Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Migration Legislation Amendment Bill (No. 1) 1998

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

 

 

 

 

 

 

 

1998

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT BILL (No. 1) 1998

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

the Hon. Philip Ruddock MP)

 

 

 

 

 

 

 

 

 

 

 

 

 



MIGRATION LEGISLATION AMENDMENT BILL (No. 1) 1998

 

 

OUTLINE

 

Overview

 

1.       The Migration Legislation Amendment Bill (No. 1) 1998 (the Bill) implements a number of Government initiatives in the Immigration and Multicultural Affairs portfolio.

 

2.       The Bill amends the Migration Act 1958 , the Australian Citizenship Act 1948, the Immigration (Education) Act 1971 , the Migration Reform Act 1992 , and the Migration Legislation Amendment Act (No. 5) 1995 .

 

3.       The amendments to the Migration Act 1958 in relation to the system of merits review of immigration decision-making:

 

·         merge the Migration Internal Review Office (MIRO) and the Immigration Review Tribunal (IRT) into a new body to be called the Migration Review Tribunal (MRT);

 

·         provide the Principal Members of the MRT and the Refugee Review Tribunal (RRT) with clear authority to apply efficient processing practices, including giving the Principal Member of the RRT clear authority to give directions on the operation of the RRT and the conduct of reviews;

 

·         specify the circumstances when the Principal Member of the MRT or the RRT may reconstitute a Tribunal for the more efficient conduct of the review;

 

·         allow the Minister to appoint a person to act as a Senior Member of the RRT for a period of no more than 12 months;



·         prevent MRT and RRT hearings from being unnecessarily delayed where:

 

-         prescribed notice of a personal hearing has been provided and no change has been sought; or

-         an applicant fails to respond to an invitation to give additional information within the prescribed period (or a further prescribed period);

 

·         provide that the MRT and RRT must invite an applicant to appear before the Tribunal, unless specified circumstances exist;

 

·         give the MRT and RRT clear authority to use telephone or other media to conduct personal hearings or for people to appear before them;

 

·         provide for the publication of tribunal decisions of interest at the discretion of Principal Members;



·         provide for the formal handing down of decisions and certainty of dispatch; and

 

·         apply a code of procedure to the MRT and the RRT in relation to decisions on entry and stay of non-citizens.

 

4.       The other amendments to the Migration Act 1958 provide for the "no further stay" condition on temporary visas to be waived in prescribed circumstances and for more effective cancellation of visas which were granted on the basis of incorrect information (including where a previous visa was granted on the basis of incorrect information).  There are also a number of other minor items which clarify existing provisions or make amendments of a technical nature.

 

5.       The Bill also amends the Australian Citizenship Act 1948 to bring the penalty provision in section 50 (in respect of false representations) into line with similar offences under Commonwealth law. 

 

6.       The Bill also makes minor technical amendments to the Immigration (Education) Act 1971 , the Migration Reform Act 1992 , and the Migration Legislation Amendment Act (No. 5) 1995 .

 

 

FINANCIAL IMPACT STATEMENT

 

7.       Considerable savings are expected over time as a result of amendments to the Migration Act 1958 in relation to ceasing internal merits review, closing the IRT and establishing an independent Migration Review Tribunal.

 

8.       The primary aim of the changes being introduced to the RRT is to produce faster decision making.

 

9.       The other amendments to the Migration Act 1958, and those to the Australian Citizenship Act 1948 , the Immigration (Education) Act 1971 , the Migration Reform Act 1992 and the Migration Legislation Amendment Act (No. 5) 1995 will not have significant financial impact.  The exception to this is the proposal at Schedule 5 of the Bill to amend section 41 of the Migration Act 1958 which could have significant costs, depending on the numbers seeking to avail themselves of the Minister's power to waive the "no further stay" condition.



MIGRATION LEGISLATION AMENDMENT BILL (No. 1) 1998

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1             Short Title

 

1.       The short title by which this Act will be known is the Migration Legislation Amendment Act (No. 1) 1998 .

 

Clause 2             Commencement

 

2.       Subclause 2(1) provides that, subject to this section, this Act commences on the Royal Assent.

 

3.       Subclause 2(2) provides that, subject to subsection (3), Schedules 1, 2, 3, 4, 5, 6 and 7 of the Act commence on a day or days to be fixed by Proclamation. 

 

4.       Subclause 2(3) provides that Schedules 1, 2, 3, 4, 5, 6, or 7 commence 6 months after the Royal Assent unless Proclamation occurs first.

 

5.       Subclause 2(4) provides that item 1 of Schedule 8 is taken to commence immediately after commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1997 .  The latter Schedule commenced on 1 May 1997.

 

6.       Subclause 2(5) provides that item 2 of Schedule 8 is taken to have commenced on 7 December 1992, which is the day the Migration Reform Act 1992 received the Royal Assent.

 

7.       Subclauses 2(6), (7) and (8) provide that items 3, 4 and 5 of Schedule 8 are taken to have commenced on 15 September 1995, immediately after the commencement of subsections 2(3), (4) and (5) consecutively of the Migration Legislation Amendment Act (No. 5) 1995 .

 

Clause 3            Schedule(s)

 

8.       Clause 3 provides that the provisions of the various Acts that are set out in the items of the Schedule(s) are amended or repealed as indicated.



SCHEDULE 1 - MRT-reviewable decisions

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1               Subsection 5(1) (definition of internally-reviewable decision )

 

9.       This definition is repealed as a consequence of the removal of internal merits review.

 

Item 2               Subsection 5(1) (definition of IRT-reviewable decision )

 

10.   This definition is repealed as a consequence of the replacement of the IRT with the MRT.

 

Item 3               Subsection 114(1)

 

11.   This item omits reference to "a review officer within the meaning of Part 5" as a consequence of the removal of internal merits review.

 

Item 4               Paragraph 178(2)(b)

 

12.   This is a technical amendment linked to the repeal of Division 2 of Part 5 of the Migration Act.

 

Item 5               Section 275 (paragraph (b) of the definition of review authority )

 

13.   This is a technical amendment directly linked to the removal of paragraph (c) of the definition of review authority (see item 6).

 

Item 6               Section 275 (paragraph (c) of the definition of review authority )

 

14.   This amendment repeals reference to "a review officer for the purposes of Part 5" as a consequence of the removal of internal merits review.

 

Item 7               Section 337

 

15.   This amendment inserts the term " MRT-reviewable decision " and defines it by reference to Division 2 of Part 5 of the Migration Act.  Proposed section 338 in Division 2 contains a definition of " MRT-reviewable decision ".

 

Item 8               Section 337 (definition of Part 5 reviewable decision )

 

16.   The definition of " Part 5 reviewable decision " is repealed as a consequence of the removal of internal merits review and the defining of " MRT-reviewable decision ".

