2013 - 2014

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

MIGRATION AND MARITIME POWERS LEGISLATION AMENDMENT (RESOLVING THE ASYLUM LEGACY CASELOAD)

BILL 2014

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Border Protection,

the Hon. Scott Morrison MP)

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

 

OUTLINE

The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (the Bill) amends the Migration Act 1958 (the Migration Act), the Migration Regulations 1994 (the Migration Regulations); the Maritime Powers Act 2013 (the Maritime Powers Act), the Immigration (Guardianship of Children) Act 1946 (IGOC Act) and the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to support the Government’s key strategies for combatting people smuggling and managing asylum seekers both onshore and offshore.  The Bill fundamentally changes Australia’s approach to managing asylum seekers by:

·          reinforcing the Government’s powers and support for our officers conducting maritime operations to stop people smuggling ventures at sea, clarifying and strengthening Australia’s maritime enforcement framework to provide greater clarity to the ongoing conduct of border security and maritime enforcement operations;

·          introducing temporary protection for those who engage Australia’s non - refoulement obligations and who arrived in Australia illegally;

·          introducing more rapid processing and streamlined review arrangements, creating a different processing model for protection assessments which acknowledges the diverse range of claims from asylum seekers, helping to resolve protection applications more efficiently;

·          deterring the making of unmeritorious protection claims as a means to delay an applicant’s departure from Australia;

·          supporting a more timely removal from Australia of those who do not engage Australia’s protection obligations; and

·          codifying in the Migration Act Australia’s interpretation of its protection obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention).

The measures in this Bill are a continuation of the Government’s protection reform agenda and make it clear that there will not be permanent protection for those who travel to Australia illegally. The measures will support a robust protection status determination process and enable a tailored approach to better prioritise and assess claims and support the removal of unsuccessful asylum seekers.

Specifically, the Bill amends the Maritime Powers Act to:

·          clarify the powers provided by sections 69 and 72 to move vessels and persons, and related provisions;

·          explicitly provide the Minister with a power to give specific and general directions about the exercise of powers under sections 69, 71 and 72 to ensure that government has appropriate oversight;

·          ensure that maritime powers may be exercised between Australia and another country, provided the Minister administering the Maritime Powers Act has determined this should be the case;

·          provide that the rules of natural justice do not apply to a range of powers in the Maritime Powers Act, including the powers to authorise the exercise of maritime powers, the new Ministerial powers and the exercise of powers to hold and move vessels and persons;

·          ensure that the exercise of a range of powers cannot be invalidated because a court considers there has been a failure to consider, properly consider, or comply with Australia’s international obligations, or the international obligations or domestic law of any other country;

·          clarify for the purposes of sections 69 and 72 that a vessel or a person may be taken to a place outside Australia whether or not Australia has an agreement or arrangements with any country concerning the reception of the vessel or the persons;

·          clarify that for the purposes of sections 69 and 72 a “place” is not limited to another country or a place in another country;

·          clarify the time during which a vessel or person may be dealt with under sections 69, 71 and 72;

·          clarify that the section 69, 71 and 72 powers (and a range of related provisions) operate in their own right, and that there is no implication to be drawn from the Migration Act, particularly from the existence of the regional processing provisions;

·          provide an explicit power exempting certain vessels involved in maritime enforcement operations from the inappropriate application of the Marine Safety (Domestic Commercial Vessel) National Law, the Navigation Act 2012 and the Shipping Registration Act 1981 ;

·          make a number of minor consequential and clarification amendments to the Maritime Powers Act, Migration Act, and the ICOG Act; and

·          ensure that decisions relating to operational matters cannot be inappropriately subjected to the provisions of the Legislative Instruments Act 2003 , the Judiciary Act 1903 , or the ADJR Act.

Specifically, the Bill amends the Migration Act to:

·          introduce Temporary Protection visas (TPVs) as a visa product for unauthorised arrivals, whether by air or by sea, who are found to engage Australia’s protection obligations;

·          create a new visa class to be known as a Safe Haven Enterprise Visa (SHEV);

·          explicitly authorise the making of regulations that deem an application for one type of visa to be an application for a different type of visa;

·          clarify that the application bars in sections 48, 48A and 501E of the Migration Act also apply in relation to persons in the migration zone who have been refused a visa or held a visa that was cancelled, in circumstances where the refused application or the application in relation to which the cancelled visa was granted earlier was an application that was taken to have been made by the person;

·          allow for multiple classes of protection visas;

·          include a definition of protection visas;

·          create an express link between certain classes of visas that are provided for under the Migration Act (including Permanent Protection visas and Temporary Protection visas) and the criteria prescribed in the Migration Regulations in relation to those visas; 

·          create a new fast track assessment process and remove access to the Refugee Review Tribunal (RRT) for fast track applicants, who are defined as unauthorised maritime arrivals (UMAs) who entered Australia on or after 13 August 2012 and made a valid application for a protection visa, and other cohorts specified by legislative instrument;

·          require the Minister to refer fast track reviewable decisions to the Immigration Assessment Authority (the IAA) which will conduct a limited merits review on the papers and either affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with prescribed directions or recommendations;

·          create discretionary powers for the IAA to get new information and permit the IAA to consider new information only in exceptional circumstances;

·          provide the manner in which the IAA is to exercise its functions, notify persons of its decisions, give and receive review documents and disclose and publish certain information and enable the Principal Member of the RRT to issue practice directions and guidance decisions to the IAA;

·          establish the IAA within the RRT, and provide that the Principal Member of the RRT is to be responsible for its overall operation and administration and specify delegation powers and employment arrangements to apply to the Senior Reviewer and Reviewers of the IAA;

·          clarify the availability of the removal powers independent of assessments of Australia’s non-refoulement obligations;

·          remove most references to the Refugees Convention from the Migration Act and replace them with a new statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention;

·          clarify, with retrospective effect, that children born to unauthorised maritime arrivals (UMAs) under the Migration Act either in Australia or in a regional processing country are also UMAs for the purposes of the Migration Act;

·          clarify, with retrospective effect, that children born to transitory persons either in Australia or in a regional processing country are also transitory persons for the purposes of the Migration Act;

·          ensure that children born in Australia to a parent who is a transitory person can also be taken to a regional processing country;

·          clarify, with retrospective effect, that any visa application of the child of a UMA or transitory person is invalid, unless the Minister has allowed the application, or the application of that child’s parent, to be made; and

·          restore the Government’s ability to place a statutory limit on the number of protection visas granted in a programme year including repealing of section 65A and section 414A of the Migration Act which require applications for protection visas to be decided in 90 days as well as the associated reporting requirements in section 91Y and 440A, and provide that the requirement for the Minster in section 65 to grant or refuse to grant a visa is subject to sections 84 and 86.

Schedule 1 to the Bill will clarify a range of matters relating to the exercise of maritime powers. Maritime powers are used to respond to a range of threats to Australia’s national interest, including the smuggling of contraband goods, protecting Australia’s fisheries, protecting our ocean and coastal ecosystems from environmental damage and countering people smuggling. The amendments to the Maritime Powers Act are focussed on strengthening Australia’s maritime enforcement framework and will provide greater clarity to the ongoing conduct of border security and maritime enforcement operations.

As with the original Maritime Powers Act, these amendments do not seek to create new powers beyond what is already available to maritime officers - instead, they clarify the intended operation of those powers and their relationship with other law. Limited new powers are provided to the Minister personally, to ensure that the Government has appropriate oversight in this important area of significant policy interest.

Countering people smuggling has been a long-standing bipartisan aspiration. Australia has the right to determine and address national security issues that relate to its national interest. This includes protecting and safeguarding Australian territorial and border integrity. People smugglers operate in organised criminal syndicates, and their activities have serious consequences. Not only does people smuggling support a criminal economy that exposes individuals to serious harm, it also provides an avenue for a large number of undocumented arrivals to gain entry into Australia, potentially including individuals of security concern. The Commonwealth will continue to protect Australia’s borders from serious criminal activity, and its consequences.

Protecting Australia’s sovereignty is not the only reason to ensure that the powers available to protect Australia’s maritime boundaries are robust and flexible. The dangers of attempting to travel to Australia by boat are real. The journey is hundreds of nautical miles long, and is often attempted in bad weather and rough sea conditions. Boats are often unseaworthy and crowded. Crew can be inexperienced or unqualified. Life jackets, when worn, can be of poor quality and unlikely to save lives. Between 2008 and 2013 it is estimated that up to 1,203 people may have died at sea trying to reach Australia illegally by boat. This includes countless tragic incidents: 201 dead or presumed drowned in December 2011; 92 dead or presumed drowned in June 2012 and 55 dead or presumed drowned in June 2013. These tragic numbers do not take into account the numerous reports received from those who believe their family and friends were on-board a boat to Australia and have not been heard from since.

In the dynamic on-water environment, there is an ongoing requirement to be both flexible and adaptable. People smugglers run profit-based businesses. They operate using tested business models, and as these models are thwarted they will rapidly adapt. Australia must be ready and able to respond to these changes, which can only be done through being able to adapt ourselves, ensuring that maritime officers continue to be appropriately equipped with the legal tools they need.

The challenges in Australia’s maritime security environment are complex. It is vital that legislation underpinning maritime security operations remains sustainable and robust and affords the flexibility to respond to complexities as they arise. It has always been Parliament’s intent to equip maritime officers with the necessary means to undertake their duties. Significant flexibility was built into the Maritime Powers Act specifically for this purpose, and the amendments in this Bill serve to reinforce and clarify the measures available to maritime enforcement officers when targeting criminal on-water activity.

Schedule 2 to the Bill will address the Government’s objective that any illegal arrivals who seek asylum in Australia will not be granted a Permanent Protection visa.  The intention is that those who are found to be in need of protection either through existing assessment processes or through the fast track assessment process will be eligible only for grant of temporary protection visas.

The Migration Act and associated Migration Regulations will be amended to establish TPVs for people who have arrived in Australia without visas and are found to engage Australia’s protection obligations.

In particular, new section 35A in the Migration Act and the proposed Migration Regulations would create a new Class XD Temporary Protection (Subclass 785 (Temporary Protection)) visas, which would be the protection visa (a visa that may be provided to people within Australia who engage Australia’s protection obligations) available to people who:

·          are unauthorised maritime arrivals as described in the Migration Act; or

·          otherwise arrived in Australia without a visa; or

·          were not immigration cleared on their last arrival in Australia; or

o    are the member of the same family unit as a person mentioned above; and

o    that person has been granted a Subclass 785 (Temporary Protection) visa; or

·          already hold a TPV.

The introduction of TPVs is a key element of the Government’s border protection strategy to combat people smuggling and to discourage people from making dangerous voyages to Australia.

The proposed Migration Act amendment and Migration Regulations would prevent people in the above cohort from being eligible to apply for, or being granted, a Permanent Protection visa that allows the holder to remain in Australia indefinitely (i.e. Subclass 866 (Protection) visas).

The Subclass 866 (Protection) visa would remain available to applicants from outside the cohort, but people within the cohort would be unable to make a valid application for Subclass 866 (Protection) visas, and any existing un-finalised Permanent Protection visa (PPV) application from the cohort would be unable to meet the requirements for grant (as the application will have been deemed to a TPV application).

A new visa to be known as Safe Haven Enterprise Visas (SHEV) will be created. Amendments to the Migration Regulations to prescribe criteria for this visa will follow in 2015.

Schedule 2 to the Bill provides explicit authority for the making of regulations which deem an application for one type of visa to be an application for a different type of visa (conversion regulations), if one or more specified events occur. The Bill also makes conversion regulations that deem Permanent Protection visa applications made by prescribed classes of applicants to be applications for Temporary Protection visas.

These amendments are two key measures which will enable the Government to more effectively manage asylum seekers who have arrived in Australia illegally, and ensure that illegal arrivals who are found to engage Australia’s protection obligations are not granted Permanent Protection visas to remain in Australia.

The amendment authorising the making of conversion regulations will have broader future utility as it facilitates greater flexibility in the department’s management and processing of on-hand applications for any class of visa (not just Protection visas) in response to changing Government priorities. 

Sections 48, 48A and 501E of the Migration Act limit or prohibit the making of further visa applications (‘application bars’) by non-citizens in the migration zone who, since they last entered Australia, have been refused a visa or held a visa that was cancelled.

Schedule 2 to the Bill will clarify that the application bars will also apply in circumstances where the refused application was taken to have been made by the non-citizen under a provision of the Migration Act or the Migration Regulations, and where the cancelled visa was granted because of an application that the non-citizen was taken to have made under a provision of the Migration Act or the Migration Regulations.

The Bill will also clarify that there may be multiple classes of visas that are ‘protection visas’ under section 35A and that they may be temporary or permanent visas. Protection visas will include the Class XA Permanent Protection visa, the Class XD Temporary Protection visa and the Safe Haven Enterprise visa.  The criteria that need to be satisfied for these visas will be in section 36 and in the Migration Regulations.

Section 5 and regulation 1.03 will be amended to include a definition of protection visas , to make it clear that throughout the Migration Act and the Migration Regulations, the term protection visa includes a Permanent Protection visa (subclass 866) and a Temporary Protection visa (subclass 785), and a Safe Haven Enterprise visa; and any additional classes of permanent or temporary visas that are prescribed as protection visas by the Migration Regulations.

Schedule 3 to the Bill will create an express link between classes of visa provided for by sections 32 (Special Category visas), 37 (Bridging visas), 37A (Temporary Safe Haven visas), 38B (Maritime Crew visas) and new section 35A (Permanent Protection visas, Temporary Protection visas and Safe Haven Enterprise visas) of the Migration Act, and the criteria prescribed in the Migration Regulations in relation to those classes of visa.

For each of those visas, the amendment will ensure that if the Migration Regulations do not prescribe any criteria which relate to making a valid application for the visa and being granted the visa, non-citizens cannot make a valid application for the visa.

The amendment will also ensure that if there are regulations in effect that prescribe the requirements for making a valid application, or the criteria that must be met in order for the visa to be granted, then an application for the visa will not be valid unless the application in fact meets all the prescribed requirements. A visa must not be granted unless the applicant satisfies the criteria prescribed in the Migration Regulations as well as any other criteria provided for in the Migration Act.

The amendment will also clarify that for each of those visas, the Migration Regulations may, but need not, prescribe criteria which relate to making a valid application for the visa and being granted the visa.

Schedule 4 to the Bill establishes a new fast track assessment process for UMAs who entered Australia on or after 13 August 2012 and made a valid application for a protection visa. The Minister will also be able to later specify other types of applicants who should be subject to the new fast track assessment process, by way of legislative instrument (for example, unauthorised air arrivals) . The fast track assessment process will be conducted under existing provisions of the Migration Act. It is intended that the process will be supported by a code of procedure with shorter time frames which will be prescribed in the Migration Regulations. All fast track applicants will receive a full and comprehensive assessment of their claims for protection. 

A key component of the fast track assessment process is that fast track applicants will not be permitted to seek review from the RRT of their protection visa decisions. The Bill will instead, require the Minister to refer, as soon as reasonably practicable, certain decisions made in respect of fast track review applicants to the Immigration Assessment Authority (the IAA). The IAA will conduct a limited review of these decisions.

There will also be fast track applicants who in turn, will be excluded fast track review applicants.  After an assessment of their protection claims, excluded fast track applicants will be those who have found to have put forward claims that indicate they have been previously been refused protection, already have protection available elsewhere or have unmeritorious claims and as such, their cases suggest prompt resolution of their status should be a priority.  Excluded fast track review applicants will not have access to any form of merits review.  Excluding these applicants from merits review will stop unmeritorious claims being considered by the IAA which can lead to delays in departure and an inefficient and costly use of resources. Decisions made in relation to certain excluded fast track applicants who are identified as vulnerable can be referred to the IAA by way of a legislative instrument. All fast track applicants will continue to have access to judicial review.

New Part 7AA establishes the IAA and the new limited merits review framework. Under this Part, the Minister will be required to refer fast track reviewable decisions to the IAA and provide the IAA with review material as soon as reasonably practicable after the primary decision to refuse to grant a protection visa has been made under section 65 of the Migration Act.  Similar to the RRT, the IAA will have the power to either affirm the decision or remit the decision to the department for reconsideration in accordance with prescribed directions or recommendations. 

In carrying out its functions under the Migration Act, the IAA is to pursue the objective of providing a mechanism of limited review that is efficient and quick. While there will be discretionary powers for the IAA to get new and relevant information and to get information in the most suitable and convenient way from applicants, the IAA is under no duty to accept or request new information or interview an applicant. 

As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant’s country of origin that means the applicant may now engage Australia’s protection obligations. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the IAA that the new information could not have been provided to the Minister before the primary decision was made. The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia’s protection obligations by the Department of Immigration and Border Protection. 

The IAA will be independent of the Department of Immigration and Border Protection and be established as a separate office within the RRT.  The Principal Member of the RRT will be responsible for the overall operation and administration of the IAA and will be able to issue practice directions and guidance decisions to the IAA.  A Senior Reviewer will be appointed to oversee the functions and operations of the IAA and perform any powers and functions delegated by the Principal Member.  The Senior Reviewer and reviewers of the IAA will all be engaged under the Public Service Act 1999.

Schedule 5 to the Bill will clarify Australia’s international law obligations.  It is important that the right mechanisms are in place to ensure that those who do not engage our protection obligations can be removed from Australia.  This amendment will support onshore protection processing (including the fast track Assessment process).  The Bill will make clear that the removal power is available independent of assessments of Australia’s non-refoulement obligations, where a non-citizen meets the circumstances specified in the express provisions of section 198 of the Migration Act.  This is in response to a series of High Court decisions which have found that the Migration Act as a whole is designed to address Australia’s

non-refoulement obligations.  There are a number of personal non-compellable powers available for the Minister to use, before the exercise of the removal power, to allow a visa application or grant a visa where this is in the public interest. 

 

The form of administrative arrangements in place to support Australia meeting its

non-refoulement obligations is a matter for the Government.  Prompt removal of failed asylum seekers from Australia supports the integrity of the protection status determination process, including the fast track Assessment Process.

 

The Bill also removes most references to the Refugees Convention from the Migration Act and instead creates a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention.  It is not the intention of the Government to resile from Australia’s protection obligations under the Refugees Convention but rather to codify Australia’s interpretation of these obligations within certain sections of the Migration Act.  These amendments set out the criteria to be satisfied in order to meet the new statutory definition of a refugee .  They also clarify those grounds which exclude a person from meeting the definition or which (where a person satisfies the definition of a refugee ) render them ineligible for the grant of a Protection visa.

 

Paragraph 36(2)(a) of the Migration Act will be amended to provide as a criterion for the grant of a protection visa that the applicant satisfy the definition of a refugee as set out by the new statutory framework.  Australia’s interpretation of Article 1A(2) of the Refugees Convention will be implemented through the new section 5H which defines the term ‘refugee’ and also provides the grounds where the meaning of ‘refugee’ does not apply (consistent with the exclusion clause under Article 1F of the Refugees Convention).

