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Migration Legislation Amendment Bill (No. 1) 2002

2002

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

As read a third time

 

 

 

 

 

 

 

 

 

Migration Legislation Amendment Bill (No. 1) 2002

 

No.      , 2002

 

 

 

 

 

A Bill for an Act to amend the law relating to migration, and for related purposes

   

   



Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 2

Schedule 1—Immigration clearance status of non-citizen children born in Australia           3

Migration Act 1958                                                                                                      3

Schedule 2—The taking of securities                                                                           4

Migration Act 1958                                                                                                      4

Schedule 3—Special purpose visas                                                                                5

Migration Act 1958                                                                                                      5

Schedule 4—Membership of the Migration Review Tribunal                       7

Migration Act 1958                                                                                                      7

Schedule 5—Criminal Code harmonisation amendments                                 8

Migration Act 1958                                                                                                      8

Schedule 6—Minor amendments                                                                                  10

Migration Act 1958                                                                                                    10

 



This Bill originated in the House of Representatives; and, having this day passed, is now ready for presentation to the Senate for its concurrence.

I.C. HARRIS

Clerk of the House of Representatives

House of Representatives

12 December 2002

A Bill for an Act to amend the law relating to migration, and for related purposes

The Parliament of Australia enacts:

1   Short title

                   This Act may be cited as the Migration Legislation Amendment Act (No. 1) 2002.

2   Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent

 

2.  Schedules 1, 2 and 3

A day or days to be fixed by Proclamation, subject to subsection (3)

 

3.  Schedules 4 and 5

The day on which this Act receives the Royal Assent

 

4.  Schedule 6, items 1 and 2

A day or days to be fixed by Proclamation, subject to subsection (3)

 

5.  Schedule 6, items 3, 4 and 5

The day on which this Act receives the Royal Assent

 

6.  Schedule 6, item 6

Immediately after the Border Protection (Validation and Enforcement Powers) Act 2001

 

7.  Schedule 6, item 7

The day on which this Act receives the Royal Assent

 

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

             (3)  If a provision covered by item 2 or 4 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

3   Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.



 

Schedule 1 Immigration clearance status of non-citizen children born in Australia

   

Migration Act 1958

1  After paragraph 172(1)(b)

Insert:

                    (ba)  the person:

                              (i)  enters Australia by virtue of the operation of section 10; and

                             (ii)  at the time of the person’s birth, has at least one parent who was immigration cleared on his or her last entry into Australia; or

2  Application provision

The amendment of the Migration Act 1958 made by item 1 of this Schedule applies to a non-citizen child born in Australia on or after 1 September 1994.

3  At the end of subsection 172(1)

Add:

               ; or (d)  the person is in a prescribed class of persons.

4  At the end of section 173

Add:

             (2)  To avoid doubt, a non-citizen child who is taken to have been granted a visa or visas, at the time of the child’s birth, by virtue of the operation of section 78, is not to be taken, by virtue of that birth, to have entered Australia in a way that contravenes section 43.

5  Application provision

The amendment of the Migration Act 1958 made by item 4 of this Schedule applies to a non-citizen child born in Australia on or after 1 September 1994 who is taken to have been granted a visa or visas under section 78 of that Act.



 

Schedule 2 The taking of securities

   

Migration Act 1958

1  Subsection 269(1)

After “authorised officer may”, insert “, subject to subsection (1A),”.

2  After subsection 269(1)

Insert:

          (1A)  The power of an authorised officer to require and take security under subsection (1) in relation to an application for a visa applies only if:

                     (a)  the security is for compliance with conditions that will be imposed on the visa in pursuance of, or for the purposes of, this Act or the regulations, if the visa is granted; and

                     (b)  the officer has indicated those conditions to the applicant.

3  Application provision

The amendments of the Migration Act 1958 made by items 1 and 2 of this Schedule apply in relation to all applications for visas made after the commencement of those items.



 

Schedule 3 Special purpose visas

   

Migration Act 1958

1  Subsection 33(5)

Repeal the subsection, substitute:

             (5)  A special purpose visa ceases to be in effect at the earlier or earliest of the following times:

                     (a)  if paragraph (2)(a) applies:

                              (i)  if the non-citizen ceases to have a prescribed status—the end of the day the non-citizen so ceases;

                             (ii)  if the non-citizen ceases to be a member of a class that has a prescribed status—the end of the day the non-citizen so ceases;

                            (iii)  if the Minister makes a declaration under subsection (9) in relation to the non-citizen, or a class of persons of which the non-citizen is a member—the time when that declaration takes effect;

                     (b)  if paragraph (2)(b) applies:

                              (i)  if a day is specified in the declaration as the day the visa ceases to be in effect—the end of that day;

                             (ii)  if an event is specified in the declaration as the event that causes the visa to cease to be in effect—the end of the day the event happens;

                            (iii)  if the non-citizen ceases to be a member of a class of persons specified in the declaration—the end of the day the non-citizen so ceases;

                            (iv)  if the declaration is revoked—the end of the day of the revocation;

                             (v)  if the Minister makes a declaration under subsection (9) in relation to the non-citizen, or a class of persons of which the non-citizen is a member—the time when that declaration takes effect.