 



Item 9               Section 337 (definition of review officer )

 

17.   The definition of " review officer " is repealed as a consequence of the removal of internal merits review.

 

Item 10             Division 2 of Part 5

 

18.   The existing Division (which provides for internal review of decisions to refuse to grant, or to cancel, visas) is repealed because there will no longer be internal review. 

 

19.   This item inserts a new Division 2 into Part 5 of the Migration Act.



         Section 338       Decisions reviewable by Migration Review Tribunal

 

20.         New section 338 defines those decisions that are MRT-reviewable and closely follows the definition of "Part 5 reviewable decision" in section 337 as it presently exists.   It provides continuity by ensuring that all decisions currently reviewable by the IRT will be reviewable by the MRT.

 

         Section 339        Conclusive Certificates

 

21.         New section 339 preserves the Minister's powers - currently contained in subsections 338(3) and 346(4) of the Migration Act - to issue a conclusive certificate, with effect that the decision ceases to be an MRT-reviewable decision.  A certificate may be issued where the Minister thinks it is in the public interest to do so.  This can occur because of prejudice to Australia's security, defence or international relations or because the review would involve the deliberations of decisions of Cabinet or a Cabinet committee. 

 

Item 11             Division 3 of Part 5 (heading)

 

22.   The heading of the Division is amended to reflect the name of the new Tribunal.

 

Item 12             Section 346

 

23.   This section is repealed as a consequence of the merging of internal review and external merits review, which will now be conducted by the MRT.  The new section 338 defines those decisions which are to be reviewable by the MRT.

 

Item 13             Subparagraphs 347(1)(b)(i) and (ii)

 

24.   These amendments are consequential to insertion of the definition of MRT-reviewable decisions in new section 338.  These changes put in place a framework for periods substantially the same as those currently applying to the IRT:

 

-         the existing section 347 currently provides for the making of an application for review to the IRT.  Subsection 347(1) provides for prescribed periods in which to make an application.

 

Item 14             Subsection 347(2)

 

25.   This item ensures that persons currently entitled to apply to the IRT will be able to apply to the MRT for review (the existing subsection 347(2) currently defines who may make an application for review to the IRT).  These amendments specify who may make an application for review to the MRT and are consequential to the defining of MRT-reviewable decisions in section 338.

 

Item 15             Subsection 347(3)

 

26.   This item preserves an existing requirement - found in subsection 347(3) of the Migration Act - that in certain circumstances an applicant for review of a decision by the IRT must be physically present in the migration zone when the application is made.  This amendment is consequential to the defining of MRT-reviewable decisions in section 338.

 

Item 16             Subsection 347(4)

 

27.   This amendment preserves certain requirements relating to applicants for review of bridging visa decisions and is consequential to the defining of MRT-reviewable decisions in section 338.  The existing subsection 347(4) provides for relevant applicants for review to be advised of their right(s) to request the opportunity to appear before the Tribunal or to request the Tribunal to obtain oral evidence from a specified person or persons.  Such requests must be in the approved form and accompany the application for review.

 

Item 17             Subsection 347(5)

 

28.   This is a consequential amendment replacing reference to IRT-reviewable decision as review will now be undertaken by the MRT.

 

Item 18             Subsection 348(2)    

 

29.   This is a consequential amendment as the power to issue a conclusive certificate by the Minister will be moved to section 339 of the Migration Act.

 

Item 19             Subsection 352(3)

 

30.   This amendment is consequential to defining MRT-reviewable decisions in section 338.  The existing requirements of subsection 352(3) will apply in relation to the same type of decisions reviewable by the MRT.

 

Item 20             At the end of section 353A

 

31.   Section 353A provides for the Principal Member to give directions as to the operation of the Tribunal and the conduct of reviews by the Tribunal.



 

32.   This item adds three new subsections to Section 353A:

 

-         new subsection (2) will provide the Principal Member with clear authority to apply efficient processing practices to the conduct of a review.  Such practices may include the implementation of a case management system where much of the preliminary research and investigative work is undertaken by administrative staff of the Tribunal.  The Tribunal member, or members, are responsible for directing that further investigation be undertaken and for the final decision; 

 

-         new subsection (3) provides that the Tribunal should, so far as practicable, comply with the directions of the Principal Member.  Whilst non-compliance with any such direction by a member does not make the decision invalid, it is expected that members will comply with lawful directions.  Non-compliance may lead to consideration for removal from office in accordance with the provisions of the Migration Act; and

 

-         new subsection (4) provides that, if the Tribunal complies with the directions, no other action is required for the conduct of the review (assuming other legislative requirements are met).

 

Item 21             After section 355

 

33.   This item inserts new section 355A into the Migration Act to deal with reconstitution of the MRT for reasons of achieving the efficient conduct of the review.  As it currently exists, section 355 allows for reconstitution of the Tribunal only where a member becomes unavailable or ceases to be a member.

 

34.   In the new section 355A:

 

-         subsection (1) provides for the reconstitution of a Tribunal by adding or removing one or more members in circumstances where the Principal Member thinks the reconstitution is in the interests of achieving the efficient conduct of the review in accordance with the objective set out in subsection 353(1).  The objective is that review of decisions be fair, just, informal, economical and quick.  The power cannot be used to influence the outcome of a particular review. Reconstitution could occur where the Tribunal has not decided a case after a lengthy period; 

 

-         subsection (2) provides that the Principal Member must not make a direction under subsection 355A(1) unless:

 

..    the Tribunal has not recorded a decision on the review in writing or given a decision on the review orally; and

 

..    the Principal Member has consulted the member, or members constituting the Tribunal, and a Senior Member (who is not the member or a member constituting the Tribunal); and

 

..    either:

 

     the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or

 

     a period equal to or longer than the period prescribed has elapsed since the Tribunal was constituted; and

 

-         subsection (3) provides for the Tribunal to then continue and finish the review and may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

 

Item 22             Sections 359 and 360

 

35.   This item repeals existing sections 359 and 360 of the Migration Act which provide for the right to a personal appearance by the applicant unless the Tribunal is able to make a decision "on the papers" that is most favourable to the applicant. 

