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Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998

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1998

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (STRENGTHENING OF PROVISIONS RELATING TO CHARACTER AND CONDUCT) BILL 1998

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

the Hon. Philip Ruddock MP)

 

 



MIGRATION LEGISLATION AMENDMENT (STRENGTHENING OF PROVISIONS RELATING TO CHARACTER AND CONDUCT) BILL 1998

 

 

OUTLINE

 

1.       The Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 ("the Bill") amends provisions in the Migration Act 1958 ("the Act") to implement a number of Government initiatives in the Immigration and Multicultural Affairs Portfolio.  Specifically, the Bill amends the Act to give the Government greater control over the entry into, and presence in, Australia of certain non-citizens who are unable to satisfy the Minister that they pass the "character test".  Other amendments are also required to strengthen the procedures used in dealing with such people.

 

2.       The amendments to the Migration Act:

 

·        strengthen the power to refuse to grant or cancel a visa on character grounds by:

-       introducing a character test in section 501;

-       deeming certain persons not to pass the character test;

-       providing that visa applicants and visa holders who are being considered under section 501 bear the burden of proof in convincing the Minister that they pass the character test;

-       deeming refusal of all visa applications applied for, and cancellation of all visas held by, a person who has "failed" the character test and whose visa application has consequently been refused or whose visa has been cancelled;

-       detailing the obligations of the Minister to notify an applicant or visa holder of a decision to refuse to grant or cancel a visa on the basis of the person's character;

-       providing for the consideration of evidence and determination of whether a person passes the character test to cover cases which do not fall within the new deeming provisions; and

-       permitting temporary detention of a visa holder where a section 501 or 501A cancellation decision is being considered;

 

·        expand the Minister's power to give binding directions under section 499 to delegates and Tribunals, particularly in terms of the factors to be taken into account in deciding whether to refuse a visa application or cancel the visa of a non-citizen who has been found not to have passed the character test;

 

·        prevent (with limited exceptions) persons who have had a visa refused or cancelled on character grounds from applying for further visas while they are still in the migration zone;



·        expedite the process of review by the Administrative Appeals Tribunal ("AAT") of decisions made under the new character provisions where the decision relates to a person who is in the migration zone.  The most significant amendments include:

-       imposing strict time limits on, and otherwise expediting, the review of section 501 decisions made by a delegate of the Minister; and

-       deeming a delegate's decision to be affirmed where the AAT fails to make a                                     decision within 84 days;

 

·        enhance the power to remove unlawful non-citizens from Australia;

 

·        strengthen the Minister's personal powers to refuse to grant or cancel a visa on character grounds:

-       to enable the Minister to personally exercise a special power to intervene in any case and substitute his/her own decision to refuse to grant or cancel.  This decision may be revoked if made without prior notice to the person; and

-       to ensure that the Minister's personal decisions are not reviewable;

 

·        provide protection from disclosure of confidential security and criminal intelligence information that is provided by Gazetted agencies;

 

·        introduce consistency into the circumstances in which conclusive certificates may be granted to prevent review of a decision: the new standard test for all conclusive certificates will be "the national interest";

 

·        create transitional provisions in respect of the above amendments; and

 

·        make minor technical amendments arising out of the above amendments.

 

 

FINANCIAL IMPACT STATEMENT

 

3.       Moderate increases to administrative costs will be incurred by the Immigration and Multicultural Affairs portfolio as a result of the passage of this Bill.



MIGRATION LEGISLATION AMENDMENT (STRENGTHENING OF PROVISIONS RELATING TO CHARACTER AND CONDUCT) BILL 1998

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1            Short title

 

1.       This clause provides that the short title of this Act is the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 .

 

Clause 2            Commencement

 

2.       Subclause 2(1) provides that, subject to this section, this Act commences on a day to be fixed by Proclamation.

 

3.       Subclause 2(2) provides that, if item 10 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998 ("MLAA No. 1") does not commence before the day fixed under subclause 2(1), then items 12 and 29 of Schedule 1 to this Act commence immediately after the commencement of item 10 of Schedule 1 to the MLAA No. 1.

 

Clause 3            Schedule(s)

 

4.       This clause provides that, subject to section 2 of this Act, the Acts specified in the Schedule to this Act are amended or repealed as set out in the relevant Schedule.  This item also provides that any other item in a Schedule to this Act has effect according to its terms.

 

SCHEDULE 1 - AMENDMENT OF THE MIGRATION ACT 1958

 

Migration Act 1958

 

Item 1               Paragraph 46(1)(d)

 

5.       Section 46 of the Act sets out the requirements that must be met for a visa application to be valid.  This item amends paragraph 46(1)(d) so that an application for a visa will not be valid if it is prevented by section 501E, inserted by this Act.  New section 501E provides for limitations on the circumstances in which, and the classes of visa for which, a person who has had a visa refused or cancelled under section 501, 501A or 501B (inserted by this Act) can make a further application.

 

Item 2               Subparagraph 48(b)(i)

 

6.       This item amends subparagraph 48(b)(i).  The amendment of subparagraph 48(b)(i) is to prevent a person whose visa has been refused under new section 501, 501A or 501B from applying for any visa which might be prescribed for the purposes of section 48.  Any person so affected may apply for a visa prescribed for the purposes of new section 501E.