It is not intended to incorporate Article 1D of the Refugees Convention into the Migration Act. Following the Full Federal Court’s finding in Minister for Immigration and Multicultural Affairs v WABQ [2012] FCFCA 329 Palestinian refugees as a class of persons do not fall within the scope of Article 1D due to protection from organs or agencies of the United Nations, other than the United Nations High Commissioner for Refugees, having ceased for this group. Consistent with this finding, any Palestinian refugees making claims for protection in Australia are to be considered against the definition of refugee under the new section 5H in the Migration Act.   

The new section 5J sets out the circumstances that must be satisfied for a person to have a well-founded fear of persecution .  This amendment sets out the five grounds for refugee status consistent with those listed in Article 1A(2) of the Refugees Convention. Under the new statutory framework a person will continue to be assessed as to whether they have a ‘real chance’ of being persecuted. The ‘real chance’ test is consistent with the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. New paragraph 5J(1)(b) is a statutory implementation of this test.

 

The new paragraph 5J(1)(c) makes it clear that a person only has a well-founded fear if that person has a ‘real chance’ of persecution in all areas of the receiving country. When determining whether a person can relocate to another area of the receiving country where they do not have a real chance of persecution, a decision maker should take into account whether the person can safely and legally access the area upon returning to the receiving country.

 

It is the Government’s intention that this statutory implementation of the ‘internal relocation’ principle  not encompass a  ‘reasonableness’ test which assesses whether it is reasonable for an asylum seeker to relocate to another area of the receiving country. Australian case law has broadened the scope of the ‘reasonableness’ test to take into account the practical realities of relocation. Decision makers are currently required to consider information that is additional to protection considerations under Article 1A(2) of the Refugees Convention such as a diminishment in quality of life or potential financial hardship. In the Government’s view, these considerations are inconsistent with the basic principle that protection ought be offered by the international community only in the absence of protection within all areas of a receiving country.

The new subsection 5J(2) clarifies Australia’s interpretation of the standard of effective state or non-state protection within the receiving country that is required in order to make a determination of whether a person has a well-founded fear of persecution in that country. It is the Government’s intention to provide a statutory formulation of these concepts which is consistent with current Australian case law on effective state protection.  The new paragraph 5J(2)(a) codifies the interpretation of effective protection measures provided by the State consistent with the High Court’s decision in Minister for Immigration and Multicultural Affairs v S152/2003 (20204) 222 CLR.  The new paragraph 5J(2)(b) codifies the adequate and effective protection measures provided by sources other than the relevant State consistent with the reasoning in Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953.

It is the intention of Government by inserting the new subsection 5J(3) to expressly make it clear that a person does not have a well-founded fear of persecution if they could objectively take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in the receiving country.  A modification that would be in conflict with a characteristic that is fundamental to the person’s identity or conscience is excluded, as are modifications that would require the person to conceal an innate or immutable characteristic.  The purpose of this amendment is to clarify that any assessment of whether a person has a ‘well-founded fear of persecution’ is to take into account not only what a person would do but also what they could do upon returning to a receiving country to avoid the relevant persecution.

New section 5L seeks to clarify and limit the definition of membership of a particular social group which is one of the  grounds for a well-founded fear of persecution  set out in new paragraph 5J(1)(a). The new section 5L applies to membership of a particular social group other than the person’s family. Currently there is minimal legislative guidance for decision makers to determine what constitutes a particular social group in this circumstance, which has resulted in a broad interpretation of the term being taken by the High Court in Applicant S v Minister for Immigration and Multicultural Affairs [2004] 217 CLR 387. The breadth of this interpretation has led to long lists of increasingly elaborate potential particular social groups being drawn for the purposes of protection visa applications thereby making implementation of the term complex and difficult for decision makers to apply, and is broader than that being applied in other jurisdictions (eg. Canada, the United States of America, New Zealand and the European Union).  The new section 5L is based on the approach taken in these other jurisdictions and is intended to reduce the incentive and capacity for applicants to advance extensive lists of possible particular social groups.  The new section 5L is not intended to exclude a finding that a person’s family constitutes a particular social group.  Rather, it is intended to clarify that membership of a particular social group consisting of family will be dealt with separately under the new section 5K.  The new section 5K is unchanged from its previous formulation at section 91S and is intended to provide legislative guidance to decision makers to determine what constitutes a particular social group other than the person’s family.

The Government intends the codification of Article 33(2) of the Refugees Convention, which operates as an exception to the prohibition against refoulement , to make it clear that it is both appropriate and desirable for decision makers to consider this concept as part of the criteria for a protection visa.  The statutory implementation of Article 33(2) of the Refugees Convention is through the new subsection 36(1C). Where a person is found to meet the definition of ‘refugee’ but does not meet the criterion under subsection 36(1C) they will be ineligible for grant of a Protection visa.  This criterion is consistent with the ineligibility criteria under paragraph 36(2C)(b) in relation to the complementary protection provisions in the Migration Act.

 

Schedule 6 to the Bill will clarify the legal status of children of UMAs and transitory persons.

Section 5AA of the Migration Act will be amended to include the children of UMAs, who are born in Australia or in a regional processing country, within the definition of UMA in this section.  Such children are not currently explicitly included in the definition of UMA in the Migration Act.  This means that the policy intent, which is that such children are prevented from applying for a Permanent Protection visa while in Australia by virtue of being a UMA, is not explicit on the face of the legislation.

This amendment will also make it clear that children of UMAs who arrive post-13 August 2012 are subject to transfer to a regional processing country, which will place them in a position consistent with their parents.  If the children of UMAs are not subject to offshore processing then this may undermine the government’s offshore processing policies, both in respect of the children and the children’s family members.  In terms of both preventing UMAs from applying for Permanent Protection visas and making UMAs subject to offshore processing, it is important to maintain consistency within the family unit and ensure families are not separated by the operation of the Migration Act.  The new subsection 198AD(2A) will make clear that the children of UMAs who arrived in Australia prior to 13 August 2012 are not subject to offshore processing, consistent with their parents.

Consequential amendments will also be made to sections 5, 198 and 198AH of the Migration Act to ensure provisions relating to ‘transitory persons’ in the Migration Act account for the new definition of UMA.

These measures will commence on the day after the day of the Royal Assent is received and will operate with retrospective effect.  This will clarify that any visa applications from children born to UMAs prior to commencement are invalid.  However, the retrospective effect of the amendments will not apply to visa applications in respect of which the Minister has previously intervened to allow a valid visa application to be made.  Accordingly, on-hand visa applications that the Minister has already allowed to proceed can continue to be assessed.

Schedule 7 to the Bill will make amendments so that the Minister for Immigration and Border Protection is able to place a statutory limit on the number of protection visas granted in a programme year.

In Plaintiff S297/2013 v MIBP [2014] HCA 24 a majority of the High Court interpreted the time limit created by current section 65A for processing protection visas as conflicting with the section 85 power to limit the number of visas that may be granted in a specified financial year.  The Court resolved that conflict by finding that section 85 did not apply to protection visas.  To address that decision, sections 65A and  414A of the Migration Act which require applications for protection visas to be decided in 90 days, and corresponding reporting requirements in sections 91Y and 440A, will be repealed.

In addition the initial policy intent for introducing a 90 day requirement was to support flexible, fair and timely resolution of protection visa applications, but it is no longer an effective mechanism to achieve this outcome.  Ministerial directions have been put in place regarding the order of consideration for processing of protection visa applications which achieve a more effective and responsive approach to different caseloads, without generating resource-intensive reporting.

The amendments in the Bill will also make clear that the requirement for the Minister in section 65 to grant or refuse to grant a visa after considering a valid application is subject to sections 84 and 86 of the Migration Act.  The Bill will also amend sections 84 and 85 of the Migration Act to specifically state that a visa of a specified class includes protection visas.

financial impact statement

 

The financial impact of the Bill is medium.  Any costs will be met from within existing resources of the Department of Immigration and Border Protection.

 

REGULATION impact statement

 

The Office of Best Practice Regulation has been consulted and a regulation impact statement is not required.  The advice references are 17300, 17451, 17519 and 17433.

 

statement OF COMPATIBILITY with Human rights

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations.  A copy of the Statement of Compatibility with Human Rights is at Attachment A .

 

Migration AND MARITIME POWERS LEGISLATION amendment (RESTORING THE ASYLUM CASELOAD) B ILL 2014

 

notes on individual clauses

 

Clause 1          Short title

1.               Clause 1 provides that the short title by which this Act may be cited is the

Migration and Maritime Powers Legislation Amendment (Restoring the Asylum Legacy Caseload) Act 2014 .

Clause 2          Commencement

2.               Subclause 2(1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.  Any other statement in column 2 has effect according to its terms.

3.               Table item 1 provides that sections 1 to 3 and anything in this Act not elsewhere covered by the table commences on the day this Act receives the Royal Assent.

4.               Table item 2 provides that Schedule 1 commences the day after this Act receives the Royal Assent. 

5.               Table item 3 provides that Schedule 2, Part 1, Division 1 commences the day after this Act receives the Royal Assent.

6.               Table item 4 provides that Schedule 2, Part 1, Division 2 commences on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

7.               Table item 5 provides that Schedule 2, Part 1, Division 3 commences the day after this Act receives the Royal Assent.

8.               Table item 6 provides that Schedule 2, Parts 2 and 3 commence the day after this Act receives the Royal Assent.

9.               Table item 7 provides that Schedule 2, Part 4, Division 1 commences the day after this Act receives the Royal Assent.

10.           Table item 8 provides that Schedule 2, Part 4, Division 2 commences immediately after the commencement of the provisions covered by table item 7.

11.           Table item 9 provides that Schedule 2, Part 4, Divisions 3 and 4 commence the day after this Act receives the Royal Assent.

12.           Table item 10 provides that Schedule 3 commences the day after this Act receives the Royal Assent.

13.           Table item 11 provides that Schedule 4 commences on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

14.           Table item 12 provides that Schedule 5, items 1 and 2 commence the day after this Act receives the Royal Assent.

15.           Table item 13 provides that Schedule 5, item 3 commences immediately after item 4 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2014 commences.

16.           Table item 14 provides that Schedule 5, Part 2 commences on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

17.           Table item 15 provides that Schedule 5, item 18 commences at the same time as the provisions covered by table item 3.  However, if item 3 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2014 commences at or before that time, the provisions do not commence at all.

18.           Table item 16 provides that Schedule 5, items 19 to 22 commence at the same time as the provisions covered by table item 3.  However, if Schedule 1 to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 commences at or before that time, the provisions do not commence at all.

19.           Table item 17 provides that Schedule 5, item 23 commences immediately after the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 commences.

20.           Table item 18 provides that Schedule 5, item 24 commences immediately after item 3 of Schedule 3 to the Migration Amendment Act 2014 commences.

21.           Table item 19 provides that Schedule 5, item 25 commences immediately after item 5 of Schedule 3 to the Migration Amendment Act 2014 commences.

22.           Table item 20 provides that Schedule 5, item 26 commences immediately after the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 commences.

23.           Table item 21 provides that Schedule 5, item 27 commences the day after this Act receives the Royal Assent.

24.           Table item 22 provides that Schedule 5, items 28 and 29 commence at the same time as the provisions covered by table item 3.

25.           Table item 23 provides that Schedules 6 and 7 commence the day after this Act receives the Royal Assent.

26.           A note after the table in subclause 2(1) of this Act provides that the table in subclause 2(1) relates only to the provisions of this Act as originally enacted.  It will not be amended to deal with any later amendments of this Act.

27.           Subclause 2(2) provides that any information in column 3 of the table in subclause 2(1) is not part of this Act.  Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Clause 3          Schedules

28.           Subclause 3(1) provides that legislation 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.

29.           Subclause 3(2) provides that the amendment of any regulation under subsection 3(1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General.

 

 

SCHEDULE 1 - Amendment relating to maritime powers

Maritime Powers Act 2013

Item 1             Section 7

1.               This item omits “In accordance with international law, the exercise of powers is limited in places outside Australia .” in section 7 of Division 2 of Part 1 of the Maritime Powers Act.

2.               Section 7 is a guide that describes the operation of the Maritime Powers Act.  The omitted provision was for the purpose of acknowledging that Australia’s extraterritorial jurisdiction is limited as a matter of international law, particularly under the United Nations Convention on the Law of the Sea. However, it created an ambiguity due to its lack of specificity. This amendment does not change the need to give effect to Australia’s international obligations. It merely reflects the intention that the interpretation and application of such obligations is, in this context, a matter for the executive government, noting that the executive government is accountable to the international community for its compliance with those obligations.

Item 2             Section 8

1.               This item inserts a new definition of destination and Marine Safety (Domestic Commercial Vessel) National Law in section 8 of Division 3 of Part 1 of the Maritime Powers Act.

2.               The new definition of “destination” provides that:

          destination:

·          in relation to a vessel detained under subsection 69(1) - see subsections 69(2), (3) and (3A); or

·          in relation to a person detained under subsection 72(4) - see subsections 72(4), (4A) and (4B).

Note: see also section 75C.

Marine Safety (Domestic Commercial Vessel) National Law has the meaning given by section 17 of the Marine Safety (Domestic Commercial Vessel) National Law Act 2012.

3.               Subsection 69(1) of the Maritime Powers Act provides that a maritime officer may detain a vessel or aircraft.  Subsection 72(4) of the Maritime Powers Act, as substituted by item MP1F of Schedule MP to the Bill, provides that a maritime officer may detain a person who is or was on a detained vessel or aircraft and take the person, or cause the person to be taken, to a place in the migration zone or outside the migration zone, including a place outside Australia.

4.               Subsection 69(2) is amended by items MP1B and MP1BA of Schedule MP to the Bill.  Subsection 69(3) is repealed and substituted with a new subsection 69(3) by item MP1C of Schedule MP to the Bill and new subsection 69(3A) is inserted by the same item.  Subsection 72(4) is repealed and substituted with new subsection 72(4) item MP1F of Schedule MP to the Bill and new subsection 82(4A) is inserted by the same item.  The new defined term “destination” is used to replace the un-defined term “place” in sections 69 and 72. The purpose of those changes is explained below in items MP1B and MP1D.

5.               The new definition of “Marine Safety (Domestic Commercial Vessel) National Law” refers to the “national law” established by the  Marine Safety (Domestic Commercial Vessel) National Law Act 2012 , which is referred to in new section 75H.

Item 3             Section 8 (paragraph (e) of definition of monitoring law )

6.               This item inserts “73 or” after “Division” in paragraph (e) of the definition of monitoring law in section 8 of Division 3 of Part 1 of the Maritime Powers Act.

7.               The current definition provides that monitoring law means:

·          the Customs Act 1901 ; or

·          the Fisheries Management Act 1991 ; or

·          the Migration Act 1958 ; or

·          the Torres Strait Fisheries Act 1984 ; or

·          section 72.13 or Division 307 of the Criminal Code ; or

·          clause 8 of Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999 ; or

·          a law prescribed by the regulations.

8.               The effect of this amendment is to provide that Division 73 of the Criminal Code is a monitoring law for the purposes of this definition. Division 73 of the Criminal Code deals with people smuggling and related offences. This will ensure that the people smuggling offences in the Migration Act and Criminal Code will be treated similarly for the purposes of the Maritime Powers Act, and reflect the importance and original intention of the Maritime Powers Act in countering people smuggling operations.

Item 4             Section 11

9.               This item inserts “(1)” before “For the purposes” in section 11 of Division 3 of Part 1 of the Maritime Powers Act.

10.           Current section 11 provides that for the purposes of the Maritime Powers Act, the continuous exercise of powers does not end only because there is a period of time between the exercise of one or more of the powers.

11.           The effect of this change is to reorganise the current content of Section 11 into new subsection 11(1).  This facilitates the insertion of new subsection 11(2) by item 5 below. 

 

Item 5             At the end of section 11

12.           This item inserts “(2) To avoid doubt, a continuous exercise of powers does not end merely because the destination to which a vessel, aircraft or person is to be taken (or caused to be taken) is changed to a different place under subsection 69(3A) or 72(4B).” in section 11 of Division 3 of Part 1 of the Maritime Powers Act.

13.           The effect of this amendment is to avoid any doubt that a change of destination under subsections 69(3A) or 72(4B) could interrupt the continuous exercise of powers. Parliament’s intent is that this is a broad provision which provides maritime officers with the flexibility and discretion needed to effectively exercise maritime powers in real-world operational circumstances. Other examples of matters which would not put an end to the continuous exercise of powers include arrival at a destination while detention continues, or pausing a journey to a destination for other operational reasons, for example to rescue persons from a vessel in distress or to reprovision a vessel.

Item 6             At the end of Division 2 of Part 2

14.           This item adds new section 22A Failure to consider international obligations etc. does not invalidate authorisation and new section 22B Rules of natural justice do not apply to authorisations at the end of Division 2 of Part 2 of the Maritime Powers Act.

15.           New subsection 22A(1) provides that the exercise of a power to give an authorisation under a provision of this Division is not invalid

·          because of a failure to consider Australia’s international obligations, or the international obligations or domestic law of any other country; or

·          because of a defective consideration of Australia’s international obligations, or the international obligations or domestic law of any other country; or

·          because the exercise of the power is inconsistent with Australia’s international obligations.

16.           The intention of this provision is that, as a matter of domestic law, the failure to consider or comply with Australia’s international obligations or a failure to consider the domestic law or international obligations of another country should not be able to form the basis of a domestic legal challenge to the exercise of the powers to give an authorisation under Division 2 of Part 2 of the MPA.

17.           The Australian Government takes its international obligations seriously, and Australia is bound to act in compliance with its international obligations as a matter of international law. This amendment does not seek to change that fact. Appropriate measures are always taken to ensure that operational activities involving the exercise of maritime powers comply with Australia’s international obligations. This amendment merely reflects the intention that the interpretation and application of such obligations is, in this context, a matter for the executive government. The Parliament’s intent in passing this amendment is that it be put beyond doubt that Australia’s international obligations, the international obligations of other countries and other countries’ domestic law cannot form the basis of an invalidation of the exercise of the powers in Division 2 of Part 2 as a matter of domestic law.

18.           New subsection 22A(2) provides that subsection 22A(1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraphs 22A(1)(a), 22A(1)(b) or 22A(1)(c).

19.           The purpose of subsection 22A(2) is to make it clear that there should be no implication drawn from the inclusion of section 22A that  international law or the laws of other countries may be used to impugn other exercises of power or decisions under the Maritime Powers Act.

20.           New subsection 22B(1) provides that the rules of natural justice do not apply to the exercise of a power to give an authorisation under a provision of Division 2 of Part 2 of the Maritime Powers Act. 

21.           New subsection 22B(2) provides that subsection 22B(1) Subsection (1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act.

22.           The purpose of subsection 22B(1) is to put it beyond doubt that the rules of natural justice do not apply to the process of issuing an authorisation under Division 2 of Part 2 of the Maritime Powers Act. 