 

36.   This item also inserts six new sections in the Migration Act.  Of these, sections 359, 359A, 359B and 359C provide a code of procedure which the Tribunal is to follow in conducting its review:

 

-         new section 359 will allow the Tribunal to obtain any information it considers relevant, and, having obtained that information, the Tribunal must have regard to it in making its decision;

 

-         new section 359A ensures that an applicant is given particulars of any information that would be the reason, or part of the reason, for affirming the decision under review, and is asked to comment on that information.  The information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member.  Paragraphs 359A(4)(b) and (c) provide respectively that information given by the applicant and non-disclosable information are not included in this section;

 

-         new sections 359 and 359A also ensure that invitations to an applicant to:

 

     provide further information; or

 

     comment on information which the MRT considers would be reason for affirming the decision under review;

 

are sent to the last address for service, or residential address given by the applicant, in a way that provides evidence of the date of dispatch.  This does not apply to an applicant who is in immigration detention because of a decision to cancel or to refuse to grant a bridging visa;

 

-         new subsection 359B(1) enables the Tribunal to specify the way in which additional information is given.  Additional information may be given in any way appropriate to the circumstances - for example, by telephone or by facsimile machine;

 

-         new subsection 359B(2) provides for additional information, or comments on information provided by the Tribunal, otherwise than at interview, to be given within a prescribed period, or if there is no prescribed period, within a reasonable period; 

 

-         new subsection 359B(3) allows the Tribunal to specify, where an interview has been offered, the place of interview and the time of interview;

 

-         new subsection 359B(4) allows the Tribunal to extend the prescribed period for giving additional information, or commenting on information, for a further prescribed period.  The further period will be prescribed by the Regulations;

 

-         new subsection 359B(5) allows the Tribunal to extend the period for a response at interview to some other time within the prescribed period or to a time within a further prescribed period.  The further prescribed period will be prescribed by the Regulations:

 

     in this section "interview" does not mean appearance before the Tribunal.  At interview the applicant may be invited to give additional information or to comment on information provided by the Tribunal.  The applicant does not have the right to give evidence and present arguments relating to issues arising in relation to the decision under review at an interview conducted pursuant to section 359.

 

37.   New section 359C provides that when a person fails to provide additional information under section 359, or an applicant fails to comment on information under section 359A, the Tribunal may make a decision without taking any further action.  The purpose of the new section is to allow the Tribunal to make a decision without any delay if the applicant fails to respond to a request for further information or comment within the prescribed period.

 

38.   New section 360 provides an entitlement for an applicant to have the opportunity to appear before the Migration Review Tribunal, by requiring the Tribunal to invite the applicant to appear before it, unless new subsection 360(2) applies.  When that subsection applies, an applicant is not entitled to appear before the Tribunal. 

 

39.   Subsection 360(2) applies when :

 

-         the Tribunal can decide the review in the applicant's favour on the basis of the material before it; or

 

-         the applicant consents to the review proceeding without an appearance; or



-         the applicant fails to respond, within the prescribed period or a reasonable period, to an invitation to provide information or comments to the Tribunal .

 

40.   At an appearance, the applicant would be entitled to give evidence and present arguments relating to the issues arising in relation to the decision under review.

 

41.   New section 360A provides for a minimum prescribed period of notice to be given of an invitation to appear before the Tribunal.  Such a period will be prescribed by the Regulations.

 

42.   Section 360A also ensures that invitations to an applicant to appear before the MRT are sent to the last address for service, or residential address given by the applicant, in a way that provides evidence of the date of dispatch.  This provision does not apply to an applicant who is in immigration detention because of a decision to cancel or to refuse to grant a bridging visa.

 

43.   The invitation to appear:

 

-         is to specify the day on which, and the time and place at which the applicant is invited to appear.  If no minimum period of notice is prescribed then a reasonable period of notice is to be given; and

 

-         should also contain a statement of the effect of section 362B, that is, if the applicant fails to appear, the Tribunal may make a decision on the review without taking any further action.  However, if the Tribunal so wishes, it may reschedule an appearance, or delay making a decision to allow for a rescheduled appearance.

 

Item 23             Subsection 361(1)

 

44.   This amendment is consequential to the repeal of section 359 and the insertion of section 360A.  Notice of an invitation to appear before the Tribunal is provided for by section 360A.

 

Item 24             Paragraph 361(1)(a)

 

45.   This amendment reflects the change from an applicant being entitled to appear when a favourable decision "on the papers" cannot be made, to an applicant being invited to appear before the Tribunal.

 

Item 25             Subsection 361(4)

Item 26             Subsection 362(1)     

 

46.   These amendments are consequential to the defining of MRT-reviewable decisions in section 338.

 

Item 27             Paragraph 362(1)(b)

 

47.   This amendment reflects the change to an applicant's personal appearance before the Tribunal being at the invitation of the Tribunal.

 

Item 28             Section 362A

 

48.   This item repeals the existing section 362A and adds two new sections (sections 362A and 362B) to the Migration Act.

 

49.   The new section 362A entitles an applicant, and any assistant, to have access to any written material or a copy of any written material given or produced to the Tribunal for the purposes of the review, excluding non-disclosable information under section 375A and subject to any restriction under section 376.  This section does not override the requirements of the Privacy Act 1988 .  Such information can only be given to an applicant, and any assistant, if a statement under subsection 368(1) has not already been provided to the applicant.

 

50.   New section 362B provides that when an applicant fails to appear before the Tribunal after an invitation to appear made pursuant to section 360, the Tribunal may make a decision on the review without taking any further action.  However, if the Tribunal so wishes, it may reschedule an appearance, or delay making a decision, to allow for a rescheduled appearance.

 

Item 29             Subsection 365(1)

 

51.   This subsection has been replaced with a subsection that provides that when a person is providing oral evidence to the Tribunal during a formal hearing, it must be in public.

 

Item 30             Subsection 366(1)

 

52.   This amendment clarifies that an appearance by an applicant before the Tribunal, or by another person, to give evidence may be by telephone, closed circuit television or any other means of communication.  The intention is to broaden the range of methods the Tribunal may use to facilitate an appearance before it.

 

Item 31             Subsection 367(1)

 

53.   This amendment is consequential to the defining of MRT-reviewable decisions in section 338.

 

Item 32             Subsection 368(1)

 

54.   Section 368 deals with recording decisions in a written statement.  The amendment has been made to provide that the Tribunal must also have regard to paragraph 376(3)(b) when preparing written statements.  Paragraph 376(3)(b) gives the Tribunal discretion regarding the provision of certain information to the applicant.

 

Item 33           Subsection 368(2)

 

55.   This item repeals subsection 368(2) as a consequence of new provisions in sections 368B and 368D which require the applicant and the Secretary to be given a copy of the Tribunal’s decision.

 

56.   The Note alters the heading of section 368 to reflect the new procedures for notifying applicants and the Secretary of the Tribunal’s decisions.

 

Item 34           After section 368

 

Section 368A  Tribunal must invite parties to handing down of decision

 

57.   New section 368A requires the MRT to invite the relevant parties to the handing down of decisions by the Tribunal, and sets out the way in which notice of the invitation must be given and the content of the notice.

 

58.   This requirement does not apply to oral decisions or decisions relating to an applicant who is in immigration detention because of a decision to cancel or to refuse to grant a bridging visa.

 

Section 368B  Tribunal decision to be handed down

 

59.   The purpose of new section 368B is to provide for MRT decisions to be handed down except where:

 

-         the decision is given orally by the Tribunal; or

 

-         the applicant is in immigration detention because of a decision to cancel or to refuse to grant a bridging visa.

 

60.   Subsection 368B(2) provides that a decision by the MRT may be handed down by the Principal Member or by persons authorised in writing by the Principal Member.

 

61.   Subsection 368B(3) enables the decision to be handed down by reading the outcome of the decision, whether or not the applicant or the Secretary are present.

