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Migration Amendment (Visa Revalidation and Other Measures) Bill 2016

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2016

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

MIGRATION AMENDMENT (VISA REVALIDATION AND OTHER MEASURES) BILL 2016

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

the Hon. Peter Dutton MP)

 

MIGRATION AMENDMENT (VISA REVALIDATION AND OTHER MEASURES) BILL 2016

 

OUTLINE

 

The Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (the Bill) will make a range of amendments to the Migration Act 1958 (Migration Act).

 

Schedule 1 - Revalidation check for certain visas

 

This Schedule will establish a visa revalidation framework within the Migration Act. There will be a general power for the Minister to require, from time to time, a person who holds a visa of a prescribed kind to complete a revalidation check.  There will be an additional personal non-compellable power for the Minister to determine by legislative instrument, if he or she thinks it is in the public interest, that a specified class of persons holding a visa of a prescribed kind must complete a revalidation check for the visa. 

 

The amendments will provide that a person will pass a revalidation check if the Minister is satisfied that there is no adverse information relating to the person, or it is reasonable to disregard that adverse information.  The consequences of a person failing to complete or pass a revalidation check may be that the visa will cease to be in effect, depending on their circumstances, by operation of law.  If a person’s visa has previously ceased to be in effect, they can subsequently complete and pass the revalidation check during the visa period and their visa will come back into effect.

 

This revalidation framework is intended to support the proposed introduction and trial of a new longer validity Visitor visa that is being created in response to the White Paper on Developing Northern Australia .  The revalidation framework provides a mechanism to require visa holders to routinely update the information they have previously provided to the Department of Immigration and Border Protection through their secure online account as their circumstances change, including contact and passport details.  The framework is also designed to manage the risks to the Australian community that may arise in the context of longer validity Visitor visas, including a person’s individual circumstances changing over time, or in the event of a serious incident occurring overseas which may create a situation where it is in the public interest to reassess a visa holder’s individual circumstances in light of such an event.  The amendments will allow the government to ensure that visa holders continue to meet the health, character, security and other requirements for entry to Australia.

 

Schedule 2 - Cessation of visas that are not in effect

 

Schedule 2 to the Bill provides that the events described in sections 82, 173 and 174 of the Migration Act which will cause a visa to cease to be in effect (ceasing events), will also cause a visa that is held but not in effect (for example, a Bridging visa or a visa that has ceased due to the person not passing a revalidation check) to be taken to have ceased to be in effect (subject to one exception).  This amendment will ensure that a ceasing event (for example, cancellation of the visa) will generally cause a visa to cease with the visa period ending, regardless of whether the visa was in effect at the time of the event.

 

Schedule 3 - Immigration clearance

 

Schedule 3 to the Bill enables the use of contactless technology to clear travellers through the immigration clearance authority (SmartGates).  Contactless technology is an enhancement to the SmartGates and uses leading edge technology for traveller identification.  This enhancement is a component of the Seamless Traveller initiative which provides stronger security measures and contributes to the economic development of Australia through faster and more efficient traveller facilitation.  Contactless technology cannot be used for immigration clearance without the proposed amendments to the Migration Act. The proposed amendments in Schedule 3 remove the requirement for travellers to present a travel document for identity purposes, such as a passport, unless requested to do so by a clearance officer or an authorised system.  The identity of a traveller will be confirmed using a unique biometric identifier, such as a facial image instead of document based checks.  SmartGates embedded with contactless technology will be gradually rolled out to major airports from May 2017.  The gradual roll out will minimise disruptions to Australian Border Force operations and traveller processing.

 

FINANCIAL IMPACT STATEMENT

 

The amendments made by Schedule 1 to the Bill to establish a visa revalidation framework and the proposed  introduction of the longer validity Visitor visa for Chinese nationals is expected to result in an increase of revenue to the Commonwealth.  The Visa Application Charge (VAC) of $1,000 for the longer validity visa will have a net impact of $33.5 million in administered revenue over the forward estimates from 2016-17.

 

The amendments made by Schedule 2 to the Bill will have a low financial impact.

 

The amendment made by Schedule 3 to support the use of new contactless automated immigration clearance technology will contribute towards the achievement of the Seamless Traveller Initiative’s estimated saving of $32.9 million per year in compliance costs.

 

 

 

 

 

 

 

 

MIGRATION AMENDMENT (VISA REVALIDATION AND OTHER MEASURES) BILL 2016

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short Title

 

1.                   Clause 1 provides that the short title of the Act be the Migration Amendment (Visa Revalidation and Other Measures) Act 2016.

 

Clause 2          Commencement

 

2.                   This clause provides for when the provisions of the Act are taken to have commenced.

 

3.                   Sections 1 to 3 of the Act will commence on the day the Act receives the Royal Assent.

 

4.                   Schedules 1 to 3 to the Act will commence on a single day or days fixed by Proclamation.  However, if any of the provisions 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.

 

Clause 3          Schedules

 

5.                   This clause is a formal enabling provision for the Schedules to the Bill.  It provides that legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and that any other item in a Schedule to this Act has effect according to its terms.

 



 

SCHEDULE 1 — Revalidation check for certain visas

 

Background

 

6.                   In response to the White Paper on Developing Northern Australia , the government announced that it intends to introduce and trial a new longer validity Visitor visa which will initially be available to Chinese nationals.  This product will allow Australia to compete with those countries that offer visa products with long validity periods, making Australia an even more attractive destination for international travellers.  The longer validity Visitor visa will ensure that Australia is well placed to capitalise on the lucrative visitor market, and will allow the government to promote tourism in the north and across Australia by targeting one of the world’s fastest growing tourist markets. 

 

7.                   It is intended that the new visa will be valid for up to 10 years and allow for both tourism and business visitor activities.  The visa will provide for multiple entries with up to a three month stay on each entry during the visa period.

 

8.                   The introduction of longer validity visas will also lead to an increase in the total number of Visitor visa holders overseas.  From a tourism perspective, this is a desirable outcome, allowing potential visitors to more easily take advantage of last minute travel deals and choose Australia as their preferred destination.  At the same time, a person’s circumstances can change over time and in some instances a serious incident overseas may create a situation where it is in the public interest to reassess a longer validity visa holder’s individual circumstances in light of such an event.

 

9.                   The ability to temporarily prevent travel and entry to Australia in such circumstances, through the temporary ceasing of a non-citizen’s visa by operation of law if the person does not complete or pass a revalidation check, will assist in effectively managing the border by facilitating entry where appropriate and preventing entry where it is in the public interest to do so.

 

10.               Schedule 1 to the Bill will introduce a new revalidation check framework that is designed to manage the risks to the Australian community that may arise in the context of longer validity Visitor visas.  It will support the government’s objectives of protecting Australia’s border and managing the movement of people across it.  The framework will also support a digitally savvy and responsive future traveller experience.   

 

11.               A new discretionary power will be created which will allow the Minister to, from time to time, require a visa holder who holds a prescribed visa to complete a revalidation check for the visa within a specified period (a routine revalidation check).  The revalidation check will require the visa holder to provide information via their secure online account (for example, current contact details, employment information, health and character declarations) that will allow the Minister to assess whether the visa holder passes the revalidation check.  A visa holder will pass a revalidation check if there is no adverse information relating to the person, or if there is, that it is reasonable to disregard that information.

 

12.               The Bill will also introduce a personal power for the Minister to, if he or she considers it is in the public interest, determine by legislative instrument that a specified class of persons who hold a visa of a prescribed kind must complete a revalidation check for the visa (a public interest revalidation check).  It is expected that this power will only be used in rare circumstances, for example in situations where there has been an assessment of increased risk to the Australian community resulting from a health, security or other incident in a particular location, and the Minister considers it is in the public interest to act quickly.

 

13.               The consequences of a visa holder not completing and passing a routine revalidation check will be that a visa holder’s visa will cease to be in effect, resulting in them holding an out of effect visa.  The timing of when this occurs will be dependent on the circumstances of the visa holder (for example, whether they are onshore or offshore - an onshore visa holder will not become an unlawful non-citizen as a result of a revalidation check requirement while they remain onshore).  The visa holder can subsequently pass the revalidation check and this will cause their visa to come back into effect, meaning that they can once again travel to Australia.

 

14.               For a public interest revalidation check, the consequence of the Minister making the determination will be that the visa holder’s visa will cease to be in effect, resulting in the person holding an out of effect visa.  Similar to a routine revalidation check, when this will occur will be dependent on the circumstances of the visa holder (for example, whether they are onshore or offshore - an onshore visa holder will not become an unlawful non-citizen as a result of a revalidation check requirement).  The visa holder can subsequently pass the revalidation check which will cause their visa to come back into effect with the consequence that they will be able to travel to Australia.

 

15.               In this digital age, international travellers increasingly expect up to date information on situations as they arise.  At the same time, there is a growing trend for governments to deliver seamless services to clients anywhere, anytime and on any device.  Delivering services that meet the needs of clients is at the core of the government’s digital transformation agenda. Equally, there is an expectation that with the provision of generous longer validity Visitor visas, the government must ensure that visa holders continue to meet the health, character, security and other requirements for entry to Australia. 

 

16.               Revalidation is consistent with this interactive, digital approach by facilitating real time and responsive interactions online between visa holders and the government.  It provides a mechanism to require visa holders to routinely update the information they have previously provided as their circumstances change.  This includes, for example, contact and passport details.  This Bill embraces both emerging technology and self-service client behaviours that will enhance Australia’s border management arrangements.

 
Migration Act 1958

 

Item 1             Subsection 5(1) (subparagraphs (b)(i) and (ii) of the definition of visa period )

 

17.               This item updates the definition of visa period which currently provides that it begins when the visa is granted and ends:

 

·          in the case of a visa other than a bridging visa - when the visa ceases to be in effect; or

 

·          in the case of a bridging visa - when the visa ceases to be in effect otherwise than under subsection 82(3) of the Migration Act.



18.               Item 1 will amend the definition of visa period in subsection 5(1) of the Migration Act to provide that visa period begins when the visa is granted and ends:

 

·          in the case of a bridging visa - when the visa ceases to be in effect otherwise than under subsection 82(3); or

 

·          in the case of a visa of a kind prescribed for the purposes of new subsection 96B(1) or 96E(1) - when the visa ceases to be in effect otherwise than under new section 96D or 96H; or

 

·          in the case of any other visa - when the visa ceases to be in effect. 

 

19.               The amendments made by this Schedule to the definition of visa period are required to set out when the visa period ends for visas that are prescribed for the purposes of new subsections 96B(1) or 96E(1).  The intention is that if a visa ceases under new sections 96D or 96H the visa period for that visa will not end, rather the person will still hold a visa but it will not be in effect.  This is because it is intended that a visa that has ceased to be in effect under new sections 96D or 96H may come back into effect again, therefore the visa period for the visa must continue for this to be possible.  

 

20.               It is still the intention that where a visa that is prescribed for the purposes of new subsection 96B(1) or 96E(1) ceases under a provision besides new sections 96D or 96H the visa period will end and the person will no longer hold the visa.  For example, if a person is granted another substantive visa, under current subsection 82(2) the visa which is prescribed for the purposes of new section 96B(1) will cease to be in effect and the visa period will end.

 

21.               New subparagraph 5(1)(b)(i) retains in the definition of visa period the current ending period for a bridging visa.  That is, the visa period for a bridging visa will end when it ceases to be in effect otherwise than under subsection 82(3) of the Migration Act. 

 

22.               New subparagraph (5)(1)(b)(ii) sets out when the visa period ends for a visa that is prescribed for the purposes of new subsections 96B(1) or 96E(1).  It provides that these visas will end when the visa ceases to be in effect otherwise than under new sections 96D or 96H.  That is, if a visa ceases to be in effect under subsections 96D or 96H the visa period will not end, the person will still hold the visa and it may come back into effect.  However, if a visa ceases to be in effect under a provision besides 96D or 96H, this will cause the visa period to end and the person will no longer hold the visa meaning that the visa cannot come back into effect.      

 

23.               The following is an example of how new subparagraph 5(1)(b)(ii) may operate in respect of a visa prescribed for the purposes of new subsection 96B(1).  The Minister exercises his or her power under new subsection 96B(1) to require a person to complete a revalidation check for the visa.  The person does not complete the revalidation check within the specified period and at the end of the period the person is offshore.  The effect of new subsection 96D(3) is that the person’s visa will cease to be in effect at the end of the specified period.  New subparagraph 5(1)(ii) of the definition of visa period will mean that while the visa has ceased to be in effect, the visa period has not ended for that visa (under section 77 of the Migration Act the person will still hold the visa).  The person may subsequently complete and pass the revalidation check and new subsection 96D(5) will cause the visa to come into effect again, meaning the person can once again travel to Australia.

 

24.               Another example of how new subparagraph 5(1)(b)(ii) is intended to operate in respect of a visa prescribed for the purposes of new subsections 96B(1) or 96E(1) is as follows.  The person who holds the visa breaches a condition imposed on the visa, for example, condition 8115 the holder must not work in Australia other than by engaging in business visitor activity.  The Minister cancels the visa under current paragraph 116(1)(b) of the Migration Act on the basis that he or she is satisfied that the holder of the visa has not complied with a condition of the visa.  Current subsection 82(1) of the Migration Act provides that the visa ceases to be in effect on cancellation of the visa. The effect of new subparagraph 5(1)(b)(ii) is that the visa period for the visa will end because it has ceased under a provision besides new sections 96D or 96H and the person will no longer hold the visa.       

 

25.               New subparagraph 5(1)(b)(iii) provides in the definition of visa period that for visas that are not bridging visas or visas prescribed for the purposes of new subsections 96B(1) or 96E(1), the visa period will end when the visa ceases to be in effect.  That is, the visa period for visas not falling within new subparagraphs 5(1)(b)(i) or 5(1)(b)(ii) will end when the visa ceases to be in effect under any other provision in the Migration Act (for example, under subsection 82(1) when the visa is cancelled).    

Item 2             At the end of section 68

       

26.               This item inserts a note at the end of current section 68 of the Migration Act which sets out when a visa is in effect.  

 

27.               Generally, current section 68 provides that a visa is in effect as soon as it is granted, or if another day or event after grant is specified, on that day or on the happening of the event.  It provides that a visa can only be in effect during the visa period for the visa.  It also contains a provision that sets out when a bridging visa held by a non-citizen that has ceased to be in effect under subsection 82(3), will come back into effect during the visa period.   