23.           The purpose of subsection 22B(2) is to make it clear that there should be no implication drawn from the inclusion of section 22B that  the rules of natural justice may be used to impugn other exercises of power or decisions under the Maritime Powers Act.

24.           The original intention of the Maritime Powers Act was to provide a complete statement on the balance between individual protections, including natural justice, and law enforcement imperatives. The Replacement Explanatory Memorandum to the Maritime Powers Bill 2012 stated on page 62 that

Part 5 provides both substantive and procedural protections to individuals held by maritime officers. These protections strike a balance between, on the one hand, the necessity of treating held individuals in accordance with natural justice and human dignity and, on the other hand, recognising the unique circumstances facing law enforcement in a maritime environment.

 

25.           Part 5 does not impose a general requirement to provide natural justice, and the explanatory memorandum clearly acknowledges that the “unique circumstances…in a maritime environment” render the provision of natural justice in most circumstances impracticable. In dealing with powers to detain and move persons, Part 5 does not provide for natural justice. Nevertheless, to provide authorising officers with the greatest certainty while performing their work, it is appropriate to put it beyond doubt that they are not bound to provide natural justice in deciding to authorise the exercise of maritime powers.

 

Item 7             Paragraph 31(a)

26.           This item inserts “or prevent” after “investigate” in paragraph 31(a) of Subdivision C of Division 4 of Part 2 of the Maritime Powers Act

27.           The purpose of this amendment is to put it beyond doubt that, when authorised, maritime officers may exercise maritime powers to prevent a contravention of the law. 

Item 8             Subsection 41(1) (note)

28.           This item omits “note” and substitutes “note 1” in the note to subsection 41(1) of Subdivision B of Division 5 of the Maritime Powers Act.

29.           This is a consequential amendment that reflects the insertion of a second note to the subsection.

Item 9             At the end of subsection 41(1)

30.           This item adds “note 2: This section does not apply to the exercise of powers under Divisions 7 and 8 of Part 3 in some circumstances: see section 75D.” at the end of subsection 41(1) of Subdivision B of Division 5 of the Maritime Powers Act.

31.           The purpose of this note is to direct the reader to section 75D.  Section 75D is inserted by this bill, as discussed below, and provides a ministerial power to determine that the exercise of powers between countries may take place in certain circumstances. 

Item 10           At the end of subsection 69(1)

32.           This item adds “Note: For other provisions affecting powers under this section, see section 69A and Division 8A.” at the end of Subsection 69(1) of Division 7 of Part 3 of the Maritime Powers Act.

33.           The purpose of this note is to direct the reader to section 69A and Division 8A.  These were inserted by this Bill, as discussed below, and may affect the exercise of powers under section 69.

Item 11           Subsections 69(2) and (3)

34.           This item repeals  subsections 69(2) and 69(3) and substitutes new subsection 69(2), 69(3) and 69(3A).

35.           New subsection 69(2) provide that the officer may take the vessel or aircraft, or cause the vessel or aircraft to be taken, to a place (the destination) and remain in control of the vessel or aircraft, or require the person in charge of the vessel or aircraft to remain in control of the vessel or aircraft, at the destination, until whichever of the following occurs first:

·          the vessel or aircraft is returned to a person referred to in subsection 87(1);

·          action is taken as mentioned in subsection 87(3) in relation to the vessel or aircraft.

36.           Current section 69(2) provides that an officer take a detained vessel or aircraft, or cause  the vessel or aircraft to be taken, to a port, airport or other place that the officer considers appropriate, and may remain in control of the vessel or aircraft, or require the person in charge of the vessel or aircraft to remain in control of the vessel or aircraft, at that place until the vessel is released or disposed of. Current subsection 69(3) provides that a maritime officer may take the vessel or aircraft, or cause it to be taken, to the port, airport or other place even if it is necessary for the vessel or aircraft to travel outside Australia to reach the port, airport or other place.

37.           The effect of this change is to use the new term destination in lieu of the phrase “port, airport or other place that the officer considers appropriate”, and to clarify the period of time during which maritime officers may remain in control of a vessel.  The new term destination is intended to provide clarity and consistency.  It also harmonises the language with that in subsection 72(4). Section 75C contains additional provisions about the place that may be the destination.

38.           New subsection 69(3) provides that the destination may be in the migration zone or outside the migration zone (including outside Australia).

39.           A new note after new subsection 69(3) notes that Section 75C contains additional provisions about the place that may be the destination.

40.           New subsection 69(3A) provides that a maritime officer may change the destination to a different place at any time (including a time after arrival at the place that was previously the destination).  If the destination is changed to a different place, that different place is then the destination, but this does not affect the exercise of powers under the Maritime Powers Act before the change.

41.           A note after new subsection 69(3A) advises that it is possible that the destination may change more than once.

42.           This amendment is to clarify the intended operation of section 69, putting it beyond doubt that a maritime officer may change the place to which a vessel is to be taken. This understanding is reflected in the explanatory memorandum for the Maritime Powers Bill 2012 (see page 50 of the replacement memorandum).

Item 12           After section 69

43.           This item inserts “ 69A Additional provisions relating to taking a vessel or aircraft to a destination under section 69 ” after section 69 of Division 7 of Part 3 of the Maritime Powers Act.

44.           New subsection 69A(1) provides that for the purpose of taking a vessel or aircraft (or causing a vessel or aircraft to be taken) to a destination under paragraph 69(2)(a), the vessel or aircraft may be detained under subsection 69(1)

·          for any reasonable period required to decide which place should be the destination or to consider whether the destination should be changed to a different place under subsection 69(3A), and (if it should be changed) to decide what that different place is; and

·          for any period reasonably required for the minister to consider whether to give a direction under section 75D, 75F or 75H in relation to a matter referred to in subparagraphs 69A(a)(i) or 69A(a)(ii) or any other matter relating to the vessel or aircraft, or in relation to persons on (or suspected as having been on) the vessel or aircraft; and

·          for the period it actually takes to travel to the destination.

45.           A new note to new subsection 69A(1) notes that the total period for which the vessel or aircraft is detained may be longer than the periods covered by this subsection: see subsection (3) and section 87.

46.           The effect of subsection 69A(1) is to provide further clarity and certainty in respect of maritime officers’ power to detain a vessel or aircraft while exercising the power to take a vessel or aircraft to a place under paragraph 69(2)(a).  This enables a vessel of aircraft to be detained while a destination is determined, to consider whether the destination should be changed, or while the Minister considers whether to give a direction under 75D, 75F or 75H.  This subsection also allows for the vessel or aircraft to be detained during actual travel time. 

47.           New subsection 69A(2) clarifies that for the purposes of paragraph 69A(1)(c) the period it actually takes to travel to the destination may include stopovers at other places on the way to the destination, and any time for other logistical, operational or other contingencies relating to travelling to the destination and there is no requirement that the most direct route to the destination must be taken. It was always intended that the powers to move a vessel contemplated such periods of time; however, this provision is intended to ensure that result is as clear as possible.

48.           The purpose of new section 69A is to confirm that the powers in section 69 are intended to account for the real time it takes to deal with a vessel detained under section 69 safely and in an operationally realistic way, including all the elements which may delay operations, both predictable and unpredictable.  This subsection strikes a balance between the need for clear operational powers and the desirability of imposing constraints on the exercise of power by making paragraphs 69A(1)(a) and 69A(1)(b) subject to a reasonableness requirement.  Paragraph 69A(1)(c) is not subject to an equivalent requirement of reasonableness as it is confined to the time that it actually takes to travel to a destination.

49.           The safe exercise of the power to move a vessel requires the clear ability to undertake stopovers (for example to re-provision or conduct a crew replacement), and to account for logistical issues, operational or other contingencies.  Explicitly providing that there is no requirement that the most direct route to the destination be taken puts it beyond doubt that Australia’s maritime personnel are able to undertake operations safely and in a manner that they consider appropriate to the circumstances.  These provisions are designed to provide maritime officers with the flexibility they need to exercise their professional judgement to perform their difficult work in the safest and most effective way.

50.           New subsection 69A(3) provides that days in periods covered by subsection 69A(1) do not count towards the 28 day limit specified in paragraph 87(2)(a).

51.           The effect of this provision is to clarify the relationship between new subsection 69A(3) and paragraph 87(2)(a).  This reflects the policy that the holding period should not commence until after the vessel or aircraft reaches its destination.

Item 13           Subsection 72(1) (note)

52.           This item omits “Note:” and substitutes “Note 1:” in the note to section 72(1) of Division 8 of Part 3 of the Maritime Powers Act.

53.           This is a consequential amendment that reflects the insertion of a second note after the current note to subsection 72(1).

Item 14           At the end of subsection 72(1)

54.           This item adds “Note 2: For other provisions affecting powers under this section, see section 72A and Division 8A.” at the end of subsection 72(1) of Division 7 of Part 3 of the Maritime Powers Act

55.           The purpose of this note is to direct the reader to new sections 69A, 72A and Division 8A, all of which are inserted by this act and may affect the exercise of power under section 72.

Item 15           Subsections 72(3) and (4)

56.           This item repeals subsections 72(3) and 72(4) and substitutes new subsections 72(3), 72(4), 72(4A) and 72(4B) of Division 7 of Part 3 of the Maritime Powers Act.

57.           Current subsection 72(3) provides that a maritime officer may require that the person remain on the vessel or aircraft until it is taken to a port, airport or other place (see section 69) or permitted to depart from the port, airport or other place.  The note to current subsection 72(3) states that it is an offence to fail to comply with a requirement under this subsection: see section 103.

58.           Current subsection 72(4) provides that a maritime officer may detain the person (who is or was on a detained vessel or aircraft) and take the person, or cause the person to be taken, to a place in the migration zone or to a place outside the migration zone, including a place outside Australia.

59.           New subsection 72(3) provides that a maritime officer may require the person to remain on the vessel or aircraft until whichever of the following occurs first:

·          the vessel or aircraft is returned to a person referred to in subsection 87(1);

·          action is taken as mentioned in subsection 87(3) in relation to the vessel or aircraft.

60.           A new note states that it is an offence to fail to comply with a requirement under this section: see section 103.

61.           The effect of this is to clarify the period during which a maritime officer may require a person to remain on a detained vessel or aircraft, and to harmonise the language between this provision and amended paragraph 69(2)(b).

62.           New subsection 72(4) provides that a Maritime officer may detain the person and take the person, or cause the person to be taken, to a place (the destination ).  New subsection 72(4A) provides that the destination may be: (a) in the migration zone or (b) outside the migration zone (including outside Australia).

63.           The new note to new section 72(4A) states that section 75C contains additional provisions about the place that may be the destination.

64.           The effect of these amendments is to clarify the places to which a person may be taken, and to harmonise the language between sections 69 and 72.

65.           New subsection 72(4B) provides that a maritime officer may change the destination to a different place at any time (including a time after arrival at the place that was previously the destination). If the destination is changed to a different place: (a) that different place is then the destination; but (b) this does not affect the exercise of powers under this Act before the change. The new note to new section 72(4B) states that it is possible that the destination may change more than once.

66.           This amendment is to clarify the intended operation of subsection 72(4), putting it beyond doubt that a maritime officer may change the place to which a person is to be taken. This understanding is reflected in the explanatory memorandum for the Maritime Powers Bill 2012 (see page 51 of the replacement memorandum).

Item 16           Subsection 72(5)

67.           This item omits “another place” and substitutes “the destination” in subsection 72(5) of Division 8 of Part 3 of the Maritime Powers Act.

68.           Current subsection 72(5) provides that for the purposes of taking the person to another place, a maritime officer may within or outside Australia place the person on a vessel or aircraft or restrain the person on a vessel or aircraft or remove the person from a vessel or aircraft.

69.           This is a consequential amendment that replaces the reference to “another place” with “the destination”.  This reflects the consistent use of the term “the destination” throughout the Act.  The use of this term is further explained in item 16.

Item 17           Paragraphs 72(5)(a) and (b)

70.           This item inserts “, or in a particular place on a vessel or aircraft” after “or aircraft” in paragraphs 72(5)(a) and 72(5)(b) in Division 8 of Part 3 of the Maritime Powers Act.

71.           Current subsection 72(5) provides that for the purposes of taking the person to another place, a maritime officer may within or outside Australia place the person on a vessel or aircraft or restrain the person on a vessel or aircraft or remove the person from a vessel or aircraft.

72.           The purpose of this provision is to clarify that a maritime officer may place or restrain a person to whom section 72 applies in a particular place on a vessel or aircraft, in addition to on a vessel or aircraft generally.  This reflects a power already provided in section 71, but explicitly applies it in circumstances where a person is detained under subsection 72(4).

Item 18           After section 72

73.           This item inserts new section 72A Additional provisions relating to taking a person to a destination under subsection 72(4) in Division 8 of Part 3 of the Maritime Powers Act.

74.           New subsection 72A(1) provides that a person may be detained under subsection 72(4) for any period reasonably required to decide which place should be the destination or to consider whether the destination should be changed to a different place under subsection 72(4B), and (if it should be changed) to decide what the different place is; and for any period reasonably required for the Minister to consider whether to make or give a determination or direction under sections 75D, 75F or 75H in relation to a matter referred to in subparagraphs 72A(a)(i) or 72A(a)(ii) or any other matter relating to the exercise of powers in relation to the person and for the period it actually takes to travel to the destination and for any period reasonably required to make and effect arrangements relating to the release of the person.

75.           New subsection 72A(2) provides that for the purpose of paragraph 72A(1)(c) the period it actually takes to travel to the destination may include stopovers at other places on the way to the destination, and time for other logistical, operational or other contingencies relating to travelling to the destination and there is no requirement that the most direct route to the destination must be taken.

76.           New subsection 72A(3) provides that the person must not be detained under subsection 72(4) for any longer than is permitted by subsection 72A(1).

77.           New subsection 72A(4) provides that powers may be exercised in accordance with subsection 72(5) in relation to the person at any time while the person continues to be detained under that subsection.

78.           New subsection 72A(5) provides that subsection 72A(3) does not prevent the arrest of the person or the detention of the person or the exercise of any other power in relation to the person.

79.           The purpose of new section 72A is to put it beyond doubt that the Maritime Powers Act is intended to account for the real time it takes to deal with a person under 72(4) safely and in an operationally realistic way.  This section strikes a balance between the need for clear operational powers and the desirability of imposing constraints on the exercise of power by making paragraphs 72A(1)(a), 72A(1)(b) and 72A(1)(d) subject to a reasonableness requirement. Paragraph 72A(1)(c) is not subject to an equivalent requirement of reasonableness as it is confined to the time that it actually takes to travel to a destination.

80.           The effect of 72A(3) is to make it clear that subsection 72A(1) places limits on the time during which a person may be detained under subsection 72(4).

81.           The purpose of subsection 72A(4) puts it beyond doubt that the powers to place, restrain or remove a person under section 72(5) can be exercised at any time while a person is detained.

82.           This purpose of this provision is to remove doubt about the relationship between subsection 72A(3) and other provisions by specifying that while subsections 72A(1) and 72A(3) together limit detention under subsection 72(4), this should not be interpreted to prevent either the arrest or detention of a person under Australian law or other exercises of power in relation to such a person.

Item 19           After Division 8 of Part 3

83.           This item inserts new Division 8A General provisions relating to powers under Divisions 7 and 8 after Division 8 of Part 3 of the Maritime Powers Act and new sections 75A Failure to consider international obligations etc. does not invalidate exercise of powers , 75B Rules of natural justice do not apply to exercise of powers ,  75C  Additional provisions about destination to which a vessel, aircraft or person may be taken , 75D Exercising powers between countries , 75E Powers are not limited by the Migration Act 195 8 , 75F Minister may give directions about exercise of powers , 75G Compliance with directions and 75H Certain maritime laws do not apply to certain vessels detained or used in exercise of powers .

84.           New subsection 75A(1) provides that the exercise of a power under section 69, 69A, 71, 72, 74 72A, 72D, 75F, 75G or 75H is not invalid

·          because of a failure to consider Australia’s international obligations, or the international obligations or domestic law of any other country; or

·          because of a defective consideration of Australia’s international obligations, or the international obligations or domestic law of any other country; or

·          because the exercise of the power is inconsistent with Australia’s international obligations.

85.           The intention of this provision is that, as a matter of domestic law, the failure to consider or comply with Australia’s international obligations or a failure to consider the domestic law or international obligations of another country should not be able to form the basis of a domestic legal challenge to the exercise of the powers under the relevant sections of the Maritime Powers Act.

86.           The Australian Government takes its international obligations seriously, and Australia is bound to act in compliance with its international obligations as a matter of international law. This amendment does not seek to change that fact. Appropriate measures are always taken to ensure that operational activities involving the exercise of maritime powers comply with Australia’s international obligations. This amendment merely reflects the intention that the interpretation and application of such obligations is, in this context, a matter for the executive government. The Parliament’s intent in passing this amendment is that it be put beyond doubt that Australia’s international obligations, the international obligations of other countries and other countries’ domestic law cannot form the basis of an invalidation of the exercise of the affected powers as a matter of domestic law.

87.           New subsection 75A(2) provides that subsection 75A(1) does not prevent the exercise of a power under a provision referred to in that subsection from being invalid because it was not in accordance with Part 2.

88.           Part 2 of the Maritime Powers Act provides a framework within which the exercise of maritime powers is authorised and limited.  The purpose of subsection 75A(2) is to make it clear that subsection 75A(1) should not prevent invalidity of a decision or exercise of power for reasons of a failure to comply with the conditions placed on that decision or exercise by the Maritime Powers Act itself - that is, the act should be internally consistent, including in circumstances where by the terms of the Act itself a maritime power is limited under an international obligation, for example when maritime powers are exercised under section 33. It should be noted that Division 2 of Part 2 will contain in new section 22A an equivalent provision to new section 75A which applies to that division (but not to the rest of Part 2).

89.           New subsection 75A(2) provides that subsection (1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraphs 75A(1)(a), 75A(1)(b) or 75A(1)(c).

90.           The purpose of this subsection is to clarify that specifying that the Australia’s international obligations or the domestic laws of another country will not lead to the invalidity of an exercise of power under section 69, 69A, 71, 72, 74 72A, 75D, 75F, 75G or 75H] is not intended to imply that such considerations will lead to the invalidity of other powers or provisions under the Maritime Powers Act.

91.           New subsection 75B(1) provides that the rules of natural justice do not apply to the exercise of powers under section 69, 69A, 71, 72, 74 72A, 75D, 75F, 75G or 75H.

92.           The original intention of the Maritime Powers Act was to provide a complete statement on the balance between individual protections, including natural justice, and law enforcement imperatives. The Replacement Explanatory Memorandum to the Maritime Powers Bill 2012 stated on page 62 that:

Part 5 provides both substantive and procedural protections to individuals held by maritime officers. These protections strike a balance between, on the one hand, the necessity of treating held individuals in accordance with natural justice and human dignity and, on the other hand, recognising the unique circumstances facing law enforcement in a maritime environment.