 

62.   Subsection 368B(4) provides that the date of the decision is the date it is handed down.

 

63.   Subsections 368B(5), (6) and (7) require that the applicant and the Secretary be given a copy of the decision prepared under section 369(1), and specifies when that copy must be given.

 

64.   Subsection 368B(8) provides that the applicant or the Secretary will only be taken to be present at the handing down of the decision if physically present at the handing down.

 

65.   Subsection 368B(9) permits a representative of the applicant or the Secretary to attend the handing down and receive a copy of the decision.

 

Section 368C  Applicant taken to be notified when representative notified

 

66.   New section 368C ensures that an applicant is taken to be notified of a decision when the applicant’s representative has been notified.

 

Section 368D  Tribunal must notify parties (parties not invited to handing down of decision)

 

67.   New section 368D provides that if:

 

-         the Tribunal gives an oral decision; or

 

-         an applicant is in immigration detention because of a decision to cancel or to refuse to grant a bridging visa;

 

the Tribunal must give a copy of the written statement about the decision to the applicant and the Secretary within 14 days after the decision has been made.

 

68.   Where an oral decision is given the applicant is taken to be notified of the decision on the day on which the decision is made.

 

Item 35             Section 369

 

69.   New section 369 removes the current requirement to publish all Tribunal decisions and provides for the general publication of only those decisions which the Principal Member thinks are of particular interest.  This amendment does not affect the requirement under section 368B to provide a copy of the Tribunal's decision to the applicant and the Secretary.

 

Item 36             At end of section 370

 

70.   This subsection is included to make it clear that an invitation to appear before the Tribunal, under section 360, is not a summons and failure to appear is not an offence and such failure will not incur the penalty of imprisonment for 6 months.

 

Item 37           At the end of Division 8 of Part 5

 

Section 379A  Methods of dispatch of certain documents

 

71.   The purpose of section 379A is to provide that certain documents must be given to an applicant (other than an applicant who is in immigration detention) by either being:

 

-         sent to the last address for service, or residential address given by the applicant, in a way in which a receipt or some other evidence of the date of dispatch is given; or

 

-         given to the applicant or a person authorised by the applicant; or

 

-         left at the applicant’s place of residence with a person who appears to live there and appears to have turned 16 years old.

 

72.   The documents covered by the section are:

 

-         invitations to applicants (but not to other people) to give additional information that the Tribunal considers relevant to the review - except where the applicant is in immigration detention;

 

-         invitations to applicants to comment on additional information - except where the applicant is in immigration detention;

 

-         notices of invitations for applicants to appear before the Tribunal - except where the applicant is in immigration detention;

 

-         notices of invitations for applicants to be present at a handing down; and

 

-         statements of the decision given  to applicants by the Tribunal.

 

Item 38             Section 385

Item 39           Subsections 347(1), 348(1), 349(1), 381(1), 382(3) and sections 383, 384, 386, 387, 388, 389, 390 and 391

 

73.   These amendments are consequential to the merging of internal review and external merits review, which reviews are to be undertaken by the MRT.

 

Part 2 - Transitional provisions

 

Item 40           Internally-reviewable decisions

 

74.   Sub-item (1) provides transitional arrangements which allow for the transfer of all undecided valid applications made under the current section 339 (for review of an internally-reviewable decision), to become valid applications for review of an MRT-reviewable decision.

 

75.   Sub-item (2) provides transitional arrangements to allow a valid application to be made under section 347 where an application has been decided by the primary decision maker and the period for application for internal review of an internally-reviewable decision under the current section 339 has not elapsed.  An application that would have been a valid application for internal review must be accepted as a valid application to the MRT.  It provides that the period for making a valid application should be calculated from the date of notification of the relevant primary decision.

 

76.   Sub-item (3) makes it clear that, in spite of the repeal of Division 2 of Part 5, if the Minister thinks that it is in the public interest to do so, the Minister is still able to exercise his or her non-compellable powers under subsection 345(1).  The Minister is able to substitute for a decision of a review officer a decision that the applicant sought or another decision that the applicant agrees to, even though that decision is not one the review officer could make.            



Item 41           IRT-reviewable decisions

 

77.   Sub-item (1) provides transitional arrangements to allow for the transfer of all undecided valid applications made under section 347 for review of an IRT-reviewable decision to become valid applications for review of an MRT-reviewable decision.

 

78.   Sub-item (2) provides transitional arrangements to allow a valid application to be made under section 347 in the following instances where:

 

-         an application has been decided by a review officer and the period for application for review of an IRT-reviewable decision has not elapsed.  An application that would have been a valid application for IRT review must be accepted as a valid application to the MRT; and

 

-         an application has been decided by the Minister, or a primary decision maker, and the period for application for review of an IRT-reviewable decision has not elapsed.  An application that would have been a valid application for review by the IRT must be accepted as a valid application to the MRT.

 

79.   Sub-item (2) also provides that the period for making a valid application should be calculated from the date of notification.

 

80.   Sub-item (3) makes it clear that, if the Minister thinks that it is in the public interest to do so, the Minister is still able to exercise his or her non-compellable powers under subsection 351(1).  The Minister is able to substitute for a decision of the IRT a decision that is more favourable to the applicant, even though that decision is not one the Tribunal had power to make.

 

81.   Sub-item (4) ensures that statements setting out the decision of the IRT, written pursuant to subsection 368(1) of the Migration Act 1958 , prior to the commencement of Schedule 1 must continue to be given to the applicant and the Secretary pursuant to subsection 368(2) of that Act (as it was prior to amendment).

 

Item 42           Decisions referred for further consideration after judicial review

 

82.   Sub-item (1) provides transitional arrangements to allow a decision to be an MRT-reviewable decision if an IRT decision has been quashed or set aside by a Court before the commencement of this Schedule and the matter has been referred for further consideration and no decision has been made on that consideration.

 

83.   Sub-item (2) provides transitional arrangements to allow a decision to be an MRT-reviewable decision if an IRT decision has been quashed or set aside by a Court after the commencement of this Schedule and the matter has been referred for further consideration.

 

Item 43           Decisions that the Minister has agreed to reconsider

 

84.   Sub-item (1) provides transitional arrangements to allow a decision to be an MRT-reviewable decision if an application for judicial review of an IRT decision has been made before the commencement of this Schedule and the Minister withdrew from the action and agreed to reconsider the decision and no decision on that reconsideration has been made.

 

85.   Sub-item (2) provides transitional arrangements to allow a decision to be an MRT-reviewable decision if an application for judicial review of an IRT decision is made before or after the commencement of this Schedule and the Minister withdraws from the action and agrees to reconsider the decision.

 

Item 44           Conclusive certificates

 

86.   This item provides for all conclusive certificates issued by the Minister under subsections 338(3) or 346(4) that are still in force immediately before the commencement of this Schedule to remain in force.  The intention is that, if a conclusive certificate was previously issued with respect to a decision, the decision does not become an MRT-reviewable decision upon commencement of this Schedule.

