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Migration Amendment (Reinstatement of Temporary Protection Visas) Bill 2013 [No. 2]

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2010-2011-2012-2013

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

THE SENATE

 

 

 

 

 

 

 

MIGRATION AMENDMENT (REINSTATEMENT OF TEMPORARY PROTECTION VISAS) BILL 2013 [No. 2]

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

Senator M Cash



MIGRATION AMENDMENT (REINSTATEMENT OF TEMPORARY PROTECTION VISAS) BILL 2013 [No. 2]

 

 

OUTLINE

 

The Bill will restore two classes of temporary protection visas to provide safe haven and protection to those who have arrived illegally in Australia or at an excised offshore place and are found to engage Australia’s protection obligations under the Refugee Convention.

 

FINANCIAL IMPACT

Costs will be met from within existing resources of the Department of Immigration and Citizenship.

NOTES ON CLAUSES

 

TEMPORARY PROTECTION VISAS

 

Temporary Protection (Offshore Entry) Visa

 

This is a visa for people who:

·          have illegally entered Australia and/or arrived at an "excised offshore place" (such as Christmas Island, Ashmore, Cocos Islands) when they first came to Australia;

·          do not have protection from any other country

·          are found to engage Australia’s protection obligations by the Australian Government; and

·          meet health and character requirements

 

The visa is temporary for a term of up to three years, to be set by the Minister or his/her delegate.

 

The visa gives the holder the right to work, to Special Benefits payments and access to Medicare. 

 

Successive temporary visas can be applied for upon conclusion of the term of the visa unless the Minister allows an application for a permanent protection visa to be made

 

·          It does not give the right to family reunion or to return to Australia if he/she leaves.

·          It does not give the holder the right to re-enter Australia if they depart

·          It is a condition of the visa that the holder satisfies mutual obligation requirements for receiving special benefit payments.

 

Temporary Protection (Secondary Movement Offshore Entry) Visa



This is a visa for people who:

·          have illegally entered Australia and/or arrived at an "excised offshore place" (such as Christmas Island, Ashmore, Cocos Islands) when they first came to Australia

·          are secondary movement persons

·          do not have protection from any other country

·          are found to have engaged Australia’s protection obligations by the Australian Government; and

·          meet health and character requirements.

 

The visa is temporary for a term of up to three years, to be set by the Minster or his/her delegate.

 

The bill defines a secondary movement person as someone who is a non-citizen seeking protection having moved beyond their country of first asylum and who transited in a country other than Australia where the person could have sought protection;

 

·          of the country, due to but not limited to, that country being a signatory to the United Nations Convention and/or Protocol relating to the Status of Refugees; or

·          through the officers of the United Nations Commissioner for Refugees located in that country;

 

A secondary movement person cannot be granted a permanent Protection Visa.  Such a person may only apply for a further TPV, or if eligible, one of the mainstream visas for which TPV holders are eligible.

 

The visa gives the holder the right to work, to Special Benefits payments and access to Medicare.

·          It does not give the right to family reunion.

·          It does not give the holder the right to re-enter Australia if they depart

·          It is a condition of the visa that the holder satisfies mutual obligation requirements for receiving special benefit payments.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

MIGRATION AMENDMENT (REINSTATEMENT OF TEMPORARY PROTECTION VISAS) BILL 2013 [No. 2]

 

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

 

Overview of the bill

 

The bill will restore two classes of temporary protection visas to provide safe haven and protection to those who have arrived illegally in Australia or at an excised offshore place and are found to engage Australia’s protection obligations under the nation’s international human rights responsibilities.

 

Human rights implications                                                              

 

This bill positively engages human rights within the framework of existing devices of the Migration Act that fulfill Australia’s refugee and humanitarian responsibilities under both domestic and international law.

This bill enhances the human rights of those who are fleeing persecution and are found to engage Australia’s protection obligations by the Australian Government by facilitating the provision of temporary safe haven in accordance with international standards, including respect for the principle of non-refoulement, admission to safety, access to fair procedures for the determination of refugee status and humane standards of treatment. 

This bill does not alter existing mechanisms of the Migration Act but creates two new visa subclasses which satisfy Australia’s protection obligations and responsibilities under the Refugee Convention in relation to persons who have arrived in Australia illegally or at an excised offshore place and are found to have engaged Australia’s protection obligations , consistent with legal definitions articulated by Article 31 of the 1951 Convention Relating to the Status of Refugees.

The provision of permanent residence is not a requirement under the Convention or associated treaties.  According to the UNHCR, “ Resettlement is not a right, and there is no obligation on States to accept refugees for resettlement… resettlement must be a complement to - and not a substitute for - the provision of protection where needed to persons who apply for asylum.”

 

The Minister may waive the subclause of the Temporary Protection (Offshore Entry visa) denying the applicant the right to apply for a permanent visa if the Minister is satisfied that it is in the public interest to do so.

 

This bill recognises the UNHCR’s philosophy of seeking durable solutions that best safeguard the wellbeing of refugees including voluntary repatriation where a change in context has made it safe to return. 

 

 

Conclusion

 

The bill is compatible with human rights by facilitating the provision of safe haven for those found to engage Australia’s protection obligations under international law.  

 

 

 

Senator Michaelia Cash