Item 3               Subparagraph 48(b)(ii)

 

7.       Section 48 of the Act provides that persons in the migration zone who do not hold a substantive visa and who have been refused a visa after last entering Australia or who have had a visa cancelled under specified sections of the Act, can only apply for a limited range of visa classes, prescribed in regulation 2.12.

 

8.       This item removes the reference to section 501 in subparagraph 48(b)(ii).  Where a person has had a visa refused or cancelled under the character provisions introduced by this Act, new section 501E specifies limitations on the circumstances in which, and the classes for which, that person can make a further visa application.

 

Item 4               At the end of section 66

 

9.       Section 66 of the Act sets out the obligations of the Minister in respect of notifying an applicant of a decision to grant or refuse to grant a visa.  This item adds new subsection 66(5) with the intention of excluding a decision to refuse to grant a visa under new section 501, 501A, 501B or 501F from the operation of section 66.

 

10.   Notification by the Minister of a decision to refuse to grant a visa under new section 501, 501A, 501B or 501F will be covered by new sections 501C and 501G, inserted by this Act.

 

Item 5               Paragraph 118(f)

 

11.   Section 118 of the Act provides that the powers to cancel a visa specified in that section are not limited, or otherwise affected, by each other.  Therefore, the fact that a particular visa can or cannot be cancelled under one of the specified powers does not affect any power to cancel that visa under another of the specified powers.

 

12.   This item amends paragraph 118(f) to insert a reference to new sections 501A and 501B into section 118.

 

Item 6               Subsections 192(1) and (4)

 

13.   Subsection 192(1) permits detention of a non-citizen where an officer knows or reasonably suspects that the non-citizen holds a visa that may be cancelled under certain provisions of the Act.  This item amends subsection 192(1) to extend the power to detain a person under subsection 192(1) to the situation where an officer knows or reasonably suspects that a person's visa may be cancelled under section 501 or 501A (as inserted by this Act).

 

14.   Subsection 192(4) provides that a visa holder must be released from questioning detention if an officer becomes aware that the person's visa is not one that may be cancelled under specified provisions of the Act.  This item amends subsection 192(4) to add a reference to sections 501 and 501A (as inserted by this Act).

 

Item 7               After subparagraph 193(1)(a)(iii)

 

15.   Subsection 193(1) specifies the circumstances when sections 194 and 195 of the Act do not apply.  Section 194 of the Act obliges an officer to inform a detainee of the types of visas for which the person may apply.  Section 195 of the Act makes provision for the time frame within which such an application may be made.

 

16.   This item amends paragraph 193(1)(a) by inserting new subparagraph 193(1)(a)(iv), so as to exclude the operation of sections 194 and 195 in respect of a person who has been detained under subsection 189(1) because of a decision the Minister has made personally under section 501, 501A or 501B (inserted by this Act).  This amendment discharges the Minister's obligation in order to strengthen the power to remove unlawful non-citizens from Australia.

 

Item 8               Paragraph 198(2)(a)

 

17.   This item amends paragraph 198(2)(a).  This amendment is technical and consequential in nature.

 

Item 9               After subsection 198(2)

 

18.   Section 198 of the Act provides for the removal from Australia of unlawful non-citizens (as defined in section 14 of the Act).  Subsection 189(1) of the Act provides that where an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

 

19.   The insertion of subsection 198(2A) puts beyond doubt the Minister's power to remove persons who have had visa applications refused or visas cancelled by the Minister acting personally under new section 501, 501A or 501B.  The amendments are not intended to derogate from the power in section 198 to remove persons who have had a visa application cancelled or a visa refused under other provisions of the Act, including other character provisions.

 

20.   This item inserts new subsection 198(2A), which provides for an officer to remove an unlawful non-citizen where:

 

.        sections 194 and 195 do not apply to the non-citizen because they have been detained under subsection 189(1) as a result of a personal decision of the Minister to refuse to grant a visa to, or to cancel a visa held by, the non-citizen under new section 501, 501A or 501B (subparagraph 193(1)(a)(iv) refers); and

 

.        since the decision of the Minister, referred to above, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone, that is, a protection visa or a visa specified in the regulations (new section 501E refers); and

 

.        if the non-citizen has been invited to make representations to the Minister about revoking the original decision (paragraph 501C(3)(b) refers), either:

 

-       the non-citizen has not made representations in accordance with the invitation and the time for making representations has ended; or

 

-       the non-citizen has made representations in accordance with the invitation but the Minister decides not to revoke the original decision.

 

Item 10             Subsection 198(3)

 

21.   This item amends subsection 198(3) by adding a reference to new subsection 198(2A) so that a person can be removed from Australia under subsection 198(2A) even though the person can apply (but has not applied) for a substantive visa that could be granted while the person remains in the migration zone.

 

Item 11             Subsection 198(4)

 

22.   This item amends subsection 198(4) by adding a reference to new subsection 198(2A) so that nothing in new subsection 198(2A) requires the Minister or any officer, in relation to a person covered by subsection 193(1) (see item 7 above) to:

 

.        advise them that they may apply for another visa; or

 

.        give them an opportunity to apply for a visa; or

 

.        allow them to have access to advice concerning visa applications.