 



SCHEDULE 2 - Migration Review Tribunal

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1             Subsection 5(1) (definition of Immigration Review Tribunal )

Item 2             Subsection 5(1)

 

87.   These definitions are amended as a consequence of the creation of the MRT.

 

Item 3             Paragraph 91G(2)(a) and subsection 114(1)

Item 4             Subsection 271(4) (paragraph (a) of the definition of migration proceedings)

Item 5             Section 275 (paragraph (a) of the definition of review authority )

Item 6             Paragraph 318(1)(b) and subsection 320(1)

Item 7             Section 337 (definition of Tribunal )

Item 8             Subsections 352(1) and 381(1), paragraph 381(2)(a), subsections 381(5) and (6), paragraph 382(3)(a) and sections 383, 384, 388, 389, 392 and 393

 

88.   These consequential amendments are necessary as a result of the creation of the MRT, which will undertake review of decisions instead of the IRT.

 

Item 9               Part 6  

 

89.   This item repeals Part 6, which provides for the establishment of the IRT, and substitutes a new Part 6. It provides for the establishment of the Migration Review Tribunal in place of both internal review and the IRT.  The MRT has been established as one of a range of measures intended to streamline merits review undertaken within the Immigration and Multicultural Affairs portfolio.

 

Division 1 - Establishment and membership of the Migration Review Tribunal

 

Section 394        Establishment of the Migration Review Tribunal

 

90.   New section 394 provides for the establishment of the Migration Review Tribunal

 

Section 395        Membership of Migration Review Tribunal

 

91.   New section 395 provides for the MRT to consist of a Principal Member, and such Senior Members and other members as are appointed in accordance with the Act.  The number of Senior members and members are not to exceed the prescribed number.  The numbers will be prescribed in the Regulations.



Section 396        Appointment of members

 

92.   New section 396 provides for the Governor-General to appoint the Principal Member and Senior Members as full-time members and any other member to be appointed as either full-time or part-time members.  The appointment of full or part-time members will depend on such matters as the case load and the availability of suitable members.

 

Section 397        Principal Member

 

93.   New section 397 defines the responsibilities of the Principal Member.  As the executive officer of the Tribunal, the Principal Member is responsible for the overall operation and administration of the Tribunal.  The Principal Member is responsible for the allocation of the work of the Tribunal and may determine written guidelines for the allocation of the work of the Tribunal. 

 

94.   Any written guidelines must provide that cases in which a person affected by the review is being held in immigration detention must be given priority over other cases.

 

Section 398        Period of appointment of members

 

95.   New section 398 provides that a member holds office for the period specified in the instrument of appointment.  That period is not to exceed 5 years.  This section does not preclude reappointment under a new instrument, as long as that new period does not exceed 5 years.

 

Section 399        Remuneration and allowances of members

 

96.   New section 399 provides for the remuneration of members to be determined by the Remuneration Tribunal, in the first instance, and if no such determination exists, that members should be paid such remuneration as is prescribed.  Such remuneration will be prescribed in the Regulations.

 

97.   This section also provides for allowances to be prescribed.  Such allowances will be prescribed in the Regulations.

 

Section 400        Other terms and conditions

 

98.   New section 400 provides for the Minister to determine in writing all other terms and conditions of appointment.  That is, if something is not provided for by this Act, the Minister has the power to determine the term and/or condition.  Other terms and conditions could include a member's leave entitlements and access to vehicles.

 

Section 401        Resignation

 

99.   New section 401 allows a member to resign by sending written notice to the Governor-General.



Section 402        Disclosure of interests

 

100.     New section 402 requires a member to disclose any conflict of interest to the applicant and, in the case of the Principal Member, to the Minister or, in any other case, to the Principal Member.

 

101.     The member must not continue to participate in the review unless the applicant and the Minister (where it is the Principal Member who has a conflict of interest) or Principal Member (where it is a Senior Member or any other member who has a conflict of interest) both give their consent.

 

102.     The conflict of interest could be pecuniary or otherwise.  Such conflicts may arise where a review applicant, or a principal or family member in a visa application, is known to the member, or to a relative or associate of the member.

 

Section 403        Removal from office

 

103.     New section 403 provides for the Governor-General, if he or she so chooses, to remove any member from office on the grounds of proven misbehaviour or physical or mental incapacity.

 

104.     This section also allows the Governor-General, if he or she so chooses, to remove any member from office in certain other circumstances.

 

Section 404        Acting appointments

 

105.     New section 404 provides for the Minister to appoint a person to act in the position of Principal Member or Senior Member in certain circumstances.

 

Section 405        Delegation

 

106.     New section 405 provides for the Principal Member to delegate to a Senior Member all or any of the Principal Member's powers except those powers under section 381 that allow the Principal Member to refer decisions to the Administrative Appeals Tribunal.

 

Division 2 - Registries and officers

 

Section 406        Registries

 

107.     New section 406 provides for the Minister to cause to be established such registries as the Minister thinks are necessary and provides that the Minister must designate one of those registries as the Principal Registry.

 



Section 407        Officers of Tribunal

 

108.     New section 407 provides for a Registrar and such Deputy Registrars and other officers of the Tribunal as are required to be appointed by the Minister.  Any such officers have the duties, powers and functions as are provided by the Migration Act and any other duties and functions directed by the Principal Member.

 

109.     All such officers are to be appointed or employed under the Public Service Act 1922 .

 

Section 408        Acting appointments

 

110.     Section 408 allows the Minister to appoint a person appointed or employed under the Public Service Act to act in a position during a vacancy in an office or when the holder of an office is absent from duty.  This section applies to any office of an officer appointed under section 407.

 

Part 2 - Transitional provision

 

Item 10             Appointments relating to the Migration Review Tribunal

 

111.     Sub-item (1) provides for the appointment of any member or officer to the MRT before the commencement of this Schedule.  This is necessary to allow those members and officers to be appointed before the commencement of this Schedule and for carrying out functions and exercising powers necessary for the establishment of the MRT.  This will avoid any delay in reviewing MRT-reviewable decisions after commencement of this Schedule.

 

112.     Sub-item (2) provides that, although members and officers have been appointed to the Tribunal, no review of MRT-reviewable decisions can commence before the commencement of Schedule 1.  The current scheme of internal review and the IRT will continue to operate until that commencement.

 



SCHEDULE 3 - Refugee Review Tribunal

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1               After section 420

 

113.     This item inserts a new section 420A into the Migration Act:

 

-         new subsection (1) will provide the Principal Member of the RRT with clear authority to give directions on the operation of the RRT and the conduct of reviews;

 

-         new subsection (2) will provide the Principal Member with clear authority to apply efficient processing practices to the conduct of a review.  Such practices may include the implementation of a case-management system where much of the preliminary research and investigative work is undertaken by administrative staff of the Tribunal.  The Tribunal member or members are responsible for directing that further investigation be undertaken and for the final decision; 

 

-         new subsection (3) provides that the Tribunal should, so far as practicable, comply with the directions of the Principal Member.  Whilst non-compliance with any such direction by a member does not make the decision invalid, it is expected that members will comply with lawful directions.  Non-compliance may lead to consideration for removal from office in accordance with the provisions of the Migration Act; and

 

-         new subsection (4) provides that, if the Tribunal complies with the directions, no other action is required for the conduct of the review (assuming other legislative requirements are met).

