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Schedule 1—Amendments

Schedule 1 Amendments

   

Migration Act 1958

1  After section 36

Insert:

36A   Consideration of protection obligations

             (1)  In considering a valid application for a protection visa made by a non-citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:

                     (a)  the non-citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);

                     (b)  the non-citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;

                     (c)  the non-citizen:

                              (i)  satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and

                             (ii)  would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non-citizen is a non-citizen mentioned in paragraph 36(2)(a).

             (2)  The Minister must do so:

                     (a)  before deciding whether to grant or refuse to grant the visa; and

                     (b)  before considering whether the non-citizen satisfies any other criteria for the grant of the visa; and

                     (c)  before considering whether the grant of the visa is prevented by any provision of the Act or regulations; and

                     (d)  without regard to subsections 36(2C) and (3).

             (3)  Subsection (1) does not apply if:

                     (a)  the non-citizen (the family applicant ) is a member of the same family unit as another non-citizen (the family visa holder ) who holds a protection visa of the same class as the visa the family applicant is applying for; and

                     (b)  the family applicant’s application for a protection visa was made before the family visa holder was granted their visa; and

                     (c)  the family visa holder is a non-citizen mentioned in paragraph 36(2)(a) or (aa).

2  Section 197C (heading)

Repeal the heading, substitute:

197C   Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198

3  At the end of section 197C

Add:

             (3)  Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:

                     (a)  the non-citizen has made a valid application for a protection visa that has been finally determined; and

                     (b)  in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

                     (c)  none of the following apply:

                              (i)  the decision in which the protection finding was made has been quashed or set aside;

                             (ii)  the Minister is satisfied that the non-citizen is no longer a person in respect of whom any protection finding within the meaning of subsection (4), (5), (6) or (7) would be made;

                            (iii)  the non-citizen has asked the Minister, in writing, to be removed to the country.

             (4)  For the purposes of subsection (3), a protection finding is made for a non-citizen with respect to a country if a record was made in relation to the non-citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.

             (5)  For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):

                     (a)  the non-citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);

                     (b)  the non-citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;

                     (c)  the non-citizen:

                              (i)  would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non-citizen; and

                             (ii)  satisfied the criterion in subsection 36(1C);

                     (d)  the non-citizen:

                              (i)  satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and

                             (ii)  would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a);

                     (e)  the non-citizen:

                              (i)  satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and

                             (ii)  would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non-citizen;

                      (f)  the non-citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non-citizen.

             (6)  For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country if:

                     (a)  the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non-citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and

                     (b)  a protection finding within the meaning of subsection (4) or (5) was made for the non-citizen with respect to another country.

             (7)  For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country in circumstances prescribed by the regulations.

             (8)  For the purposes of subsection (5), it is irrelevant whether or not the non-citizen satisfied any other criteria for the grant of a protection visa.

             (9)  For the purposes of subparagraph (3)(c)(iii), a non-citizen who withdraws their written request to be removed to a country is taken not to have made that request.

4  Application of amendments

(1)       Section 36A of the Migration Act 1958 , other than paragraphs 36A(2)(a), (b) and (c), applies in relation to applications for visas made but not decided before this Schedule commences.

(2)       Section 36A of the Migration Act 1958 applies in relation to applications for visas made after this Schedule commences.

(3)       A reference in section 197C of the Migration Act 1958 to a protection finding within the meaning of subsection 197C(5) or (6) is a reference to a protection finding made before or after this Schedule commences.