   

28.               The new note provides that a visa that has ceased to be in effect under new sections 96D or 96H may come into effect again under those sections.  This is to make it clear that section 68 is not the only section in the Migration Act that sets out when a visa may come back into effect again during the visa period for the visa.

    

Item 3             Subsection 82(9)

 

29.               Current subsection 82(9) provides that section 82, which sets out when visas cease to be in effect, does not affect the operation of other provisions of the Migration Act under which a visa ceases to be in effect. The current provision expressly refers to sections 173 and 174 as an example of other provisions under which a visa may cease to be in effect.

 

30.               This item will omit the words “(such as sections 173 and 174)” from subsection 82(9).  This is because new sections 96D and 96H will also be provisions under which a visa may cease to be in effect and these each contain an equivalent subsection providing that they do not limit, or otherwise affect, any other provision of the Migration Act under which a visa ceases to be in effect.  The new subsections do not expressly provide an example of other provisions in the Migration Act under which a visa may cease to be in effect.

 

31.               The purpose of this amendment is for consistency, and to be clear that the effect of subsection 82(9) is not limited to the cessation of a visa under sections 173 and 174.

 

Item 4             After Subdivision B of Division 3 of Part 2

 

New Subdivision BA - Revalidation check for certain visas

 

32.               This item inserts, after section 96, new Subdivision BA - Revalidation check for certain visas into Division 3 of Part 2 of the Migration Act to establish the new revalidation check framework.  The new Subdivision will include powers for the Minister to require, or determine by legislative instrument, prescribed visa holders to undergo a revalidation check for the visa.  It will set out the consequences of a visa holder not completing or passing a revalidation check, which may be that their visa may cease to be in effect depending on their circumstances.  It will also provide that a person’s visa which has ceased under new sections 96D or 96H may come back into effect if the person subsequently passes the revalidation check.

 

New section 96A - Definitions

 

33.               New section 96A inserts a definition section for terms that are used in  new Subdivision BA of Division 3 of Part 2 of the Migration Act.  As the defined terms are only used in the new Subdivision, this definition section only defines the terms for the purposes of new Subdivision BA of Division 3 of Part 2.

 

34.               New subsection 96A(1) inserts two new definitions into the Migration Act, the terms passes a revalidation check for the visa and revalidation check .  

 

35.               The definition of passes a revalidation check for the visa provides that it has the meaning given by new subsection 96A(2).

 

36.               The definition of revalidation check provides that it means a check as to whether there is any adverse information relating to the person who holds a visa.

 

37.               Item 4 will insert a new revalidation check framework which will be contained in the new Subdivision BA of Division 3 of Part 2 of the Migration Act.  Under this new framework, there are two separate powers under which the Minister can require a visa holder who holds a prescribed visa to complete a revalidation check.  The check is to ascertain whether there is any adverse information relating to the person and will require the visa holder to provide requested information to the Minister.  Additional information may be sought from third parties as part of the check, for example to verify information provided by the visa holder.

 

38.               Broadly, a revalidation check will be a check to ensure that, over the life of the visa, the person still meets the criteria for the grant of the visa, including genuine temporary entrant, identity, health, character, passport and national security criteria.  Information obtained during a revalidation check may indicate that a ground for cancelling the visa exists and that consideration should be given as to whether the visa should be cancelled. 

 

39.               It is intended that a revalidation check will involve the person logging onto their secure online account and answering a series of questions.  A revalidation check may also involve verification of information provided by the visa holder with a third party (for example, employment details may be verified with the person’s employer).

 

40.               Adverse information is not defined in the Migration Act, and accordingly it is to be given its ordinary general meaning when considering whether the information relating to the person is adverse.  Whether the information is adverse will also depend on the circumstances of each particular case and depend on the visa held by the person as a revalidation check will generally be directed to determining whether the person continues to meet the criteria for the visa that has been granted. 

 

41.               The check is to see if there is any adverse information relating to the person who holds the visa.  This is because the adverse information does not need to be directly about the person, it is enough if it relates to the person.  While still capturing adverse information that is directly about the person, it is intended that the definition will be broader and capture any adverse information if it relates to the person.

 

42.               Examples of adverse information relating to the holder of the proposed new longer validity Visitor visa may include, but is not limited to, information that the person:

 

·          has been convicted of an offence since the grant of the visa or since the last revalidation check;

 

·          may present a health concern to the Australian community;

 

·          has spent a period of time in Australia that may be considered de facto residency;

 

·          no longer genuinely intends to stay in Australia for a temporary tourism or business visitor purpose; or

 

·          may present a security risk to the Australian community.

 

43.               New subsection 96A(2) defines the term passes a revalidation check for the visa .  A person who holds a visa passes a revalidation check for the visa at a particular time if, at that time, the Minister is satisfied that:

 

·          there is no adverse information relating to the person; or

 

·          it is reasonable to disregard any adverse information relating to the person.



44.               If a revalidation check reveals that there is no adverse information about the person, they will pass the revalidation check. However, if the check reveals that there is adverse information about the person, the Minister or his or her delegate, must then consider whether it is reasonable to disregard that information.

 

45.               New subsection 96A(2) is to provide flexibility to disregard adverse information where a revalidation check has revealed adverse information, but that information is not of sufficient weight or seriousness to warrant the person’s visa ceasing to be in effect.  Whenever adverse information is identified, the Minister or the delegate must then go on to consider whether it is reasonable to disregard that information.  If it is not reasonable to disregard that information, the person will not pass the revalidation check for the visa.  Whether it is reasonable to disregard adverse information will turn on the facts and circumstances of each particular case.

 

46.               An example of where it may be reasonable to disregard adverse information is where a visa holder has indicated in response to a character related question that, since last completing a revalidation check or being granted the visa, they have committed an offence.  A request for further information reveals that this was a minor traffic offence and the Minister or his or her delegate decided that this information did not indicate that the person would present a risk to Australia, or that they would no longer meet the criteria for the visa, or that a delegate should consider whether to cancel their visa.  In these circumstances, the Minister or his or her delegate may decide to disregard that adverse information.

 

47.               It is the policy intention that if a decision is made that a person does not pass a revalidation check for the visa, the adverse information will be referred to a cancellation delegate who will consider whether a ground for cancellation of the visa exists and may issue a Notice of Intention to Consider Cancellation of the visa.  The outcome of this process may result in either the visa being cancelled, or the person subsequently passing the revalidation check for the visa.  That is, the policy intention is that a failure to pass a revalidation check will never be the final decision, there will always be steps taken afterwards that will result in either the person’s visa being cancelled, or if it is not cancelled, the person passing the revalidation check.       

 

New section 96B - Minister may require certain visa holders to complete revalidation check from time to time

 

48.               New section 96B provides that the Minister may require certain visa holders to complete revalidation checks from time to time.  This new section also provides that a requirement to complete a revalidation check must be made by written notice given to the person.

 

49.               New subsection 96B(1) provides that the Minister may, from time to time, require a person who holds a visa of a prescribed kind (however described) to complete a revalidation check for the visa. 

 

50.               The power conferred on the Minister by this subsection can be delegated to an appropriate person who will also be able to issue a requirement to a person who holds a prescribed visa.  By conferring this power on the Minister, this will also mean, with the amendment made by item 5 of  Schedule 1 to the Bill, that the Minister may arrange for the use, under his or her control, of a computer program to exercise the power to require a person who holds a prescribed visa to complete a revalidation check.  A computer system can be programmed to routinely issue a requirement under new subsection 96B(1) to a person to complete a revalidation check over the life of the proposed longer term Visitor visa, for example, every two years (a routine revalidation check).

 

51.               The use of the words ‘from time to time’ are to reflect the intention that this power is intended to provide the most flexibility for when a requirement can be issued during the visa period for a visa.  For example, the Minister can arrange for a computer program to exercise this power at pre-determined intervals during the visa period of the visa, such as every two years.  The words ‘from time to time’ will also mean that there will be the flexibility to use different pre-determined intervals to accommodate changes in government policy that reflect changing global circumstances.  The words ‘from time to time’ will also mean that the Minister can exercise the power at any time during the visa period for a prescribed visa, not just at a pre-determined point.

 

52.               The power under new subsection 96B(1) can only be exercised in respect of a person who holds a visa of a prescribed kind, however described.  This subsection will provide a head of power to prescribe in the Migration Regulations 1994 (the Migration Regulations) the types of visas that can be subject to a requirement to complete a revalidation check for the visa.  The words ‘however described’ are used to reflect that a class, subclass or stream of visa can be prescribed for the purposes of new subsection 96B(1).  A regulation made for the purposes of subsection 96B(1) may be disallowable by either House of Parliament, meaning that there will be Parliamentary scrutiny over the kinds of visas that are prescribed for the purposes of this subsection.         

 

53.               New subsection 96B(2) provides that a requirement under new subsection 96B(1) must be made by written notice given to the person.  This means that to issue a requirement under new subsection 96B(1) the Minister must do so by written notice given to the person. 

 

54.               The requirement to issue a requirement by written notice given to the person will mean that the Minister can rely on current sections 494A, 494B and 494C of the Migration Act to determine when a person is taken to have received the written notice to complete the revalidation check (if the notice is sent by a section 494B method).  Sections 494A, 494B and 494C set out how the Minister can give a person a document, and if the Minister gives it using a section 494B method, when the person is taken to have received that document.  The intention is that the written notice of a requirement to complete a revalidation check will be sent by email to the address provided by the visa holder in the application form for these purposes.      

 

 

 

 

 

55.               New subsection 96B(3) sets out what a written notice given under new subsection 96B(2) must include.  The written notice must:

 

·          specify how the person is to complete the revalidation check for the visa; and

 

·          specify the period within which the person must complete that check; and

 

·          set out the effect of new sections 96C and 96D.  

 

56.               New paragraph 96B(3)(a) will allow the Minister to determine how the person must go about completing the revalidation check.  It will also ensure that the details of how the revalidation check is to be completed are made known to the person through the notice.  It is intended that the notice will require the visa holder to complete the revalidation check by providing requested information via their secure online account.

 

57.               New paragraph 96B(3)(b) provides that the Minister must advise the person of the period in which they must complete the revalidation check.  It is important the person is aware of the time period within which they are required to complete the revalidation check because failure to do so within the specified period may result in their visa ceasing to be in effect.

 

58.               New paragraph 96B(3)(c) provides that the notice must set out the effect of new sections 96C and 96D.  New section 96C provides that the Minister must notify the person if their visa remains in effect, generally this will occur if the person has completed and passed the revalidation check within the period specified under new paragraph 96B(3)(b).  Generally, new section 96D sets out the circumstances when a person’s visa will cease to be in effect if they do not complete the revalidation check within the specified period, or they do not pass the revalidation check at a particular time.  New section 96D also sets out the circumstances when a visa that has ceased under that section will come back into effect.

 

59.               New subsection 96B(4) provides that the period specified in the notice must be at least 14 days after the date of the notice.  This means that the requirement in new subsection 96B(3)(b) to specify in the notice a period in which a person is required to complete the check must be at least 14 days after the date of the notice.  As the intention is to notify visa holders of a requirement to complete a revalidation check via their email address provided in the application (or subsequently) for this purpose, the person will be taken to have received the notification at the end of the day on which it has been sent. 

 

60.               The period of 14 days is a minimum period that needs to be specified, which means the Minister may specify a greater period depending on the particular circumstances.  As a matter of policy, the current intention is to provide 28 days after the date of the notice for the person to complete the revalidation check.

 

 

New section 96C - Minister to notify visa holder that visa remains in effect in certain circumstances        

 

61.               New subsection 96C provides that the Minister must notify a visa holder that their visa remains in effect if the cumulative requirements of the subsection are met.  Generally, the circumstances where the Minister must notify a person under this provision that their visa remains in effect are where the person has been required to complete a revalidation check under new subsection 96B(1), they complete and pass the revalidation check for the visa and at the time the person passes, their visa is in effect.

 

62.               New paragraph 96C(a) is the first limb and is met if a person holds a visa and is required under subsection 96B(1) to complete a revalidation check for the visa within a specified period.  This reflects that this notification provision only applies to a person who has been required to complete a revalidation check under new subsection 96B(1).

 

63.               New paragraph 96C(b) is the second limb and is met if the person passes a revalidation check for the visa at a particular time during the visa period for the visa (whether or not that time is within the specified period).  The reason this paragraph is not limited to being within the period specified under new paragraph 96B(3)(b) is due to it being possible that a person who is onshore may pass a revalidation check for their visa after the specified period but, because they have not left Australia, their visa has not ceased to be in effect (see new subsection 96D(2)). 

 

64.               However, new paragraph 96C(b) does require the person to pass the revalidation check during the visa period for the visa.  This is because if the visa period for the visa has ended, the person will no longer hold the visa and it would be unnecessary to notify the person that they have passed the revalidation check. 

 

65.                New paragraph 96C(c) requires that at the time the person passes the revalidation check, the visa is in effect.  This is to reflect that the Minister is not required to notify a person under this provision if their visa has ceased to be in effect under new section 96D (or another provision in the Migration Act).  There are separate notification provisions that will set out the notification requirements if a person’s visa has ceased under new section 96D.

 

66.               If new paragraphs 96C(a), 96C(b) and 96C(c) are met, then the Minister must, by written notice given to the person, inform the person that the visa remains in effect.  This mandatory notification requirement is to ensure that a visa holder who has completed and passed a revalidation check before their visa has ceased to be in effect, will be advised that their visa remains in effect.  This is to ensure that they are aware that they can continue to travel to, enter and remain in Australia in accordance with the visa that they hold.  The requirement is to be made by written notice by the Minister so that current sections 494A, 494B and 494C of the Migration Act can be relied upon to determine when a person is taken to have received the written notice.

 

New section 96D - Visa ceases to be in effect if visa holder does not complete or pass revalidation check

 

67.               This new section sets out the consequences if a person is required to complete a revalidation check under new subsection 96B(1) and that person does not complete the check within the specified period, or completes the check within the specified period but does not pass that check at a particular time.  Broadly, the consequences are that the person’s visa will cease to be in effect and this will occur by operation of law.  The timing of when a person’s visa will cease to be in effect will depend on whether the person is in or outside of Australia.

 

68.               New subsection 96D(1) sets out the prerequisites that must exist for new section 96D to apply to a person.  New paragraph 96D(1)(a) provides that new section 96D applies if a person who holds a visa is required under new subsection 96B(1) to complete a revalidation check for the visa within a specified period, and one of the subparagraphs in new paragraph 96D(1)(b) is also met.  If new paragraph 96D(1)(a) is met, then new paragraph 96D(1)(b) provides section 96D applies if the person:

 

·          does not complete the revalidation check within the specified period; or

 

·          completes the revalidation check within the specified period but does not pass that check at a particular time (which is known as the check time ).