 

Item 2               After section 422

 

114.     This item inserts new section 422A into the Migration Act.

 

115.     Section 422 currently allows for reconstitution of the Tribunal only where a member becomes unavailable or ceases to be a member. However, in new section 422A:

 

-         subsection (1) provides for the reconstitution of the Tribunal by removing the member and constituting the review to another member in circumstances where the Principal Member thinks that reconstitution is in the interests of achieving the efficient conduct of the review, consistent with the objectives of subsection 420(1).  The objective is that review of decisions be fair, just, informal, economical and quick.  The power cannot be used to influence the outcome of a particular review. Reconstitution could occur where the Tribunal has not decided the case after a lengthy period;

 

-         subsection (2) provides that the Principal Member must not make a direction under subsection 422A(1) unless:

 

..          the Tribunal has not recorded a decision on the review in writing or given a decision on the review orally; and

 

..          the Principal Member has consulted the member, and a Senior Member (who is not the member); and

 

..          either:

 

     the Principal Member is satisfied that there is insufficient material before the Tribunal for the Tribunal to reach a decision on the review; or

 

     a period equal to or longer than the period prescribed has elapsed since the Tribunal was constituted; and

 

-         subsection (3) provides for the Tribunal to then continue and finish the review and may have regard to any record of the proceedings of the review made by the Tribunal as previously constituted.

 

Item 3               Sections 424 and 425

 

116.     This item repeals existing sections 424 and 425 of the Migration Act which provide for the right of a personal appearance by the applicant unless the Tribunal is able to make a decision 'on the papers' that is most favourable to the applicant. 

 

117.     It also inserts six new sections into the Migration Act.  Of these sections 424, 424A, 424B and 424C provide a code of procedure which the Tribunal is to follow in conducting its review:

 

-         new section 424 will allow the Tribunal to obtain any information it considers relevant, and, having obtained that information, the Tribunal must have regard to it in making its decision;

 

-         new section 424A ensures that an applicant is given particulars of any information that would be the reason or part of the reason for affirming the decision under review, and is asked to comment on that information.  The information must be specifically about the applicant or another person and not just about a class of persons of which the applicant or the other person is a member.  Paragraphs 424A(3)(b) and (c) provide respectively that information given by the applicant and non-disclosable information are not included in this section;

 

-         new sections 424 and 424A also ensure that invitations to an applicant to:

 

       provide further information; or

 

       comment on information which the MRT considers would be reason for

           affirming the decision under review;

 

are sent to the last address for service, or residential address given by the applicant in a way that provides evidence of the date of dispatch.  These provisions do not apply to an applicant who is in immigration detention;

 

-         new subsection 424B(1) enables the Tribunal to specify the way in which additional information is to be given.  Additional information may be given in any way appropriate to the circumstances - for example by telephone or by facsimile machine;

 

-         new subsection 424B(2) provides for additional information or comments on information provided by the Tribunal, otherwise than at interview, to be given within a prescribed period, or if there is no prescribed period, within a reasonable period; 

 

-         new subsection 424B(3) allows the Tribunal to specify, where an interview has been offered, the place of interview and the time of interview;

 

-         new subsection 424B(4) allows the Tribunal to extend the prescribed period for giving additional information or comment on information for a further prescribed period.  The further period will be prescribed by the Regulations;

 

-         new subsection 424B(5) allows the Tribunal to extend the period for a response at interview to some other time within the prescribed period or to a time within a further prescribed period.  The further prescribed period will be prescribed by the Regulations:

 

§   in this section "interview" does not mean appearance before the Tribunal. At interview the applicant may be invited to give additional information or comment on information provided by the Tribunal.  The applicant does not have the right to give evidence and present arguments relating to issues arising in relation to the decision under review at an interview conducted pursuant to section 424; and

 

-         new section 424C provides that where a person fails to provide additional information under section 424 or an applicant fails to provide comment on information under section 424A, the Tribunal may make a decision without taking any further action.  The purpose of the new section is to allow the Tribunal to make a decision without any delay if the applicant fails to respond to a request for further information or comment within the prescribed period.

 

118.     New section 425 entitles an applicant to have the opportunity to appear before the Refugee Review Tribunal, by requiring the Tribunal to invite the applicant to appear before it, unless new subsection 425(2) applies.  When subsection 425(2) applies, an applicant is not entitled to appear before the Tribunal. 

 



119.     Subsection 425(2) applies when :

 

-         the Tribunal can decide the review in the applicant's favour on the basis of the material before it; or

 

-         the applicant consents to the review proceeding without an appearance; or

 

-         the applicant fails to respond, within the prescribed period or a reasonable period, to an invitation to provide information or comments to the Tribunal.

 

120.     At an appearance the applicant would be entitled to give evidence and present arguments relating to the issues arising in relation to the decision under review.

 

121.     New section 425A provides for a minimum prescribed period of notice to be given of an invitation to appear before the Tribunal.  Such a period will be prescribed by the Regulations. 

122.     Section 425A also ensures that invitations to an applicant to appear before the RRT are sent to the last address for service, or residential address given by the applicant in a way that provides evidence of the date of dispatch.  This provision does not apply to an applicant who is in immigration detention.

 

123.     The invitation to appear:

 

-         is to specify the day on which, and the time and place at which the applicant is invited to appear.  If no minimum period of notice is prescribed then a reasonable period of notice is to be given; and

 

-         should also contain a statement of the effect of proposed section 426A (that is, if the applicant fails to appear, the Tribunal may make a decision on the review without taking any further action).  However, if the Tribunal so wishes, it may reschedule an appearance, or delay making a decision to allow for a rescheduled appearance.

 

Item 4               Subsection 426(1)

 

124.     This amendment is consequential to the repeal of section 424 and the insertion of new section 425A.  Notice of an invitation to appear before the Tribunal is provided for by section 425A.

 

Item 5               Paragraph 426(1)(a)

 

125.     This amendment reflects the change from an applicant being entitled to appear when a favourable decision "on the papers" cannot be made, to an applicant being invited to appear before the Tribunal.

 

Item 6               After section 426

 

126.     Section 426A provides that where an applicant fails to appear before the Tribunal,  after an invitation to appear made pursuant to section 425, the Tribunal may make a decision on the review without taking any further action.  However, if the Tribunal so wishes, it may reschedule an appearance, or delay making a decision to allow for a rescheduled appearance.