 

Item 12             Section 339

 

23.   The commencement of this item is dependent upon item 10 of Schedule 1 to MLAA No. 1 having commenced (see the comments on subclause 2(3)).  This item repeals section 339, as amended by MLAA No. 1 and substitutes a new section 339, which provides that, in respect of a decision that would otherwise be reviewable by the new Migration Review Tribunal ("MRT") (introduced by MLAA No. 1), the Minister may issue a conclusive certificate where it would be contrary to the national interest to change the decision or for the decision to be reviewed.

 

24.   This item is intended, in conjunction with other amendments made by this Act, to provide for consistency in respect of the Minister's powers to issue a conclusive certificate under the Act.

 



Item 13             Subsection 411(3)

 

25.   As explained above under item 12, the Government has determined that the various provisions in the Act which empower the Minister to issue a conclusive certificate to a person should be amended so as to be consistent with each other.

 

26.   This item repeals subsection 411(3) and substitutes a new subsection 411(3), which provides that, in respect of decisions that would be otherwise reviewable by the Refugee Review Tribunal ("RRT"), the Minister may issue a conclusive certificate where it would be contrary to the "national interest" to change the decision or for the decision to be reviewed.

 

Item 14             After subsection 496(1)

 

27.   Subsection 496(1) enables the Minister to delegate any of his/her powers under the Act to a person.  This item inserts new subsection 496(1A), which puts beyond doubt that a person to whom the Minister's powers under the Act have been delegated is subject to the directions of the Minister.

 

Item 15             At the end of section 496

 

28.   This item is intended to ensure that subsection 496(1A), inserted by this Act, does not limit the Minister's powers to give directions under subsection 499(1) (inserted by this Act).

 

Item 16             Subsection 499(1)

 

29.   This item repeals subsection 499(1) and substitutes new subsections 499(1) and (1A).  New subsection 499(1) provides that the Minister may give written directions (that must be tabled in Parliament) to a person or body having functions or powers under the Act if the directions are about the:

 

.        performance of those functions; or

.        exercise of those powers. 

 

30.   New subsection 499(1) removes the existing restriction that the Minister may give "general" directions only.  Advice was received from the Attorney-General's Department that a "general direction" may be limited to giving directions that decision-makers have due regard to certain matters in the exercise of their discretion.  This amendment is intended to ensure that the Minister can specify more precisely how a discretion should be exercised.  This would relate in particular to directions on how the discretion should be exercised to refuse a visa application made by, or to cancel a visa held by, a non-citizen who does not pass the character test.  It would enable directions to be given on what weight should be given to different factors (eg nature of criminal offences, links to Australia, observation of international law requirements).

 

31.   New subsection 499(1A) provides by way of example that the Minister may, under new subsection 499(1), require a person or body to exercise the power under section 501 rather than section 200, in circumstances where both powers apply.  This amendment is not intended to limit the scope of the power under subsection 499(1).

 

Item 17             After subsection 499(2)

 

32.   This item inserts new subsection 499(2A), which is intended to put beyond doubt the binding nature of a direction given by the Minister under subsection 499(1).

 

Item 18             At the end of section 499

 

33.   This item inserts new subsection 499(4), which is intended to make it clear that the Minister's power to make directions under subsection 499(1) does not limit the Minister's power to make directions under subsection 496(1A) (inserted by this Act).

 

Item 19             Paragraph 500(1)(b)

 

34.   Subsection 500(1) of the Act specifies the decisions in respect of which an application for review may be lodged with the AAT.  This item amends paragraph 500(1)(b) of the Act by inserting a reference to decisions of a delegate of the Minister under section 501.  This amendment is required to ensure that decisions made personally by the Minister under section 501, as inserted by this Act, are not reviewable by the AAT.

 

Item 20             Subsection 500(4)

 

35.   This item repeals subsection 500(4) and inserts a new subsection 500(4), which specifies the decisions which are not merits-reviewable under Part 5 or 7 of the Act.  Part 5 currently provides for review by the Immigration Review Tribunal ("IRT"), while Part 7 provides for review by the RRT.

 

36.   This item is intended to put beyond doubt that the issue of a certificate under section 502 does not make the decision of which it forms a part merits-reviewable under Part 5 or 7 of the Act.

 

Item 21             After subsection 500(6)

 

37.   This item inserts new subsections 500(6A) to (6L).  These amendments are necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions.  The amendments balance the Government's concern to expedite review of character decisions against the need to ensure that the AAT has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person's character.

 

38.   These amendments are also intended to ensure that the review process is not used as a mechanism to prolong stay in Australia by people whose visa has been refused or cancelled as a consequence of:

 

         them being unable to satisfy a delegate of the Minister that they pass the character test; and

 

.        there being insufficient mitigating factors for the delegate to exercise the discretion not to refuse a visa application or not to cancel a visa. 

 

39.   The amendments to the process of review of character decisions by the AAT apply only to decisions regarding persons who are in the migration zone.  The "migration zone" is defined in subsection 5(1) of the Act.