 

69.               The limbs in paragraph 96D(1)(b) are phrased in the alternate as the intention is if either is satisfied, the consequences that are set out in the rest of the section are to apply to the person. 

 

70.               The way new subsection 96D(1) is to operate is that it will be determined whether new section 96D is to apply to a person on the occurrence of either of the following two events:

 

·          if the person has been required to complete a revalidation check for the visa and they do not complete the check within the specified period, at the end of the specified period new section 96D will then apply to the person. 

 

·          if the person has been required to complete a revalidation check for the visa, they complete the revalidation check within the specified period but do not pass at the check time, new section 96D will apply to the person.   

 

71.               As it is intended that a revalidation check will be done via the visa holder’s secure online account, the outcome of a revalidation check will be known very shortly after a person completes and submits the check.  At the time the person does not pass the revalidation check for the visa, section 96D will apply to the person.     

 

72.               If a person completes a revalidation check within the specified period and passes the check at that time, new section 96D will not apply to the person and therefore, the consequences provided for by this section will not apply.

 

73.               New subsections 96D(2) and 96D(3) set out the consequences for a person if new section 96D applies.  Broadly, those consequences are that the person’s visa will cease to be in effect.  There is a subheading of ‘visa ceases to be in effect’ above subsection 96D(2) to reflect that the subsections following will set out the consequences of failing to complete within the specified time, or completing and not passing a revalidation check and that those consequences are that a person’s visa may cease to be in effect.

 

74.               New subsection 96D(2) provides that if the person is in the migration zone at the end of the specified period or at the check time, their visa will cease to be in effect if:

 

·          the person leaves Australia after the end of the specified period or after the check time; and

 

·          at the time the person leaves Australia, the person has not completed and passed a revalidation check for the visa.



75.               New subsection 96D(2) sets out the consequences for a person if they are in Australia when section 96D applies to them.  The consequence will be that if the person leaves Australia before completing or passing the revalidation check for the visa, their visa will cease to be in effect on departure.  The ceasing of the visa will occur by operation of law.

 

76.               The reason that a person who is onshore does not have their visa cease to be in effect at the end of the specified period or at the check time is because this would result in the person becoming an unlawful non-citizen in Australia and they would be required to be detained and removed. 

 

77.               In the context of the proposed new longer validity Visitor visas which would only permit a 3 month stay period for each entry, it would not be desirable for a person in Australia to become an unlawful non-citizen on the basis that they do not complete a revalidation check within the specified time, or they complete the check within the specified time but do not pass at the check time.  This is because under the terms of their visa, the person would only be permitted to remain in Australia for a short period before having to depart Australia.   

 

78.               New paragraph 96D(2)(b) also provides the opportunity for a person to subsequently pass the revalidation check for the visa before they depart Australia to avoid the consequences of their visa ceasing.  This is because the visa will only cease to be in effect if at the time the person leaves Australia they have not completed and passed the revalidation check. 

 

79.               An example of when this may occur is when a person completes but does not pass the revalidation check for the visa within the specified period.  An officer of the department requests further information from the person, which the person provides, and the Minister subsequently decides that the person passes the revalidation check for the visa before the person departs the country.  The person then departs Australia in accordance with the terms of their visa.  In these circumstances, at the time the person leaves Australia, the person will have completed and passed a revalidation check for the visa and therefore the consequences provided for by new subsection 96D(2) will not occur.

 

80.               New subsection 96D(3) provides that if new section 96D applies to the person, and if they are not in the migration zone at the end of the specified period or at the check time, the visa ceases to be in effect at the end of that period or at that time.  That is, if the person is outside Australia at the end of the specified period and they have not completed the revalidation check, their visa will cease to be in effect at the end of that period.  Alternatively, if the person completes the revalidation check within the specified period but does not pass at the check time, and at the check time they are outside Australia their visa will cease at that time.

 

81.               The reason that under new subsection 96D(3) the cessation events occur at the end of the specified period or at the check time is because a person who is outside Australia will not become an unlawful non-citizen in the migration zone who needs to be detained and removed as a result of their visa ceasing to be in effect.  Rather, the person will not be able to travel to, enter and remain in Australia until they pass the revalidation check for the visa.

 

82.               New subsection 96D(4) is a notification provision that provides, if the person’s visa ceases to be in effect under subsection 96D(2) or 96D(3), the Minister must, by written notice given to the person, inform the person of the cessation.  The effect of this section is that the Minister must notify persons when their visa has ceased to be in effect, this is so that they know that they no longer hold a visa that is in effect and will be unable to travel to, enter and remain in Australia. 

 

83.               The requirement to notify by written notice means that the Minister can rely on current sections 494A, 494B and 494C of the Migration Act to determine when a person is taken to have received that notice.

 

84.               New subsection 96D(5) sets out the circumstances where a person’s visa, which has ceased under new subsection 96D(2) or 96D(3), comes back into effect again.  As such, there is a subheading above new subsection 96D(5) which provides ‘Visa may come into effect again’.

 

85.                 New subsection 96D(5) provides that if a person holds a visa that has ceased to be in effect under subsection 96D(2) or 96D(3), and at a particular time during the visa period for the visa the person passes a revalidation check for the visa, the visa comes into effect again at that time. 

 

86.               The effect of this subsection is that, as a matter of law, if a person who holds a visa that has ceased under new subsection 96D(2) or 96D(3) and they subsequently pass a revalidation check during the visa period for the visa, their visa will come back into effect again at that time.  If the visa period for the visa has ended, new subsection 96D(5) will not operate to cause that visa to come back into effect.

 

87.               An example of when this may occur is when a person who is outside Australia is required to complete and pass a revalidation check for the visa.  As the person has no intention to travel to Australia in the immediate future, they do not complete the revalidation check for the visa.  At the end of the specified period provided to complete the revalidation check, the person’s visa will cease to be in effect under new subsection 96D(3) and the Minister will notify them of such in accordance with new subsection 96D(4).  Although the person’s visa is not in effect, the visa period for the visa has not ended as a result of the definition of visa period as amended by item 1 of Schedule 1 to the Bill. 

 

88.               Two years later the person decides that they want to travel to Australia as a tourist.  The person logs onto their secure online account and completes the revalidation check for the visa.  On submitting the revalidation check, a computer assesses the person’s responses and a decision is made that the person passes the revalidation check for the visa.  New subsection 96D(5) would operate to cause that person’s visa to come back into effect meaning that they will be able to once again travel to, enter and remain in Australia in accordance with the terms of the visa.

 

89.               New subsection 96D(6) is a notification provision that provides if a person’s visa comes into effect again under new subsection 96D(5), the Minister must, by written notice given to the person, inform the person of that matter.  The effect of this section is that the Minister must notify a person when their visa comes back into effect.  This is so that they know that they once again hold a visa that is in effect and can travel to, enter and remain in Australia. 

 

90.               The requirement to notify by written notice means that the Minister can rely on current sections 494A, 494B and 494C of the Migration Act to determine when a person is taken to have received that notice.

 

91.               Above new subsection 96D(7) is a subheading that provides ‘Other cessation provisions not limited or otherwise affected’.  This is to reflect that new subsection 97C(7) makes it clear that other cessation provisions in the Migration Act are not limited or otherwise affected by section 96D.

 

92.               New subsection 96D(7) provides that section 96D does not limit, or otherwise affect, any other provision of the Migration Act under which a visa ceases to be in effect.  The effect of this provision is to make it clear that while new section 96D may apply to a person, this does not prevent other ceasing provisions in the Migration Act from causing the visa to cease.  This will be the case even if a visa has ceased to be in effect under new subsections 96D(2) or 96D(3) and has not come back into effect (see amendments made by Schedule 2 to the Bill).

 

93.               Under new subsection 96D(7) is a note that provides that a person’s visa may cease to be in effect under another provision of this Act.  It further provides that if that occurs, the visa period for the visa ends (see subparagraph (b)(ii) of the definition of visa period in subsection 5(1)) and the person will no longer hold the visa (see section 77). 

 

94.               The purpose of this note is to make it clear that a person’s visa can still cease under another provision of the Migration Act.  Further, that if a person’s visa ceases under another provision of the Migration Act, because of the new definition of visa period , the visa period for the visa ends.  If the visa period for a visa ends the person will no longer hold the visa due to current section 77 of the Migration Act.  The note sets out what happens if the visa was to cease under a different provision of the Migration Act, and also directs the reader to the relevant provisions.    

 

95.               For example, new section 96D may apply to a person who is in Australia but their visa has not ceased under new subsection 96D(2) as they are still in Australia.  Before the visa can cease to be in effect under new subsection 96D(2) (on the person’s departure from Australia), a delegate cancels the person’s visa and it ceases under current subsection 82(1).  The consequences of the visa ceasing to be in effect under current subsection 82(1) is that the visa period for the visa will end under the new definition of visa period inserted by item 1 of Schedule 1 to this Bill.  The fact that new section 96D applied to the person did not limit the operation of current subsection 82(1) in any way, and the cancellation of the visa by the delegate caused the visa to cease and the visa period to end.

 

96.               Another example relates to a person who is offshore and holds a visa that ceases to be in effect under new subsection 96D(3).  Before the person subsequently passes a revalidation check for the visa, they are granted another substantive visa (other than a special purpose visa) which comes into effect.  On the grant of the other substantive visa, current subsection 82(2) and new section 82A inserted by Schedule 2 to this Bill will cause the first visa to cease to be in effect with the visa period ending under the new definition of visa period inserted by item 1 of Schedule 1 to this Bill.  That is, the person would no longer hold the first visa because another ceasing provision applied to that visa.

 

New section 96E - Minister may determine that certain visa holders must complete revalidation check in the public interest

 

97.               Broadly, new section 96E provides that the Minister may require certain visa holders to complete a revalidation check for the visa if he or she considers that it is in the public interest to do so.  This is a personal, non-delegable power of the Minister that requires the making of a determination by legislative instrument.  The section also provides that if the Minister exercises this power, he or she must table certain information before each House of Parliament.

 

98.               New subsection 96E(1) provides that if the Minister thinks it is in the public interest to do so, the Minister may, by legislative instrument, determine that a specified class of persons holding a visa of a prescribed kind (however described) must complete a revalidation check for the visa.  New subsection 96E(2) provides that the power under new subsection 96E(1) may only be exercised by the Minister personally.

 

99.               The effect of these subsections is to confer a personal, non-delegable power on the Minister to determine that a class of persons must complete a revalidation check for the visa if he or she thinks it is in the public interest to do so (a public interest revalidation check). 

 

100.           The public interest test is intended to be broad and flexible to allow the Minister to consider any factor that he or she considers relevant when deciding whether to make a determination under new subsection 96E(1).  For example, the Minister may consider the public health and safety of the Australian community or particular individuals, national security, the economic wellbeing of Australia, the circumstances in a person’s home country, the risk of overstaying or other factors, or combination of factors, determined to be relevant to the particular circumstances.

 

101.           The determination is to be made by legislative instrument and will need to be published on the Federal Register of Legislation in accordance with the requirements set out in the Legislation Act 2003 .  The reason such a determination is to be made by legislative instrument is because the exercise of this power has the potential to affect the rights and interests of a large class of people.  A legislative instrument made under this provision will not be disallowable under current section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 .       

 

 

 

 

 

 

 

102.           A determination made under this provision is to apply to a specified class of persons.  That is, a determination cannot be made in respect of a single person but it needs to be in respect of a class of persons (2 or more persons belonging to an identified class or group).  A specified class of persons is intended to be broadly interpreted so that the Minister can identify any group of people based on a shared common characteristic or circumstance.  For example, a specified class of persons may be any person who:

 

·          holds a particular passport;

 

·          lives in a particular country;

 

·          lives in a particular state or province within a country;

 

·          may have travelled through a particular area during a particular time; or

 

·          applied for the visa during particular dates.       

 

103.           New subsection 96E(1) can only be exercised in respect of a person who holds a visa of a prescribed kind, however described.  This subsection will provide a head of power to prescribe in the Migration Regulations the types of visas that can be subject to a requirement to complete a revalidation check for the visa.  The words ‘however described’ are used to reflect that a class, subclass or stream of visa can be prescribed for the purposes of new subsection 96E(1).  A regulation made for the purposes of 96E(1) may be disallowable by either House of Parliament.

 

104.           Unlike the power in new subsection 96B(1), new section 96E will be expressly excluded from the definition of designated migration law that is being amended by item 5 of Schedule 1 to this Bill, so the power cannot be exercised by a computer program.  This is consistent with the intention that this power is to be a personal, non-delegable power that can only be exercised by the Minister.

 

105.           It is expected that this power will only be exercised in rare circumstances, for example situations where there has been an assessment of increased risk to the Australian community resulting from a health, security or other incident in a particular location.

 

106.           New subsection 96E(3) provides that if the Minister makes a determination under new subsection 96E(1), the Minister must cause to be laid before each House of the Parliament a statement that:

 

·          states that the Minister has made the determination; and

 

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

 

107.           The effect of this subsection is that the Minister must put before both Houses of Parliament certain information and in particular, the Minister’s reasons for thinking that the making of the determination is in the public interest.  This provides a mechanism for the Minister to ensure that there is public and political accountability to the Parliament regarding the exercise of the power in new subsection 96E(1), in particular over the reasons that the Minister thinks the making of the determination was in the public interest.

 

108.           While a legislative instrument made under new subsection 96E(1) is not subject to disallowance, the tabling provisions will still ensure that the Parliament can scrutinise the Minister’s decision and provide comment on such a determination through a motion of disapproval or other mechanism.   

 

109.           New subsection 96E(4) provides that a statement under new subsection 96E(3) must not include:

 

·          the name of any person included in the specified class of persons; or

 

·          any information that may identify such a person; or

 

·          if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the determination - the name of that other person or any information that may identify that other person.

 

110.           The purpose of this provision is to ensure that the name of persons affected by the determination, or information that may identify such persons is not included in the statements that are laid before Parliament.  This is to protect the privacy and identity of persons affected by the determination.

 

111.           New subsection 96E(5) provides that a statement under new subsection 96E(3) is to be laid before each House of the Parliament within 15 sitting days of that House after:

 

·          if the determination under new subsection 96E(1) is made between 1 January and 30 June (inclusive) in a year - 1 July in that year; or

 

·          if the determination under new subsection 96E(1) is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year.

