a complete account (with supporting evidence, where applicable) of his/her claims at first instance and where this does not occur, to accompany new claims and supporting evidence with a reasonable explanation. 

Applicant to provide documentary evidence of identity, nationality or citizenship

Establishing identity is the keystone of applying for a protection visa, as it is necessary to determine an applicant’s identity, nationality or citizenship before international obligations may be accurately assessed, and therefore before a visa is granted or refused. This is particularly the case in more recent times, where many people hold dual or multiple citizenships. It is therefore critical that a protection visa applicant provides documentary evidence of identity, nationality or citizenship, to the extent that it can reasonably be expected. The Government acknowledges that it is not always possible to do so.

Under section 91W of the Migration Act, the Minister currently has the power to request documentary evidence of identity, nationality or citizenship, and draw a negative inference regarding an applicant’s identity where that information is not forthcoming. Under the proposed amendment to section 91W, a refusal power will apply if an applicant refuses or fails to comply with a request to provide proof of identity, nationality or citizenship, and does not provide a reasonable explanation for so doing. In particular, new section 91WA will create a refusal power affecting applicants who provide a bogus document for the purpose of establishing identity, or have caused their identity documents to be destroyed or disposed of, whether by their own actions or those of another. Under sections 91W and 91WA the refusal power will not apply where an applicant provides the required documentary evidence or has taken reasonable steps to do so.

Amending section 91W meets Australia’s non refoulement obligations, under CAT and ICCPR, as defined earlier in this statement. Applicants for a protection visa will be requested to provide documentary evidence of identity, nationality or citizenship where they have not already done so. Applicants will also be forewarned at the time the request is made, that not providing such evidence will be grounds to refuse their application unless there is a reasonable explanation. Natural justice will be afforded to applicants who have provided bogus documents, and those who have refused or failed to comply with a request to provide documents, in order to ascertain whether there is a reasonable explanation for the applicant’s actions. The Government accepts that it may not be possible, in certain circumstances, for applicants to provide such documents, for instance during times of conflict in their home country or where they are stateless. In those cases a reasonable explanation, namely one consistent with generally known facts, will suffice, as long as steps have been taken to produce the evidence.

In circumstances where section 91W or section 91WA lead to an application being refused, an assessment of Australia’s non refoulement obligations will still be undertaken. Where a person is found to engage protection obligations but did not comply with the amended section 91W or new section 91WA, their application for a protection visa would be refused. However, Australia’s non-refoulement obligations would still apply despite the applicant being ineligible for a protection visa. In such cases it is open to the Minister of Immigration and Border Protection to exercise his or her non-compellable powers under the Migration Act 1958 to grant a visa.

While these amendments engage with Australia’s non refoulement obligations in relation to Article 3 of the CAT and Articles 6 and 7 of the ICCPR, the amendments seek only to strengthen the process which applies to one of the mechanisms the Australian Government uses to give effect to these obligations, not to absolve Australia of these obligations with respect to an individual. The amendments will not of themselves operate to deny Australia’s protection to any person who engages Australia’s non refoulement obligations under international law.

This provision is also consistent with Article 14 of the ICCPR which prescribes equality before the law with the amendment applying to all protection visa applicants. The Government acknowledges that some applicants may have particular difficulty in obtaining the necessary documentary evidence due to circumstances beyond their control, for instance, in the case of unaccompanied minors or other particularly vulnerable applicants. Applicants may arrange private application assistance from a Registered Migration Agent. Applicants who have arrived lawfully and are disadvantaged and face financial hardship may be eligible for assistance with their primary application under the IAAAS. People who have arrived unlawfully in Australia are not eligible for application assistance; however, the Government is intending to assist a small number of vulnerable people with their primary application. Departmental policy and procedures for decision makers will take into consideration whether an application is from a person identified as vulnerable. 

Application for protection visa by member of same family unit

This Bill seeks to put beyond doubt the interpretation of the existing criteria under paragraphs 36(2)(b) and (c) in the Migration Act 1958 regarding the grant of a protection visa on the basis of an applicant being a ‘member of the same family unit’ of a person to whom Australia has protection obligations. The definition of a ‘member of the same family unit’ under the Migration Act 1958 remains unchanged and continues to apply to protection visa applicants.