93.           Part 5 does not impose a general requirement to provide natural justice, and the explanatory memorandum clearly acknowledges that the “unique circumstances…in a maritime environment” render the provision of natural justice in most circumstances impracticable. In dealing with powers to detain and move persons, Part 5 does not provide for natural justice. Nevertheless, to provide authorising officers with the greatest certainty while performing their work, it is appropriate to put it beyond doubt that they are not bound to provide natural justice in deciding to authorise the exercise of maritime powers.

94.           New subsection 75B(2) provides that subsection 75B(1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act.

95.           The purpose of this subsection is to clarify that specifically excluding the rules of natural justice from the exercise of power under section 69, 69A, 71, 72, 74, 72A, 75D, 75F, 75G or 75H is not intended to imply that the rules of natural justice do apply to other powers or provisions under the Maritime Powers Act.

96.           New section 75C provides in subsection 75C(1) that to avoid doubt:

a)       the destination to which a vessel, aircraft or person is taken (or caused to be taken) under section 69 or 72:

                                                              i.        does not have to be in a country, and

                                                            ii.       without limiting subparagraph (i)—may be just outside a country; and:

                                                          iii.       may be a vessel; and

b)       a vessel, aircraft or person may be taken (or caused to be taken) to a destination under section 69 or 72:

o whether or not Australia has an agreement or arrangement with any other country relating to the vessel or aircraft (or the persons on it), or the person; and

o irrespective of the international obligations or domestic law of any other country.

97.           The effect of new section 75C is to put it beyond doubt that a destination does not need to be inside a country and that a vessel, aircraft or person may be taken to a destination that is not inside a country whether or not Australia has an agreement with the country, and irrespective of the international obligations or domestic laws of any other country.  While this amendment simply gives explicit voice to Parliament’s intent in the original Maritime Powers Act, as demonstrated particularly by the fact that section 40 provides for the agreement of another country only for the exercise of maritime powers inside another country, this amendment puts the matter beyond doubt.

98.           A new note to new section 75C states that the definition of country in section 8 includes the territorial sea and archipelagic waters of the country, as well as various other areas.

99.           The purpose of this provision is to draw the reader’s attention to a relevant defined term in section 8.

100.       New subsection 75C(2) provides that if the destination is in another country, section 40 must be complied with.

101.       The purpose of this provision is to draw the reader’s attention to the fact that, to exercise powers in another country (including its territorial sea or archipelagic waters) with the authorisation of the Maritime Powers Act, section 40 must be complied with. While taking persons or a vessel to a place in another country requires either a request from or the agreement of that country to exercise maritime powers, it is intended that nothing further is required, such as an agreement as to the reception of the persons taken. It is Parliament’s intent that issues beyond mere permission to exercise powers in another country are more properly dealt with by the executive government.

102.       New subsection 75D(1) provides that section 41 (foreign vessels between countries) does not apply to an exercise of power under section 69, 69A, 71, 72, 72A or 74 if the exercise of power is covered by a determination in force under subsection (2), the exercise of power is part of a continuous exercise of powers and the continuous exercise of powers commenced in accordance with any applicable requirements of Division 5 of Part 2.

103.       New subsection 75D(2) provides that for the purpose of subsection 75D(1), the Minister may make a written determination that is expressed to cover the exercise, in a specified circumstance, of powers under one or more of the sections referred to in subsection 75D(1).

104.       New subsection 75D(3) provides that the Minister may, in writing, vary or revoke a determination made under subsection 75D(2).

105.       New subsection 75D(4) states that the only condition for the exercise of the power to make a determination under subsection 75D(2), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination.  The term ‘national interest’ has a broad meaning and refers to matters which relate to Australia’s standing, security and interests. For example, these matters may include governmental concerns related to such matters as public safety, border protection, the prevention of transnational and organised crime, national security, defence, Australia’s economic interests, Australia’s international obligations and its relations with other countries. Measures for the effective management of Australia’s maritime security are in the national interest.

106.       The new note to subsection 75D(4) puts it beyond doubt that there are no conditions for the exercise of the power to revoke a determination.

107.       New subsection 75D(5) provides that a determination under subsection 75D(2), or an instrument varying or revoking a determination, comes into force unless paragraph 75D(5)(b) applies — when it is made or if the determination or instrument specifies a later time as the time when it is to come into force—at that later time.

108.       New subsection 75D(6) provides that a determination under subsection 75D(2) remains in force until whichever of the following occurs first: an instrument revoking the determination comes into force or if the determination is expressed to cease to be force at a specified time—the time so specified.

109.       New subsection 75D(7) provides that a determination under subsection 75D(2), or a variation or revocation of a determination, is not a legislative instrument.

110.       New section 75D creates an exception to the general limits on the exercise of powers in relation to foreign vessels between countries created by section 41. Subsection 75D(1) provides limited circumstances in which the exception is applicable.  Subsection 75D(2) allows the minister to make a written determination that will enliven the exception, in relation to such an exercise of power, in those limited circumstances.  The purpose of this exception is to provide for flexibility in exercising powers relating to foreign vessels between countries, reflecting the policy concern that the unique nature of the maritime environment can create contingencies that are difficult to predict. 

111.       New section 75D provides a mechanism for ensuring that Australia’s international law obligations can be taken into account by the executive government. This power is broadly framed and is subject to the exclusion of new section 75A such that its exercise cannot be invalidated, as a matter of domestic law, on the basis of international law. This is because the intention in this context is that the interpretation and application of such obligation is a matter for the executive government. Parliament’s intent in passing this amendment is that the Minister have the personal ability to provide for the exercise of maritime powers in circumstances not otherwise covered by the Maritime Powers Act, provided that exercise is part of a continuous exercise of powers which commenced consistent with Division 5 of Part 2.

112.       New subsection 75D(3) provides a power to vary or revoke a determination made under subsection 75D(2).  This is incidental to the power to issue the determination.  New subsection 75D(4) provides that the only condition for the Minister to vary or revoke a subsection 75D(2) determination is that the Minister thinks that it is in the national interest to do so.  This is intended to preserve flexibility for the Minister to issue a determination in a wide variety of difficult to predict situations if the Minister considers it in the national interest to do so.  The note to this subsection makes it clear that there are no conditions on the exercise of the power to revoke a decision.

113.       New subsections 75D(5)  and 75D(6) make provision for when a determination comes into force and remains in force.  A determination comes into force when it is made unless the determination specifies a later time, in which case it comes into force at that time.  A determination remains in force until it is revoked by an instrument or a time specified in the determination for it to cease to be in force accrues. 

114.       Subsection 75D(7) provides that a determination under subsection (2) or variation or revocation is not a legislative instrument.  This means that the requirements of the Legislative Instruments Act 2003 (LIA) will not apply to it. This is a substantive exemption from the LIA. Such an exemption is necessary because it would not be appropriate to publish the determinations on the Federal Register of Legislative Instruments (FRLI). The determinations will necessarily contain sensitive operational matters which, in the national interest, would not be suitable for public release. A substantive exemption from the LIA would provide an exemption from the publication requirements and thus provide protection of this sensitive operational information. dangerous and unique maritime operational environment.

115.       New subsection 75E(1) provides that Powers under sections 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H are not in any respect subject to, or limited by, the Migration Act 1958 (including regulations and other instruments made under that Act).

116.       This provision puts it beyond doubt that the powers in sections 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H powers operate in their own right, and that there is no implication to be drawn from the provisions of the Migration Act. This provision aids in refuting the incorrect claim that the existence of the regional processing arrangements in the Migration Act limits the extent to which maritime powers may be used to address maritime people smuggling. It is Parliament’s intent that the existence of the Regional Processing arrangements particularly, and the Migration Act generally, is not to be used as a basis or part of a basis to read down or limit the relevant provisions of the Maritime Powers Act, which are intended to operate in their own right.

117.       New subsection 75E(2) provides that subsection (1) of this section is not to be taken to imply that other powers under this Act are subject to, or limited by, the Migration Act 1958 (including regulations and other instruments made under that Act).

118.       The purpose of this subsection is to clarify that specifying that the powers under section 69, 69A, 71, 72, 72A, 74 75D, 75F, 75G or 75H are not subject to or limited by the Migration Act 1958 is not intended to imply that other powers or provisions under the Maritime Powers Act are limited by or subject to the Migration Act 1958 .

119.       New subsection 75F(1) provides that this section applies in relation to the powers in sections 69, 69A, 71, 72 and 72A.  New subsection 75F(2) provides that the Minister may, in writing, give directions requiring the exercise of a power or powers in a specified circumstance, or in circumstances in a specified class, or relating to the exercise of a power or powers in a specified circumstance, in a specified class of circumstances or more generally.  New subsection 75F(3) provides that without limiting subsection (2), the Minister may give a direction under that subsection specifying a place that is to be, or is not to be, the destination to which a vessel, aircraft or person is taken under paragraph 69(2)(a) or subsection 72(4) or specifying matters to be taken into account in deciding the destination to which a vessel, aircraft or person is to be so taken.

120.       The effect of subsections 75F(1), 75F(2) and 75F(3) is that the Minister may, by written direction, require that powers under sections 69, 69A, 71, 72 and 72A are exercised, relating to the exercise of those powers, which includes specifying a place that is to be, or not to be a destination for a vessel, aircraft or person, or specifying matters to be taken account into making a decision about the destination to which a vessel, aircraft or person is to be taken.  Such directions may also be directed by the Minister at a class of circumstances, rather than a particular circumstance.  The purpose of this provision is to put it beyond that the Minister has the power to provide instructions to direct the exercise of these powers.

121.       Subsection 75F(4) provides a power for the minister to vary or revoke a direction given under subsection 75F(2). This is incidental to the power to issue the determination. 

122.       New subsection 75F(5) provides that the only condition for the exercise of the power to give a direction under subsection 75F(2), or to vary a direction, is that the Minister thinks that it is in the national interest to give or vary the direction.  The term ‘national interest’ has a broad meaning and refers to matters which relate to Australia’s standing, security and interests. For example, these matters may include governmental concerns related to such matters as public safety, border protection, national security, the prevention of transnational and organised crime, defence, Australia’s economic interests, Australia’s international obligations and its relations with other countries. Measures for the effective management of Australia’s maritime security are in the national interest. The note to new subsection 75F(5) puts it beyond doubt that there are no conditions for the exercise of the power to revoke a direction.

123.       New subsection 75(6) provides that a direction under subsection 75(2) may specify the circumstances in which the direction need not be complied with.

124.       New subsections 75F(7)  and 75F(8) make provision for when a determination comes into force and remains in force.  A determination comes into force when it is made unless the determination specifies a later time, in which case it comes into force at that time.  A determination remains in force until it is revoked by an instrument or a time specified in the determination for it to cease to be in force accrues. 

125.       New subsection 75F(9) provides that a direction made under paragraph 75F(2)(a) authorises the exercise of powers (as contemplated by Part 2 of the Maritime Powers Act) in accordance with the direction and the authorisation remains in force while the direction is in force.  Paragraph 75F(9)(b) specifies that such an authorisation remains in force while the direction is in force, despite section 23 which provides other circumstances when an authorisation will generally cease to be in force.

126.       New subsection 75F(10) provides that a direction under subsection 75F(2), or an instrument varying or revoking a direction, is not a legislative instrument . The effect of this provision is that the requirements of the Legislative Instruments Act 2003 will not apply to a determination made under subsection 75F(2). This is a substantive exemption from the LIA. Such an exemption is necessary because it would not be appropriate to publish the determinations on the Federal Register of Legislative Instruments (FRLI). The determinations will necessarily contain sensitive operational matters which, in the national interest, would not be suitable for public release. A substantive exemption from the LIA would provide an exemption from the publication requirements and thus provide protection of this sensitive operational information.

127.       New subsection 75G(1) provides that subject to subsections 75G(2), 75G(3) and 75G(4), a maritime officer must comply with any applicable directions in force under section 75F. However, a failure to comply does not invalidate the exercise of a power.

128.       The purpose of this provision is to clarify that while maritime officers must comply with applicable directions in force under section 75F, failure to do so does not result in invalidity of the exercise of power. This is intended to avoid the situation where a technical failure to comply, or a failure in circumstances of compelling operational matters, for example, may otherwise lead to the conclusion that the failure to comply invalidated the exercise of powers.

129.       New subsection 75G(2) provides that a maritime officer who is a member of the Australian Defence Force is not required to comply with a direction under section 75F to the extent that the direction is inconsistent with an order or other exercise of command under sections 8 and 9 of the Defence Act 1903 .

130.       The effect of this provision is to preserve the command power given under sections 8 and 9 of the Defence Act 1903 .

131.       New subsection 75G(3) provides that a maritime officer is not required to comply with a direction under section 75F to the extent that he or she reason ably believes that it would be unsafe to do so.

132.       The purpose of this provision is to preserve the role of maritime officers in making independent judgements about the safety of exercises of maritime power, and to enable a maritime officer to act other than in compliance with a direction under section 75F where it is reasonably believed to be unsafe to do so.

133.       New subsection 75H(1) provides that the laws specified in subsection 75H(3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the vessel is detained in exercise (or purported exercise) of powers under section 69.

134.       New subsection 75H(2) provides that the laws specified in subsection 75H(3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the following paragraphs are satisfied:

·          the vessel is being used in the exercise (or purported exercise) of powers under subsection 72(4) or 72(5), or is intended for use in the exercise of such powers;

·          the vessel is specified in, or is included in a class of vessels specified in, a determination under subsection 75H(4) that is in force;

·          if the determination states that it has effect, in relation to the vessel or class of vessels, only in specified circumstances—those circumstances exist;

·          if the determination states that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods—the time is in that period, or one of those periods.

135.       The note to new subsection 75H(2) states that paragraphs 75H(2)(c) and 75H(2)(d) do not have to be satisfied unless the determination states as mentioned in those paragraphs, i.e. if the determination does not state that it has effect in relation to a class of vessels only in specified circumstances, 75H(2)(c) has no effect.

136.       New subsection 75H(3) provides that the laws that, because of subsection 75H(1) or 75H(2), do not apply in relation to a vessel are the Navigation Act 2012 and the Shipping Registration Act 1981 and the Marine Safety (Domestic Commercial Vessel) National Law.

137.       Subsections 75H(1), 75H(2) and 75H(3) provide that certain other laws do not apply to certain vessels that are subject to the exercise of power under the Maritime Powers Act.  The vessels that are subject to this disapplication of certain laws are vessels detained under section 69, vessels used in exercise of powers under subsections 72(4) and 72(5) and vessels specified by the minister through subsection 75H(4).  The laws that are disapplied are specified by subsection 75H(3).  They are the Navigation Act 2012 , the Shipping Registration Act 1981 and the Marine Safety (Domestic Commercial Vessel) National Law (as defined in section 8 - see above). The purpose is to provide flexibility in the exercise of the relevant maritime powers by ensuring that these laws, intended to apply to vessels with a requisite connection to Australia, do not inappropriately restrict the operational freedom of maritime officers.

138.       New subsection 75H(4) provides that for the purpose of subsection 75H(2), the Minister may make a written determination specifying a vessel, or a class of vessels. The determination may also state either or both of the following:

·          that it has effect, in relation to the vessel or class of vessels, only in specified circumstances;

·          that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods.

139.       The effect of this provision is to allow the minister to specify a vessel or class of vessels to which the legislation specified in subsection 75H(3) will not apply through the operation of 75H(2).  The intention of this provision is to provide the Minister with further flexibility in directing the exercise of the relevant maritime powers.

140.       New subsection 75H(5) provides that the Minister may, in writing, vary or revoke a determination made under subsection 75H(4).

141.       New subsection 75H(6) provides that the only condition for the exercise of the power to make a determination under subsection (4), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination. The term ‘national interest’ has a broad meaning and refers to matters which relate to Australia’s standing, security and interests. For example, these matters may include governmental concerns related to such matters as public safety, border protection, national security, the prevention of transnational and organised crime, defence, Australia’s economic interests, Australia’s international obligations and its relations with other countries. Measures for the effective management of Australia’s maritime security are in the national interest.

142.       The note to new subsection 75H(6) puts it beyond doubt that there are no conditions for the exercise of the power to revoke a determination.

143.       Subsection 75H(5) provides a power for the Minister to vary or revoke a direction given under subsection 75H(4). This is incidental to the power to issue the determination.  New subsection 75F(6) provides that the only condition for the Minister to vary or revoke a determination is that the Minister thinks that it is in the national interest to do so.  This is intended to preserve flexibility for the Minister to issue a determination in a wide variety of situations if the Minister considers it in the national interest to do so. 

144.       New subsection 75H(7) provides that a determination under subsection 75H(4), or an instrument varying or revoking a determination, comes into force:

·          unless paragraph 75H(7)(b) applies, when it is made or

·          if the determination or instrument specifies a later time as the time when it comes into force, at that later time.

145.       New subsection 75H(8) provides that a determination made under subsection (4) remains in force until whichever of the following occurs first:

·          an instrument revoking the determination comes into force;

·          if the determination is expressed to cease to be in force at a specified time, the time so specified.

146.       New subsections 75H(7) and 75H(8) make provision for when a determination comes into force and remains in force.  A determination comes into force when it is made unless the determination specifies a later time, in which case it comes into force at that time.  A determination remains in force until it is revoked by an instrument or a time specified in the determination for it to cease to be in force accrues. 

147.       New subsection 75H(9) provides that a determination under subsection 75H(4), or a variation or revocation of a determination, is not a legislative instrument .

148.       The effect of this provision is that the requirements of the Legislative Instruments Act 2003 will not apply to a determination made under subsection 75H(4) or a variation or revocation thereof. This is a substantive exemption from the Legislative Instruments Act. Such an exemption is necessary because it would not be appropriate to publish the determinations on the Federal Register of Legislative Instruments (FRLI). The determinations will necessarily contain sensitive operational matters which, in the national interest, would not be suitable for public release. A substantive exemption from the LIA would provide an exemption from the publication requirements and thus provide protection of this sensitive operational information..

Item 20           Section 79

149.       This item omits “Written notice must be given to the owner or person who was in possession or control of a seized, retained or detained thing.” and substitutes “Written notice must be given to the owner of a seized, retained or detained thing, or to a person who had possession or control of the thing.”

150.       Section 79 is a guide to Part 4 of the Maritime Powers Act.  This amendment alters the guide to clarify the person to whom written notice must be given to better reflect operational reality.

Item 21           Paragraph 80(1)(b)

151.       This item omits the words “the person” and substitutes “a person”. The effect of this is to provide greater flexibility in providing notice of seizure, retention or detention to a person, as it may not always be clear that a single person is the owner or person in possession.

Item 22           At the end of section 81

152.       This item adds “(3) if a detained vessel or aircraft is taken to a destination under paragraph 69(2)(a), the information must also explain the effect of subsection 69A(3).” at the end section 81 of Division 2 of Part 4 of the Maritime Powers Act.