 

112.           The purpose of this provision is to set out when the Minister must table the statement prepared for the purposes of new subsection 96E(3).

 

New section 96F - Visa holders to be notified of Minister’s determination

 

113.           Generally, new section 96F provides that if the Minister makes a determination under new subsection 96E(1), as soon as practicable after the determination is made, the Minister must give a written notice setting out certain information to each person who is included in the specified class of persons. 

 

114.           New subsection 96F(1) provides that new section 96F applies if the Minister makes a determination under new subsection 96E(1) that a specified class of persons holding a particular visa must complete a revalidation check for the visa. 

 

115.           New subsection 96F(2) provides that as soon as practicable after the determination is made, the Minister must give a written notice that complies with subsection 96F(3) to each person who holds such a visa and is included in the specified class of persons.

 

116.           New subsection 96F(3) provides that the notice under new subsection 96F(2) must:

 

·          state that the determination has been made; and

 

·          specify how the person is to complete the revalidation check for the visa; and

 

·          set out the effect of new sections 96G and 96H.



117.           New paragraph 96F(3)(a) provides that the notice sent in accordance with new subsection 96F(2) must state that the determination has been made.  This is to ensure that the affected person is aware the determination has been made and that they must complete a revalidation check for the visa.

 

118.           New paragraph 96F(3)(b) will require the Minister to specify in the notice how the person must go about completing the revalidation check.  It is intended that the notice will require the visa holder to complete the revalidation check by providing requested information via their secure online account.

 

119.           New paragraph 96F(3)(c) provides that the notice must set out the effect of new sections 96G and 96H.  New section 96G provides that the Minister must notify visa holders that their visa remains in effect in certain circumstances, generally this will occur if the person is in Australia at the time the determination under new subsection 96E(1) is made.  New section 96H sets out the circumstances when a person’s visa will cease to be in effect on the issuing of a determination under new subsection 96E(1).  New section 96H will also set out the circumstances when a visa that has ceased under that section will come back into effect.

 

120.           The purpose of this section is to require the Minister to notify each affected person as soon as practicable after the determination is made so that they are aware that a determination has been made and what it means for their visa.

 

New section 96G - Minister to notify visa holders that visa remains in effect in certain circumstances

 

121.           New section 96G provides that the Minister must notify a visa holder that their visa remains in effect if the cumulative requirements of the section are met.  Generally, the circumstances where the Minister must notify a person under this provision that their visa remains in effect are where the person is included in a class of persons specified in a determination made under new subsection 96E(1), and at the time they complete and pass the revalidation check for the visa, their visa is in effect.

 

122.           New paragraph 96G(a) is the first limb and is satisfied if the Minister makes a determination under new subsection 96E(1) that a specified class of persons holding a particular visa must complete a revalidation check for the visa.  This reflects that this notification provision only applies in relation to a person who is included in a specified class of persons that must complete a revalidation check because a determination is made under new subsection 96E(1).

 

123.           New paragraph 96G(b) is the second limb and is satisfied if a person who holds a visa specified in the determination and is included in the specified class of persons, passes a revalidation check for the visa at a particular time during the visa period for the visa.  The reason this requirement is linked to passing a revalidation check during the visa period for the visa is because if the visa period ends, the person will no longer hold the visa and it would be unnecessary to notify the person that they have passed the revalidation check.

 

124.           New paragraph 96G(c) provides that at that time (the time the person passes the revalidation check for the visa), the visa is in effect.  This is to reflect that the Minister is not required to notify a person under this provision if their visa has ceased to be in effect under new section 96H (or under another provision of the Migration Act).  There are separate notification provisions that will set out the notification requirements if a person’s visa ceases under new section 96H.

 

125.           If new paragraphs 96G(a), 96G(b) and 96G(c) are met, then the Minister must, by written notice given to the person, inform the person that the visa remains in effect.  This mandatory notification requirement is to ensure that a visa holder who has completed and passed a revalidation check before their visa has ceased to be in effect, will be advised that their visa remains in effect so that they are aware that they can continue to travel to, enter and remain in Australia in accordance with the visa that they hold. 

 

126.           The requirement is to be made by written notice by the Minister so that current sections 494A, 494B and 494C of the Migration Act can be relied upon to determine when a person is taken to have received the written notice.

 

New section 96H - Visa ceases to be in effect if Minister determines that certain visa holders must complete revalidation check in the public interest.   

 

127.           This new section sets out the consequences if the Minister makes a determination under new subsection 96E(1) that a specified class of persons holding a particular visa must complete a revalidation check for the visa, and a person holds such a visa and is included in the specified class of persons.  Broadly, the consequences are that the person’s visa will cease to be in effect and this will occur by operation of law.  The timing of when a person’s visa will cease will depend on whether the person is in or outside of Australia.

 

128.           New subsection 96H(1) sets out the prerequisites that must exist for new section 96H to apply to a person.  It provides that new section 96H applies if:

 

·          the Minister makes a determination under new subsection 96E(1) that a specified class of persons holding a particular visa must complete a revalidation check for the visa; and

 

·          a person who holds such a visa is included in the specified class of persons. 

 

129.           If both new paragraphs 96H(1)(a) and 96H(1)(b) are satisfied, new section 96H will apply to the person.  The way new subsection 96H(1) is intended to operate is that new section 96H will apply to the relevant person upon the making of the determination.

 

130.           New subsections 96H(2) and 96H(3) set out the consequences for a person if new section 96H applies, broadly those consequences are that the person’s visa will cease to be in effect.  There is a subheading of ‘visa ceases to be in effect’ above new subsection 96H(2) to reflect that the subsections following will set out consequences for persons to whom new section 96H applies.

 

131.           New subsection 96H(2) provides that if the person is in the migration zone at the time the determination is made, the visa will cease to be in effect if:

 

·          the person leaves Australia after that time; and

 

·          at the time the person leaves Australia, the person has not completed and passed a revalidation check for the visa.



 

132.           New subsection 96H(2) sets out the consequences for a person if they are in Australia when new section 96H applies to them.  The consequences will be that if the person leaves Australia before completing and passing the revalidation check for the visa, their visa will cease to be in effect on departure.  The ceasing of the visa will occur by operation of law.

 

133.           The reason that a person who is onshore does not have their visa cease to be in effect at the end of the specified period or at the check time is because this would result in the person becoming an unlawful non-citizen in Australia and they would be required to be detained and removed. 

 

134.           In the context of the proposed new longer validity Visitor visas which will only permit a 3 month stay period for each entry, it would not be desirable for a person in Australia to become an unlawful non-citizen on the basis that they do not complete a revalidation check within the specified time, or they complete the check within the specified time but do not pass.  This is because under the terms of their visa, the person would only be permitted to remain in Australia for a short period before having to depart Australia.  

 

135.           New paragraph 96H(2)(b) also provides the opportunity for a person to subsequently pass the revalidation check for the visa before they depart Australia to avoid the consequences of their visa ceasing.  This is because the visa will only cease to be in effect if at the time the person leaves Australia they have not completed and passed the revalidation check.

 

136.           An example of when this might occur is when the Minister makes a determination under new subsection 96E(1).  New section 96H will apply to a person who is onshore at the time the determination is made.  The person completes and passes the revalidation check for the visa before they depart Australia.  In these circumstances, at the time the person leaves Australia, the person will have completed and passed  a revalidation check for the visa and therefore the consequences provided for by new subsection 96H(2) will not occur for that person.

 

137.           New subsection 96H(3) provides that if the person is not in the migration zone at the time the determination is made, the visa ceases to be in effect at that time.  That is, at the moment the determination is made by the Minister under new subsection 96E(1), a person who is offshore and is included in the specified class of persons and holds a visa specified in the determination, will have their visa cease to be in effect at that time.  The determination is intended to take effect at the time it is made by the Minister rather than when the legislative instrument is registered on the Federal Register of Legislation and commences.  This is to ensure that persons in the specified class cannot travel to Australia between when the determination is made and when it is registered and commences unless they have completed and passed a revalidation check for the visa.   

 

138.           This is to reflect that it is expected that the power in new subsection 96E(1) will only to be used in rare circumstances necessitating an immediate response,  for example situations where there has been an assessment of increased risk to the Australian community resulting from a health, security or other incident in a particular location.  The temporary ceasing of a visa for a person who is offshore by operation of law in these circumstances will assist in effectively managing the border, through the revalidation check process, by facilitating entry where appropriate and preventing entry where it is in the public interest to do so.

 

139.           New subsection 96H(4) is a notification provision that provides, if the person’s visa ceases to be in effect under subsection 96H(2) or 96H(3), the Minister must, by written notice given to the person, inform the person of the cessation.  The effect of this section is that the Minister must notify persons when their visa has ceased to be in effect, this is so that they know that they no longer hold a visa that is in effect and will be unable to travel to, enter and remain in Australia. 

 

140.           The requirement to notify by written notice means that the Minister can rely on current sections 494A, 494B and 494C of the Migration Act to determine when a person is taken to have received that notice.

 

141.           New subsection 96H(5) sets out the circumstances where a person’s visa, which  has ceased under new subsections 96H(2) or 96H(3), comes back into effect again.  As such, there is a subheading above new subsection 96H(5) which provides ‘Visa may come into effect again’.

 

142.           New subsection 96H(5) provides that if a person holds a visa that has ceased to be in effect under new subsections 96H(2) or 96H(3), and at a particular time during the visa period for the visa, the person passes a revalidation check for the visa, the visa comes into effect again at that time.

 

143.           The effect of this section is that, as a matter of law, if a person who holds a visa that has ceased under subsection 96H(2) or 96H(3) and they subsequently pass a revalidation check during the visa period for the visa, their visa will come back into effect again at that time.  If the visa period for the visa has ended, new subsection 96H(5) will not operate to cause that visa to come back into effect.

 

144.           For example, there is a person who intends to travel to Australia for tourism purposes and they hold a visa that is prescribed for the purposes of new subsection 96E(1).  As a result of an assessment of there being increased risk to the Australian community due to a health, security or other incident in a particular location, the Minister exercises the power under new subsection 96E(1) in respect of persons who hold a prescribed visa and live in that location.  As the person holds a prescribed visa and is included in the class of persons specified in the determination, new subsection 96H(3) will cause the person’s visa to cease to be in effect at the time the determination is made.  The person completes and passes the revalidation check for the visa before their planned travel.  On passing the revalidation check, the person’s visa will come back into effect permitting them to travel to and enter Australia.  

 

145.           New subsection 96H(6) is a notification provision that provides if a person’s visa comes into effect again under new subsection 96H(5), the Minister must, by written notice given to the person, inform the person of that matter.  The effect of this section is that the Minister must notify a person when their visa comes back into effect.  This is so that the person knows that they once again hold a visa that is in effect and can travel to, enter and remain in Australia. 

 

146.           The requirement to notify by written notice means that the Minister can rely on current sections 494A, 494B and 494C of the Migration Act to determine when a person is taken to have received that notice.

 

147.           Above new subsection 96H(7) is a subheading that provides ‘Other cessation provisions not limited or otherwise affected’.  This is to reflect that new subsection 96H(7) makes it clear that other cessation provisions in the Migration Act are not limited or otherwise affected by section 96H.

 

148.           New subsection 96H(7) provides that section 96H does not limit, or otherwise affect, any other provision of the Migration Act under which a visa ceases to be in effect.  The effect of this provision is to make it clear that while new section 96H may apply to a person, this does not prevent other ceasing provisions in the Migration Act from causing the visa to cease.  This will be the case even if a visa has ceased to be in effect under new subsections 96H(2) or 96H(3) and has not come back into effect (see amendments made by Schedule 2 to the Bill).

 

149.           Under new subsection 96H(7) is a note that provides that a person’s visa may cease to be in effect under another provision of this Act.  It further provides that if that occurs, the visa period for the visa ends (see subparagraph (b)(ii) of the definition of visa period in subsection 5(1)) and the person will no longer hold the visa (see section 77). 

 

150.           The purpose of this note is to make it clear that a person’s visa can still cease under another provision of the Migration Act.  Further, that if a person’s visa ceases under another provision of the Migration Act, because of the new definition of visa period , the visa period for the visa ends.  If the visa period for a visa ends the person will no longer holder the visa due to section 77 of the Migration Act.  The note sets out what happens if the visa was to cease under a different provision of the Migration Act, and also directs the reader to the relevant provisions.

 

151.           For example, a person who is offshore may hold a visa that is not in effect because they were part of a specified class of persons and held a particular visa that was specified in a determination by the Minister under new subsection 96E(1).  The person’s visa was granted for a period of 10 years from the date of the grant.  Before the person completed and passed the revalidation check for the visa, that 10 year period for which the visa was granted elapsed.  Under current subsection 82(7) and the amendments made by Schedule 2 to this Bill, the person’s visa would cease to be in effect with the visa period ending.  The person would no longer hold the visa and it would not be able to come back into effect under new subsection 96H(5).      

 

New section 96J - Visa holders may be required to complete revalidation check for visa multiple times etc.

 

152.           New section 96J provides that a person who holds a visa may be required under Subdivision BA of Division 3 of Part 2 to the Migration Act to complete a revalidation check for the visa:

 

·          at any time during the visa period for the visa (including at a time when the visa is not in effect); and

 

·          more than once during the visa period for the visa.



153.           The effect of this provision is to make it clear that a person can be required multiple times to complete a revalidation check for the visa at any time during the visa period for the visa.  This can be multiple times under either or both of new subsections 96B(1) and 96E(1).

 

154.           The intention is that a requirement to undergo a routine revalidation check would be made multiple times over the life of the visa (for example, every two years) and this section makes it clear that this can occur.  While it is intended that a public interest revalidation check will only be required in rare circumstances, it is conceivable that over a 10 year period that this power may need to be exercised on more than one occasion. 

 

155.           This section also makes it clear that a requirement can be issued multiple times using the different powers, for example a requirement can be issued to a person to undergo a routine revalidation check who may also be subject to a public interest revalidation check (or vice versa). 

 

156.           This section also makes it clear that a revalidation check requirement could be issued to someone who holds a visa that is not in effect at the time (for example, because they did not complete and pass the last revalidation check for the visa).  This is because the revalidation check may require the person to answer different questions (for example, if one is a routine revalidation check and the other is a public interest revalidation check).

 

157.           In the situation where a person has been issued with more than one current revalidation check requirement (for example, a routine revalidation check and a public interest revalidation check), the intention is that the person must respond to both requirements in order to pass a revalidation check for the visa.  That is, the person must complete both checks in order for the visa to come back into effect.   