The insertion of section 91WB in the Migration Act 1958 clarifies that a person cannot be granted a protection visa on the basis of being a ‘member of the same family unit’ of a protection visa applicant unless they apply before the protection visa has been granted to the protection visa applicant.

Article 17 of the ICCPR states:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 23(1) of the ICCPR states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 10(1) of the CRC states:

In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

This amendment does not impact on how a person is assessed against Australia’s non refoulement obligations under Article 3 of the CAT and Articles 6 and 7 of the ICCPR. Where a member of the same family unit was not included in a prior protection visa application that resulted in the grant of a visa, that person may apply for a protection visa in their own right to have their protection claims assessed.

Article 3 of the CRC requires that the best interests of the child are treated as a primary consideration in all actions concerning children. The amendment does not affect children born to protection visa holders. These children are eligible for the grant of a protection visa under section 78 of the Migration Act 1958 . In addition, section 12 of the Australian Citizenship Act 2007 continues to apply and allows for automatic acquisition of Australian citizenship for children born in Australia to the holder of a permanent visa.

Article 17 of the ICCPR states that no one shall be subject to arbitrary or unlawful interference with his family, and that everyone has the right to the protection of the law against such interference. Article 23(1) states that the family is the natural and fundamental unit of society and entitled to protection by society and the state. This amendment does not impact on the definition of a ‘member of the same family unit’ for the purpose of granting a protection visa. The principle of family unity and the best interests of children will continue to be taken into account for protection visa applicants.

The Government has a legitimate aim of encouraging people to enter and reside in Australia using regular means, thereby preserving the integrity of the migration system and the national interest. The protection of the family unit under Articles 17 and 23(1) does not amount to a right of entry or stay in Australia. There is no right to family reunification under international law.

A protection visa holder may become separated from ‘members of the same family unit’ who are outside Australia. An example is children who have been provided protection who are unaccompanied minors, and therefore separated from their parents. Families separated in this manner continue to be able to apply for family reunification under the offshore Humanitarian Programme.

Article 10 of the CRC requires that applications for family reunification made by minors or their parents are treated in a positive, humane and expeditious manner. However, Article 10 does not amount to a right to family reunification. The Australian Government will not provide a separate pathway (outside of the Humanitarian Programme) for family reunification that will exploit children and encourage them to risk their lives on dangerous boat journeys. As such, to the extent that the rights under Article 10 are limited in existing law, these limitations are considered necessary, reasonable and proportionate to achieve a legitimate aim.

 

Defining the risk threshold for assessing Australia’s protection obligations under the CAT and the ICCPR

 

As noted above, this Bill makes several changes to the framework of administrative and processing measures which implement Australia’s non refoulement obligations; it does not, however, affect the substance of Australia’s adherence to these obligations.

This Bill seeks to  restore Parliament’s intention, as evinced in the explanatory memorandum to the Migration Amendment (Complementary Protection and Other Measures) Act 2011 , that a “high threshold is required to engage Australia’s non refoulement obligations under the ICCPR and the CAT.”

 

These amendments have arisen as a result of judicial decisions in relation to paragraph 36(2)(aa) of the Migration Act 1958 which apply a significantly lower risk threshold than that envisaged by Parliament as applying to the assessment of claims in relation to the non refoulement obligations under the ICCPR and CAT.

 

The Full Federal Court’s decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (SZQRB) held that the threshold for assessing complementary protection claims is whether there is a ‘real chance' of significant harm. This is the same threshold that applies to the assessment of claims under the Refugees Convention. Real chance has been equated judicially in Australia as contemplating as low as a ten per cent chance of harm eventuating ( Chan Yee Kin v MIAC (1989) 169 CLR 379).

 

It is the Government’s position that the risk threshold applicable to the non refoulement

obligations under the CAT and ICCPR is higher than the ‘real chance’ test. While there is some difference of opinion in international fora and amongst the various national implementations of these obligations, applying the risk threshold of “more likely than not” is considered to be an acceptable position which is open to Australia under international law. The ‘more likely than not’ threshold reflects the Government’s interpretation of Australia’s obligations. As courts have applied a lower risk threshold that is inconsistent with this interpretation of Australia’s obligations, it is necessary to give express legislative effect to this interpretation.