 

40.   New subsection 500(6A) provides that if an AAT-reviewable decision is made under section 501 of the Act which relates to a person in the migration zone, section 28 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") does not apply.  Section 28 of the AAT Act entitles a person affected by a decision to request the decision-maker to provide written reasons for the decision.  It also sets out the obligations of the decision-maker in providing those reasons.  It is intended that reasons for the decision will be furnished under new section 501G (inserted by this Act).

 

41.   This item also provides that, if an application is made to the AAT for review of an AAT-reviewable decision made under section 501 of the Act, which relates to a person in the migration zone:

 

.        the review application must be lodged with the AAT within 9 days of the date on which the person was notified of the decision.  Accordingly paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the AAT Act do not apply (new subsection 500(6B));

 

.        the review application must include one set of all the documents (originals or copies) given to the person at the time of notification of the decision, including the document notifying the person of the decision (new subsection 500(6C)).  This truncates the process leading to consideration at review.  It also replaces the obligation in the AAT Act (in section 37) for the Minister to provide the AAT with relevant documents and a statement of reasons after a review application has been made;

 

.        section 37 of the AAT Act does not apply.  Section 37 of the AAT Act specifies requirements for the lodging of documents by the Minister with the AAT.  That section is made redundant by the insertion of new subsections 500(6C), 500(6F) and 500(6K) (new subsection 500(6D));

 

.        the AAT must notify the Minister of the application, within the time and in the way prescribed in the Migration Regulations and accordingly subsection 29(11) of the AAT Act does not apply (new subsection 500(6E));

.        the Minister must lodge 2 copies of documents (including parts of documents) containing relevant non-disclosable information with the AAT within 14 days of the Minister being notified that an application for review had been made.  The AAT may have regard to the documents but must not disclose them to the review applicant (new subsection 500(6F)).  This, in conjunction with other amendments made by this Act, replaces the Minister's obligations under section 37 of the AAT Act;

 

.        the AAT cannot, in respect of that application, hold a hearing (other than a directions hearing) or make a decision (under section 43 of the AAT Act) until at least 14 days after the Minister has been notified that the application for review had been made (new subsection 500(6G));

 

.        the AAT must not have regard to any oral information in support of a person's case unless it has been given to the Minister in writing at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review (new subsection 500(6H));

 

.        the AAT must not have regard to any document in support of a person's case (apart from documents covered by new subsection 501G(2) or new subsection 500(6F)) unless a copy has been given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review (new subsection 500(6J));

 

.        the AAT may require the Minister to lodge 2 copies of documents specified by the AAT, in the Minister's possession or control, that the AAT considers relevant to the decision (new subsection 500(6K)); and

 

.        the original decision is deemed to be affirmed by the AAT if the AAT has not, for whatever reason, made a decision in respect of the application within 84 days of the person being notified of the decision (new subsection 500(6L)).

 

Item 22             At the end of section 500

 

42.   This item inserts a new subsection 500(8).  This subsection defines the meaning of "business day" for the purposes of section 500.  Particular reference to the Australian Capital Territory in the new subsection arises as all of the Minister's responses to AAT appeals from the Minister's decisions are coordinated in that Territory.

 



Item 23             Section 501

 

501           Refusal or cancellation of visa on character grounds

 

43.   Section 501 currently provides for a two stage process for refusal to grant or cancellation of a visa.  The first stage involves a decision-maker making a finding of fact as to whether a person is "not of good character".  The second stage is a discretion to grant or not to cancel a visa, despite a finding that a person is not of good character.

 

44.   This item repeals section 501 and substitutes a new section 501.  The new section retains a staged decision making process.  The number of stages in the new decision making process may vary according to whether:

 

.        refusal of a visa application or cancellation of a visa is being considered; or

 

.        the decision-maker is a delegate or the Minister acting personally. 

 

45.   New subsection 501(1) provides that the Minister may refuse to grant a visa where the visa applicant does not satisfy the Minister that they pass the character test (defined in subsection 501(6) inserted by this Act).

 

46.   New subsection 501(2) provides that the Minister may cancel a visa where:

 

.        the Minister reasonably suspects that the visa holder does not pass the character test (defined in subsection 501(6) inserted by this Act); and

 

.        the visa holder does not satisfy the Minister that they pass the character test.

 

47.   The exercise of the discretion that the Minister may cancel a visa in new subsection 501(2), would remove a benefit that has been given to a person (that is, they are already a visa holder), hence the requirement that there be a reasonable suspicion that the person does not meet the character test before that person is then obliged to satisfy the Minister that he or she satisfies the character test.  New subsection 501(1) relates to the power to refuse an application by a person seeking a benefit, that is, the grant of a visa.  As a result, there is an absence of any preliminary requirement that there be a reasonable suspicion that the visa applicant does not satisfy the character test before that person is obliged to satisfy the Minister that they do satisfy the character test.

 

48.   New subsections 501(1) and (2) place the burden of proof as to whether the character test is passed, on the visa applicant and visa holder, respectively.  This was the situation that existed in 1992 prior to the passage of the Migration (Offences and Undesirable Persons) Amendment Act 1992 .