 

Item 7               After section 429

 

127.     This item inserts new section 429A into the Migration Act.  This amendment allows the Tribunal to direct that an appearance by the applicant before it, or the giving of evidence by the applicant or any other person, can be by telephone, closed-circuit television or any other means of communication.  This will broaden the range of methods the Tribunal may use to facilitate a personal appearance by an applicant or another person at a formal hearing.

 

Item 8             Subsection 430(2)

 

128.           This item repeals subsection 430(2) as a consequence of new provisions in sections 430B and 430D which require the applicant and the Secretary to be given a copy of the Tribunal’s decision.

 

129.           The Note alters the heading of section 430 to reflect the new procedures for notifying applicants and the Secretary of the Tribunal’s decision.

 

Item 9             After section 430

 

Section 430A             Tribunal must invite parties to handing down of decision

 

130.           New section 430A requires the RRT to invite the relevant parties to the handing down of decisions by the Tribunal, and sets out the way in which notice of the invitation must be given.

 

131.           This requirement does not apply in relation to oral decisions or decisions relating to an applicant who is in immigration detention.

 

Section 430B             Tribunal decision to be handed down

 

132.           The purpose of section 430B is to provide for RRT decisions to be handed down except where:

 

-         the decision is given orally by the Tribunal; or

 

-         the applicant is in immigration detention.

 

133.           Subsection 430B(2) provides that a decision by the RRT may be handed down by the Principal Member, or by persons authorised in writing by the Principal Member. 

 

134.           Subsection 430B(3) enables the decision to be handed down by reading the outcome of the decision, whether or not the applicant or the Secretary are present.

 

135.           Subsection 430B(4) provides that the date of the decision is the date it is handed down.

 

136.           Subsections 430B(5), (6) and (7) require that the applicant and the Secretary be given a copy of the decision prepared under section 430(1), and specifies when that copy must be given.

 

137.           Subsection 430B(8) provides that an applicant or the Secretary will only be taken to be present at the handing down if he or she is physically present at the handing down.

 

138.           Subsection 368B(9) permits a representative of the applicant or the Secretary to attend the handing down and receive a copy of the decision.

 

Section 430C             Applicant taken to be notified when representative notified

 

139.           New section 430C ensures that an applicant is taken to be notified of a decision when the applicant’s representative has been notified of that decision.

 

Section 430D             Tribunal must notify parties (parties not invited to handing down of decision)

 

140.           New section 430D provides that if:

 

-         the Tribunal gives an oral decision; or

 

-         an applicant is in immigration detention;

 

the Tribunal must give a copy of the written statement about the decision to the applicant and the Secretary within 14 days after the decision has been made.

 

141.           Where an oral decision is given the applicant is taken to be notified of the decision on the day on which the decision is made.

 

Item 10             Subsection 431(1)

 

142.     The intention of this subsection is to remove the requirement to publish all Tribunal decisions and allow for those decisions the Principal Member thinks are of particular interest to be published.  The section provides that it is the Registrar who must ensure publication of any decision found to be of particular interest.

 

Item 11             At the end of section 432

 

143.     This subsection is included to make it clear that an invitation to appear before the Tribunal under section 425 is not a summons and failure to appear is not an offence and such failure will not incur the penalty of imprisonment for 6 months.



Item 12             At the end of Division 7 of Part 6

 

Section 441A             Methods of dispatch of certain documents

 

144.           The purpose of new section 441A is to provide that certain documents must be given to an applicant (other than an applicant who is in immigration) by either being:

 

-         sent to the last address for service, or residential address given by the applicant, in a way in which a receipt or some other evidence of the date of dispatch is given; or

 

-         given to the applicant or a person authorised by the applicant; or

 

-         left at the applicant’s place of residence with a person who appears to live there and appears to have turned 16 years old.

 

145.           The documents covered by the section are:

 

-         invitations to applicants (but not to other people) to give additional information that the Tribunal considers relevant to the review - except where the applicant is in immigration detention;

 

-         invitations to applicants to comment on additional information - except where the applicant is in immigration detention;

 

-         notices of invitations for applicants to appear before the Tribunal - except where the applicant is in immigration detention;

 

-         notices of invitations for applicants to be present at a handing down; and

 

-         statements of the decision given  to applicants by the Tribunal.

 

Items 13 to 19

 

146.     New items 13 to 19 amend section 469 of the Migration Act 1958 to provide that the Minister may appoint a person to act in a senior office of the Refugee Review Tribunal for a period of less than 12 months.  A senior office is defined to mean the office of Principal Member, the office of Deputy Principal Member and an office of Senior Member.

 

Item 13           Subsection 469(1)

 

147.     This item amends subsection 469(1) to replace "the office of Principal Member" with "a senior office".  The effect of the amendment, together with the amendment made by item 16, is to allow the Minister to appoint a person to act in the office of Principal Member, the office of Deputy Principal Member or an office of Senior Member of the RRT, during a vacancy in the office or when the holder of the office is absent from duty or from Australia, or is unable to perform the duties of the office.

 



Item 14           Paragraph 469(1)(b)

Item 15           Subsection 469(1A)

Item 16           Subsection 469(2)

Item 17           Subsection 469(9)(paragraph (a) of the definition of normal terminating event)

Item 18           Subsection 469(9)(paragraph (b) of the definition of normal terminating event)

 

148.     These items make consequential amendments necessary due to the amendment made by item 13.

 

Item 19           Subsection 469(9)

 

149.     This item inserts a definition of "senior office", which means the office of Principal Member, the office of Deputy Principal Member and an office of Senior Member.

 

 

Part 2 - Application provisions

 

Item 20             Existing applications for review

 

150.     This item provides that the amendments in this Schedule apply to all applications for review of an RRT-reviewable decision that are not completed at the time of commencement.  In addition, t he item ensures that statements setting out the decision of the RRT, written pursuant to subsection 430(1) of the Migration Act 1958 prior to the commencement of Schedule 3, must continue to be given to the applicant and the Secretary pursuant to subsection 430(2) of that Act (as it was prior to amendment).

 

Item 21             Applications for review of existing RRT-reviewable decisions

 

151.     This item provides that the amendments in this Schedule apply to those applications made on or after commencement of this Schedule for review of a primary decision made before the commencement of this Schedule.

 

 



SCHEDULE 4 - "No Further Stay" conditions applicable to visas

 

Migration Act 1958

 

Item 1               After subsection 41(2)

 

152.     Paragraph 41(2)(a) of the Migration Act enables the regulations to provide that specified visas are to be subject to the condition that the holder of a visa will not after entering Australia be entitled to be granted a further substantive visa other than a protection visa (the "no further stay" condition).

 

153.     This item inserts a new subsection 41(2A) which provides that the "no further stay" condition may be waived by the Minister in writing in prescribed circumstances.

 

Item 2               Paragraph 46(1)(e)

 

154.     This item makes a consequential amendment to section 46 by repealing paragraph 46(1)(e) and substituting a new paragraph.  This will allow the holder of the visa to make a valid application for another visa where the Minister has waived the "no further stay" condition.