153.       Division 2 of Part 4 of the Maritime Powers Act provides for the provision of notice and information about a seized or detained thing to the owner, or person in possession of the thing when it was seized or detained.  New subsection 81(3) creates a requirement for information to be provided when powers are exercised to take a detained vessel or aircraft to a destination under paragraph 69(2)(a) the effect of 69A(3) must also be explained. This is significant because new subsection 69A(3) has the effect that the time covered by subsection 69A(1) (such as the period it takes to travel to the destination) do not count towards the 28 day limit.

 

Item 23           Paragraphs 86(1)(b) and 87(1)(b)

154.       This item omits “the person” and substitutes “a person”. The effect of this item is to clarify to whom seized, retained and detained things should be returned, to better reflect operational reality.

Item 24           At the end of subsection 87(2)

155.       This item adds a new note which states “In the case of a detained vessel or aircraft that is taken to a destination under paragraph 69(2)(a), days in periods covered by subsection 69A(1) (such as the period it takes to travel to the destination) do not count towards the 28 day limit: see subsection 69A(3).” at the end of subsection 87(2) in Division 4 of Part 4 of the Maritime Powers Act.

156.       The purpose of this note is to direct the reader to newly inserted subsections 69A(1) and 69A(3), which may impact the calculation of periods of time of detention.

Item 25           Subsection 93(1)

157.       This item repeals the subsection and substitutes:

1.               If the thing is disposed of under paragraph 91(1)(a), (b) or (c) (reasons for disposal), the Minister must give written notice, as soon as practicable after the disposal, to:

·      the person who owned the thing; or

·      a person who had possession or control of the thing immediately before it was seized, retained or detained.

158.       The effect of this provision is to clarify to whom written notice must be given, to better reflect operational reality.

Item 26           Subsection 93(3)

159.       This item omits the words “the person” and substitutes “any person to whom the notice may be given under that subsection”. The effect of this item is to clarify to whom written notice must be given, to better reflect operational reality.

Item 27           Section 94

160.       This item omits “Persons from detained vessels and aircraft may be required to remain on the vessel or aircraft, or may be taken to another place.” from section 94 of Division 1 of Part 5 of the Maritime Powers Act.

161.       Section 94 is a guide to Part 5 of the Maritime Powers Act.  This amendment alters the guide to reflect changes made to the operation of Part 5 by item 28, which are described further below.

Item 28           Section 97

162.       This item repeals section 97 of Division 2 of Part 5 of the Maritime Powers Act.

163.       Current subsection 97(1) provides that if a person is detained and taken to another place under subsection 72(4) (persons on detained vessels and aircraft), the detention ends at that place.

164.       Current subsection 97(2) provides that subsection (1) does not prevent:

·          the person being taken to different places on the way to the other place; or

·          the arrest of the person; or

·          the detention of the person under another Australian law; or

·          the exercise of any other power in relation to the person.

165.       The purpose of repealing section 97 is because provision for persons on, or from, detained vessels or aircraft taken to other places is now provided for by section 72A which is inserted by this Act.  The intention of those new provisions is explained by item 18 above.

Item 29           Section 107

166.       This item inserts “, whether civil or criminal,” after proceeding in section 107 of Division 1 of Part 7 of the Maritime Powers Act.

167.       Current section 107 states that none of the following is liable to an action, suit or proceeding for or in relation to an act done, or omitted to be done, in good faith in the exercise or performance, or the purported exercise or performance, of a power or function under this Act: an authorising officer, a maritime officer, a person assisting, any other person acting under the direction or authority of a maritime officer.  The note to current section 107 states that for person assisting see subsection 38(5).

168.       The purpose of this amendment is to make it clear that actions in good faith are excluded from liability to actions, suits or proceedings of both a civil and criminal nature. While this was always Parliament’s intent, this amendment puts the matter beyond doubt.

Item 30           Subsection 121(1)

169.       This item inserts “, other than the powers under section 75D, 75F or 75H,” after “this Act” in subsection 121(1) in Division 6 of Part 7 of the Maritime Powers Act.

170.       Current subsection 121(1) provides that the Minister may, by writing, delegate any or all of his or her functions and powers under this Act to:

·          the Chief of the Defence Force, the Chief of Navy, the Chief of Army or the Chief of Air Force; or

·          the Commissioner or a Deputy Commissioner of the Australian Federal Police; or

·          an Agency Head (within the meaning of the Public Service Act 1999 ); or

·          an officer of the Australian Navy who holds a rank not below Commodore; or

·          an officer of the Australian Army who holds a rank not below Brigadier; or

·          an officer of the Australian Air Force who holds a rank not below Air Commodore; or

·          an SES employee with a classification not below Senior Executive Band 1 or equivalent.

171.       The effect of this amendment is that the general power of delegation in subsection 121(1) does not apply to powers created by sections 75D, 75F and 75H.  This reflects the policy intention that those powers can only be exercised by the minister personally.

Part 2—Other amendments

Administrative Decisions (Judicial Review) Act 1977

Item 31           After paragraph (p) of Schedule 1

172.       This item inserts “(pa) decisions under section 75D, 75F or 75H of the Maritime Powers Act 2013; ” after paragraph (p) of Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 .

173.       Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) lists classes of decisions that are not decisions to which the ADJR act applies.  This item adds decisions under section 75D, 75F or 75H to the list of such classes of decision.  The effect is that such decisions are not reviewable under the ADJR Act. 

Immigration (Guardianship of Child ren) Act 1946

Item 32           At the end of paragraph 6(2)(d)

174.       This item adds “or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 ” at the end of paragraph 6(2)(d) of the Immigration (Guardianship of Children) Act 1946 (the Guardianship of Children Act).

175.       Current subsection 6(1) provides that the Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of the Guardianship of Children Act to the exclusion of the parents and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of the Guardianship of Children Act cease to apply to and in relation to the child, whichever first happens.

176.       Current paragraph 6(2)(d) provides that a non-citizen child leaves Australia permanently if the child is taken to a place outside Australia under paragraph 245F(9)(b) of the Migration Act.

177.       The effect of this amendment is that powers to take a child to a place outside Australia under Division 7 or 8 of the Maritime Powers Act will result in a child leaving Australia permanently within the meaning of subsection 6(1) of the Guardianship of Children Act .

178.       This amendment is a result of the creation of new powers to take a child to a place outside Australia under Divisions 7 and 8 of the Maritime Powers Act.

Item 33           Paragraph 8(2)(b)

179.       This item inserts “or the Maritime Powers Act 2013 ” after “migration law” in paragraph 8(2)(b) of the Guardianship of Children Act. 

180.       Current paragraph 2(a) provides that nothing in the Guardianship of Children Act affects the operation of the migration law.

181.       The effect of this amendment is to provide that nothing in the Guardianship of Children Act will affect the operation of the Maritime Powers Act 2013.  This reflects the creation in this bill of powers in the Maritime Powers Act which are not intended to be affected by this Act.

Item 34           Paragraph 8(2)(c)

182.       This item repeals paragraph 8(2)(c) of the Guardianship of Children Act and substitutes “(c) imposes any obligation on the Minister or another Minister to exercise, or to consider exercising, any power conferred by or under the migration law or the Maritime Powers Act 2013 ”.

183.       Current paragraph 8(2)(c) of the Guardianship of Children Act provides that nothing in that act imposes any obligation the Minister to exercise, or to consider exercising, any power conferred on the Minister by or under the migration law.

184.       The effect of this amendment is to make clear that the Guardianship of Children Act is not intended to impose an obligation to exercise or consider exercising a power under the Maritime Powers Act, and that that exemption also applies to other ministers.

Item 35           At the end of paragraph 8(3)(d)

185.       This item adds “, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 ” in paragraph 8(3)(2) of the Guardianship of Children Act .

186.       Current paragraph 8(3)(d) provides that without limiting subsection 8(2), nothing in the Guardianship of Children Act affects the performance or exercise, or the purported performance or exercise, of any function, duty or power relating to the taking of a non-citizen child to a place outside Australia under paragraph 245F(9)(b) of the Migration Act.

187.       The effect of this amendment is to include the powers to take a non-citizen child to a place outside Australia under Division 7 or 8 of Part 3 of the Maritime Powers Act in the exemption under paragraph 8(3)(d).  Those powers will not be affected by any provision of the Guardianship of Children Act .

Migration Act 1958

Item 36           Subsection 5(1) (paragraph (b) of the definition of transitory person)

188.       This item omits the words “or paragraph 72(4)(b) of the Maritime Powers Act 2013”, and substitutes “or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013”. The effect of this item is to clarify the powers under the Maritime Powers Act which are to be included in the definition of transitory person.

Item 37           Paragraph 5AA(2)(ba)

189.       This item repeals the paragraph and substitutes “the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or”. The effect of this item is to clarify the powers under the Maritime Powers Act which are to be included in the definition of entered Australia by sea .

Item 38           Subparagraph 42(2A)(c)(i)

190.       This item omits the words “or 72(4) of the Maritime Powers Act 2013” and substitutes the words “or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013”. The effect of this item is to clarify the powers under the Maritime Powers Act under which a person may be brought to the migration zone.

Part 3—Application

Item 39           Application of amendments of the Maritime Powers Act 2013

191.       This item provides that the amendments made by Part 1 of this schedule (the amending Part) apply in relation to the exercise of powers under the Maritime Powers Act after the commencement of the amending Part, even if

·          the authorisation for the exercise of the powers was given under Division 2 of Part 2 of that Act before that commencement; or

·          the powers are being exercised in a situation in relation to which powers were (or could have been) exercised under that Act before that commencement

192.       The amendment of the Maritime Powers Act made by item 10: new sections 22A and 22B applies in relation to authorisations given after the commencement of the amending Part.

193.       The amendments of the Maritime Powers Act made by the amending Part do not, by implication, affect the interpretation of that Act, as in force before the commencement of the amending Part, in relation to the exercise of powers, or the giving of authorisations, under that Act before that commencement.

 

SCHEDULE 2 - Protection visas and other measures

Part 1 - Protection visas generally

Division 1 - Protection visas

Migration Act 1958

Item 1             Subsection 5(1)

194.       This item inserts a new definition for protection visa into subsection 5(1) of the Migration Act.  Current subsection 5(1) contains definitions for terms used in the Migration Act.

195.       Currently, subsection 36(1) provides that there is a class of visas to be known as protection visas.  However, amendments made by items 5 and 7 of Schedule 2 to the Bill repeal current subsection 36(1) and insert new section 35A which provides for protection visas.

196.       The new definition of protection visa in subsection 5(1) provides that protection visa has the meaning given by new section 35A of the Migration Act.  This definition is a signpost to guide readers as the term “ protection visa ” is used throughout the Migration Act.

197.       A note is inserted after the new definition of protection visa in subsection 5(1).  The note provides that new section 35A covers the following:

·          permanent protection visas (classified by the Migration Regulations as Protection (Class XA) visas when this definition commenced);

·          other protection visas formerly provided for by subsection 36(1);

·          temporary protection visas (classified by the Migration Regulations as Temporary Protection (Class XD) visas when this definition commenced);

·          any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.

See also section 36 and Subdivision AL of Division 3 of Part 2.

198.       Subdivision AL of Division 3 of Part 2 of the Migration Act sets out other provisions about protection visas.

199.       The effect of this amendment is to define the term “ protection visa ” to mean all the protection visas covered by new section 35A, which include the protection visas that can be prescribed by the Migration Regulations and historic classes of protection visas which were formerly provided for by section 36 of the Migration Act.  Accordingly, a reference to “ protection visa ” under the Migration Act can mean any one of the visas covered in section 35A or under previous s36.

200.       The amendments also provide for how the Migration Regulations classify the permanent and temporary protection visas at the time that the definition of protection visa commenced.  However, this classification may be changed by the Migration Regulations in future.

201.       The purpose of this amendment is to ensure that “ protection visa ” is used as an umbrella term to capture all the protection visas provided for under the Migration Act and the Migration Regulations.

Item 2             At the end of subsection 31(1)

202.       This item inserts a note at the end of subsection 31(1) of the Migration Act. 

203.       Current subsection 31(1) provides that there are to be prescribed classes of visas.

204.       The new note to subsection 31(1) provides: see also new subsection 35A(4), which allows additional classes of permanent and temporary visas to be prescribed as protection visas by regulations made for the purposes of subsection 31(1).

205.       The new note under subsection 31(1) acts as a signpost to new subsection 35A(4) of the Migration Act.  New section 35A will be discussed in item 5 of Schedule 2 to the Bill.

Item 3             Subsection 31(2)

206.       This item omits “sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B” from subsection 31(2) of the Migration Act and substitutes “the following provisions:

·          section 32 (special category visas);

·          section 33 (special purpose visas);

·          section 34 (absorbed person visas);

·          section 35 (ex-citizen visas);

·          subsection 35A(2) (permanent protection visas);

·          subsection 35A(3) (temporary protection visas);

·          section 37 (bridging visas);

·          section 37A (temporary safe haven visas);

·          section 38 (criminal justice visas);

·          section 38A (enforcement visas);

·          section 38B (maritime crew visas).”

207.       The effect of this amendment is to omit reference to section 36 and insert reference to new subsections 35A(2) (permanent protection visas) and 35A(3) (temporary protection visas), which provide for the classes of protection visas made by the Migration Act.  The opportunity has also been taken to modernise the drafting style of current subsection 31(2) of the Migration Act and specify, by name, the classes of visas made by the Migration Act. 

208.       This amendment is consequential to the repeal of subsection 36(1) of the Migration Act in item 7 of Schedule 2 to the Bill.  Current subsection 36(1) provides for a class of visas to be known as protection visas.

209.       The purpose of this amendment is to make clear that new subsections 35A(2) and 35A(3) are provisions which provide for classes of protection visas made by the Migration Act.

 

Item 4             Subsection 31(3)

210.       This item amends subsection 31(3) of the Migration Act to omit reference to “36” and substitute with “35A”.

211.       Current subsection 31(3) of the Migration Act provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of subsection 31(3), may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).

212.       New subsection 31(3) of the Migration Act provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of subsection 31(3), may be a class provided for by section 32, 35A, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).

213.       This amendment is consequential to the repeal of subsection 36(1) of the Migration Act in item 7 of Schedule 2 to the Bill.

Item 5             After section 35

214.       This item inserts new section 35A after section 35 of the Migration Act.

215.       The effect of new section 35A is to provide for multiple classes of protection visas that may be either a permanent visa or a temporary visa.  New section 35A creates a class of permanent protection visa, a class of temporary protection visa and covers classes of visas prescribed by the Migration Regulations under subsection 31(1) to be protection visas.  In addition, new section 35A also covers the protection visas formerly provided for by subsection 36(1) before its repeal, as a protection visa for the purposes of Migration Act and the Migration Regulations. 

216.       The purpose of this amendment is to allow for multiple classes of protection visas to be created under the Migration Act and the Migration Regulations and, in particular, to introduce a class of temporary visas known as temporary protection visas.  All classes of visas provided for by new section 35A are considered to be a protection visa , within the meaning of the new definition of protection visa inserted into subsection 5(1) of the Migration Act (see item 1 of Schedule 2 to the Bill).

217.       New subsection 35A(1) provides that a protection visa is a visa of a class provided for by section 35A.

218.       The effect of new subsection 35A(1) is that a visa is a protection visa if it is a visa of a class that is provided for by new subsections 35A(2), 35A(3), 35A(4) or 35A(5).  The purpose of new subsection 35A(1) is to make clear that there is now more than one class of protection visas and that these visas can be provided for under the Migration Act and the Migration Regulations.  

219.       New subsection 35A(2) provides that there is a class of permanent visas to be known as permanent protection visas. 

220.       A note is inserted after new subsection 35A(2).  The new note provides that these visas were classified by the Migration Regulations as Protection (Class XA) visas when this section commenced.

221.       The amendments also provide for how the Migration Regulations classify the permanent and temporary protection visas at the time that new section 35A commenced.  However, this classification may be changed by the Migration Regulations in future.

222.       New subsection 35A(3) provides that there is a class of temporary visas to be known as temporary protection visas. 

223.       A note is inserted after new subsection 35A(3).  The new note provides that these visas were classified by the Migration Regulations as Temporary Protection (Class XD) visas when this section commenced.

224.       The amendments also provide for how the Migration Regulations classify the permanent and temporary protection visas at the time that new section 35A commenced.  However, this classification may be changed by the Migration Regulations in future.

225.       New subsection 35A(4) provides that regulations made for the purposes of subsection 31(1) may prescribe additional classes of permanent and temporary visas as protection visas. 

226.       Current subsection 31(1) of the Migration Act allows for the Migration Regulations to prescribe classes of visas.  The effect of new subsection 35A(4) is to make clear that if the Migration Regulations prescribe a temporary or permanent visa, as allowed for under subsection 31(1), that visa can be a class of protection visa.  The purpose of this amendment is to provide for the flexibility to introduce additional classes of protection visas in the Migration Regulations. 

227.       New subsection 35A(5) provides that a class of visas that was formerly provided for by subsection 36(1), as subsection 36(1) was in force before the commencement of section 35A, is also a class of protection visas for the purposes of the Migration Act and the Migration Regulations.

228.       An example is inserted after new subsection 35A(5).  The new example provides that an example of a class of visas for subsection 35A(5) is the class of visas formerly classified by the Migration Regulations as Protection (Class AZ) visas.  These visas can no longer be granted.

229.       A note is inserted after the example to new subsection 35A(5).  The new note provides that new section 35A commenced, and subsection 36(1) was repealed, on the commencement of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 .

230.       The purpose and effect of new subsection 35A(5) is to recognise the classes of protection visas that existed before the commencement of new section 35A as also being protection visas under new section 35A.  

 

231.       New subsection 35A(6) provides that the criteria for a class of protection visas are:

·          the criteria set out in section 36; and

·          any other relevant criteria prescribed by regulation for the purposes of section 31.

232.       A note is inserted after new subsection 35A(6).  The new note provides to see also Subdivision AL.  Subdivision AL of Division 3 of Part 2 of the Migration Act sets out other provisions about protection visas.

233.       The effect and purpose of new subsection 35A(6) is to make clear that an applicant for a protection visa must satisfy both the criteria set out in section 36 of the Migration Act and any other relevant criteria prescribed by the Migration Regulations, to be eligible for the grant of a protection visa . 

Item 6             Section 36 (heading)

234.       This item repeals the current heading “Protection visas” and substitutes the new heading “Protection visas - criteria provided for by this Act”.

235.       This amendment is consequential to the repeal of subsection 36(1) in item 7 of Schedule 2 to the Bill.  New section 35A provides for protection visas and therefore, the heading of section 36 is amended to reflect that new section 36 provides the criteria for protection visas.

Item 7             Subsection 36(1)

236.       This item repeals subsection 36(1) of the Migration Act.

237.       This amendment is consequential to the insertion of new section 35A in item 5 of Schedule 2 to the Bill.

Item 8             Subparagraph 36(2)(b)(ii)

238.       This item amends subparagraph 36(2)(b)(ii) of the Migration Act to insert reference to “of the same class as that applied for by the applicant” after the reference to “protection visa”. 

