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Migration Amendment (Protection and Other Measures) Bill 2014

Schedule 2 Amendments relating to Australia’s protection obligations under certain international instruments

Part 1 Amendments commencing on the day after Royal Assent

Migration Act 1958

1  Subsection 5(1) (definition of Covenant )

Omit “, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986 ”, substitute “done at New York on 16 December 1966”.

2  Subsection 5(1) (at the end of the definition of Covenant )

Add:

Note:          The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

3  Subsection 5(1) (definition of receiving country )

Repeal the definition, substitute:

receiving country , in relation to a non-citizen, means:

                     (a)  a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

                     (b)  if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

4  After section 6

Insert:

6A   Determining whether Australia has protection obligations in relation to a non-citizen

             (1)  The section applies for the purposes of determining whether Australia has protection obligations in relation to a non-citizen in Australia under:

                     (a)  this Act; or

                     (b)  a regulation or other instrument made under this Act; or

                     (c)  an administrative process that occurs in relation to:

                              (i)  this Act; or

                             (ii)  a regulation or other instrument made under this Act.

             (2)  The Minister can only be satisfied that Australia has protection obligations in respect of the non-citizen if the Minister considers that it is more likely than not that the non-citizen will suffer significant harm if the non-citizen is removed from Australia to a receiving country.

             (3)  A non-citizen will suffer significant harm if:

                     (a)  the non-citizen will be arbitrarily deprived of his or her life; or

                     (b)  the death penalty will be carried out on the non-citizen; or

                     (c)  the non-citizen will be subjected to torture; or

                     (d)  the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

                     (e)  the non-citizen will be subjected to degrading treatment or punishment.

             (4)  In this section:

protection obligations means any obligations that may arise because Australia is a party to:

                     (a)  the Covenant; or

                     (b)  the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.

Note 1:       Paragraph (a)—for the definition of Covenant , see subsection 5(1).

Note 2:       Paragraph (b)—the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

5  Paragraph 36(2)(aa)

Repeal the paragraph, substitute:

                    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister considers that it is more likely than not that the non-citizen will suffer significant harm if the non-citizen is removed from Australia to a receiving country; or

6  Application

(1)       The amendments made by this Part apply in relation to an assessment under:

                     (a)  the Migration Act 1958; or

                     (b)  a regulation or other instrument made under that Act; or

                     (c)  an administrative process that occurs in relation to that Act, regulation or other instrument;

of whether Australia has protection obligations in respect of a person, regardless of whether the assessment is made as a result of an application for a visa by a person.

(2)       Subitem (1) covers the following assessments:

                     (a)  an assessment made on or after the day this item commences;

                     (b)  if an assessment is made as a result of an application for a visa—an assessment that begins before the day this item commences, if the application has not been finally determined before that day;

                     (c)  if an assessment is made as part of an administrative process—an assessment that begins before the day this item commences, if the administrative process has not been completed before that day.

Part 2 Contingent amendments

Migration Act 1958

7  Subsection 5(1)

Insert:

Covenant means the International Covenant on Civil and Political Rights done at New York on 16 December 1966.

Note:          The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

cruel or inhuman treatment or punishment means an act or omission by which:

                     (a)  severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

                     (b)  pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

                     (c)  that is not inconsistent with Article 7 of the Covenant; or

                     (d)  arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

                     (a)  that is not inconsistent with Article 7 of the Covenant; or

                     (b)  that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

receiving country , in relation to a non-citizen, means:

                     (a)  a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

                     (b)  if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

significant harm means harm of a kind mentioned in subsection 6A(3).

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

                     (a)  for the purpose of obtaining from the person or from a third person information or a confession; or

                     (b)  for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

                     (c)  for the purpose of intimidating or coercing the person or a third person; or

                     (d)  for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

                     (e)  for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

8  Application

(1)       The amendments made by this Part apply in relation to an assessment under:

                     (a)  the Migration Act 1958; or

                     (b)  a regulation or other instrument made under that Act; or

                     (c)  an administrative process that occurs in relation to that Act, regulation or other instrument;

of whether Australia has protection obligations in respect of a person, regardless of whether the assessment is made as a result of an application for a visa by a person.

(2)       Subitem (1) covers the following assessments:

                     (a)  an assessment made on or after the day this item commences;

                     (b)  if an assessment is made as a result of an application for a visa—an assessment that begins before the day this item commences, if the application has not been finally determined before that day;

                     (c)  if an assessment is made as part of an administrative process—an assessment that begins before the day this item commences, if the administrative process has not been completed before that day.