 



SCHEDULE 5 - Cancellation of visas

 

Part 1 - Amendment

 

Migration Act 1958

 

Item 1               At the end of section 129

 

155.     This item adds a new subsection 129(3) to put beyond doubt that the validity of a visa cancellation decision made under section 128 of the Migration Act is not affected by a failure to notify the visa holder of the cancellation decision.

 

Part 2 - Application of amendment

 

Item 2               Application

 

156.     This item provides that the amendment made by this Schedule applies to any cancellation of a visa under section 128 of the Migration Act after commencement of this Schedule, regardless of whether the circumstances, acts or omissions which led to the making of the cancellation decision occurred after that commencement.

 



SCHEDULE 6 - Miscellaneous migration matters

 

Migration Act 1958

 

157.     Subdivision C of Division 3 of Part 2 of the Migration Act makes provision for the cancellation of visas which were granted on the basis of incorrect information.  The amendments proposed by items 1 to 7 of this Schedule make amendments to Subdivision C of Division 3 to strengthen these provisions.

 

Item 1               Subsection 104(1)

Item 2               Subsection 105(1)

 

158.     Items 1 and 2 amend sections 104 and 105 to require non-citizens to advise of certain information including change in circumstances and incorrect answers "as soon as practicable".  In legal terms, this is the earliest possible time that the information can be required.

 

Item 3               Paragraph 107(1)(b)

Item 4               Subparagraphs 107(1)(c)(i), (ii) and (iii)

 

159.     Items 3 and 4 amend section 107 to provide flexibility in setting the time period within which a visa holder may respond to a notice given under section 107.  In respect of a temporary visa, the 14 day period in which to respond to a notice of intention to cancel a visa is removed. 

 

160.     Instead, the period in which a non-citizen has to respond, is calculated by reference to new subsections (1A) and (1B) referred to in item 6.  The response period for a permanent visa holder will however remain at 14 days.

 

Item 5               At the end of subsection 107(1)

 

161.     This item inserts new paragraph 107(1)(f) to ensure that the notice of an intention to cancel a visa includes a statement requiring the holder of a visa to provide up-to-date information of the address at which the holder is living, including any change of address.

 

Item 6               After subsection 107(1)

 

162.     This item complements the amendments made by items 3 and 4, by providing the time period within which a visa holder has to respond to a notice given under section 107.  In particular, new subsection 107(1A) provides that in the case of temporary visa holders the time period will be prescribed, or if not prescribed, then a reasonable period, and in all other cases will be 14 days.  This means that permanent visa holders will continue to have 14 days in which to respond.

 

163.     New subsection 107(1B) provides that the period which may be prescribed in respect of temporary visa holders may be different, based on the characteristics of visa holders and visas.

 



Item 7               After section 107

 

164.     This item inserts a new section 107A to make it clear that a non-compliance that is specified in a section 107 notice, which can constitute a ground for cancellation, may have occurred at any time, even in relation to a previous visa.  Such non-compliance can lead to cancellation of a visa under section 109.

 

Item 8               Paragraph 127(2)(b)

 

165.     This item amends paragraph 127(2)(b) to correct an ambiguity - it will ensure that notification of a decision to cancel a visa (under Subdivision E of Division 3) states whether a decision is reviewable under Part 5 or 7 rather than if it is reviewable.

 

Item 9               Paragraph 128(b)

 

166.     This item amends paragraph 128(b) to correct an ambiguity as it currently could be interpreted as only applying to non-citizens who have never entered Australia. Whilst the Explanatory Memorandum to the Migration Reform Act 1992 stated that the provision "will also apply to non-citizens who have previously been in Australia but are now outside it", litigants in the Federal Court have suggested otherwise. 

 

167.     The amendment removes any doubt by omitting reference to a non-citizen who "has not entered" Australia instead referring to a non-citizen who "is outside" Australia.

 

Item 10             Subsection 160(2)

 

168.     An important element of the criminal justice visa regime is that "satisfactory arrangements" must be made to meet the cost of the non-citizen remaining in Australia (sections 147 and 148).  Some law enforcement agencies have been reluctant to meet these costs when the visa holder may be required to remain in Australia for many months and is not permitted to work.

 

169.     As a consequence, this item removes the prohibition in subsection 160(2) on the right to work for holders of criminal justice stay visas.  However, the prohibition on work will remain for holders of criminal justice entry visas.

 

Item 11             After subsection 235(4)

 

170.     This item inserts a new subsection 235(4A) as a consequence of the amendment made to subsection 160(2) - it will ensure that the holder of a criminal justice stay visa does not commit an offence by working in Australia unless he or she also falls within subsection 235(1).

 

Note: The heading to section 253 is replaced by Detention of deportee .

 

171.     This change in the heading corrects an oversight.  The Migration Amendment Act 1992 removed or amended references to "arrest" in the Migration Act so that the provisions of the Crimes Act 1914 would not apply.  This heading was not amended.



SCHEDULE 7 - False representations etc. under the Australian Citizenship Act 1948

 

Part 1 - Amendments

 

Australian Citizenship Act 1948

 

Item 1               Subsection 50(1) (penalty)

Item 2               Subsections 50(2) and (3)   

 

172.     Item 1 changes the penalty provision at subsection 50(1) of the Australian Citizenship Act 1948 from "$1,000 or imprisonment for 6 months, or both" to "12 months imprisonment". Item 2 removes the express provisions in subsections 50(2) and 50(3) regarding time limits for commencing prosecutions. 

 

173.     The reason for making these amendments is to bring the penalty provision into line with similar offences under Commonwealth law.  The intention is that the offence should be considered a more serious offence for the purposes of general Commonwealth policy on commencing prosecutions.  The main consequence of being considered a more serious offence is that a prosecution may be commenced at any time - see section 15B of the Crimes Act.

 

Part 2 - Application of amendments

 

Item 3               Application

 

174.     This part provides that the amendments made by this Schedule only apply to acts or omissions after the commencement of this Schedule.



SCHEDULE 8 - Technical amendments

 

Immigration (Education) Act 1971

 

Item 1               Paragraph 4B(b)

 

175.     This amendment corrects a minor oversight in terminology in relation to introduction of the visa application charge by the Migration Legislation Amendment Act (No. 1) 1997 .

 

Migration Reform Act 1992

 

Item 2             Schedule (Part 1) (amendment of subsection 4(1) (definition of applicable priority mark ))

 

176.     This item repeals an amendment which purported to omit a definition that had already been omitted by an earlier Act.

 

Migration Legislation Amendment Act (No. 5) 1995

 

Item 3             Subsection 2(3)

Item 4             Subsection 2(4)

Item 5             Subsection 2(5)

 

177.     These amendments all correct technical cross-referencing errors that occurred in the print of the Migration Legislation Amendment Act (No. 5) 1995 when it was prepared for the Royal Assent.