239.       Current subparagraph 36(2)(b)(ii) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen who is mentioned in paragraph 36(2)(a) and holds a protection visa .

240.       Current section 5 of the Migration Act provides that one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. 

241.       Current paragraph 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

242.       New subparagraph 36(2)(b)(ii) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen who is mentioned in paragraph 36(2)(a) and holds a protection visa of the same class as that applied for by the applicant.

243.       The purpose of this amendment is to ensure that a protection visa applicant, who is a member of the same family unit as a non-citizen who is mentioned in paragraph 36(2)(a) and that non-citizen holds a protection visa, will only obtain the same class of protection visa as their family member.

Item 9             At the end of subparagraph 36(2)(c)(ii)

244.       This item amends subparagraph 36(2)(c)(ii) of the Migration Act to insert reference to “of the same class as that applied for by the applicant” at the end of subparagraph 36(2)(c)(ii).

245.       Current subparagraph 36(2)(c)(ii) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen who is mentioned in paragraph 36(2)(aa) and holds a protection visa .

246.       Current paragraph 36(2)(aa) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia (other than a non-citizen mentioned in paragraph 36(2) (a) ) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country , there is a real risk that the non-citizen will suffer significant harm .

247.       New paragraph 36(2)(c)(ii) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia who is a member of the same family unit as a non-citizen who is mentioned in paragraph 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.

248.       The purpose of this amendment is to ensure that a protection visa applicant, who is a member of the same family unit as a non-citizen who is mentioned in paragraph 36(2)(aa) and that non-citizen holds a protection visa , will only obtain the same class of protection visa as their family member.

Item 10           Subsection 48A(2) (definition of application for a protection visa )

249.       This item omits “includes” and substitutes “means” in the definition of ‘application for a protection visa’ in current subsection 48A(2).

250.       The current chapeau in subsection 48A(2) provides that “In this section: application for a protection visa includes:”.

251.       Following this amendment, the new chapeau provides that “In this section: application for a protection visa means:”. 

252.       This amendment clarifies that for the purposes of section 48A of the Migration Act, the new definition of ‘application for a protection visa’ is exhaustive, rather than inclusive.

253.       In general terms, current section 48A prevents a non-citizen in the migration zone from making a protection visa application in circumstances where he or she has previously had a protection visa application refused while in the migration zone, or previously had a protection visa cancelled while in the migration zone. 

254.       This amendment complements the amendment made by items 11 and 12 of Schedule 2 to the Bill.

Item 11           Subsection 48A(2) (paragraph (aa) of the definition of a pplication for a protection visa )

255.       This item repeals current paragraph 48A(2)(aa) and substitutes new paragraph 48A(2)(aa).

256.       Under current paragraph 48A(2)(aa), an application for a protection visa includes an application for a visa that, under the Migration Act or the regulations as in force at any time, is or was a visa of the class known as protection visas.

257.       Under new paragraph 48A(2)(aa), an application for a protection visa means an application for a visa of a class provided for by section 35A (protection visas - classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of new paragraph 48A(2)(aa).

258.       The note under paragraph 48A(2)(aa) provides that visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 , which also inserted section 35A and paragraph 48A(2)(aa).

259.       The note mentions visas formerly provided for by subsection 36(1).  That subsection is repealed by item 7 of Schedule 2 to the Bill.

260.       The remaining paragraphs in current subsection 48A(2) set out other meanings of application for a protection visa .

261.       New paragraph 48A(2)(aa) mentions new section 35A, which is inserted in the Migration Act by item 5 of Schedule 2 to the Bill.

262.       The amendment in this item clarifies that for the purposes of section 48A, the term application for a protection visa has the meaning set out in new paragraph 48A(2)(aa) as well as the meanings set out in the other paragraphs in subsection 48A(2), as amended by items 10 and 12 of Schedule 2 to the Bill. 

Item 12           Subsection 48A(2) (paragraphs (a) and (b) of the definition of application for a protection visa )

263.       This item omits “; and” from current paragraphs 48A(2)(a) and (b) and substitutes “; or”.

264.       This amendment complements the amendment to subsection 48A(2) made by item 10 of Schedule 2 to the Bill.  That amendment clarifies that for the purposes of section 48A of the Migration Act, the new definition of application for a protection visa is exhaustive, rather than inclusive.

265.       Consistent with subsection 48A(2) setting out an exhaustive definition of the term “ application for a protection visa ”, each paragraph of subsection 48A(2) is amended to be disjunctive.

266.       The amendment in this item clarifies that for the purposes of section 48A, an application for a protection visa means each type of application described in each paragraph of subsection 48A(2), as amended by this Bill.  

Division 2 - Safe haven enterprise visas

Migration Act 1958

Item 13           Subsection 5(1) (after paragraph (b) of the note at the end of the definition of protection visa )

267.       This item inserts new paragraph (ba) immediately after new paragraph (b) of the note at the end of the definition of protection visa , as inserted by item 1 of Schedule 2 to the Bill, in subsection 5(1) of the Migration Act.

268.       This amendment is in addition to the amendments to current subsection 5(1) of the Migration Act made by item 1 of Schedule 2 to the Bill.

269.       The purpose and effect of this amendment is to make clear that a safe haven enterprise visa is also a protection visa .

Item 14           After paragraph 31(2)(f)

270.       This item inserts new paragraph 31(2)(fa) immediately after new paragraph 31(2)(f), which is inserted by item 3 of Schedule 2 to the Bill. 

271.       This amendment is in addition to the amendments to current subsection 31(2) of the Migration Act made by item 3 of Schedule 2 to the Bill.

272.       The purpose and effect of this amendment is to provide that, in addition to the provisions listed in new subsection 31(2), new subsection 35A(3A) can provide for a class of visas to be known as safe haven enterprise visas.  . 

Item 15           After paragraph 31(3A)(c)

273.       Item 15 inserts new paragraph 31(3A)(ca) after new paragraph 31(3A)(c).

274.       Following this amendment new subsection 31(3A) provides that to avoid doubt, subsection 31(3) does not require criteria to be prescribed for a visa or visas including, without limitation, visas of the following classes:

·          special category visas (see section 32);

·          permanent protection visas (see subsection 35A(2));

·          temporary protection visas (see subsection 35A(3));

·          safe haven enterprise visas (see subsection 35A(3A));

·          bridging visas (see section 37);

·          temporary safe haven visas (see section 37A);

·          maritime crew visas (see section 38B).

275.       This item relates to current subsection 31(3) of the Migration Act.  That subsection provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of the subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).

276.       Current subsection 31(3) will be amended by item 4 of Schedule 2 to the Bill to omit the reference to section 36 and insert a reference to new section 35A.  New section 35A provides for permanent protection visas, temporary protection visas, and safe haven enterprise visas.

277.       The amendment in this item clarify that the regulations may, but need not, prescribe criteria for the classes of visa covered by subsection 31(3) including the classes provided for by current sections 32, 37, 37A, 38B, and by new section 35A.

278.       The amendment in this item complements the amendment made at item 7 of Schedule 3 to the Bill.  The effect of that amendment is that, for each of the visa classes mentioned in new subsection 31(3A), if regulations do not prescribe any criteria which relate to making a valid application for the visa and being granted the visa, non-citizens cannot make a valid application for the visa.  Another effect of that amendment is that, for each of the visa classes mentioned in new subsection 31(3A), if regulations prescribe criteria which relate to making a valid application for the visa or being granted the visa, an application for the visa must satisfy those criteria as well as any criteria set out in the Migration Act.  

279.       The amendments at item 7 of Schedule 3 to the Bill  prevent non-citizens from applying directly under the Migration Act for one of the classes of visa provided for by current sections 32, 37, 37A, and 38B, and new section 35A. 

280.       Further amendments to new subsection 31(3A) can be found at item 1 of Schedule 3 to the Bill.

Item 16           After subsection 35A(3)

281.       This item inserts a new subsection 35A(3A) after new subsection 35A(3), which is inserted by item 5 of Schedule 2 to the Bill.

282.       New subsection 35A(3A) provides that there is a class of temporary visas to be known as safe haven enterprise visas.

283.       The purpose and effect of this amendment is to provide for a new class of protection visa, provided for by the Migration Act, to be known as safe haven enterprise visas. This visa will be a class of temporary visa.

Item 17           After paragraph 46(5)(c)

284.       Item 17 inserts new paragraph 46(5)(ca) after new paragraph 46(5)(c).

285.       Following this amendment new subsection 46(5) provides that to avoid doubt, subsections 46(3) and 46(4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:

·          special category visas (see section 32);

·          permanent protection visas (see subsection 35A(2));

·          temporary protection visas (see subsection 35A(3));

·          safe haven enterprise visas (see subsection 35A(3A));

·          bridging visas (see section 37);

·          temporary safe haven visas (see section 37A);

·          maritime crew visas (see section 38B).

286.       This item relates to current subsections 46(3) and 46(4) of the Migration Act.  Current subsection 46(3) provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.  Current subsection 46(4) provides that without limiting current subsection 46(3), the regulations may also prescribe:

·          the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

·          how an application for a visa of a specified class must be made; and

·          where an application for a visa of a specified class must be made; and

·          where an applicant must be when an application for a visa of a specified class is made.

287.       The amendment in this item will clarify that regulations may, but need not, prescribe criteria for the classes of visa covered by current subsections 46(3) and 46(4) including the class provided for by new subsection 35A(3A).

288.       The amendment in this item complements the amendments made at item 7 of Schedule 3 to the Bill.  The effect of that amendment is that, for each of the visa classes mentioned in new subsection 46(5), if regulations do not prescribe any criteria which relate to making a valid application for the visa and being granted the visa, non-citizens cannot make a valid application for the visa.  Another effect of that amendment is that, for each of the visa classes mentioned in new subsection 46(5), if regulations prescribe criteria which relate to making a valid application for the visa or being granted the visa, an application for the visa must satisfy those criteria as well as any criteria set out in the Migration Act.  

289.       The amendments at item 7 of Schedule 3 to the Bill prevent non-citizens from applying directly under the Migration Act for one of the classes of visa provided for by current sections 32, 37, 37A, 38B, and by new section 35A.

290.       Further amendments to new subsection 46(5) can be found at item 6 of Schedule 3 to the Bill.

Item 18           After paragraph 46AA(1)(c)

291.       Item 18 inserts new paragraph 46AA(1)(ca) after new paragraph 46AA(1)(c).

292.       Following this amendment new subsection 46AA(1) provides that the following classes of visas are covered by new section 46AA:

·          special category visas (see section 32);

·          permanent protection visas (see subsection 35A(2));

·          temporary protection visas (see subsection 35A(3));

·          safe haven enterprise visas (see subsection 35A(3A));

·          bridging visas (see section 37);

·          temporary safe haven visas (see section 37A);

·          maritime crew visas (see section 38B).

293.       The purpose of new subsection 46AA(1) is to ensure that new section 46AA applies only to the classes of visas set out in new subsection 46AA(1).

294.       Further amendments to new section 46AA can be found at item 7 of Schedule 3 to the Bill.

Division 3 - Application

Item 19           Application of amendments

295.       This item provides for the application of amendments to the Migration Act made by Divisions 1 and 2 of Part 1 of Schedule 2 to the Bill.

296.       Subitem 19(1) provides that the amendments of the Migration Act made by Division 1 of Part 1 of Schedule 2:

·          apply in relation to an application for a visa that had not been finally determined immediately before the commencement of Division 1 of Part 1 of Schedule 2; and

·          apply in relation to an application for a visa made on or after the commencement of Division 1 of Part 1 of Schedule 2;

·          in the case of the amendments of section 48A of that Migration Act made by Division 1 of Part 1 of Schedule 2 ­- apply in relation to an application for a protection visa mentioned in paragraph 48A(1)(a) or 48A(1)(b), or 48A(1AA)(a) or 48A(1AA)(b), of that Migration Act that was made, or taken to have been made:

o    on or after the commencement of Division 1 of Part 1 of Schedule 2; or

o    at any time before the commencement of Division 1 of Part 1 of Schedule 2 (whether or not the application had been finally determined at that time).

297.       The purpose of subitem 19(1) is to provide for the visa applications to which the amendments made by Division 1 of Part 1 of Schedule 2 to the Bill apply. 

298.       Subitem 19(2) provides that the amendments of the Migration Act made by Division 2 of Part 1 of Schedule 2 apply in relation to an application for a visa made on or after the commencement of Division 2 of Part 1 of Schedule 2.

299.       The purpose of subitem 19(2) is to provide for the visa applications to which the amendments made by Division 2 of Part 1 of Schedule 2 to the Bill apply. 

Part 2 - Visa applications taken to be applications for a different visa

Division 1 - Amendments

Migration Act 1958

Item 20           After section 45

300.       This item inserts new section 45AA after section 45 of the Migration Act.  The heading for new section 45AA is “Application for one visa taken to be an application for a different visa”.

301.       The purpose of new section 45AA is to allow for an application for a visa of a particular class to be ‘converted’ into an application for a visa of a different class.  New section 45AA provides for the situations in which:

·          a conversion regulation can be made to ‘convert’ a visa application;

·          the effects of the conversion regulation; and

·          the consequences of the conversion on the first instalment of visa application charges paid in relation to the pre-conversion application, bridging visas, and any accrued rights of a person.

Situation in which conversion regulation can be made

302.       New subsection 45AA(1) provides that section 45AA applies if:

·          a person has made a valid application (a pre-conversion application) for a visa (a pre-conversion visa) of a particular class; and

·          the pre-conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre-conversion application; and

·          since the application was made, one or more of the following events has occurred:

o    the requirements for making a valid application for that class of visa change;

o    the criteria for the grant of that class of visa change;

o    that class of visa ceases to exist; and

·          had the application been made after the event (or events) occurred, because of that event (or those events):

o    the application would not have been valid; or

o    that class of visa could not have been granted to the person.

303.       New subsection 45AA(1) sets out the conditions that must be satisfied for new section 45AA of the Migration Act to apply.  All the conditions in subsection 45AA(1) must be met before a conversion regulation can be made under new section 45AA.

304.       In particular, new paragraph 45AA(1)(b) provides that a pre-condition to the conversion regulation being made is that the visa originally applied for (the pre-conversion visa) has not been granted to the person, whether or not a migration decision has been made in relation to the pre-conversion application.  New paragraph 45AA(1)(b) is intended to apply before a decision has been made on the visa application and to cover the circumstances that could occur after a visa application has been refused.

305.       For example, where the applicant seeks judicial review of a decision in relation to the pre-conversion application, or where the application is not finally determined within the meaning of subsections 5(9) and 5(9A) of the Migration Act, then new paragraph 45AA(1)(b) is intended to apply.

306.       The effect of new paragraph 45AA(1)(b) is to ensure that regulations can be made to convert a pre-conversion application so long as the pre-conversion visa has not been granted to the person.

307.       The effect of new paragraph 45AA(1)(c) is to ensure that a conversion regulation can only be made if, since the pre-conversion application was made, one or more of the events described in new paragraph 45AA(1)(c) has occurred.

308.       The effect of new paragraph 45AA(1)(d) is to clarify that a conversion regulation can only be made in circumstances where a pre-conversion application, if such an application was to be made after the event (or events) described in new paragraph 45AA(1)(c) occurred, would either not have been valid or the class of visa could not have been granted to the person.

309.       For example, an applicant applies for a class of visa on 1 September 2014.  On 17 September 2014, the applicant has not been granted that class of visa and the requirements for making a valid application for that class of visa change.  If the applicant had made the same visa application on 18 September 2014 then the application would not have been valid (due to the 17 September 2014 changes to the application criteria for that visa class).  In this situation, subject to the other conditions in new subsection 45AA(1) being met, a conversion regulation could be made under new section 45AA.

310.       New subsection 45AA(2) provides that to avoid doubt, under new subsection 45AA(1) new section 45AA may apply in relation to:

·          classes of visas, including protection visas and any other classes of visas provided for by the Migration Act or the regulations; and

·          classes of applicants, including applicants having a particular status; and

·          applicants for a visa who are taken to have applied for the visa by the operation of the Migration Act or the regulations.

311.       An example is inserted after new subsection 45AA(2).  The example provides that if a non-citizen applies for a visa, and then, before the application is decided, gives birth to a child, in some circumstances the child is taken, by the operation of the regulation 2.08 of the Migration Regulations, to have applied for a visa of the same class at the time the child is born (see regulation 2.08 of the Migration Regulations).

312.       New subsection 45AA(2) is intended to clarify the operation of new subsection 45AA(1), which provides for the situation when new section 45AA can apply. The intention is for new subsection 45AA(1) to apply in relation to any classes of visas, to any classes of applicants for a visa, and to those applicants who are taken to have applied for a visa by the operation of the Migration Act or the regulations.

313.       The purpose and effect of new paragraph 45AA(2)(a) is to make clear that new subsection 45AA(1) may apply in relation to any classes of visas provided for by the Migration Act or the regulations.  For example, a pre-conversion application and a pre-conversion visa (referred to in new paragraph 45AA(1)(a)) can be a visa of any class, such as a Temporary Business Entry (Class UC) visa, provided for by the Migration Act or the regulations.

314.       The purpose and effect of new paragraph 45AA(2)(b) is to make clear that new subsection 45AA(1) may apply in relation to any classes of applicants, including applicants having a particular status.  An example of an applicant with a particular status is an unauthorised maritime arrival . 

315.       The purpose and effect of new paragraph 45AA(2)(c) is to make clear that new subsection 45AA(1) may apply in relation to applicants who are taken to have applied for the pre-conversion visa.  The example under paragraph 45AA(2)(c) clarifies the intended the operation of paragraph 45AA(2)(c).

316.       The purpose of new subsections 45AA(1) and 45AA(2) is to put beyond doubt that where the circumstances set out in subsection 45AA(1) are met, new section 45AA applies to any classes of visas, to any classes of applicant for a visa, and to those applicants that are taken to have applied for a pre-conversion visa due to the operation of the Migration Act or the regulations.  

Conversion regulation

317.       New subsection 45AA(3) provides that for the purposes of the Migration Act, a regulation (a conversion regulation) may provide that, despite anything else in the Migration Act, the pre-conversion application for the pre-conversion visa:

·          is taken not to be, and never to have been, a valid application for the pre-conversion visa; and

·          is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre-conversion visa.

318.       A note is inserted under new subsection 45AA(3).  The note provides that new section 45AA may apply in relation to a pre-conversion application made before the commencement of new section 45AA (see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014) .  For example, a conversion regulation (made after the commencement of new section 45AA) could have the effect that a pre-conversion application for a particular type of visa made on 1 August 2014 (before that commencement):

·          is taken not to have been made on 1 August 2014 (or ever); and

·          is taken to be, and always to have been, a converted application for another type of visa made on 1 August 2014.

