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Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001
Schedule  2 Amendment of the Migration Regulations 1994

   

[1]         Schedule 1, item 1127

omit

[2]         Schedule 1, Part 4, heading

substitute

Part 4                 Protection, Refugee and Humanitarian visas

[3]         Schedule 1, after item 1401

insert

1402.      Refugee and Humanitarian (Class XB)

         (1)   Form:   842.

         (2)   Visa application charge:   Nil.

         (3)   Other:

                   (a)    Application must be made outside Australia.

                  (b)    Applicant must be outside Australia.

                   (c)    Application by a person claiming to be a member of the family unit of a person who is an applicant for a Refugee and Humanitarian (Class XB) visa may be made at the same time and place as, and combined with, the application by that person.

         (4)   Subclasses:

                           200   (Refugee)

                           201   (In-country Special Humanitarian)

                           202   (Global Special Humanitarian)

                           203   (Emergency Rescue)

                           204   (Woman at Risk)

                           447   (Secondary Movement Offshore Entry             (Temporary))

                           451   (Secondary Movement Relocation        (Temporary))

[4]         Schedule 2, after clause 200.211

insert

200.212      (1)   The applicant, since leaving his or her home country, has not ever resided, for a continuous period of at least 7 days, in a country in which the applicant could have sought and obtained effective protection:

                   (a)    of the country; or

                  (b)    through the offices of the United Nations High Commissioner for Refugees located in that country. 

                   (2)   The Minister may waive the requirement under subclause (1) if the Minister is satisfied that it is in the public interest to do so.

[5]         Schedule 2, after clause 202.211

insert

202.212      (1)   The applicant, since leaving his or her home country, has not ever resided, for a continuous period of at least 7 days, in a country in which the applicant could have sought and obtained effective protection:

                   (a)    of the country; or

                  (b)    through the offices of the United Nations High Commissioner for Refugees located in that country. 

                   (2)   The Minister may waive the requirement under subclause (1) if the Minister is satisfied that it is in the public interest to do so.

[6]         Schedule 2, after clause 204.212

insert

204.213      (1)   The applicant, since leaving his or her home country, has not ever resided, for a continuous period of at least 7 days, in a country in which the applicant could have sought and obtained effective protection:

                   (a)    of the country; or

                  (b)    through the offices of the United Nations High Commissioner for Refugees located in that country. 

                   (2)   The Minister may waive the requirement under subclause (1) if the Minister is satisfied that it is in the public interest to do so.

[7]         Schedule 2, after Part 446

insert

Subclass 447   Secondary Movement Offshore Entry (Temporary)

447.1     Interpretation

Note   member of the family uni t is defined in regulation 1.03.

No interpretation provisions specific to this Part.

447.2     Primary criteria

Note    The primary criteria must be satisfied by at least 1 member of a family unit. Other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

447.21       Criteria to be satisfied at time of application

447.211      The applicant:

                   (a)    is either:

                             (i)    subject to persecution in the applicant’s home country; or

                            (ii)    subject to substantial discrimination, amounting to gross violation of human rights, in the applicant’s home country; or

                           (iii)    a female person who is subject to persecution or is registered as being of concern to the United Nations High Commissioner for Refugees; and

                  (b)    is an offshore entry person. 

447.22       Criteria to be satisfied at time of decision

447.221      The applicant continues to satisfy the criterion in clause 447.211.

447.222      The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a temporary visa, having regard to:

                   (a)    the extent of the applicant’s connection with Australia; and

                  (b)    if the applicant continues to meet the requirement in subparagraph 447.211 (a) (i) — the degree of persecution to which the applicant is subject in the applicant’s home country; and

                   (c)    if the applicant continues to meet the requirement in subparagraph 447.211 (a) (ii) — the degree of discrimination to which the applicant is subject in the applicant’s home country; and

                  (d)    if the applicant continues to meet the requirement in subparagraph 447.211 (a) (iii) — whether the applicant has the protection of a male relative and is in danger of victimisation, harassment or serious abuse because of her sex; and

                   (e)    whether there is any suitable country available, other than Australia, that can provide for the applicant’s stay and protection from persecution, discrimination, victimisation, harassment or serious abuse; and

                   (f)    the capacity of the Australian community to provide for the temporary stay of persons such as the applicant in Australia.

447.223      The Minister is satisfied that temporary stay in Australia would not be contrary to the interests of Australia. 