 

Item 5             Paragraph 495A(3)(a)          

 

158.           This item makes an amendment to paragraph 495A(3)(a) to include the new Subdivision BA of Division 3 of Part 2 of the Migration Act within the definition of designated migration law . The amendment also makes it clear that the new section 96E will be excluded from the definition of designated migration law .

 

159.           Current subsection 495A(1) provides that the Minister may arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under the designated migration law :

                                                                                   

·          make a decision; or

 

·          exercise any power, or comply with any obligation; or

 

·          do anything else related to making a decision, exercising a power, or complying with an obligation.  

 

160.           Current subsection 495A(2) provides that the Minister is taken to have made, exercised, complied with, or done (as the case requires) any of the things mentioned in the preceding paragraph if it was done by the operation of a computer program under an arrangement made under subsection 495A(1).

 

161.           Current subsection 495A(3) sets out provisions of the Migration Act which are a designated migration law .  This item amends subsection 495A(3) to include the new Subdivision BA of Division 3 of Part 2 of the Migration Act, with the exception of new section 96E, as part of the designated migration law.

 

162.           New Subdivision BA of Division 3 of Part 2 of the Migration Act contains a number of provisions under which the Minister may, or must, exercises a power, comply with an obligation or make a decision.  The amendment made by this item will mean that the Minister will be able to arrange for a computer program to exercise those powers, comply with those obligations, or make a decision as the case may require.

 

163.           An example of where such an arrangement may be made is in relation to the Minister’s discretionary power in new subsection 96B(1) to require, from time to time, a person who holds a visa of a prescribed kind to complete a revalidation check for the visa.  A computer system can be programmed to require a person who holds a visa that is prescribed for the purposes of new subsection 96B(1) to periodically complete a revalidation check for the visa during the visa period.

164.           Another example where an arrangement may be made is for a computer program to make a decision as to whether a person passes a revalidation check for the visa based on simple and objective criteria.  For example, the person could answer all of the questions for the revalidation check through their secure online account and a computer could assess these answers and if there is no adverse information about the person, decide that the person passes the revalidation check for the visa.

 

165.           Making an arrangement under section 495A means that simple administrative work that can be undertaken based on simple and objective criteria can be undertaken by a computer program rather than an officer.                

 

Item 6             Application provision          

   

166.           This item provides that the amendments made by this Schedule apply in relation to visas granted before, on or after the commencement of this item.  This means that a visa granted before new Subdivision BA of Division 3 of Part 2 of the Migration Act commences can still be subject to a requirement to complete a revalidation check for the visa.  Visas granted on or after commencement of this item may also be subject to a requirement to complete a revalidation check for the visa.

 

167.           Parliament will have oversight over which visas can be subject to a revalidation check under new Subdivision BA of Division 3 of Part 2 of the Migration Act through the disallowance process as the class of visa needs to be prescribed in the Migration Regulations before a revalidation check requirement can be made in respect of that visa.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE 2 - Cessation of visas that are not in effect

 

Background

 

Visa period

 

168.           Under the Migration Act, visas are granted to and held by non-citizens for a particular visa period .  This visa period begins when the visa is granted and ends when the visa ceases to be in effect in accordance with provisions in the Migration Act, such as sections 5 (definition of visa period ), 82, 173 and 174.  Under section 77 of the Migration Act, the non-citizen holds the visa at all times during the visa period. 

 

Visas in and out of effect during the visa period

 

169.           During the visa period, a visa may be in effect or out of effect.  That is, certain visas may be held by a non-citizen but may not be in effect during the visa period

 

170.           Under subsection 68(1) of the Migration Act, most visas are in effect as soon as they are granted.  However, subsection 68(2) provides that some visas come into effect on a day after grant specified in the visa or when a specified event happens.  In this situation, the person holds the visa even if the visa does not come into effect until later.  At the time of drafting these amendments, a visa of this type will usually either be a bridging visa or a Subclass 601 (Electronic Travel Authority) visa, but it is also possible for Subclass 600 (Visitor) visas and Subclass 773 (Border) visas to be granted but not come into effect immediately. 

 

171.           A visa may also be held, but cease to be in effect during the visa period .  For example, a bridging visa that is in effect can cease to be in effect if it ceases under subsection 82(3).  Subsection 82(3) provides that a bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) comes into effect.  In this scenario, the bridging visa is still held by the person, that is, the visa period for the bridging visa has not ended, but the bridging visa is out of effect.  Subsection 68(4) of the Migration Act sets out when that bridging visa will come back into effect.

 

172.             Another situation where a visa can cease to be in effect but the visa period will not end is set out in amendments made by items 1 and 4 of Schedule 1 to this Bill.  This is where a visa has ceased to be in effect due to the visa holder not completing and passing a revalidation check when required to do so.  In this situation, the visa period has not ended and the visa holder continues to hold the visa.  However, the visa is not in effect and the person will not be able to travel to Australia on that visa if the person leaves Australia or if they are outside the migration zone at the time the visa ceases to be in effect. 

 

173.           The visa may come back into effect if, at some subsequent point during the visa period , the visa holder passes a revalidation check for the visa.  (See the clause notes for the Schedule 1 amendments for a more detailed explanation, particularly items 1 and 4.)

 
Item 1              Subsection 68(4)

 

174.           This item is consequential to the amendment made by item 2 of this Schedule.

 

175.           Item 2 inserts new section 82A after section 82 of the Migration Act to make it clear that a visa that is held by a non-citizen and that is not in effect at a particular time, will be taken to cease to be in effect if the requirements of new section 82A are met.



176.           Item 2 makes it clear, for example, that a bridging visa will be taken to cease to be in effect under subsection 82(3) due to a substantive visa coming into effect (other than a special purpose visa or a maritime crew visa), whether or not that bridging visa is in effect at the time.



177.           The purpose of the amendment made by item 1 is to clarify that even a bridging visa that has never come into effect can come into effect for the first time as a result of subsection 68(4).  Most bridging visas are intended to ‘bridge’ the period of time before a person is granted a substantive visa, so that the person does not become unlawful only because they are waiting for a decision on an application to be made.  This amendment preserves that intention for bridging visas that are not yet in effect.  It is intended that a bridging visa that has ceased to be in effect or has been taken to cease to be in effect as a result of subsection 82(3) and new section 82A will be able to come into effect as a result of subsection 68(4) whether or not it has previously been in effect.



178.           As an example, a non-citizen holds a Subclass 500 (Student) visa and simultaneously applies for both a Subclass 485 (Temporary Graduate) visa, and a Subclass 186 (Employer Nomination Scheme) visa.  They are granted two Subclass 010 (Bridging A) visas, one for each substantive visa application.  Neither bridging visa comes into effect on grant due to the applicant holding a substantive visa, i.e. the Student visa.



179.           A decision is made to grant the applicant the Temporary Graduate visa.  However, no decision is made on the Employer Nomination Scheme visa application.  As a result of the Temporary Graduate visa grant, the Student visa will cease due to the operation of subsection 82(2) (substantive visa held by a non-citizen ceases to be in effect if another substantive visa comes into effect).



180.           Under new section 82A, inserted by item 2 of this Schedule, the bridging visa associated with the Temporary Graduate visa application is taken to have ceased under subsection 82(7A) despite not being in effect at the time.  This is because, if it had been in effect, it would have ceased under subsection 82(7A) because a ‘specified event’, that is, the grant of the Temporary Graduate visa, has occurred.  This bridging visa cannot come into effect under new subsection 68(4), because that provision is only relevant to bridging visas that have ceased to be in effect under subsection 82(3).  This means that the visa period for this bridging visa ends when it ceases to be in effect, on the grant of the Temporary Graduate visa.



181.           Similarly, under new section 82A, the bridging visa associated with the Employer Nomination Scheme visa application is also taken to have ceased, but under subsection 82(3) (a bridging visa ceases to be in effect if another visa comes into effect).  This is because, if it had been in effect, it would have ceased under subsection 82(3).  Because this bridging visa is taken to have ceased to be in effect under subsection 82(3), new subsection 68(4) may operate to bring the bridging visa into effect for the first time at a later date.  This means that the visa period for the bridging visa continues and the person continues to hold it, despite it not being in effect.



182.           Later, the Temporary Graduate visa ceases (i.e. the visa period ends).  At this point, the bridging visa associated with the Employer Nomination Scheme visa will, as a result of amended subsection 68(4), come into effect despite never having been in effect previously, (because it is taken to have ceased under subsection 82(3)) and because the person does not hold a substantive visa or any other bridging visa.



Item 2              After section 82

 

183.           This amendment relates to the cessation of visas that are not in effect.  Paragraphs 168 to 173 above provide some background on how visas can be held, but be in or out of effect.



New section 82A

 

184.           This item inserts new section 82A after section 82 of the Migration Act to provide that if:



·          a non-citizen holds a visa at a particular time; and

 

·          the visa is not in effect at that time; and

 

·          the visa would, if it were in effect at that time, cease to be in effect under section 82 (other than subsection 82(8)), 173 or 174;

 

then the visa is taken to have ceased to be in effect under that section at that time.



185.           The Administrative Appeals Tribunal has interpreted the cessation event in subsection 82(8) (which refers to a visa to remain in, but not re-enter, Australia, ceasing to be in effect if the holder leaves Australia) to not apply to a visa which is held but not ‘in effect’, as the visa could not ‘cease to be in effect’ if the visa were not in effect to begin with.



186.           The purpose of new section 82A is to clarify that if a person holds a visa that is not in effect, and a cessation event occurs under section 82, 173 or 174, other than the event provided for by subsection 82(8), the visa is taken to have ceased to be in effect and will generally cause the visa period to end. 



187.           For example, a non-citizen who holds a Subclass 500 (Student) visa may be interested in extending their stay in Australia beyond the end of their studies, and applies for a Subclass 485 (Temporary Graduate) visa.  As a result of that application the non-citizen is granted a Subclass 010 (Bridging A) visa.  The Bridging A visa is not in effect yet, but it will come into effect when the Student visa ceases.



188.           The non-citizen is then notified that a decision has been made to refuse to grant them a Temporary Graduate visa, and they do not apply for merits review of that decision.  The Bridging A visa granted in association with the Temporary Graduate visa application will be taken to cease 28 days later as a result of subsection 82(7A) (the relevant specified event being the refusal of the associated substantive Temporary Graduate visa application).  New section 82A ensures that the Bridging A visa will cease despite it not being in effect at the time of the cessation event. 



189.           As another example, the same non-citizen in the scenario above makes the application for the Temporary Graduate visa. They then take an overseas holiday and return to Australia.  On their return to Australia, they refuse to provide any evidence of their identity while in immigration clearance (i.e. they do not comply with section 166). In this case, both the Bridging A visa granted in association with the Temporary Graduate visa application and the ‘in effect’ Student visa will cease, as the relevant ceasing event provided by section 174 of the Migration Act applies to all visas.  Again, new section 82A will operate to ensure that the Bridging A visa will cease despite it not being in effect.



190.           Note 1 to new section 82A explains that not all visas come into effect at the time of grant, and refers readers to section 68.  Note 1 has been included to alert readers to the effect of subsection 68(2), which provides that a visa may provide that it comes into effect at the beginning of a day, being a day after its grant:



·          specified in the visa; or

 

·          when an event, specified in the visa, happens.



191.           Note 2 to new section 82A explains that some visas may cease to be in effect and come into effect again during the visa period.  As an example, this note refers readers to new sections 96D and 96H as inserted by item 4 of Schedule 1 to this Bill.  Under new sections 96D and 96H, a visa may cease to be in effect due to the visa holder not completing and passing a revalidation check when required to do so.  The visa may come back into effect if, at some subsequent point during the visa period, the visa holder then passes a revalidation check for the visa.



Subsection 82(8) exception

 

192.            Subsection 82(8) provides that a visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia.



193.           The effect of the reference to subsection 82(8) as an exception in new section 82A inserted by Schedule 2 to the Bill is that if a person travels out of Australia on a visa that is in effect and they have a visa with a travel facility that allows them to return to Australia, the person will continue to hold any other visas that they have been granted to remain in Australia but that are not ‘in effect’ at the time of departure.  That is, the visa period for these ‘not in effect’ visas to remain in Australia will not end due to the operation of subsection 82(8).  A common example of where this might occur is in the case of a bridging visa that has been granted to a person in association with an undecided application for another substantive visa, where a non-citizen might travel offshore and return to Australia whilst holding a different substantive visa. 



194.           This exception acknowledges that there is no benefit in a person’s visa to remain in Australia, that is out of effect, ceasing just because the person legitimately travels out of Australia and returns on a visa that is in effect and allows them to leave and re-enter Australia.  Rather, to continue the example used above, the policy intention is that the bridging visa that is out of effect should continue to be held by the person, so that if a decision has not been made on the undecided application when the person’s substantive visa ceases following their return to Australia, the bridging visa will come into effect to maintain the person’s lawful status until a decision is made on the outstanding application.



195.           This exception is of considerable advantage to the person and significantly reduces the administrative burden that might otherwise be created in resolving the person’s immigration status if a decision on any outstanding application is not made in a timely manner.



196.           For example, a person holds a Subclass 500 (Student) visa and has applied for a Subclass 485 (Temporary Graduate) visa.  As a result of that application they have been granted a Subclass 010 (Bridging A) visa that does not come into effect because the person holds the Student visa.  During the semester break, the person returns home to see family and then returns to Australia to complete their study.  At the end of the year, the Student visa ceases, but a decision has not yet been made on the Temporary Graduate visa.  If the exception to section 82A for a section 82(8) ceasing event did not exist, the person would find themselves unlawfully in Australia, solely because they had taken a holiday out of Australia months before.  They may not be aware of their unlawful status, and could find themselves disadvantaged in future visa or citizenship applications.

 

197.           While it would be possible to grant another visa to such a person (e.g. another visa to remain in but not re-enter Australia), it is simpler for the person, and simpler administratively, if a visa to remain in but not re-enter Australia that is not in effect does not cease due to an applicant leaving Australia.



Items 3 and 4              At the end of subsection 173(1) and section 174

 

198.           These two items each add a note that states that for visas that are not in effect, readers should see section 82A.



199.           Subsection 173(1) and section 174 each provide a circumstance in which a visa will cease to be in effect.  Broadly speaking, these are situations where a visa holder enters Australia in a way not permitted or where a visa holder does not comply with immigration clearance requirements. 