319.       The effect of new subsection 45AA(3) is to provide for the effects of the conversion regulation on a pre-conversion application.  Specifically, a conversion regulation invalidates the pre-conversion application so that it is taken never to have been made.  The pre-conversion application will be taken to always have been a converted application.  The conversion regulation can be made that converts a pre-conversion application of a specified visa class into a converted application for a different specified visa class.

320.       The purpose of this provision is to ensure that a clear power is available in the Migration Act to allow regulations to be made that convert an application for a visa of a particular class to be an application for a different class of visa.  

321.       New subsection 45AA(4) provides that without limiting new subsection 45AA(3), a conversion regulation may:

·          prescribe a class or classes of pre-conversion visas; and

·          prescribe a class of applicants for pre-conversion visas; and

·          prescribe a time (the conversion time) when the regulation is to start to apply in relation to a pre-conversion application, including different conversion times depending on the occurrence of different events.

322.       The effect of new subsection 45AA(4) is to make clear that the conversion regulation may provide for:

·          the class, or classes, of pre-conversion visas that are being converted; and

·          the class of applicants who have applied for that pre-conversion visa; and

·          the time, or times, when the conversion regulation starts to apply to convert the pre-conversion application.

323.       New subsection 45AA(4) is not intended to limit the breadth of matters that a conversion regulation may prescribe under new subsection 45AA(3). 

324.       In particular, new paragraph 45AA(4)(c) makes clear that a conversion regulation may prescribe the time from which the conversion regulation starts to apply (the conversion time).  The conversion time is the point in time when the conversion regulation converts the pre-conversion application. The intention is that the conversion time may be specified by reference to the occurrence of an event or multiple events. 

Visa Application charge

325.       New subsection 45AA(5) provides that if an amount has been paid as the first instalment of the visa application charge for a pre-conversion application, then, at and after the conversion time in relation to the application:

·          that payment is taken not to have been paid as the first instalment of the visa application charge for the pre-conversion application; and

·          that payment is taken to be payment of the first instalment of the visa application charge for the converted application, even if the first instalment of the visa application charge that would otherwise be payable for the converted application is greater than the actual amount paid for the first instalment of the visa application charge for the pre-conversion application; and

·          in a case in which the first instalment of the visa application charge payable for the converted application is less than the actual amount paid for the first instalment of the visa application charge for the pre-conversion application, no refund is payable in respect of the difference only for that reason.

326.       A note is inserted under new subsection 45AA(5).  The new note provides: for the visa application charge, see sections 45A, 45B and 45C.

327.       The effect of new subsection 45AA(5) is to ensure that, if the first instalment of the visa application charge for the pre-conversion application has been paid by the applicant, then that visa application charge is taken to have been paid for the converted application.

328.       If the first instalment of the visa application charge for the pre-conversion application is less than the first instalment of the visa application charge for the converted application, then the amount paid will be taken to be payment for the first instalment of the visa application charge for the converted application.  The applicant will not be required to pay the difference between the first instalment of the visa application charge for the pre-conversion application and the converted application.

329.       If the first instalment of the visa application charge for the pre-conversion application is greater than the first instalment of the visa application charge for the converted application, the difference between the first instalment of the visa application charge for the pre-conversion application and the converted application will not be refunded to the applicant on the basis of the conversion.  However, depending on the applicant’s particular circumstances, other grounds for the refund of the first instalment of the visa application charge under the Migration Act and the Migration Regulations may apply.      

330.       The purpose of this provision is to ensure that, despite any differences in amount, any first instalment of the visa application charge paid for the pre-conversion application is ‘transferred across’ to be the first instalment of the visa application charge for the converted application. 

Effect on bridging visas

331.       New subsection 45AA(6) provides that for the purposes of the Migration Act, if, immediately before the conversion time for a pre-conversion application, a person held a bridging visa because the pre-conversion  application had not been finally determined, then, at and after the conversion time, the bridging visa has effect as if it had been granted because of the converted application.

332.       New subsection 45AA(7) provides that for the purposes of the Migration Act, if, immediately before the conversion time for a pre-conversion application, a person had made an application for a bridging visa because of the pre-conversion application, but the bridging visa application had not been finally determined, then, at and after the conversion time:

·          the bridging visa application is taken to have been applied for because of the converted application; and

·          the bridging visa (if granted) has effect as if it were granted because of the converted application.

333.       A note is inserted after new subsection 45AA(7).  The new note provides that the Migration Act and the regulations would apply to a bridging visa to which new subsection 45AA(6) or 45AA(7) applies, and to when the bridging visa would cease to have effect, in the same way as the Migration Act and the regulations would apply in relation to any bridging visa.  For example, such a bridging visa would generally cease to be in effect under section 82 of the Migration Act if and when the substantive visa is granted because of the converted application.

334.       The effect and purpose of new subsection 45AA(6) is to ensure that the conversion of the pre-conversion application will not adversely affect the migration status of the applicant who made the pre-conversion application.  This amendment is intended to ensure that, despite the conversion occurring, the applicant for the pre-conversion visa will continue to hold the bridging visa granted in association with the pre-conversion application.  This is because the bridging visa granted in association with the pre-conversion application will have effect as if it had been granted because of the converted application.

335.       The effect and purpose of new subsection 45AA(7) is to ensure that the conversion of the pre-conversion application will not invalidate an application for a bridging visa that was made because of the pre-conversion application and had not been finally determined immediately before the conversion time.  A bridging visa application that is made because of the pre-conversion application, but is not finally determined, is taken to be made because of the converted application.  If such a bridging visa is granted, it will be taken to have been granted because of the converted application.

336.       The relevant provisions in the Migration Act and the Migration Regulations which affect the cessation of a bridging visa will apply normally to a bridging visa covered by new subsections 45AA(6) or 45AA(7).  For example, a bridging visa to which new subsection 45AA(6) or 45AA(7) applies will cease upon cancellation, in accordance with current subsection 82(1) of the Migration Act.  It is the intention for a bridging visa to which new subsections 45AA(6) or 45AA(7) applies to be subject to the same provisions as a bridging visa to which new subsections 45AA(6) and 45AA(7) do not apply.

Conversion regulation may affect accrued rights etc.

337.       New subsection 45AA(8) provides that to avoid doubt:

·          subsection 12(2) of the Legislative Instruments Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and

·          subsection 7(2) of the Acts Interpretation Act 1901 , including that subsection as applied by section 13 of the Legislative Instruments Act 2003 , does not apply in relation to the enactment of new section 45AA or the making of a conversion regulation (including a conversion regulation enacted by the Parliament).

338.       Current subsection 12(2) of the Legislative Instruments Act 2003 provides that a legislative instrument , or a provision of a legislative instrument , has no effect if, apart from subsection 12(2), it would take effect before the date it is registered and as a result:

·          the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or

·          liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.

339.       Current subsection 7(2) of the Acts Interpretation Act 1901 provides that if an Act, or an instrument under an Act, repeals or amends an Act (the affected Act ) or a part of an Act, then the repeal or amendment does not:

·          revive anything not in force or existing at the time at which the repeal or amendment takes effect; or

·          affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or

·          affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or

·          affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or

·          affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.

340.       New subsection 45AA(8) has the effect of excluding the operation of subsection 12(2) of the Legislative Instruments Act 2003 and subsection 7(2) of the Acts Interpretation Act 1901 .  The purpose of this subsection is to ensure that a conversion regulation made under new section 45AA may affect the accrued rights of an applicant and is, nonetheless, not prevented for doing so by subsection 12(2) of the Legislative Instruments Act 2003 and subsection 7(2) of the Acts Interpretation Act 1901 .

Division 2 - Application

Item 21           Application of amendments

341.       Item 21 provides that the amendment of the Migration Act made by Division 1 of Part 2 of Schedule 2 to the Bill, to insert new section 45AA of the Migration Act, applies in relation to an application for a pre-conversion visa made before, on or after the commencement of Part 2.

342.       The effect and purpose of this item is to ensure that new section 45AA applies in relation to a visa application that is made before, on or after the commencement of Part 2 of Schedule 2 to the Bill.

 

 

Part 3 - Deemed visa applications

Division 1 - Amendments

Migration Act 1958

Item 22           At the end of section 48

343.       This item inserts new subsection 48(4) in current section 48 of the Migration Act.

344.       Current section 48 limits further applications by a person in the migration zone whose visa has been cancelled, or whose application for a visa has been refused, since they last entered Australia.

345.       New subsection 48(4) mentions paragraphs 48(1)(b) and 48(1A)(b), as inserted in the Migration Act by Item 1 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2014 . 

346.       Under subsection 48(1), a non-citizen in the migration zone who meets the requirements of paragraphs 48(1)(a) and 48(1)(b) may, subject to the regulations, apply for a visa of a class prescribed for the purposes of section 48 or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

347.       The requirement in paragraph 48(1)(a) is that the non-citizen does not hold a substantive visa.

348.       The requirement in paragraph 48(1)(b) is that the non-citizen is a person who, after last entering Australia:

·          was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

·          held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), and 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas).

349.       Under subsection 48(1A), a non-citizen in the migration zone who meets the requirements of paragraphs 48(1A)(a) and 48(1A)(b) may, subject to the regulations, apply for a visa of a class prescribed for the purposes of section 48 or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

350.       The requirement in paragraph 48(1A)(a) is that the non-citizen does not hold a substantive visa.

351.       The requirement in paragraph 48(1A)(b) is that the non-citizen is a person who, after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not:

·          the application has been finally determined; or

·          the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

·          the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor.

352.       A person who is affected by section 48 may only apply for a class of visa that is prescribed in regulation 2.12 of the Migration Regulations.

353.       New subsection 48(4) provides that in paragraphs 48(1)(b) and 48(1A)(b):

·          a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of the Migration Act or a regulation; and

·          a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of the Migration Act or a regulation.

354.       T his amendment clarifies that an application for a visa referred to in subparagraph 48(1)(b)(i) and paragraph 48(1A)(b) includes an application for a visa that is taken to have been made by the non-citizen by the operation of the Migration Act or a regulation.

355.       An application for a Temporary Protection (Class XD) visa that is taken to have been made under new regulation 2.08F is an example of an application that is taken to have been made by a non-citizen by the operation of a regulation.  New regulation 2.08F is inserted by item 38 of Schedule 2 to this Bill.  

356.       Under new regulation 2.08F, certain Protection (Class XA) visa applications that were made by prescribed applicants are taken not to be, and never to have been, a valid application for a Protection (Class XA) visa application; and are taken to be, and to always have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.

357.       If a Temporary Protection (Class XD) visa application which the non-citizen is taken to have made under new regulation 2.08F is refused (other than a refusal under current section 501, 501A or 501B), the non-citizen would only be able to apply for a visa in accordance with section 48.  

358.       This amendment also clarifies that a reference to the cancellation of a visa referred to in subparagraph 48(1)(b)(ii) includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of the Migration Act or a regulation.

359.       This amendment puts beyond doubt that section 48 operates to allow a non-citizen to only apply for a visa in accordance with section 48, in circumstances where the previous cancelled visa was a visa that the person was taken to have applied for, or the previous visa refusal was in relation to an application that the person was taken to have made.

Item 23           After subsection 48A(1C)

360.       This item inserts new subsections 48A(1D) and 48A(1E) in current section 48A of the Migration Act.

361.       Current section 48A prevents further protection visa applications by a person in the migration zone whose protection visa has been cancelled, or whose application for a protection visa has been refused.

362.       Current subsection 48A(1) is amended by Items 2 and 3 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2014.   Item 3 inserted subsection 48A(1AA).

363.       Current subsection 48A(1) provides that subject to section 48B, a non-citizen who, while in the migration zone, has made:

·          an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

·          applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

364.       Subsection 48A(1AA) provides that subject to section 48B, if:

·          an application for a protection visa is made on a non-citizen’s behalf while the non-citizen is in the migration zone; and

·          the grant of the visa has been refused, whether or not:

o    the application has been finally determined; or

o    the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

o    the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;

          the non-citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

365.       Current subsection 48A(1B) provides that subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.

366.       In general terms, current subsection 48B allows the Minister to determine that section 48A does not prevent an application for a protection visa within a particular period, if the Minister thinks that it is in the public interest to do so.

367.       New subsection 48A(1D) provides that in current paragraphs 48A(1)(a) and 48A(1)(b) and 48A(1AA)(a) and 48A(1AA)(b), a reference to an application for a protection visa made by or on behalf of a non-citizen includes a reference to an application for a protection visa that is taken to have been made by the non-citizen by the operation of the Migration Act or a regulation.

368.       New subsection 48A(1E) provides that in current subsection 48A(1B), a reference to the cancellation of a protection visa includes a reference to the cancellation of a protection visa in relation to which an application for a protection visa is taken to have been made by the operation of the Migration Act or a regulation.

369.       An application for a Temporary Protection (Class XD) visa that is taken to have been made under new regulation 2.08F is an example of an application that is taken to have been made by a non-citizen by the operation of a regulation.  New regulation 2.08F is inserted by Item 38 of Schedule 2 to this Bill.  

370.       Under new regulation 2.08F, certain Protection (Class XA) visa applications that were made by prescribed applicants are taken not to be, and never to have been, a valid application for a Protection (Class XA) visa application; and are taken to be, and to always have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.

371.       If a Temporary Protection (Class XD) visa application which the non-citizen is taken to have made under new regulation 2.08F is refused, the non-citizen would be prevented from making a further application for any class of protection visa by section 48A. 

372.       This amendment puts beyond doubt that section 48A prevents a non-citizen from making a further application for a protection visa, in circumstances where the previous cancelled protection visa was a visa that the person was taken to have applied for, or the previous protection visa refusal was in relation to an application that the person was taken to have made.

373.       New subsections 48A(1D) and 48A(1E) do not limit the effect of current subsections 48A(1C) and 48A(2).

374.       In general terms, current subsection 48A(1C) sets out a non-exhaustive list of circumstances when current subsections 48A(1) and 48A(1B) apply in relation to a non-citizen.

375.       Current subsection 48A(2) is amended by items 10, 11 and 12 of Schedule 2 to the Bill.  Following amendment, subsection 48A(2) sets out an exhaustive definition of application for a protection visa .  

Item 24           After subsection 501E(1A)

376.       This item inserts new subsection 501E(1B) in current section 501E of the Migration Act.

377.       Current section 501E prevents applications for certain visas by a person whose visa has been cancelled or whose visa application has been refused in certain circumstances.

378.       Current section 501E is amended by Items 4 and 5 of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 2014 .  Item 5 inserted subsection 501E(1A).

379.       Current subsection 501E(1) provides that a person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if the requirements in current paragraphs 501E(1)(a) and 501E(1)(b) are met.

380.       The requirement in current paragraph 501E(1)(a) is that at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person.

381.       The requirement in current paragraph 501E(1)(b) is that the decision mentioned in current paragraph 501E(1)(a) was neither set aside nor revoked before the application time.

382.       Current subsection 501E(1A) provides that in relation to the Minister’s decision to refuse to grant a visa to the person, as mentioned in current paragraph 501E(1)(a), it does not matter whether:

·          the application for the visa was made on the person’s behalf; or

·          the person knew about, or understood the nature of, the application for the visa due to:

o    any mental impairment; or

o    the fact that the person was, at the time the application was made, a minor.

383.       Current subsection 501E(2) provides that current subsection 501E(1) does not prevent a person, at the application time, from making an application for a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

384.       Current regulation 2.12AA of the Migration Regulations specifies the Bridging R (Class WR) visa for the purposes of current paragraph 501E(2)(b).

385.       New subsection 501E(1B) provides that in current paragraph 501E(1)(a) and subsection 501E(1A), the reference to a refusal to grant a visa, or to the cancellation of a visa, includes a reference to such a refusal or cancellation in relation to a visa for which an application is taken to have been made by the operation of the Migration Act or a regulation.

386.       An application for a Temporary Protection (Class XD) visa that is taken to have been made under new regulation 2.08F is an example of an application that is taken to have been made by a non-citizen by the operation of the Migration Regulations.  New regulation 2.08F is inserted by Item 38 of Schedule 2 to this Bill.  

387.       Under new regulation 2.08F, certain Protection (Class XA) visa applications that were made by prescribed applicants are taken not to be, and never to have been, a valid application for a Protection (Class XA) visa application; and are taken to be, and to always have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.

388.       If a Temporary Protection (Class XD) visa application which the non-citizen is taken to have made under new regulation 2.08F is refused under section 501, 501A or 501B, the non-citizen would be prevented from making an application for a visa in accordance with current section 501E.

389.       This amendment puts beyond doubt that section 501E prevents a non-citizen from making an application for a visa (except in accordance with section 501E), in circumstances where the previous cancelled visa was a visa that the person was taken to have applied for, or the previous visa refusal was in relation to an application that the person was taken to have made.

Division 2 - Application

Item 25           Application of amendments

390.       The amendments made by Division 1 of Part 3 of Schedule 2 to the Bill apply in relation to an application for a visa that is taken to have been made before, on or after the commencement of Part 3 of Schedule 2 to the Bill.

 

Part 4 - Permanent protection visas and temporary protection visas

Division 1 - Main amendments

Migration Regulations 1994

Item 26           Regulation 1.03

391.       This item inserts a definition of protection visa into regulation 1.03 of the Migration Regulations.  Regulation 1.03 contains definitions for terms used in the Migration Regulations.

392.       The new definition of protection visa in regulation 1.03 provides that protection visa has the meaning given by new section 35A of the Migration Act.  This definition is a signpost to guide readers as the term “ protection visa ” is used throughout the Migration Regulations.

393.       A note is inserted after the new definition of protection visa in regulation 1.03.  The new note provides that new section 35A covers the following:

·          permanent protection visas (classified by these Migration Regulations as Protection (Class XA) visas) when this definition commenced); and

·          other protection visas formerly provided for by subsection 36(1) of the Migration Act;

·          temporary protection visas (classified by these Migration Regulations as Temporary Protection (Class XD) visas when this definition commenced);

·          any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.

See also section 36 and Subdivision AL of Division 3 of Part 2 of the Migration Act.

394.       Subdivision AL of Division 3 of Part 2 of the Migration Act sets out other provisions about protection visas.

395.       The new definition of protection visa and the associated note mirrors the definition of protection visa and the note inserted into the Migration Act by item 1 of Schedule 2 to the Bill.

396.       The effect of this amendment is to define the term “ protection visa ” to mean all the protection visas covered by new section 35A, including the protection visas that can be prescribed by the Migration Regulations, and historic classes of protection visas which were formerly provided for by subsection 36(1) of the Migration Act.  Accordingly, a reference to “ protection visa ” in the Migration Regulations can mean any one of the visas covered in section 35A or under previous section 36.

397.       The purpose of this amendment is to ensure that “ protection visa ” is used as an umbrella term to capture all the protection visas provided for under the Migration Act and the Migration Regulations.