 

With the passage of these amendments, this risk threshold will apply to all assessments of complementary protection claims relating to the CAT and ICCPR. In addition to amending paragraph 36(2)(aa) of the Migration Act 1958 , which is tied to the grant of a protection visa, this Bill inserts new section 6A into the Migration Act 1958 which applies the threshold to any determination of protection obligations under the Migration Act 1958 , the Migration Regulations or any administrative process that occurs in relation to the Act, Regulations or other instrument.

 

The amended definition of the risk threshold is to be applied to new and ‘on-hand’ assessments undertaken to determine whether a person engages Australia’s protection obligations under the CAT or the ICCPR, or meets the complementary protection provisions under the Migration Act 1958 .

 

While these amendments engage with Australia’s non refoulement obligations in relation to Article 3 of the CAT and Articles 6 and 7 of the ICCPR, the amendments seek only to clarify Australia’s interpretation of these obligations in light of judicial decisions which interpreted the applicable risk threshold in a different manner. The amendments will not operate to deny Australia’s protection to any person who engages Australia’s non refoulement obligations under international law.

 

Amendment to definition of “receiving country”

This Bill also seeks to clarify the interpretation of the definition of “receiving country” to include countries in which non-citizens habitually resided in the past but to which they are now unable to return.

 

The previous definition under subsection 5(1) of the Migration Act 1958 was intended to incorporate this interpretation. There must always be a country to refer to support a protection status determination regardless of the fact that a non-citizen may be stateless or that their country of nationality or former habitual residence will not accept their return. By amending the definition in the Migration Act 1958 to better reflect this interpretation it will ensure that people, particularly stateless persons, are not refused Australia’s protection under the ICCPR or the CAT where they would otherwise be entitled to it. This was an unintended consequence of the original drafting of the definition.

                

This amendment provides access to the process for determining Australia’s non refoulement obligations to persons who could previously have been denied that access under the Migration Act 1958 . As such it is clearly a rights-positive amendment.

 

It is not intended that these amendments apply to assessments of protection obligations under the Refugees Convention as amended by the Refugees Protocol.

 

 

Statutory bars

This Bill makes amendments to statutory bars which prevent the making of a valid visa application.

Section 46A will be amended to extend the bar to making valid visa applications in this section to unauthorised maritime arrivals who hold temporary visas. Section 91K will be amended so that the bar to making valid visa applications in this section will no longer apply to unauthorised maritime arrivals. Section 46B will be amended to reflect the changes to section 46A so that transitory persons are subject to the same restrictions on making valid visa applications as unauthorised maritime arrivals.

Article 2(1) of the ICCPR states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 26 of the ICCPR states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Although not falling within ‘national origin’, international jurisprudence suggests that ‘nationality’ will fall within the prohibited ground of ‘other status’.  In its General Comment No. 20, the UNCESCR (E/C.12/GC/20) stated:

A flexible approach to the ground of “other status” is thus needed in order to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds in article 2, paragraph 2 …

The ground of nationality should not bar access to Covenant rights, e.g. all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care. The Covenant rights apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation.

On this basis, the continued differential treatment of a group of non-nationals (namely, unauthorised maritime arrivals) could amount to a distinction on a prohibited ground under international law on the basis of ‘other status’. 

In its General Comment on Article 2 (E/C.12/GC/20), UNCESCR has stated (at 13) that:

Differential treatment based on prohibited grounds will be viewed as discriminatory unless the justification for differentiation is reasonable and objective. This will include an assessment as to whether the aim and effects of the measures or omissions are legitimate, compatible with the nature of the Covenant rights and solely for the purpose of promoting the general welfare in a democratic society. In addition, there must be a clear and reasonable relationship of proportionality between the aim sought to be realized and the measures or omissions and their effects.

This was reinforced by General Comment 18, in which the UN Human Rights Committee stated:

The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.