200.           New section 82A, as inserted by item 2 of this Schedule, relevantly provides that if a visa that is held but not in effect would have ceased to be in effect under section 173 or 174 if the visa was in effect, then the visa is taken to have ceased to be in effect under that section at that time.  In other words, new section 82A means that the ceasing events contained in subsection 173(1) and section 174 will cause the visa period of a visa that is out of effect to end.



201.           These notes signpost that due to new section 82A, subsections 173(1) or section 174 may be applicable despite the visa not being in effect. 



Item 5             Application provision

 

202.           This item provides that the amendments made by this Schedule apply in relation to visas granted before, on or after the commencement of this item. 



203.           This means that section 82A can apply to a visa even if that visa was granted before that provision commences.  This reflects the policy intention that existing visas can in the future cease to be in effect under section 82A even if they are not in effect at that time.  



204.           This application provision also makes it clear that new section 82A will also apply to visas granted on or after the commencement of the provision.

 

 

 

 

SCHEDULE 3 — Immigration Clearance

 

Background

 

205.           The purpose of this Schedule is to amend the Migration Act to support the use of contactless technology for automated immigration clearance (“SmartGate”).

 

206.           As part of the 2015-16 Budget, the Government committed $93.7 million over four years to the Seamless Traveller initiative to meet the challenges and opportunities associated with the increasing number of travellers.  The project’s aim is to deliver improvements to border clearance using ‘next generation’ technologies, such as contactless technology, which enhances SmartGate functionality.

 

207.           Contactless technology uses leading edge technology for traveller identification. Benefits of this enhancement include:

 

  • Stronger security measures by confirming identity based on a facial image as a unique identifier, instead of relying on document based checks.

 

  • A further reduction in immigration clearance processing time.

 

  • An improved traveller facilitation experience through a seamless and contactless immigration clearance process.

 

  • A world class, innovative solution, to meet the needs of the travel industry for faster and more efficient traveller facilitation through air and maritime ports.

 

208.           Currently, all travellers (citizens and non-citizens) are required to present evidence of identity, such as a passport, to a clearance officer or authorised immigration clearance system when entering or leaving Australia at an airport or seaport.  The automated immigration clearance system (SmartGate) allows arriving and departing eligible travellers to self-process through immigration clearance by presenting their passport to confirm their identity.  The SmartGate takes a photo of the traveller for comparison against the image in the traveller’s passport.  The SmartGate also performs checks for visa validity and alerts before finalising the immigration clearance process. Travellers who are not eligible to use SmartGate are processed by a clearance officer.

 

209.           Contactless technology will remove the need for eligible travellers to present a passport to verify their identity in automated immigration clearance.  However, all persons will still be required to hold and carry a valid passport, and present it if required.

 

210.           The identity of a traveller will be confirmed on the basis of a unique biometric identifier, such as their facial image, instead of document based checks.  The live facial image of the traveller at the SmartGate will be matched against an image previously verified as the unique identifier associated with that identity.

 

211.           The introduction of contactless technology will upgrade both arrivals and departures SmartGates.  An added benefit of this technology is that as contactless SmartGates will not be reliant on the presentation of a passport, arrivals SmartGates will also be able to process travellers who do not hold an ePassport.  This will align both arrival and departures automated immigration clearance processes.

 

212.           The Department will use two databases for image verification: 



  • The Australian Passport Office database which holds images collected as part of the Australian passport identity verification process.  The Department has arrangements in place for access to this database which is currently used for border clearance.  Access to images of Australian citizens supports Contactless Automated Immigration Clearance.



  • Images provided by the traveller (both citizens and non-citizens) to the SmartGate are stored in departmental systems.  A document based identity verification process occurs at the time the traveller self-processes through the SmartGate.  This verified image and others collected during subsequent travel, become the images used by the Department to confirm identity on future travel.

 

213.           Travellers will continue to be notified about the collection of personal information by the SmartGates in advance.  This notification occurs through dedicated signage which contains the Department of Immigration and Border Protection’s privacy statement, which, amongst other things, informs individuals why their personal information is being collected and how it may be used by the Department.  Further information is available in pamphlets at the airport and on the Departmental website.

 

Amendments to Section 32 - Special Category Visas

 

Item 1 and 2               Paragraph 32(2)(a), After subsection 32(2)

 

214.           These items make amendments to section 32 of the Act to support the use of new contactless authorised immigration clearance systems for the purposes of granting a Special Category Visa to eligible non-citizens.

 

215.           Currently, a person may only satisfy this criterion by presenting a New Zealand passport that is in force to an officer or an authorised system.  This amendment supports the use of contactless automated technology in immigration clearance by removing the requirement for eligible New Zealand passport holders to present their passport (or other evidence of identity) to an officer or an authorised system.

 

216.           The amendments to section 32 are consequential to the main amendments made by this Schedule, which will remove the need for eligible travellers to present a passport when entering or departing Australia.  Using the new contactless technology, the identity of an eligible traveller will be confirmed on the basis of a unique biometric identifier, such as a facial image, instead of document based checks.

 

217.           Item 1 repeals existing paragraph 32(2)(a) in Division 3 of Part 2 of the Migration Act and replaces it with new paragraph 32(2)(a) which by reference to subsection 32(2A) allows for New Zealand citizens to satisfy a criterion for a special category visa using an authorised system.

 

218.           Item 2 inserts new subsection 32(2A) after existing subsection 32(2) of the Migration Act to provide the requirements for New Zealand citizens to satisfy a criterion for a special category visa using an authorised system.  Paragraph 32(2A)(a) requires the non-citizen to be a New Zealand citizen and hold a New Zealand passport that is in force.  Paragraph 32(2A)(b) provides that New Zealand citizens must, if required by one or more officers of authorised systems, present their passports to an officer or an authorised system, or provide one or more personal identifiers to an authorised system.

 

219.            Paragraph 32(2A)(c) gives effect to current subparagraph 32(2)(a)(ii) by ensuring that behaviour concern non-citizens and health concern non-citizens cannot satisfy the criterion for a special category visa. 

 

220.           Item 3 consequentially amends subsection 32(3) to accommodate the amendments made by items 1 and 2 to ensure that a person can present a New Zealand passport to an authorised system only if the New Zealand passport is an eligible passport and neither the system nor an officer requires the person to present the passport to an officer.

 

Amendments to Section 166 - Persons Entering Australia to present certain evidence of identity etc.

 

Items 4, 5,

6, 7, 8 and 9

Subsection 166(1), Subparagraph 166(1)(a)(ii), Paragraphs 166(1)(b), 166(1)(c) and 166(1)(d), Subsections 166(3) and 166(4)

 

221.           These items make amendments to section 166 of the Migration Act to support the use of new contactless immigration clearance technology.

222.           Section 166 of the Migration Act deals with the evidence that must be provided by both citizens and non-citizens entering Australia for the purposes of Immigration Clearance. Immigration clearance is dealt with in section 172 of the Migration Act.  A person is in immigration clearance if they are with an officer or authorised system for the purposes of section 166, and have not been refused immigration clearance (subsection 172)(2)).  Generally, where a person enters Australia at a port, a person is immigration cleared if they comply with section 166 and leave that port with permission of a clearance authority.

 

223.           Section 166 requires citizens and non-citizens entering Australia to satisfy various evidentiary requirements which assist to verify those persons’ identity and lawful immigration status or Australian citizenship.  This ensures that those people who enter Australia have authority to do so, those persons entering are who they claim to be, and those persons provide other information (for example, a passenger card) if required to do so.

 

224.           Contactless Automated Immigration Clearance removes the need for travellers to present a travel document, such as a passport, for identity purposes unless requested to do so by a clearance officer or authorised system.  Instead, the identity of an eligible traveller will be confirmed on the basis of a unique biometric identifier, such as a facial image, instead of document based checks.  The biometric identifier of the traveller at the authorised system will be matched against an image previously verified as the unique identifier associated with that identity.  This allows a greater number of travellers to self-process through the authorised system while providing enhanced security that contributes to combating identity theft and fraud.

 

225.           The amendments made by this Bill to section 166 provide for multiple alternatives for a person to satisfy various evidentiary requirements when entering Australia.  This will allow for differences in the information required by an officer or a system to be satisfied of a person’s identity.  This will mean, for example, that a person can be immigration cleared without needing to present a passport if they are using an authorised system which utilises the new contactless technology.  This is because the new contactless immigration clearance technology will not require this documentation.

 

226.           The relevant provisions will also be amended to require a person to provide any type of personal identifier to the authorised system. Currently, they are only required to provide certain types of personal identifier (that is, a photograph or other image of the person’s face and shoulders).  This will provide flexibility to verify a person’s identity with a broader range of personal identifiers. The types of personal identifier that the department can collect are set out in section 5A of the Migration Act.

 

227.           Item 4 amends new subsection 166(1) so that a person must do any one or more of the following things as required by one or more clearance authorities.  A clearance authority includes a clearance officer and an authorised system.  This ensures that each power listed in that subsection can be exercised individually and collectively. It also ensures that a person must comply with any request from one or more clearance authorities.  This means that a person may be required to provide things more than once, even if they have already complied with the requirements of another (or the same) clearance authority.

 

228.           Paragraph 166(1)(a) provides that Australian citizens can present their passport or prescribed other evidence and that non Australian citizens can present evidence of their identity and a visa that is in effect. 

 

229.           Paragraph 166(1)(b) provides that a person can provide a clearance authority with any information required by the Migration Act and Regulations but not a personal identifier except the person’s signature.

 

230.           Paragraph 166(1)(c) specifically refers to section 257A to allow a clearance officer to request for one or more personal identifiers before a person receives immigration clearance under section 172. 

 

231.           Currently, paragraph 166(1)(d) provides that if a person provides their evidence of identity to an authorised system the person must provide “a photograph or other image of the person’s face and shoulders”, which is defined as a personal identifier in section 5A of the Migration Act.  Item 8 repeals current paragraph 166(1)(d) and substitutes a new paragraph.  The new paragraph 166(1)(d) provides that a person can provide one or more personal identifiers to an authorised system.  The types of personal identifier that can be collected by the authorised system are specified in section 5A of the Migration Act.

 

232.           Paragraph 166(1)(c) by referring to section 257A confers on a clearance officer, a power to request for one or more personal identifiers.  Whereas, paragraph 166(1)(d) creates a separate power for an authorised system to request for one or more personal identifiers.  The reason for this distinction is to enable officers to continue to use section 257A to collect personal identifiers, as this is the main power in the Act for such collection.

 

233.           Item 9 also makes a number of consequential amendments to subsections 166(3) and 166(4) as a result of items 4, 5, 6, 7 and 8.  

 

Consequential Amendments to Section 167 - When and where evidence to be presented

 

Items 10 and 11         Paragraphs 167(3)(b) and 167(4)

 

234.           These items perform consequential amendments to paragraphs 167(3)(b) and 167(4) as a result of items 1, 3, 4, 4A and 5.

 

 

 

 

 

 

Amendments to Section 170 - Certain Persons (on overseas vessels) to present evidence of identity

 

Item 12                       Paragraph 170 (heading)

 

235.           This item substitutes the heading “Persons on overseas vessels may be required to present evidence of identity” with “Persons on overseas vessels to present certain evidence of identity etc.”

 

Items 13, 14, 15, 16, 17, 18, 19  , 20  and 21

Subsection 170(1), Paragraphs 170(1)(a),170(1)(a), 170(1)(b), 170(1)(b), 170(1)(c), 170(1)(c), and 170(1)(d)

 

236.           Items 13, 14, 15, 16, 17, 18, 19 , 20 and 21 make amendments to section 170 of the Migration Act to support the use of new contactless immigration clearance technology.  These replicate the amendments made to section 166 above.

 

237.           In general terms, section 170 allows a clearance officer to require a person who

travels, or appears to intend to travel, on an overseas vessel from a port to another port

(in Australia) to give evidence of identity, personal identifiers, and other required information.  This section applies to both non-citizens and citizens. 

 

238.           Item 13 amends subsection 170(1) so that a person who travels, or intends to travel, on an overseas vessel from a port to another port must, without unreasonable delay, do any one or more of the following things as required by one or more clearance authorities.  A clearance authority includes a clearance officer and an authorised system. This amendment ensures that each power listed in that subsection can be exercised individually and collectively.  It also ensures that a person must comply with any request from one or more clearance authorities.  This means that a person may be required to provide things more than once, even if they have already complied with the requirements of another (or the same) clearance authority.

 

239.           Paragraph 170(1)(a) provides that a person can present to a clearance authority prescribed evidence of their identity. 

 

240.           Paragraph 170(1)(b) provides that a person can provide a clearance authority with any information required by the Migration Act and Regulations but not a personal identifier except the person’s signature.

 

241.           Paragraph 170(1)(c) specifically refers to section 257A to allow a clearance officer to request for one or more personal identifiers to be provided to a clearance authority. 

 

242.           Currently, paragraph 170(1)(d) provides that if a person provides their evidence of identity to an authorised system the person must provide “a photograph or other image of the person’s face and shoulders”, which is defined as a personal identifier in section 5A of the Migration Act.  Item 20 repeals current paragraph 170(1)(d) and substitutes a new paragraph. The new paragraph 170(1)(d) provides that a person can provide one or more personal identifiers to an authorised system.

 

243.           Paragraph 170(1)(c) by referring to section 257A confer on a human being, a clearance officer, a power to request for one or more personal identifiers.  Whereas, paragraph 170(1)(d) creates a separate power for an authorised system to request for one or more personal identifiers.  The types of personal identifier that can be collected by the authorised system are specified in section 5A of the Migration Act.

 

244.           Paragraph 170(1)(c) by referring to section 257A confers on a clearance officer, a power to request for one or more personal identifiers.  Whereas, paragraph 170(1)(d) creates a separate power for an authorised system to request for one or more personal identifiers.  The reason for this distinction is to enable officers to continue to use section 257A to collect personal identifiers, as this is the main power in the Act for such collection.

 

245.           Item 21 makes a consequential amendment to subsection 170(2) as a result of items 12, 12A, 13, 13A, and 14 to enhance clarity.

 

Consequential Amendments to Section 171 (Assistance with Evidence) and Section 172 (Immigration Clearance)

 

Items 22, 23, 24, and 25

Subsections 171(a) and 172(3), and  Paragraphs 172(3)(a) and 172(3)(b)

 

246.           These items make consequential amendments to subsections 171(a) and 172(3), and paragraphs 172(3)(a) and 172(3)(b) as a result of items 4, 5, 6, 7 and 8.