 

 

49.   New subsections 501(3) and (4) provide that the Minister, acting personally, may refuse to grant or cancel a visa if the Minister reasonably suspects that the person does not pass the character test (defined in subsection 501(6) inserted by this Act).  Also, the Minister must be satisfied that it is in the national interest to refuse to grant or cancel the visa.

 

50.   New subsection 501(5) provides that the rules of natural justice and the code of procedure (set out in Subdivision AB of Division 3 of Part 2) do not apply where the Minister, acting personally, makes a decision under subsection 501(3) inserted by this Act.  This amendment ensures that the Minister does not have to give prior notice of the decision, whether by way of natural justice principles or the code of procedure, where it would otherwise be applicable.  In these circumstances, the Minister will provide the non-citizen with a subsequent opportunity to make representations as to why the decision should be revoked (see new section 501C).

 

51.   The only circumstances upon which natural justice will not be accorded and the code of procedure not applicable prior to the exercise of the power in new subsection 501(3) is when the Minister is satisfied that the refusal or cancellation is in the national interest.

 

52.   New subsection 501(6) provides that a person does not pass the character test if:

 

.        the person has a substantial criminal record (defined in subsection 501(7) inserted by this Act); or

 

.        the person has or has had associations with a person, group or organisation the Minister reasonably suspects has been or is involved in criminal conduct; or

 

.        the person is not of good character having regard to either or both:

 

-       the person's past and present criminal conduct;

 

-       the person's past and present general conduct; or

 

.        in the event that the person were allowed to enter or remain in Australia, there is a significant risk that the person would engage in specified conduct.  The types of conduct specified in new paragraph 501(6)(d) are the same as paragraph 501(1)(b), with the addition of conduct amounting to harassment, molestation, intimidation or stalking of a person in Australia.  The scope of the terms "harassment" and "molestation" is defined in subsection 501(11), inserted by this Act.  The requirement of "significant risk" is intended to reduce the current threshold of risk that a decision-maker can accept before making a finding that a person will not pass the character test because they may engage in specified conduct.

 



53.   New subsection 501(7) defines a "substantial criminal record" for the purposes of the new character test (as defined in new subsection 501(6)) as:

 

.        a sentence to death;

 

.        one sentence of 12 months or more;

 

.        a total sentence of 2 years or more where the person has been sentenced to 2 or more terms of imprisonment.  It is intended that sentences be "totalled" irrespective of the time and place at which each sentence was imposed; or

 

.        detention in a facility or institution as a result of being acquitted of an offence on the grounds of unsoundness of mind or insanity.  This amendment is intended to deal with the situation where a non-citizen has been acquitted of a particularly serious offence due to unsoundness of mind or insanity.

 

54.   New subsection 501(8) provides that, where a person has been sentenced to periodic detention, the term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.  For example, a sentence of 90 days to be served over 1 year would count as a sentence of 90 days.

 

55.   New subsection 501(9) defines the duration of a sentence of imprisonment, for the purposes of the character test, where a person is ordered by the court to participate in a residential drug rehabilitation scheme or a residential program for the mentally ill as a result of being convicted of an offence.  In these circumstances, the sentence is the period of time the person is required to participate in the scheme or program respectively.

 

56.   New subsection 501(10) provides that a sentence is to be disregarded if the conviction has been quashed (or otherwise nullified) or if the person has been pardoned of the offence.

 

57.   New subsection 501(11) provides, for the purposes of the character test in subparagraph 501(6)(d)(ii), that conduct can amount to harassment or molestation even if it does not involve violence or threatened violence to the person.  The subsection also provides that damage or threatened damage to property belonging to, in the possession of or used by the person, can constitute harassment or molestation.

 

58.   New subsection 501(12) defines the terms "court", "imprisonment" and "sentence" for the purposes of section 501 (as inserted by this Act).

 



501A        Refusal or cancellation of visa - setting aside and substitution of non-adverse decision under subsection 501(1) or (2)

 

59.   New subsection 501A(1) provides that section 501A (inserted by this Act) applies where a visa is granted or remains in effect as a result of a decision, by a delegate of the Minister or by the AAT ("the original decision"), not to exercise the power contained in subsection 501(1) or (2) respectively (as inserted by this Act).

 

60.   New subsections 501A(2) and (3) allow the Minister to set aside the original decision and substitute a less favourable decision (that is, the Minister may decide to refuse to grant or cancel a visa) where the Minister is satisfied that it is in the national interest to refuse to grant or cancel the visa and either:

 

.        the Minister reasonably suspects the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test (defined in subsection 501(6) inserted by this Act) (new subsection 501A(2)); or

 

.        the Minister reasonably suspects the person does not pass the character test (new subsection 501A(3)).

 

61.   New subsection 501A(4) provides that the rules of natural justice and the code of procedure (set out in Subdivision AB of Division 3 of Part 2) do not apply to new subsection 501A(3).  This amendment ensures that the Minister does not have to give prior notice of the decision, whether by way of natural justice principles or the code of procedure, where it would otherwise be applicable. However, under new section 501C (inserted by this Act), the visa applicant/holder must (subject to any contrary regulations) be invited to make representations concerning the revocation of a decision under new subsection 501A(3).