The amendments to the statutory application bars do not affect the substantive current objective of the statutory bars. The intention of these amendments is to simplify the legal framework which applies to unauthorised maritime arrivals and transitory persons. Currently unauthorised maritime arrivals may be subject to section 46A of the Migration Act 1958 or section 91K or both. It is inefficient and administratively complex for a person to be subject at different times to different provisions that prevent them from making a valid application for a visa when one would suffice. The expanded operation of the section 46A bar makes section 91K redundant for the purpose of managing unauthorised maritime arrivals in the community, and the amendments will ensure section 91K no longer applies to unauthorised maritime arrivals. The Government is of the view that provided Australia’s international obligations are satisfied, the Government can determine how it processes protection claims. The Government is of the view that this continued differential treatment is for a legitimate purpose and based on relevant objective criteria and that is reasonable and proportionate in the circumstances. This measure simplifies the operation of application bars for unauthorised maritime arrivals.

Improving processing and administration of the MRT/RRT

The amendments seek to implement measures to amend legislation with regards to the MRT/RRT’s processing and administration by:

·          strengthening the powers of the Principal Member to issue:

o    Practice Directions to parties to a review, including migration agents and legal practitioners, regarding the procedures and processing practices to be followed in respect of particular review or classes of review; and

o    Guidance Decisions to MRT/RRT members whereby the decision is regarded as authoritative with respect to the issues determined and is to be complied with by MRT/RRT members, to the extent that subsequent cases on review relate to the same issues and evidence, unless MRT/RRT members are satisfied that the facts or circumstances of the decision under review are clearly distinguishable from that of the guidance decision. Non-compliance by MRT/RRT members with a guidance decision will not invalidate that decision on a review.

·          Introducing a power to dismiss an application for failure to appear before the tribunal after being invited to do so, but also enabling the tribunal to reinstate an application that has been dismissed for non-attendance, where the applicant applies within a specified period and provides compelling reasons for non-appearance, and the tribunal considers it appropriate to do so; and

·          Permitting an oral decision and statement of reasons to be provided in certain situations without having to automatically provide a subsequent written statement of reasons. Where an oral decision and statement of reasons is given, a written statement of reasons is to be provided if the applicant makes a request within a specified period, or the Minister makes a request at any time.

In addition, the Bill seeks to make a technical amendment to put beyond doubt when a review of a decision that has been made in respect of an application under the Migration Act 1958 is ‘finally determined’. This measure puts beyond doubt when a decision on review is made and which renders the application finally determined.

Article 14(1) of the ICCPR states:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Article 12(1) of the Convention on the Rights of Persons with Disabilities states:

States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law ….

These measures apply to all individuals within the MRT/RRT’s jurisdiction. The proposed amendments do not limit a person’s right to equality before the tribunals or the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. Rather, they seek to reduce inconsistencies through the harmonisation of decisions by ensuring the Principal Member is able to issue guidance decisions and practice directions, as well as provide greater efficiencies in the processing of merits review applications. The measures will enhance the overall consistency of outcomes and ensure that like cases are treated alike, thereby complying directly with Article 14(1) of the ICCPR. 

The MRT/RRT has an obligation to invite applicants to a hearing and individuals will still have a right to a fair hearing. Applicants will continue to be made aware of the consequences of non-attendance at a hearing of the MRT/RRT, including the possibility now arising from the proposed amendment, to dismiss the application for failure to appear. The MRT/RRT will have a power to reinstate an application where the applicant applies within a certain time period and the Tribunal considers it appropriate to re-instate the application.

These consistencies and efficiencies will provide an equality of accessibility and opportunity and therefore comply with Article 12 and the general principles (Article 3) of the Convention on the Rights of Persons with Disabilities. 

The amendments to subsection 5(9) seek to put it beyond doubt when the MRT or RRT’s decision- making powers for the purpose of conducting review of a decision are exercised, and provide certainty over when an application is considered to be finally determined for the purpose of the Migration Act 1958 . The amendments do not seek to remove, disturb or otherwise diminish a person’s ability to seek merits review of a decision under Part 5 or 7 of the Migration Act 1958 , in circumstances where the decision is merits reviewable. As such, the amendments engage Article 14(1) of the ICCPR, but do not limit the Article in any way.

Conclusion

These amendments are compatible with human rights because they are consistent with Australia’s human rights obligations and to the extent that a measure may also limit human rights, those limitations are reasonable, necessary and proportionate. 

 

 

The Hon. Scott Morrison MP, Minister for Immigration and Border Protection