 

Amendments to Section 175 - Departing person to present certain evidence etc

 

Items 26, 27, 28,

29, 30 and 31

Subsection 175(1), subparagraph 175(1)(a)(ii), paragraphs 175(1)(b), 175(1)(c), and 175(1)(d)

 

247.            Items 26, 27, 28, 29, 30 and 31 make amendments to section 175 of the Migration Act to support the use of new contactless immigration clearance technology. These largely replicate the amendments made to sections 166 and 170 above.

 

248.           Section 175 in general allows a clearance officer to require citizens and non-citizens leaving Australia to satisfy various evidentiary requirements, which assist to verify those persons’ identity and lawful status or Australian citizenship.

 

249.           Item 26 omits all the words before paragraph 175(1)(a) and substitutes new  words.  Currently, the words at the beginning of subsection 175(1) provide that an officer may require a person who is departing Australia to do certain things.  The new words at the beginning of subsection 175(1) provide that a person departing Australia, must, without unreasonable delay, do any one or more things as required by one or more clearance authorities.

 

250.           This effect of this amendment is that persons leaving Australia now have duty to provide this information to a clearance authority and an officer does not have to exercise discretion.

 

251.           A clearance authority includes a clearance officer and an authorised system.  This amendment ensures that each power listed in that subsection can be exercised individually and collectively.  It also ensures that a person must comply with any request from one or more clearance authorities.  This means that a person may be required to provide things more than once, even if they have already complied with the requirements of another (or the same) clearance authority.

 

252.           Items 27, 28, and 29 perform consequential amendments to subparagraph 175(1)(a)(ii), paragraphs 175(1)(b), and 175(1)(c) to ensure all powers in subsection 175(1) can be exercised individually and collectively. 

 

253.           Currently, paragraph 175(1)(d) provides that if a person provides their evidence of identity to an authorised system the person must provide “a photograph or other image of the person’s face and shoulders”, which is defined as a personal identifier in section 5A of the Migration Act.  Item 30 repeals existing paragraph 175(1)(d) and substitutes a new paragraph.  The new paragraph 175(1)(d) provides that a person can provide one or more personal identifiers to an authorised system.

 

254.           Paragraph 175(1)(c) by referring to section 257A confers on a clearance officer, a power to request for one or more personal identifiers.  Whereas, paragraph 170(1)(d) creates a separate power for an authorised system to request for one or more personal identifiers.  The reason for this distinction is to enable officers to continue to use section 257A to collect personal identifiers, as this is the main power in the Act for such collection.

 

 

255.           Item 31 makes a consequential amendment to subsection 175(2) as a result of items 26, 27 and 28.

 

 

 

Consequential Amendments to Section 190 (Non-compliance with immigration clearance or requirement to provide personal identifier) and Section 271 (Proof of certain matters)

 

Item 32 

Paragraph 190(1)(b)

 

256.           Item 32 repeals paragraph 190(1)(b) and substitutes a new paragraph.

 

257.           Currently, paragraph 190(1)(b) provides that for the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, that person fails to satisfy the evidentiary requirements in section 166.

 

258.            This item makes consequential amendments to paragraph 190(1)(b) corresponding to items 4, 5, 6, 7 and 8 by consolidating previous subparagraphs 190(1)(b)(ii),(iii), and (iv) in the new subparagraph 190(1)(b)(ii). 

 

Item 33, 34,

and 35

Subparagraph 271(1)(j)(i), 271(1)(j)(ii), and subsection 271(4)

 

259.           Section 271 sets out the things that are taken to be prima facie evidence of certain matters for the purposes of migration proceedings. “Migration proceedings” is defined in subsection 271(4) to mean:

 

·          proceedings in a court (including criminal proceedings):

-        under this Act, or in relation to an offence against this Act or a contravention of a civil penalty provision; or

-        in relation to a deportation order; or

 

·          proceedings in the Tribunal for the review of a decision under this Act, including a decision to make a deportation order; or

 

·          proceedings in the Immigration Assessment Authority for the review of a fast - track reviewable decision.

 

260.           These items amend section 271 to ensure the scope of prima facie evidence that a person when entering Australia was a non-citizen is broadened to cover failure to produce an Australian passport to an automated system authorised in writing by the Minister or the Secretary for the purposes of sections 32, 166, 170, and 172 , or paragraph (b) of the definition of clearance authority in section 165 of the Migration Act.

 

 

 

 

 

Attachment A



Statement of Compatibility with Human Rights



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



Migration Amendment (Visa Revalidation and Other Measures) Bill 2016



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 .



Schedule 1 - Revalidation check for certain visas



Overview of the Schedule



As announced in the White Paper on Developing Northern Australia , the Government proposes to trial the introduction of a 10-year validity Visitor visa for Chinese nationals.  This will be supported through the creation of a new stream in the Subclass 600 (Visitor) visa, which will facilitate the grant of a Visitor visa with up to 10 years validity.  The proposed 10 year visa would allow both tourism and business visitor activities, provide for multiple entries and up to a three-month stay period after each entry during the validity period of the visa (with no more than 12 months cumulative stay in a 24 month period).

 

The Visa Application Charge for the proposed 10 year visa would be AUD1000 and the visa will be marketed as a premium product to attract high value frequent travellers.  It is intended to reduce the regulatory burden on applicants who will have to complete fewer repeat visa applications.  The new 10 year visa would be optional and does not replace existing Visitor visa streams.

 

Changes in individual circumstances over an extended period of time are generally managed through a repeat visa application process.  Given the extended validity period of the 10 year visa, the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (the Bill) will introduce new provisions to the Migration Act 1958 (the Migration Act) that give the Minister for Immigration and Border Protection a discretionary power to require a person who holds a prescribed visa to pass a revalidation check from time to time (new section 96B), and a non-compellable personal power to determine, by legislative instrument, that a class of visa holders who hold a prescribed visa are to complete a revalidation check for the visa where the Minister thinks it is in the public interest to do so (new section 96E).  It is the intention to prescribe the new 10 year visa for these purposes.

 

Revalidation checks required under the new sections 96B and 96E will require a visa holder to provide information on their current circumstances to satisfy the Minister that there is no adverse information relating to the visa holder, or if there is adverse information, that it is reasonable to disregard that information.  This will require the visa holder to provide further information, including in relation to a genuine intention to reside temporarily, identity, health, character, passport and national security criteria or undergo additional checks.  If a person does not complete or pass a revalidation check their visa may cease to be in effect, it may later come back into effect, or it may be considered for cancellation.

 

Initially, the 10 year visa would only be available to applicants who are nationals of the People’s Republic of China with a view to progressively allowing nationals of other countries to apply following evaluation.  In the event that the 10 year visa is offered more broadly, the requirement to complete a revalidation check from time to time under new section 96B will be applied to all 10 year visa holders, regardless of nationality.

 

Where a visa holder is outside Australia and is required to complete a revalidation check under new section 96B, but does not do so within the required timeframe, or does so and fails to pass at a particular time, their visa will cease to be in effect.  The consequence being that the visa holder would not be able to travel to Australia until they pass the revalidation check at which time their visa will come back into effect.

 

Where a visa holder is in Australia and is required to complete a revalidation check under new section 96B, but does not do so within the required timeframe, or does so and fails to pass at a particular time, provided their visa does not cease to be in effect for another reason (for example, the visa is cancelled), it will remain in effect until they next depart Australia.  If the visa holder has not completed and passed the revalidation check before leaving Australia, their visa will cease to be in effect on departure and will not come back into effect until they pass the revalidation check.  Where a visa holder departs Australia within the specified time without completing the check, the visa does not cease on departure but will be dependent on whether the visa holder completes or passes the check while they are offshore.       

 

Where a visa holder is outside Australia and the Minister makes a determination under new section 96E that a specified class of persons must complete a revalidation check, if the visa holder is part of that specified class their visa will immediately cease to be in effect on the making of the determination.  The visa holder will not be able to travel to Australia until they complete and pass the revalidation check at which time it will come back into effect.

 

Where a visa holder is in Australia and the Minister makes a determination under new section 96E that a specified class of persons must complete a revalidation check, if the visa holder is part of that specified class their visa will remain in effect until they next depart Australia, provided their visa does not cease to be in effect for another reason.  If on departure the visa holder has not passed the revalidation check, their visa will cease to be in effect and will not come back into effect until they pass the revalidation check.

 

The powers under new section 96B and new section 96E cannot be used to restrict or compel the movement of a 10 year visa holder who is currently onshore in Australia while they remain onshore.



Human rights implications



This Schedule has been considered against each of the seven core international human rights treaties.  To the extent that the proposed Minister’s powers to require a revalidation check apply to visa holders outside Australia, the rights in the seven core international human rights treaties are not engaged as the visa holders are outside Australia’s territory and jurisdiction. With regard to 10 year visa holders within Australia’s territory and jurisdiction, the following rights are engaged:

 

Equality and Non-discrimination



Article 2(1) of the International Covenant on Civil and Political Rights (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 recognised 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.

 

It is intended that the requirement under new section 96B for 10 year visa holders to complete revalidation checks at regular intervals be guided by policy instructions where this power is delegated. The interval period will be set in policy and may be reassessed following evaluation of the trial. It is not the policy intention to require a visa holder to undertake or pass a revalidation check on the basis of any of the prohibited grounds set out in Articles 2 and 26, and departmental policy guidance will be provided to ensure this policy intention is implemented under any delegated power of the new section 96B.

 

Under new section 96E, it is intended that any exercise of the Minister’s personal non-compellable power to determine that a specified class of 10 year visa holders must complete a revalidation check would be based on an assessment of risk considering information and any statistical data available to the Minister. Under new section 96E some or all 10 year visa holders may be required to pass a revalidation check.  In those circumstances and where this visa is made more widely available following the initial trial period, the rights above may be engaged in that a visa holder may be compelled to pass a revalidation check on the basis of nationality of passport. 

 

For example, this may occur where a revalidation check is required under new section 96E (in the public interest) following an assessment of increased risk to the Australian community resulting from a health, security or other incident in a particular location.  In such a circumstance, the ability to require some or all 10 year visa holders to complete and pass a revalidation check would allow Australia to appropriately manage and facilitate the travel and movement of visa holders through the provision of up to date advice on potential risks and the application of appropriate measures to reduce the possibility of exposure to risk. 

 

Not all treatment that differs among individuals or groups on any of the grounds mentioned in Article 26 will amount to prohibited discrimination. The UN Human Rights Committee has recognised 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'. 

 

In the above context of new section 96E, any differential treatment based on nationality of passport to require revalidation checks will be a reasonable measure to respond to an identified risk in order to protect the Australian community and maintain the integrity of the migration programme by managing the health, security and other risks to the Australian community that a holder of a 10 year visa may present over the validity period of the visa.

 

To the extent that the proposed Minister’s powers indirectly engage the rights discussed above, by only initially offering Chinese nationals access to the 10 year visa, and, consequentially, only requiring Chinese nationals to complete and pass a revalidation check, the Government considers that this is reasonable for the legitimate purpose of trialling the implementation of the 10 year visa. Depending on the success of the 10 year visa, in terms of successful implementation and uptake rates, it may be expanded to eligible passport holders of other nationalities in the future, all of whom will be required to complete and pass a revalidation check under section 96B or 96E, where such a requirement has been issued.

 

 

 

 

Privacy

 

Article 17(1) of the ICCPR States:

 

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.

 

Article 17(2) of the ICCPR states that:

 

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

 

The proposed Minister’s powers to require revalidation checks engage the prohibition on arbitrary or unlawful interference with privacy in that as part of the revalidation check, personal information can be requested from a visa holder. However, the requirement for a visa holder to provide personal information if required to do so under the proposed Minister’s powers will not be an arbitrary or unlawful interference with privacy. 

 

The passing of this bill will mean that the requirement to provide personal information will be lawful.  The purpose for requiring this information is so the Minister can be satisfied that there is no adverse information relating to the visa holder or, if there is, that it is reasonable to disregard that information. It is also a means of managing the health, security and other risks to the Australian community that a visa holder may present over the visa period.  As such, it will directly support the Government’s efforts to better identify and manage the possible risks posed by individuals post visa grant. Thus the requirement to provide personal information is a reasonable, proportionate and necessary action for the legitimate purpose of maintaining the integrity of the migration programme and the protection of the Australian community.

 

Further, the protection of the right in Article 17(1), and consistent with the requirement in Article 17(2), is set out in domestic Australian law in the Privacy Act 1988 (the Privacy Act). Schedule 1 of the Privacy Act contains the Australian Privacy Principles which assist Government departments to ensure the lawful collection, storage, record keeping, access, use and disclosure of personal information. It is intended that the proposed collection and storage of personal information collected as required by the proposed Minister’s powers will be executed in accordance with the Privacy Act. 

 

Conclusion



To the extent that Schedule 1 of the Bill engages human rights, it is compatible with those human rights.

Schedule 2 - Cessation of visas that are not in effect



Overview of the Schedule



This schedule will provide that the events described in sections 82, 173 and 174 of the Migration Act that cause a visa that is in effect to cease will, as a general rule, cause a visa that is held, but not in effect, to be taken to cease. As an exception to this general rule, a visa that is not in effect will not be taken to cease as a result of the holder leaving Australia.



Section 82 of the Migration Act provides the circumstances in which a visa ceases to be in effect. The longstanding position of the Department is that if a ceasing provision specified in section 82 of the Migration Act applies, the visa in question will cease to be in effect, and the visa period may end, regardless of whether the visa is in effect at that time.

 

However, there is a possible argument that a visa which is held but is not in effect, cannot cease to be in effect even if a relevant ceasing provision applies to it because the visa was not in effect to begin with. To ensure that the visa ceasing provisions in section 82 of the Migration Act can operate as intended, the Bill proposes to amend the Migration Act to put it beyond doubt that a visa held by a person will cease to be in effect () under section 82 at a particular time even if, at that time, the visa is not in effect. For example, if a person who is the holder of a substantive visa (visa X) has been refused the grant of a substantive visa (visa Y) for which they have applied, the bridging visa granted to and held by the person in association with the substantive visa Y application will cease, even though the bridging visa is not in effect at the time of the cessation event because the substantive visa X is still in effect.

 

The exception to this would be where the person departs Australia as the holder of a visa to remain in, but not re-enter, Australia (subsection 82(8)). In this situation, the act of departing Australia would operate to cease the visa (and for the visa period to end), only if the visa is in effect at the time of the person’s departure.

 

This exception is created because the Department accepts that in circumstances where a person departs Australia as the holder of a substantive visa that is in effect and an unrelated bridging visa that is not in effect, it might operate harshly to maintain that the bridging visa ceases to be in effect when the person departs Australia, when the person has otherwise complied with the conditions of their visa and is travelling legitimately on the substantive visa that they hold.