          (5A)  For the purposes of subsection (5), the time when a declaration made by the Minister under subsection (9) takes effect is:

                     (a)  if the Minister specifies a time in the declaration as the time the declaration takes effect—the time so specified; or

                     (b)  if the Minister does not specify a time in the declaration as the time the declaration takes effect—the end of the day on which the declaration is made.

2  At the end of section 33

Add:

           (11)  The rules of natural justice do not apply in relation to the making of a declaration under subsection (9).



 

Schedule 4 Membership of the Migration Review Tribunal

   

Migration Act 1958

1  Section 337

Insert:

Deputy Principal Member means the Deputy Principal Member of the Tribunal.

2  After paragraph 395(a)

Insert:

                    (aa)  a Deputy Principal Member; and

3  Subsection 404(9) (definition of senior office )

After “Principal Member”, insert “, the office of Deputy Principal Member”.

4  Section 405

After “delegate to”, insert “the Deputy Principal Member or to”.



 

Schedule 5 Criminal Code harmonisation amendments

   

Migration Act 1958

1  Subsection 229(1)

Omit “unless”, substitute “if”.

2  Paragraphs 229(1)(a) to (e)

Repeal the paragraphs, substitute:

                     (a)  is not in possession of evidence of a visa that is in effect and that permits him or her to travel to and enter Australia; and

                     (b)  does not hold a special purpose visa; and

                     (c)  is not eligible for a special category visa; and

                     (d)  does not hold an enforcement visa; and

                     (e)  is a person to whom subsection 42(1) applies.

3  After subsection 229(3)

Insert:

             (4)  For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).

Note:          For evidential burdens , see subsection 13.3(3) of the Criminal Code .

4  After subsection 232(1A)

Insert:

          (1B)  For the purposes of paragraph (1)(a), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).

Note:          For evidential burdens , see subsection 13.3(3) of the Criminal Code .

5  At the end of section 232A

Add:

             (2)  For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).

Note:          For evidential burdens , see subsection 13.3(3) of the Criminal Code .

6  After subsection 233(1)

Insert:

          (1A)  Strict liability applies to the element of an offence against paragraph (1)(a) that the bringing or coming to Australia of the relevant non-citizen was under circumstances from which it might reasonably have been inferred that the non-citizen intended to enter Australia in contravention of this Act.

Note:          For strict liability , see section 6.1 of the Criminal Code .

8  Subsection 268BJ(1)

Omit “an authorised officer”.

9  Section 268CM

Omit “section 268CJ or 268CK (officer may ask questions)”, substitute “a request under section 268CJ or a requirement under section 268CK”.

10  Subsection 268CN(1)

Omit “an authorised officer”.

11  Subsection 268CN(1)

Omit “section 268CJ or 268CK (officer may ask questions)”, substitute “a request under section 268CJ or a requirement under section 268CK”.



 

Schedule 6 Minor amendments

   

Migration Act 1958

1  At the end of section 48

Add:

             (3)  For the purposes of this section, a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.

2  Application provision

Section 48 of the Migration Act 1958 , as amended by item 1 of this Schedule, applies to all applications for visas made in the migration zone after the commencement of that item (the commencement time ), regardless of:

                     (a)  whether the bridging visa mentioned in subsection 48(3) of that Act was granted before or after the commencement time; and

                     (b)  whether the travel mentioned in subsection 48(3) of that Act took place before or after the commencement time.

3  After subsection 82(7)

Insert:

          (7A)  However, a bridging visa that ceases to permit the holder to remain in, or to travel to, enter and remain in, Australia if a substantive visa is cancelled ceases to be in effect the moment the substantive visa is cancelled.

4  Application provision

The amendment made by item 3 applies in relation to all bridging visas that are held at any time after the commencement of that item, regardless of whether the bridging visas were granted before or after that time.

5  After subsection 137K(3)

Insert:

          (3A)  In addition to the restriction in subsection (2), a non-citizen who is in immigration clearance cannot apply for revocation after the end of the period prescribed in the regulations. The regulations must specify when that period begins to run.

6  Subsection 245B(11) (the subsection (11) inserted by item 6 of Schedule 2 to the Border Protection (Validation and Enforcement Powers) Act 2001 )

Re-number as subsection (12).

7  Subsection 338(3A)

After “migration zone”, insert “, and was not in immigration clearance,”.

(71/02)