 

62.   The only circumstances upon which natural justice will not be accorded and the code of procedure not applicable prior to the exercise of the power in new subsection 501A(3) is when the Minister is satisfied that the refusal or cancellation is in the national interest.

 

63.   New subsection 501A(5) provides that the Minister's powers under new subsections 501A(2) and (3) must be exercised by the Minister personally.

 

64.   New subsection 501A(6) provides that the Minister cannot be compelled to consider whether to exercise the powers contained in new subsections 501A(2) and (3).

 

65.   New subsection 501A(7) provides that the Minister's decision under new subsection 501A(2) or (3), which is a decision made by the Minister personally, is not merits-reviewable under Part 5 or 7 of the Act.  Part 5 currently provides for review by the IRT, while Part 7 provides for review by the RRT.

 



501B        Refusal or cancellation of visa - setting aside and substitution of adverse decision under subsection 501(1) or (2)

 

66.   New section 501B permits the Minister to intervene on specified grounds at any time during the review process, that is, at any time after a delegate's decision has been made to refuse to grant or cancel a visa.

 

67.   New subsection 501B(1) provides that new section 501B applies where a delegate of the Minister makes a decision to refuse to grant or cancel a visa under subsection 501(1) or (2) respectively (as inserted by this Act).

 

68.   New subsections 501B(2) and (3) enable the Minister acting personally to set aside the delegate's decision and refuse to grant or cancel a visa where:

 

.        the Minister reasonably suspects that the person does not pass the character test;

 

.        the visa applicant/holder does not satisfy the Minister that they pass the character test; and

 

.        the Minister is satisfied that refusal or cancellation of the visa is in the national interest.

 

69.   New subsection 501B(4) provides that the Minister's decision under subsection 501B(2), which is a decision made by the Minister personally, is not merits-reviewable under Part 5 or 7 of the Act.

 

70.   New subsection 501B(5) clarifies that the Minister may set aside a decision using subsection 501B(2) even if the delegate's decision is the subject of an application for review by the AAT.

 

501C        Refusal or cancellation of visa - revocation of decision under subsection 501(3) or 501A(3)

 

71.   New subsection 501C(1) provides that new section 501C applies to decisions made under new subsection 501(3) or 501A(3) (as inserted by this Act), which must be made personally by the Minister ("the original decision").

 

72.   New subsection 501C(2) inserts a definition of "relevant information", which excludes "non-disclosable information" and is information that the Minister considers:

 

.        would have been at least part of the reason the original decision was made; and

 

.        is specific to a person (whether the visa applicant/holder or not) and is not just about a class of persons to which that person belongs.

 

73.   New subsection 501C(3) requires the Minister to give the visa applicant/holder a written notice advising of the original decision as well as details of the relevant information.  The person must also be invited to make representations on the revocation of the original decision, unless the person is not entitled to do so because of subsection 501C(10) (inserted by this Act).  The representations must be within the time and manner specified by the regulations.

 

74.   New subsections 501C(4) and 501C(5) give the Minister, acting personally, a discretion to revoke the original decision if the person responds to an invitation with representations about the revocation of the original decision and the Minister is satisfied that the person passes the character test.

 

75.   New subsection 501C(6) provides that if the original decision is revoked by the Minister, that decision is taken never to have been made.  This subsection is subject to subsection 501C(7), inserted by this Act.

 

76.   New subsection 501C(7) provides that any detention of the visa applicant/holder between the time of making the original decision and the revocation of that decision is lawful.  This subsection precludes the person from making any claim against the Commonwealth, an officer or any other person because of that detention.

 

77.   New subsection 501C(8) requires that the Minister must lay before each House of Parliament notice of a decision to revoke or not to revoke the original decision.  The notice must be so laid within 15 sitting days of that House after the day on which the subsequent decision was made.  This notice will also include notice of the original decision.

 

78.   New subsection 501C(9) requires that the Minister must lay before each House of Parliament notice of the failure of the person to make representations concerning revocation of the original decision.  The notice must be so laid within 15 sitting days of that House after the last day on which the person could have made representations.  This notice will also include notice of the original decision.

 

79.   New subsection 501C(10) provides that regulations may be made, for the purposes of section 501C, which prevent a person, or a person within a specified class of persons, from making representations about revocation of the original decision, unless the person is a detainee.  This amendment enables the Minister to exercise greater control over unlawful non-citizens who would, if the regulation making power was exercised, have to become detainees before they are able to make representations to the Minister to have the original decision revoked.

 

80.   New subsection 501C(11) provides that a decision not to exercise the power conferred by new subsection 501C(4) is not merits-reviewable under Part 5 or 7 of the Act.

 



501D        Refusal or cancellation of visa - method of satisfying Minister that person passes the character test

 

81.   New section 501D enables the Minister to consider certain information or material in determining for the purposes of section 501, 501A or 501B (inserted by this Act), whether a person, or a person within a particular class of persons, passes the character test, unless precluded by the regulations made under this section.

 

82.   This section enables the Minister to consider information or material submitted by, or on behalf of, that person within a prescribed time or manner, unless precluded by the regulations made under this section.