 

The creation of this exception ensures that a person will not unwittingly become an unlawful non-citizen. Without this exception, the amendment would mean that an out of effect bridging visa would cease under subsection 82(8) of the Migration Act when the person departs Australia as the holder of a substantive visa, despite the bridging visa not being in effect at that time. As a result if the person subsequently returns to Australia on their substantive visa and the substantive visa ceases, they would potentially become an unlawful non-citizen. However, with the exception, the bridging visa would be preserved despite the person’s departure, so that if the person subsequently returns to Australia on the substantive visa and the substantive visa ceases prior to a decision being made on the undecided visa application, the bridging visa will come into effect to keep the person lawful until a decision is made In addition, the creation of this exception has the advantage of  reducing the Department’s administrative burden that might otherwise be created in resolving the person’s immigration status if a decision on any outstanding application is not made in a timely manner.

 

Human rights implications

 

Article 9(1) of the ICCPR provides that ‘everyone has the right to liberty and security of person. No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law’.

 

Section 189 of the Migration Act provides for the mandatory immigration detention of a person in the migration zone whom an officer knows or reasonably suspects is an unlawful non-citizen. Consequently, immigration detention is lawful under the Migration Act. However, amending the Migration Act to clarify that a visa will cease to be in effect under section 82 (other than under subsection 82(8)) at a particular time even if the visa is not in effect, with the consequence that the person becomes an unlawful non-citizen who is subject to mandatory detention may, in certain circumstances, lead to a perception that said detention is arbitrary.

 

Notwithstanding the possibility of such a perception, as a matter of reality this is not an issue of serious concern. With the exception of bridging visas and Subclass 601 - Electronic Travel Authority (“ETA”) visas, which may be granted but not come into effect immediately due to the person already holding a substantive visa in effect which operates to “suppress” the bridging or ETA visa, most other visas come into effect as soon as they are granted. Furthermore, with the exception of bridging visas and a visa prescribed for the purposes of new subsections 96B(1) and 96E(1), a visa cannot come back into effect once it has ceased to be in effect. Therefore, the circumstances in which section 82 will operate to cease a visa despite it not being in effect are limited. The purpose of the amendment is to ensure that, by clarifying the policy intention underpinning section 82, in circumstances where a provision other than subsection 82(8) of the Migration Act applies, the relevant ceasing event (such as a decision to cancel the visa) would operate to cease (and generally cause the visa period to end) as intended, even if the visa is not in effect at the time the ceasing event in relation to it occurs.

 

 

Importantly also, unlike subsection 82(8) of the Migration Act where the trigger for visa cessation is the person’s departure from Australia which could not be pre-determined or otherwise known to the Department, the other visa ceasing provisions under section 82 are all capable of being pre-determined or known to the Department, e.g. visa ceasing on a particular date, or by cancellation, so that the Department could draw the visa cessation to the attention of the person, either at the time of notifying the visa grant (in the case of a visa granted until a specified date) or after the cessation event has occurred (in the case of a visa cancellation, about which the non-citizen must be notified).

 

In other words, because the circumstances of the visa cessation (other than departure from Australia under section 82(8) which is exempt from the amendment) would be drawn to the attention of the person, this means that even if the visa was not actually in effect at the time it ceased under section 82 (which would be rare for the reason outlined earlier), any subsequent detention of the person on the basis that they are an unlawful non-citizen would not be arbitrary. Furthermore, this outcome would be lawful by virtue of the mandatory detention scheme in the Migration Act, and would be proportionate to the legitimate goal of maintaining the integrity of the migration system (noting that there are a range of tools available to deal with any circumstances where detention may not be appropriate or desirable).

 

Therefore, the amendment to the Migration Act clarifying the circumstances in which a visa ceases is compatible with Article 9(1) of the ICCPR.

 

Conclusion

 

The amendments to the Migration Act proposed in Schedule 2 to this Bill are compatible with human rights.

                                

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule 3 - Immigration Clearance

 

Overview of the Schedule

 

The immigration clearance measures amend the Migration Act 1958 (Migration Act) and the Migration Regulations 1994 (Migration Regulations) to enable the use of ‘contactless’ technology to clear travellers through the automated immigration clearance system, SmartGate, which is an authorised clearance authority under the Migration Act. Contactless technology is an enhancement to departures and arrivals SmartGates and uses leading edge technology to confirm a traveller’s identity, removing the SmartGate’s reliance on document based checks to confirm identity.

 

Automated immigration clearance (Present State)

 

The Migration Act and Migration Regulations require travellers (citizens and non­citizens) to present evidence of identity, such as a passport, to a clearance officer or clearance authority, SmartGate. SmartGates allows arriving and departing travellers to self-process quickly through immigration clearance by presenting their passport at the SmartGate which allows the system to verify their identity. The SmartGate takes a photo of the traveller for comparison against the image in the traveller’s passport. The SmartGate also performs checks for visa validity and alerts before finalising the immigration clearance process. This verified image becomes the unique identifier associated with the traveller’s identity.  

 

Travellers are notified about the collection of personal information by the SmartGates in advance. This notification occurs through dedicated signage which contains the Department of Immigration and Border Protection’s (the Department’s) privacy statement, which, amongst other things, informs individuals why their personal information is being collected and how it may be used by the Department. Further information is available in pamphlets at the airport and on the Departmental website. Self-processing using the SmartGates is voluntary and travellers can also choose to be processed manually by a clearance officer.

 

The current arrivals SmartGate technology is restricted to those travellers who hold an ePassport; however more advanced technology in the departures SmartGates can process travellers who do not hold an ePassport.

 

Contactless Automated immigration clearance (Proposed)          

 

Contactless Automated Immigration Clearance does not impose additional requirements on the traveller. Instead it removes the requirement for travellers to present a travel document, such as a passport, for identity purposes, unless requested to do so by a clearance officer or an authorised system. 

 

The identity of a traveller will be confirmed on the basis of a unique biometric identifier, such as their facial image, instead of document based checks. The live facial image of the traveller at the SmartGate will be matched against an image previously verified as the unique identifier associated with that identity.

 

The introduction of contactless technology will up-grade both arrivals and departures SmartGates. An added benefit of this technology is that as contactless SmartGates will not be reliant on the presentation of a passport, arrivals SmartGates will also be able to process travellers who do not hold an ePassport. This will align both arrival and departures automated immigration clearance processes.

 

The Department will use two databases for image verification: 

 

·          The Australian Passport Office database which holds images collected as part of the Australian passport identity verification process. The Department has arrangements in place for access to this database which is currently used for border clearance. Access to images of Australian citizens supports Contactless Automated Immigration Clearance.

 

·          Images provided by the traveller (both citizens and non-citizens) to the SmartGate are stored in departmental systems. A document based identity verification process occurs at the time the traveller self-processes through the SmartGate. This verified image and others collected during subsequent travel, become the images used by the Department to confirm identity on future travel.

 

The Contactless Automated Immigration Clearance system allows a greater number of travellers to self-process through the SmartGate while providing enhanced security that contributes to combating identity theft and fraud. The use of Contactless Automated Immigration Clearance will remain voluntary, as travellers can also choose to be processed manually by a clearance officer.

 

Human rights implications

 

The immigration clearance measures included in the Bill engage the right to freedom of movement and the right to freedom from interference with privacy.  

 

Right to freedom of movement - Article 12 - International Covenant on Civil and Political Rights (ICCPR)

 

Article 12(1) and (2) provides as follows:

 

1.  Everyone lawfully within the territory of a State shall, within that territory,

     have the right to liberty of movement and freedom to choose his residence.

 

2.  Everyone shall be free to leave any country, including his own.

 

Contactless Automated Immigration Clearance maintains the same immigration clearance requirements as the current SmartGates, other than not requiring the presentation of a passport. It does not limit or impose any new conditions on the rights of persons to enter or leave Australia and hence, does not substantively affect this right.

 

This advancement in technology does, however, assist in facilitating the efficient exercise of the right to freedom of movement. A greater number of travellers will be able to self-process through the Contactless automated immigration clearance system. The current arrivals SmartGates can process travellers only if they present an ePassport. As the Contactless Automated Immigration Clearance process is not reliant on the presentation of a passport, it is expected that most arriving travellers will use contactless SmartGates. The introduction of contactless technology brings the  arrival and departures automated immigration clearance processes into alignment allowing a greater number of travellers to self-process through immigration clearance when entering and leaving Australia.

Travellers will also retain the option of choosing manual processing by an Australian Border Force officer.

 

Right to freedom from interference with privacy - Article 17 - ICCPR

 

Article 17 states that:

 

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 17 of the ICCPR prohibits arbitrary or unlawful interference with privacy. Interferences which are lawful may nonetheless be arbitrary where those interferences are not in accordance with the objectives of the ICCPR and are not reasonable in the circumstances. The United Nations Human Rights Committee has interpreted the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances.

 

In the case of the current amendments, it is submitted that they are neither unlawful nor arbitrary.

 

The collection, storage, use and disclosure of personal information by the Department is undertaken in accordance with the Australian Privacy Principles contained in the Privacy Act 1988 (Privacy Act) and and is subject to requirements in Part 4A of the Migration Act, “Obligations relating to identifying information”, which provides for a range of rules and offences relating to the access, disclosure and use of identifying information. This is consistent with the United Nations Human Rights Committee General Comment 16 in which the Committee stated that the gathering and holding of personal information on computers, databanks and other devices (that is, the use of information technology) must be regulated by law and that effective measures must be taken to ensure that the information collected is not accessed by persons who are not authorised by law to receive, process or use it.

 

Under the Privacy Act, biometric information is considered ‘sensitive’ information. Sensitive information is afforded a higher level of protection than other types of personal information. Sensitive information must only be collected with the consent of the individual unless one of the listed exceptions applies. Those exceptions include where the collection is authorised or required by law. Existing mechanisms in the Migration Act and Migration Regulations (sections 5A, 166, 170, 175, 257A, 258A - G, 336A-L) provide legislative authority for identity assessment, collection, storage and disclosure of personal identifiers (which includes biometric information). The measures in the Bill enhance automated immigration clearance processes including biometrics collection and national security measures, building on the amendments made by the Migration Amendment (Border Integrity) Act 2007 , the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 , and the Migration Amendment (Strengthening Biometrics Integrity) Act 2015 .

 

A summary of existing mechanisms include: 

 

·          The Migration Act and Migration Regulations require travellers (citizens and non­citizens) to present evidence of identity to a clearance officer or clearance authority. Sections 166, 170 and 175 of the Migration Act authorise a ‘clearance authority’ (defined as an officer or an authorised system) to collect personal identifiers (specifically an image of a traveller’s face and shoulders) of citizens and non-citizens who enter or depart Australia. The ability to retain identifiers is set out in Part 4A, Division 5 of the Migration Act.

 

·          The Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Foreign Fighters Act) amended the Migration Act to enable the automated immigration clearance system to obtain personal identifiers (specifically an image of the person’s face and shoulders) from all persons who use the system. Foreign Fighters Act amendments (sections 166 and 175) allows for the storage of personal identifiers collected from Australian citizens (previous legislation allowed for the storage of images of non-citizens only). The amendments also authorised information collected by an ‘authorised system’ (such as SmartGate) to be accessed, used and disclosed for the purpose of identifying both citizens and non-citizens who may be of security concern to Australia or a foreign country.

 

·          Collection of personal identifiers is permitted under the Migration Act for a range of reasons including:

o    Identification and authentication of identity.

o    Improving the integrity of Australia's entry programs, including passenger processing at Australia's border.

o    Enhancing the Department's ability to identify non-Australian citizens who have a criminal history or who are of national security or character concern.

o    To assist in determining whether a person is an unlawful non-citizen or a lawful non­citizen.

 

·          Disclosure of information is permitted under the Migration Act for specified purposes such as to assist in identifying and authenticating the identity of a person who may be of national security concern.

 

·          The Migration Act and the Australian Border Force Act 2015 also contain offences for using and disclosing certain information if it is not a permitted or authorised disclosure.   

 

In relation to minors, the SmartGates are designed to only allow one traveller to be processed through the SmartGate at a time. Parents and minors can choose to present to a clearance officer instead of an authorised system.  This would allow a parent to be present when their child provides a personal identifier, if this is preferred.

 

Reasonableness of interference with privacy

 

The Department collects biometric data, which relevantly includes images, for the lawful purpose of border clearance processing. The Department, in conjunction with other agencies, has a critical role in protecting Australia’s borders and national security efforts to combat terrorism, trans-national crime and irregular migration.

 

The ability to accurately collect, store, use and disclose biometric identification of all persons increases the integrity of identity, security, and immigration checks of people entering and departing Australia. The primary purpose of the collection of an image of a person’s face and shoulders is to identify individuals at the border and to verify their identity for border clearance and control.

 

An authorised system or a clearance officer will not take more information from the person than is reasonably necessary to achieve the legitimate objective of confirming the person’s identity.

 

Significant in the need to collect biometric data is not only the ability to allow individuals to cross Australia’s border, but also the authority to retain data for future use to prevent breaches of the Migration Act, and other legislation. Further, the fact that the Department lawfully collects, stores, uses and discloses information discourages attempts to circumvent border controls. Other legislation that relies on information collected by SmartGates includes the Australian Passports Act 2005 , the Foreign Passports (Law Enforcement and Security) Act 2005 and the Crimes Act 1914 . SmartGate data is used to provide evidence and detect breaches of provisions in these Acts.

 

Any interference with a person’s privacy when a traveller chooses to self-process through the Contactless Automated Immigration Clearance system is for a lawful border protection objective and is proportionate to the outcome sought, which is to mitigate the threat posed by persons seeking to enter and depart Australia undetected as impostors or using fraudulent documents to conduct criminal or terrorist activities. The ability to lawfully collect, store and disclose information collected by clearance officers or authorised systems is necessary, reasonable and proportionate in order to enhance national security and improve traveller facilitation through Australia’s border clearance processes.

 

Conclusion

 

Immigration clearance measures proposed in the Bill are compatible with human rights. The right to freedom of movement is engaged, but is not restricted. Any limitation on the right to freedom from interference with privacy is reasonable, necessary, and proportionate to achieving the legitimate aim of maintaining the integrity and security of Australia’s borders, while improving the facilitation of travellers to and from Australia.

 

 

 

 

 

The Hon Peter Dutton MP, Minister for Immigration and Border Protection