Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Migration Amendment (Protection and Other Measures) Bill 2014

Schedule 1 Protection visas

Part 1 Amendments commencing on day after Royal Assent

Migration Act 1958

1  After section 5

Insert:

5AAA   Non-citizen’s responsibility in relation to protection claims

             (1)  This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

             (2)  For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

             (3)  The purposes of this Act include:

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

                     (b)  the purposes of any administrative process that occurs in relation to:

                              (i)  this Act; or

                             (ii)  a regulation or instrument under this Act.

             (4)  To remove doubt, the Minister does not have any responsibility or obligation to:

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

                     (b)  establish, or assist in establishing, the claim.

Part 2 Amendments commencing on Proclamation

Migration Act 1958

2  Subsection 5(1)

Insert:

bogus document , in relation to a person, means a document that the Minister reasonably suspects is a document that:

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

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

                     (c)  was obtained because of a false or misleading statement, whether or not made knowingly.

3  Subparagraph 65(1)(a)(iii)

After “section 40 (circumstances when granted),”, insert “91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit),”.

4  Section 91W (heading)

Repeal the heading, substitute:

91W   Evidence of identity and bogus documents

5  Subsection 91W(2)

Omit “If”, substitute “The Minister must refuse to grant the protection visa to the applicant if”.

6  Paragraph 91W(2)(b)

After “request”, insert “, or produces a bogus document in response to the request”.

7  Paragraph 91W(2)(c)

After “request”, insert “, or for producing the bogus document”.

8  Paragraph 91W(2)(d)

Repeal the paragraph, substitute:

                     (d)  when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:

                              (i)  refuses or fails to comply with the request; or

                             (ii)  produces a bogus document in response to the request.

9  Subsection 91W(2)

Omit all the words after paragraph (d).

10  At the end of section 91W

Add:

             (3)  Subsection (2) does not apply if the Minister is satisfied that the applicant:

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

                     (b)  either:

                              (i)  produces documentary evidence of his or her identity, nationality or citizenship; or

                             (ii)  has taken reasonable steps to produce such evidence.

             (4)  For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.

11  After section 91W

Insert:

91WA   Providing bogus documents or destroying identity documents

             (1)  The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

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

                     (b)  the Minister is satisfied that the applicant:

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

                             (ii)  has caused such documentary evidence to be destroyed or disposed of.

             (2)  Subsection (1) does not apply if the Minister is satisfied that the applicant:

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

                     (b)  either:

                              (i)  provides documentary evidence of his or her identity, nationality or citizenship; or

                             (ii)  has taken reasonable steps to provide such evidence.

             (3)  For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

91WB   Application for protection visa by member of same family unit

             (1)  This section applies to a non-citizen in Australia (the family applicant ):

                     (a)  who applies for a protection visa; and

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

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

12  Section 97 (definition of bogus document )

Repeal the definition.

13  At the end of section 97

Add:

Note:          Bogus document is defined in subsection 5(1).

14  After section 423

Insert:

423A   How Tribunal is to deal with new claims or evidence

             (1)  This section applies if, in relation to an application for review of an RRT-reviewable decision (the primary decision ) in relation to a protection visa, the applicant:

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

                     (b)  presents evidence in the application that was not presented in the application before the primary decision was made.

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

Part 3 Application

15  Application of amendments

(1)       Section 5AAA of the Migration Act 1958 as amended by Part 1 of this Schedule applies to an application:

                     (a)  made on or after the commencement of that Part; or

                     (b)  made before the commencement of that Part but not finally determined as at the commencement of that Part.

(2)       Section 5AAA of the Migration Act 1958 as amended by Part 1 of this Schedule also applies in relation to an administrative process:

                     (a)  starting on or after the commencement of that Part; or

                     (b)  starting before the commencement of that Part and not completed as at the commencement of that Part.

(3)       Sections 91W, 91WA and 91WB of the Migration Act 1958 as amended by Part 2 of this Schedule apply to an application for a protection visa:

                     (a)  made on or after the commencement of that Part; or

                     (b)  made before the commencement of that Part but not finally determined as at the commencement of that Part.

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