447.224      Grant of the visa would not result in either:

                   (a)    the number of Subclass 447 visas granted in a financial year exceeding the maximum number of Subclass 447 visas, as determined by Gazette Notice, that may be granted in that financial year; or

                  (b)    the number of visas of particular classes (including Refugee and Humanitarian (Class XB) visa) granted in a financial year exceeding the maximum number of visas of those classes, as determined by Gazette Notice, that may be granted in that financial year.

447.225      The applicant satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007.

447.226      If the applicant has previously been in Australia, the applicant satisfies special return criterion 5001. 

447.227      (1)   In relation to the family unit of the applicant, each member of the family unit who is an applicant for a Subclass 447 visa is a person who:

                   (a)    satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007; and

                  (b)    if he or she has previously been in Australia — satisfies special return criterion 5001.

                   (2)   In relation to the family unit of the applicant, each member of the family unit who is not an applicant for a Subclass 447 visa is a person who:

                   (a)    satisfies public interest criteria 4001, 4002, 4003 and 4004; and

                  (b)    satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

447.3     Secondary criteria

Note   These criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

447.31       Criteria to be satisfied at time of application

447.311      The applicant: 

                   (a)    is a member of the family unit of a person who satisfies, or has satisfied, the criterion in clause 447.211; and

                  (b)    is in the same country as that person.

447.32       Criteria to be satisfied at time of decision

447.321      The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 447 visa. 

447.322      If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

447.323      The applicant:

                   (a)    satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007; and

                  (b)    if he or she has previously been in Australia, satisfies special return criterion 5001.

447.4     Circumstances applicable to grant

447.411      The applicant must be outside Australia at the time of grant.

447.5     When visa is in effect

447.511      Temporary visa permitting the holder:

                   (a)    to travel to and enter Australia on 1 occasion, as specified by the Minister; and

                  (b)    to remain in Australia until:

                             (i)    if the holder applies for a visa after the temporary visa is granted and before the end of 36 months from the grant — the day on which the application is finally determined; and

                            (ii)    in any other case — the end of the 36 months.

447.6     Conditions

447.611      The holder cannot be granted a substantive visa other than a protection visa.

447.612      Entry must be made before the date specified by the Minister for the purpose.

447.613      Condition 8502 may be imposed.

447.7     Way of giving evidence

447.711      Visa label affixed to a Convention travel document or valid passport.

[8]         Schedule 2, after Part 450

insert

Subclass 451   Secondary Movement Relocation (Temporary)

451.1     Interpretation

Note   member of the family uni t is defined in regulation 1.03.

No interpretation provisions specific to this Part.

451.2     Primary criteria

Note    The primary criteria must be satisfied by at least 1 member of a family unit. Other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria.

451.21       Criteria to be satisfied at time of application

451.211      The applicant:

                   (a)    is either:

                             (i)    subject to persecution in the applicant’s home country; or

                            (ii)    subject to substantial discrimination, amounting to gross violation of human rights, in the applicant’s home country; or

                           (iii)    a female person who is subject to persecution or is registered as being of concern to the United Nations High Commissioner for Refugees; and

                  (b)    is outside his or her home country and is not an offshore entry person. 

451.22       Criteria to be satisfied at time of decision

451.221      The applicant continues to satisfy the criterion in clause 451.211.

451.222      The Minister is satisfied that there are compelling reasons for giving special consideration to granting the applicant a temporary visa, having regard to:

                   (a)    the extent of the applicant’s connection with Australia; and

                  (b)    if the applicant continues to meet the requirement in subparagraph 451.211 (a) (i) — the degree of persecution to which the applicant is subject in the applicant’s home country; and

                   (c)    if the applicant continues to meet the requirement in subparagraph 451.211 (a) (ii) — the degree of discrimination to which the applicant is subject in the applicant’s home country; and

                  (d)    if the applicant continues to meet the requirement in subparagraph 451.211 (a) (iii) — whether the applicant has the protection of a male relative and is in danger of victimisation, harassment or serious abuse because of her sex; and

                   (e)    whether there is any suitable country available, other than Australia, that can provide for the applicant’s stay and protection from persecution, discrimination, victimisation, harassment or serious abuse; and

                   (f)    the capacity of the Australian community to provide for the temporary stay of persons such as the applicant in Australia.

451.223      The Minister is satisfied that temporary stay in Australia would not be contrary to the interests of Australia. 