 

501E         Refusal or cancellation of visa - prohibition on applying for other visas

 

83.   New section 501E prevents a person, who has had a visa application refused or a visa cancelled under section 501, 501A or 501B (inserted by this Act) while they are in the migration zone, from making an application at a particular time for a visa while they remain in the migration zone, unless:

 

.        the decision is revoked or set aside; or

 

.        the application is for a protection visa and is not precluded by section 48A; or

 

.        the application is permitted by the regulations made pursuant to new

subsection 501E(2).

 

501F         Refusal or cancellation of visa - refusal of other visa applications and cancellation of other visas

 

84.   New subsection 501F(1) provides that new section 501F applies where the Minister makes a decision to refuse to grant or cancel a visa under section 501, 501A or 501B, inserted by this Act.

 

85.   Where a person has had a visa application refused or a visa cancelled under new section 501, 501A or 501B, the Minister is taken to have:

 

.        refused any other visa application made by the person that has not been granted or refused (new subsection 501F(2)); and

 

.        cancelled all other visas held by the person (new subsection 501F(3)).

 

86.   New subsections 501F(2) and (3) also specify that these provisions do not operate in respect of protection visas, visas prescribed by the regulations made pursuant to each subsection respectively or applications for such visas.

87.   New subsection 501F(4) provides that, if the original decision made under new section 501, 501A or 501B is set aside or revoked, any refusals or cancellations deemed under new subsection 501F(2) or (3) are to be taken also to be set aside or revoked.

 

88.   New subsection 501F(5) provides that a decision taken to have been made under new subsection 501F(2) or (3) is not merits-reviewable under Part 5 or 7 of the Act.

 

501G        Refusal or cancellation of visa - notification of decision

 

89.   New section 501G sets out the notification obligations of the Minister to a person in relation to a decision to refuse to grant or cancel a visa under new subsection 501(1) or (2) or 501A(2) or new section 501B or 501F.  The notification provisions contained in new section 501G replace those contained in sections 28 and 37 of the AAT Act, which have been excluded, and also section 66 of the Act (see item 4).

 

90.   New subsection 501G(1) provides that the Minister must give the person written notice that:

 

.        sets out the decision;

 

.        specifies the provision under which the decision was made and the effect of the provision;

 

.        sets out the reasons for the decision (other than non-disclosable information); and

 

.        if the person has an appeal right to the AAT, specify details of that review right.

 

91.   In addition to the above, new subsection 501G(2) provides that, if the decision was made under new subsection 501(1) or (2) (as inserted by this Act) by a delegate of the Minister which relates to a person in the migration zone and is reviewable by the AAT, the notice must be accompanied by two copies of all documents (or parts of documents) that:

 

.        are in the delegate's possession or control;

 

.        were relevant to the delegate's decision; and

 

.        do not contain non-disclosable information.

 

92.   New subsection 501G(3) provides that the notice must be given in the prescribed manner.

 

93.   New subsection 501G(4) ensures that failure to comply with the notification provisions described above, does not invalidate the decision.

 



501H        Refusal or cancellation of visa - miscellaneous provisions

 

94.   New subsection 501H(1) is intended to ensure that the powers to refuse to grant or cancel a visa under new section 501, 501A or 501B are additional to any other power in the Act to refuse to grant or cancel a visa.

 

95.   New subsection 501H(2) provides that a reference in Part 5 of the Act to a decision made under new section 501, includes a reference to a decision made under new section 501A, 501B, 501C or 501F.

 

Item 24             Subparagraph 502(1)(a)(ii)

 

96.   Section 502 currently specifies the circumstances in which the Minister may, acting personally, include a certificate declaring the person to be an excluded person as part of a decision.  The effect of section 502 is to remove a review right that would otherwise exist in relation to certain decisions.  Subparagraph 502(1)(a)(ii) currently specifies a decision under section 501 as a decision which may, in certain circumstances, include a certificate declaring the person to be an excluded person.

 

97.   This item repeals subparagraph 502(1)(a)(ii), which is made redundant by the amendment of paragraph 500(1)(b) and subsection 500(4) inserted by this Act.  This is because new paragraph 500(1)(b) and subsection 500(4) have the effect that no right of review exists from a decision of the Minister, acting personally.

 

Item 25             Paragraph 503(1)(b)

 

98.   Subsection 503(1) currently provides that a person in relation to whom a decision has been made under certain provisions of the Act, including section 501, is not entitled to enter or to be in Australia at any time during the period determined under the regulations.

 

99.   This item amends paragraph 503(1)(b) by inserting a reference to sections 501A and 501B (inserted by this Act).

 

Item 26             After section 503

 

503A        Protection of information supplied by law enforcement agencies or intelligence agencies

 

100. This item inserts new section 503A.  This section is intended to protect information supplied to an "authorised migration officer" by a "gazetted agency" (both terms are defined in new subsection 503A(9) inserted by this Act).  The information is intended to be protected under this section if it has been provided on the basis that it is confidential and where the information is relevant to the exercise of a power under new section 501, 501A, 501B or 501C.