451.224      Grant of the visa would not result in either:

                   (a)    the number of Subclass 451 visas granted in a financial year exceeding the maximum number of Subclass 451 visas, as determined by Gazette Notice, that may be granted in that financial year; or

                  (b)    the number of visas of particular classes (including Refugee and Humanitarian (Class XB) visa) granted in a financial year exceeding the maximum number of visas of those classes, as determined by Gazette Notice, that may be granted in that financial year.

451.225      The applicant satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007.

451.226      If the applicant has previously been in Australia, the applicant satisfies special return criterion 5001. 

451.227      (1)   In relation to the family unit of the applicant, each member of the family unit who is an applicant for a Subclass 451 visa is a person who:

                   (a)    satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007; and

                  (b)    if he or she has previously been in Australia — satisfies special return criterion 5001.

                   (2)   In relation to the family unit of the applicant, each member of the family unit who is not an applicant for a Subclass 451 visa is a person who:

                   (a)    satisfies public interest criteria 4001, 4002, 4003 and 4004; and

                  (b)    satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.

451.3     Secondary criteria

Note   These criteria must be satisfied by applicants who are members of the family unit of a person who satisfies the primary criteria.

451.31       Criteria to be satisfied at time of application

451.311      The applicant: 

                   (a)    is a member of the family unit of a person who satisfies, or has satisfied, the criterion in clause 451.211; and

                  (b)    is in the same country as that person.

451.32       Criteria to be satisfied at time of decision

451.321      The applicant continues to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 451 visa. 

451.322      If the applicant has not turned 18, public interest criteria 4017 and 4018 are satisfied in relation to the applicant.

451.323      The applicant:

                   (a)    satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007; and

                  (b)    if he or she has previously been in Australia, satisfies special return criterion 5001.

451.4     Circumstances applicable to grant

451.411      The applicant must be outside Australia at the time of grant.

451.5     When visa is in effect

451.511      Temporary visa permitting the holder:

                   (a)    to travel to and enter Australia on 1 occasion, as specified by the Minister; and

                  (b)    to remain in Australia until:

                             (i)    if the holder applies for a visa after the temporary visa is granted and before the end of 60 months from the grant — the day on which the application is finally determined; and

                            (ii)    in any other case — the end of the 60 months.

451.6     Conditions

451.611      The holder cannot be granted a substantive visa other than a protection visa.

451.612      Entry must be made before the date specified by the Minister for the purpose.

451.613      Condition 8502 may be imposed.

451.7     Way of giving evidence

451.711      Visa label affixed to a Convention travel document or valid passport.

[9]         Schedule 2, after 866.213

insert

866.214      (1)   The applicant has not held a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa since last entering Australia.

                   (2)   The Minister may waive the requirement under subclause (1) if the Minister is satisfied that it is in the public interest to do so.

866.215      (1)   If the applicant has held a Subclass 785 (Temporary Protection) visa since last entering Australia, the applicant, since leaving his or her home country, has not ever resided, for a continuous period of at least 7 days, in a country in which the applicant could have sought and obtained effective protection:

                   (a)    of the country; or

                  (b)    through the offices of the United Nations High Commissioner for Refugees located in that country.

                   (2)   The Minister may waive the requirement under subclause (1) if the Minister is satisfied that it is in the public interest to do so.

[10]      Schedule 2, after 866.228

866.228A   If the applicant holds a Subclass 451 (Secondary Movement Relocation (Temporary)) visa, the applicant has held that visa for the lesser of:

                   (a)    a continuous period of 54 months; and

                  (b)    a shorter period specified in writing by the Minister in relation to the applicant.

[11]      Transitional

         (1)   The amendments made by items [1] to [10] apply to an application for a visa made after the commencement of this Act.

         (2)   Despite anything in items [1] to [10], item 1127 and Parts 200, 201, 202, 203 and 204 of the Migration Regulations 1994 as they read immediately before the commencement of this Act continue to apply in relation to:

                   (a)    applications for Subclass 200 (Refugee), 201 (In-country Special Humanitarian), 202 (Global Special Humanitarian), 203 (Emergency Rescue) or 204 (Woman at Risk) visas made, but not finally determined within the meaning of subsection 5(9) of the Migration Act 1958 , before the commencement of this Act; and

                  (b)    Subclass 200, 201, 202, 203 or 204 visas in effect on that date.

 

 

[ Minister’s second reading speech made in—

House of Representatives on 18 September 2001

Senate on 20 September 2001 ]

 

(183/01)