 

101. New subsections 503A(1) and (2) provide that where the preconditions identified above are met:

 

.        the authorised migration officer ("the first officer") can only disclose the information to the Minister or another authorised migration officer ("the second officer") and only where such disclosure is for the purposes of exercising a power under new section 501, 501A, 501B or 501C;

 

.        the second officer can also only disclose the information to the Minister or another authorised migration officer and only where such disclosure is for the purposes of exercising a power under new section 501, 501A, 501B or 501C;

 

.        a person to whom the information is communicated under the section must not be required to disclose the information to a court, a tribunal, a parliament, a parliamentary committee or any other body or person; and

 

.        an authorised migration officer to whom the information is communicated under the section must not give it in evidence before a court, a tribunal, a parliament, a parliamentary committee or any other body or person.

 

102. New subsection 503A(3) provides a mechanism for limited disclosure to persons or bodies outside the range of the new subsections 503A(1) and (2).  The subsection allows the Minister to make a declaration stipulating the circumstances in which, and persons or bodies to whom, specified information may be disclosed.  The Minister must first consult the gazetted agency from which the information originated before making the declaration.

 

103. New subsection 503A(4) provides that a Commonwealth officer to whom information is disclosed in accordance with a declaration must comply with any conditions relating to disclosure set out in the declaration.

 

104. New subsection 503A(5) prevents a tribunal which is given information in accordance with a declaration from disclosing the information to any person, other than the Minister or a Commonwealth officer.

 

105. New subsection 503A(6) provides that new section 503A is effective despite any other provision of the Act or any law of a State or Territory.  This subsection ensures that no State or Territory law can be read so as to require the disclosure of information protected by section 503A.

 

106. New subsection 503A(7) provides, to avoid doubt, that disclosure of information in accordance with new section 503A, is lawful for the purposes of the Information Privacy Principles contained in section 14 of the Privacy Act 1988 .

 



107. New subsection 503A(8) provides, in effect, that new section 503A has primacy over any other provision in any other Act (whether it commences before or after this Act) unless express words are used to provide otherwise.  This subsection ensures that, where another Act requires the disclosure of information, it will not be read to require the disclosure of information protected by section 503A, unless very specific words are used.

 

108. New subsection 503A(9) defines "authorised migration officer", "Commonwealth officer" and "gazetted agency" for the purposes of the section.

 

Item 27             After subsection 504(3)

 

109. This item inserts new subsection 504(3A) which ensures that any inconsistency between the Act and the Evidence Act 1995 does not affect the operation of regulations made for the purposes of paragraph 504(1)(e).  That paragraph allows regulations to be made in respect of the giving, lodging or service of documents on persons for the purposes of the Act.

 

Item 28             Application - refusal or cancellation of visas on character grounds

 

110. This item provides that new sections 501 to 501H apply to all visa applications and all grants of a visa, including applications or grants made before those provisions were enacted.

 

Item 29             Transitional - conclusive certificates issued under section 339 of the Migration Act 1958

 

111. The commencement of this item is dependent upon item 10 of Schedule 1 to MLAA

No. 1 having commenced (see the comments on subclause 2(3)).  This item provides that conclusive certificates issued under section 339 of the Act, are to be treated, once this item commences operation, as if they had been issued under section 339 as amended by this Act.

 

Item 30             Transitional - conclusive certificates issued under subsection 411(3) of the Migration Act 1958

 

112. This item provides that conclusive certificates issued under subsection 411(3) of the Act, are to be treated, once this item commences operation, as if they had been issued under subsection 411(3) as amended by this Act.

 

Item 31             Transitional - Ministerial directions

 

113. This item provides that Ministerial directions made under section 499 of the Act are to be treated, once this item commences operation, as if they had been given under section 499 as amended by this Act.

 



Item 32             Transitional - review of adverse pre-commencement decisions under the Migration Act 1958

 

114. Subitem 32(1) ensures that the existing merits review system continues to apply to decisions to refuse to grant or cancel a visa where the decision was made under existing section 501 of the Act (that is, prior to the commencement of this Act).

 

115. Subitem 32(1) also ensures that certificates declaring the person to be an excluded person under section 502 of the Act as part of a section 501 decision, continue to apply as if the amendments made by this Act had not been made.

 

116. Subitem 32(2) puts beyond doubt that repeal of subsection 500(4) by this Act does not make the issue of a certificate under section 502 reviewable by the AAT.

 

Item 33             Transitional - setting aside and substitution of non-adverse pre-commencement decisions under section 501 of the Migration Act 1958

 

117. This item applies where a visa has been granted or remains in effect as a result of a decision, by a delegate of the Minister or by the AAT ("the original decision"), not to exercise the power contained in section 501 (as it operated at any time prior to the commencement of this item or as continued in force by item 32).

 

118. The item specifies that new section 501A applies to the original decision.  New section 501A provides for the Minister, acting personally, to set aside the original decision and substitute another decision in certain circumstances.

 

Item 34             Transitional - setting aside and substitution of adverse pre-commencement decisions under section 501 of the Migration Act 1958

 

119. This item provides that, where a decision ("the original decision") has been made to refuse to grant or cancel a visa under section 501 (as it operated at any time prior to the commencement of this item), new section 501B applies to that decision.  New section 501B permits the Minister to intervene at any time after the original decision has been made to refuse to grant or cancel a visa so as to substitute his/her own (non-reviewable) decision to refuse to grant or cancel the visa.