 

Item 27           Subparagraph 1401(2)(a)(i) of Schedule 1

398.       This item repeals subparagraph 1401(2)(a)(i) of Schedule 1 to the Migration Regulations.

399.       Current subparagraph 1401(2)(a)(i) of Schedule 1 to the Migration Regulations provides for the first instalment of visa application charge (payable at the time the application is made) for an application for a Protection (Class XA) visa made by an applicant who is in immigration detention and has not been immigration cleared. 

400.       This repeal is consequential to the amendments made in item 29 of Schedule 2 to the Bill, which prevent a person who has not been immigration cleared from making a valid application for a Protection (Class XA) visa.  Consequently, subparagraph 1401(2)(a)(i) is no longer necessary.

Item 28           Subparagraph 1401(2)(a)(ii) of Schedule 1

401.       This item repeals subparagraph 1401(2)(a)(ii) of Schedule 1 to the Migration Regulations.

402.       Current subparagraph 1401(2)(a)(ii) of Schedule 1 to the Migration Regulations provides for the first instalment of visa application charge (payable at the time the application is made) for an application for a Protection (Class XA) visa for any applicant other than an applicant who is in immigration detention and has not been immigration cleared.

403.       This repeal is consequential to the amendments made in item 27 of Schedule 2 to the Bill.  The repeal of subparagraph 1401(2)(a)(i) of Schedule 1 to the Migration Regulations removes the distinction in visa application charge payable by different cohorts of applicants.  Consequently, all applicants will be required to pay the same visa application charge in order to make a valid application for a Protection (Class XA) visa.

Item 29           At the end of subitem 1401(3) of Schedule 1

404.       This item adds new paragraph 1401(3)(d) to the end of subitem 1401(3) of Schedule 1 to the Migration Regulations. 

405.       Item 1401 of Schedule 1 to the Migration Regulations provides the requirements for making a valid application for a Protection (Class XA) visa, which is the class of permanent visas provided for by new subsection 35A(2) of the Migration Act. 

406.       In accordance with new subsection 35A(6) of the Migration Act, as inserted by item 5 of Schedule 2 to the Bill, an applicant for a Protection (Class XA) visa must meet all of the criteria set out in item 1401 to make a valid application for a Protection (Class XA) visa.

407.       Subitem 1401(3) sets out the other criteria that must be met by an applicant to make a valid application for a Protection (Class XA) visa.  The criteria in subitem 1401(3) are in addition to the criteria contained in subitems 1401(1) and 1401(2). 

408.       New paragraph 1401(3)(d) provides that an application by a person for a Protection (Class XA) visa is valid only if the person:

·          does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; and

·          does not hold, and has not ever held, a Temporary Safe Haven (Class UJ) visa; and

·          does not hold, and has not ever held, a Temporary (Humanitarian Concern) (Class UO) visa; and

·          held a visa that was in effect on the person’s last entry into Australia; and

·          is not an unauthorised maritime arrival; and

·          was immigration cleared on the person’s last entry into Australia.

409.       The effect of new paragraph 1401(3)(d) is that a person can only make a valid application for a Protection (Class XA) visa if they meet the requirements in new paragraph 1401(3)(d) of Schedule 1 to the Migration Regulations.

410.       New subparagraph 1401(3)(d)(i) makes clear that a person can only make a valid application for a Protection (Class XA) visa if they do not hold, and have not ever held, a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013.

411.       The purpose of this amendment is to account for the Subclass 785 (Temporary Protection) visa, which was a subclass of the Protection (Class XA) visa prior to 2 December 2013.  On 9 August 2008, Subclass 785 (Temporary Protection) visas were repealed from the Migration Regulations.  The Migration Amendment (Temporary Protection Visas) Regulation 2013 re-introduced Subclass 785 (Temporary Protection) visas on 18 October 2013 as a subclass of the Protection (Class XA) visa.  The Migration Amendment (Temporary Protection Visas) Regulation 2013 was disallowed by the Senate on 2 December 2013.

412.       The Subclass 785 (Temporary Protection) visa is reintroduced by item 31 of Schedule 2 to the Bill.  The new Subclass 785 (Temporary Protection) visa is a subclass of the Temporary Protection (Class XD) visa rather than being a subclass of the Protection (Class XA) visa as it was prior to 2 December 2013. 

413.       The purpose of new paragraph 1401(3)(d) is to implement the government’s intention that an applicant to whom paragraph 1401(3)(d) applies, will not be eligible to make a valid application for a Protection (Class XA) visa.

Item 30           At the end of Schedule 1

414.       This item adds new item 1403 at the end of Schedule 1 to the Migration Regulations. The heading for the new Item 1403 is “Temporary Protection (Class XD)”. 

415.       In accordance with new subsection 35A(3) of the Migration Act, as inserted by item 5 of Schedule 2 to the Bill, temporary protection visas are classified by the Migration Regulations as Temporary Protection (Class XD) visas.  New paragraph 35A(6)(b) of the Migration Act allows for criteria for protection visas to be prescribed by regulation for the purposes of section 31 of the Migration Act.

416.       In particular, subsection 31(3) of the Migration Act provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 35A).

417.       Item 1403 of Schedule 1 to the Migration Regulations provides the requirements for making a valid application for a Temporary Protection (Class XD) visa.  The effect of this amendment is that a person making an application for a Temporary Protection (Class XD) visa will only be able to make a valid application if they meet the requirements in new Item 1403 of Schedule 1. 

418.       Subitem 1403(1) provides that Form 866 applies to Temporary Protection (Class XD) visas.  The effect of this provision is that an application for a Temporary Protection (Class XD) visa must be made using a Form 866 visa application form.  An application for a Protection (Class XA) visa must also be made using Form 866.

419.       Subitem 1403(2) provides that the visa application charge is payable in two instalments as follows:

·          first instalment (payable at the time the application is made):

o    for an applicant who is in immigration detention and has not been immigration cleared, the amount is ‘nil’;

o    for any other applicant, the base application charge is $35 and the additional applicant charge (whether the applicant is over or under 18 years of age) is ‘nil’;

·          the second instalment (payable before grant of visa) is nil.

420.       A note is inserted after paragraph 1403(2)(a).  The new note provides that regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non-internet application charge.  Not all of the components may apply to a particular application.   Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant’s application.

421.       The effect of this amendment is that an applicant must have paid the required visa application charge for the Temporary Protection (Class XD) visa application to be valid.

422.       Subitem 1403(3) provides for other requirements for a valid Temporary Protection (Class XD) visa application as follows:

·          Application must be made in Australia. 

·          Applicant must be in Australia.

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

·          An application by a person for a Temporary Protection (Class XD) visa is valid only if the person:

o    holds, or has ever held, a Temporary Protection (Class XD) visa or a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; or

o    holds, or has ever held, a Temporary Safe Haven (Class UJ) visa; or

o    holds, or has ever held, a Temporary (Humanitarian Concern) (Class UO) visa; or

o    did not hold a visa that was in effect on the person’s last entry into Australia; or

o    is an unauthorised maritime arrival; or

o    was not immigration cleared on the person’s last entry into Australia.

423.       The criteria in items 1401 and 1403 of Schedule 1 to the Migration Regulations operate so that an applicant who is eligible to apply for a Protection (Class XA) visa will not be eligible to apply for a Temporary Protection (Class XD) visa and vice versa.  The purpose is to implement the Government’s intention that an applicant to whom new paragraph 1403(3)(d) applies, will not be eligible to make a valid application for a Protection (Class XA) visa.  Such an applicant will only be eligible to make a valid application for a Temporary Protection (Class XD) visa.

424.       New subitem 1403(4) provides that the relevant subclass for the Temporary Protection (Class XD) visa is 785 (Temporary Protection).  The subclass number for this visa is the same as the subclass number for the Subclass 785 (Temporary Protection) visa that was repealed on 9 August 2008, re-introduced by the Migration Amendment (Temporary Protection Visas) Regulation 2013 on 18 October 2013 and then disallowed by the Senate on 2 December 2013.  However, as noted above, the new Subclass 785 (Temporary Protection) visa is a visa subclass of the Temporary Protection (Class XD) visa.  The Subclass 785 (Temporary Protection) visa that existed on and before 2 December 2013 is a visa subclass of the Protection (Class XA) visa.

Item 31           After Part 773 of Schedule 2

425.       This item inserts new Subclass 785 after Part 773 of Schedule 2 to the Migration Regulations.  The heading is “Subclass 785 - Temporary Protection”.  This item provides for:

·          the criteria for the grant of the new Subclass 785 (Temporary Protection) visa;

·          the circumstances applicable to grant;

·          when the visa is in effect; and

·          the conditions to be attached to the visa.

785.1 - Interpretation

426.       New clause 785.111 provides that for the purposes of Part 785, a person (A) is a member of the same family unit as another person (B) if:

·          A is a member of B’s family unit; or

·          B is a member of A’s family unit; or

·          A and B are members of the family unit of a third person.

 

785.2 - Primary criteria

427.       New clause 785.2 provides for the primary criteria for the grant of a Subclass 785 (Temporary Protection) visa.  The new note after new clause 785.2 provides that all applicants must satisfy the primary criteria. 

428.       The purpose of the new note is to make clear that all applicants seeking to satisfy the criteria for the grant of a Subclass 785 (Temporary Protection) visa must satisfy the primary criteria.

429.       The primary criteria for the grant of a Subclass 785 (Temporary Protection) visa largely replicate the primary criteria for the grant of a Subclass 866 (Protection) visa. 

785.21 - Criteria to be satisfied at time of application

430.       New clause 785.21 provides for the primary criteria to be satisfied at the time of application for the Subclass 785 (Temporary Protection) visa.

431.       New subclause 785.211(1) provides that new subclause 785.211(2) or 785.211(3) is satisfied.

432.       New subclause 785.211(2) provides that the applicant:

·          claims that a criterion mentioned in paragraph 36(2)(a) or 36(2)(aa) of the Migration Act is satisfied in relation to the applicant; and

·          makes specific claims as to why that criterion is satisfied.

433.       The new note after new subclause 785.211(2) provides that paragraphs 36(2)(a) and 36(2)(aa) of the Migration Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

434.       New subclause 785.211(3) provides that the applicant claims to be a member of the same family unit as a person:

·          to whom subclause 785.211(2) applies; and

·          who is an applicant for a Subclass 785 (Temporary Protection) visa.

435.       A new note is inserted after new subclause 785.211(3).  The note provides: see paragraphs 36(2)(b) and 36(2)(c) of the Migration Act.

436.       The purpose of new clause 785.21 is to provide that, at the time of application, the applicant must claim to be a person, or a member of the same family unit as a person in respect of whom Australia has protection obligations under paragraphs 36(2)(a) or 36(2)(aa) of the Migration Act.

785.22 - Criteria to be satisfied at time of decision

437.       New clause 785.22 provides for the primary criteria to be satisfied at the time of decision for a Subclass 785 (Temporary Protection) visa. 

438.       New subclause 785.221(1) provides that new subclause 785.221(2) or 785.221(3) is satisfied.

439.       New subclause 785.221(2) provides that the Minister is satisfied that a criterion mentioned in paragraphs 36(2)(a) or 36(2)(aa) of the Migration Act is satisfied in relation to the applicant. 

440.       A new note is inserted after new subclause 785.221(2).  The new note provides that paragraphs 36(2)(a) and 36(2)(aa) of the Migration Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

441.       New subclause 785.221(3) provides that the Minister is satisfied that:

·          the applicant is a member of the same family unit as an applicant mentioned in subclause 785.221(2); and

·          the applicant mentioned in subclause 785.221(2) has been granted a Subclass 785 (Temporary Protection) visa. 

442.       The new note after subclause 785.221(3) provides: see paragraphs 36(2)(b) and 36(2)(c) of the Migration Act.

443.       The purpose of new clause 785.221 is to provide that, at the time of decision, the Minister must be satisfied that the applicant is either:

·          a person in respect of whom Australia has protection obligations under paragraph 36(2)(a) or 36(2)(aa) of the Migration Act; or

·          a member of the same family unit as a person in respect of whom Australia has protection obligations under paragraph 36(2)(a) or 36(2)(aa) of the Migration Act and that person has been granted a Subclass 785 (Temporary Protection) visa.

444.       New clause 785.222 provides that the applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner ):

·          a Medical Officer of the Commonwealth;

·          a medical practitioner approved by the Minister for the purposes of paragraph 785.222(b);

·          a medical practitioner employed by an organisation approved by the Minister for the purposes of paragraph 785.222(c).

445.       The purpose of new clause 785.222 is to ensure that an applicant must meet health requirements.  The health requirements are the same as those for Subclass 866 (Protection) visas.

446.       New subclause 785.223(1) specifies that one of new subclauses 785.223(2) to 785.223(4) must be satisfied.

447.       New subclause 785.223(2) provides that the applicant has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia.

448.       New subclause 785.223(3) provides that the applicant is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested the examination mentioned in subclause 785.223(2).

449.       New subclause 785.223(4) provides that the applicant is a person:

·          who is confirmed by a relevant medical practitioner to be pregnant; and

·          who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and

·          who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and

·          who the Minister is satisfied should not be required to undergo a chest x-ray examination at this time.

450.       The purpose of new clause 785.223 is to ensure that an applicant meets the required health standards.  The health requirements are the same as those for Subclass 866 (Protection) visas.

451.       New subclause 785.224(1) provides that a relevant medical practitioner has considered:

·          the results of any tests carried out for the purposes of the medical examination required under clause 785.222; and

·          the radiological report (if any) required under clause 785.223 in respect of the applicant.

452.       New subclause 785.224(2) provides that if the relevant medical practitioner:

·          is not a Medical Officer of the Commonwealth; and

·          considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

the relevant medical practitioner has referred any relevant results and reports to a Medical Officer of the Commonwealth.

453.       The purpose of new clause 785.224 is to ensure that an applicant meets the required health standards.  The health requirements are the same as those for Subclass 866 (Protection) visas.

454.       New clause 785.225 provides if a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.

455.       The purpose of new clause 785.225 is to ensure that an applicant meets the required health standards.  The health requirements are the same as those for Subclass 866 (Protection) visas.

456.       New clause 785.226 provides that the applicant:

·          satisfies public interest criteria 4001 and 4003A; and

·          if the applicant had turned 18 at the time of application - satisfies public interest criterion 4019.

457.       Public interest criterion 4001 is a mechanism by which the character test in subsection 501(6) of the Migration Act is taken into account for an applicant.

458.       Public interest criterion 4003A requires that the applicant is not determined by the Foreign Minister, or a person authorised by the Foreign Minister, to be a person whose presence in Australian may be directly or indirectly associated with the proliferation of weapons of mass destruction.

459.       Public interest criterion 4019 requires that the applicant sign a values statement relevant to the visa subclass or, if compelling circumstances exist, the Minister has decided that the applicant is not required to sign a values statement.

460.       The purpose of new clause 785.226 is to replicate the public interest criteria that currently apply to the Subclass 866 (Protection) visa.

461.       New clause 785.227 provides that the Minister is satisfied that the grant of the visa is in the national interest.

462.       The purpose of new clause 785.227 is that the Minister is able to refuse to grant a Subclass 785 (Temporary Protection) visa where the Minister is not satisfied that the grant is in the national interest.

463.       New subclause 785.228(1) provides that if the applicant is a child to whom subregulation 2.08(2) applies, subclause 785.228(2) is satisfied.

464.       New subclause 785.228(2) provides the Minister is satisfied that:

·          the applicant is a member of the same family unit as an applicant to whom subclause 785.221(2) applies; and

·          the applicant to whom subclause 785.221(2) applies has been granted a Subclass 785 (Temporary Protection) visa.

465.       Two notes are inserted after new clause 785.228. New note 1 provides that subregulation 2.08(2) applies, generally, to a child born to a non-citizen after the non-citizen has applied for a visa but before the application is decided.

466.       New note 2 provides that new subclause 785.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or 36(2)(aa) of the Migration Act.

467.       Current subregulation 2.08(1) provides:

·          if a non-citizen applies for a visa; and

·          after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to that non-citizen; then

·          the child is taken to have applied for a visa of the same class at the time he or she was born; and

·          the child’s application is taken to be combined with the non-citizen’s application.

468.       Current subregulation 2.08(2) provides that despite any provision in Schedule 2 to the Migration Regulations, a child referred to in subregulation 2.08(1):

·          must satisfy the criteria to be satisfied at time of decision; and

·          at the time of decision, must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.

469.       The effect of new clause 785.228 is to ensure that a child who is taken to have applied for a Subclass 785 (Temporary Protection) visa due to subregulation 2.08(1) is only eligible for the grant of the visa if they are a member of the same family unit as a person who was granted a Subclass 785 (Temporary Protection) visa on the basis of being a person to whom Australia has protection obligations, as mentioned in paragraph 36(2)(a) and 36(2)(aa) of the Migration Act.

470.       The purpose of new clause 785.228 is to ensure that a child is eligible to be granted the same visa that is held by a member of the same family unit .

785.3 - Secondary criteria

471.       New clause 785.3 provides for secondary criteria which must be satisfied for the grant of a Subclass 785 (Temporary Protection) visa.  The new note to new clause 785.3 provides that all applicants must satisfy the primary criteria.

472.       The purpose of the note is to make clear that all applicants seeking to satisfy the criteria for the grant of a Subclass 785 (Temporary Protection) visa must satisfy the primary criteria.

785.4 - Circumstances applicable to grant

473.       New clause 785.4 provides for the circumstances applicable to the grant of a Subclass 785 (Temporary Protection) visa.

474.       New clause 785.411 provides that the applicant must be in Australia when the visa is granted.

475.       The purpose of new clause 785.411 is to make clear that an applicant must be in Australia to be granted a Subclass 785 (Temporary Protection) visa.  This requirement is the same as the current requirement for a Subclass 866 (Protection) visa.

785.5 - When visa is in effect

476.       New clause 785.5 provides for when the Subclass 785 (Temporary Protection) visa is in effect.

477.       New clause 785.511 provides that a temporary visa permitting the holder to remain in Australia until:

·          if the holder of the temporary visa (the first visa) makes a valid application for another Subclass 785 (Temporary Protection) visa within 3 years after the grant of the first visa -  the day when the application is finally determined or withdrawn; or

·          in any other case - the earlier of:

o    the end of 3 years from the date of grant of the first visa; and

o    the end of any shorter period, specified by the Minister, from the date of grant of the first visa.

478.       The effect of this amendment is that if the Subclass 785 (Temporary Protection) visa holder does not apply for another Subclass 785 (Temporary Protection) visa before the cessation of their temporary visa, then the temporary visa will cease at the earlier of:

·          the end of 3 years from the date of grant of the first visa; and

·          the end of any shorter period, specified by the Minister, from the date of grant of the first visa.

479.       A Subclass 785 (Temporary Protection) visa can be granted for any period, with a maximum period of 3 years. 

480.       If the person applies for another Subclass 785 (Temporary Protection) visa (‘second visa’) while they are the holder of a Subclass 785 (Temporary Protection) visa (‘first visa’), then the first visa will continue to be in effect until the day the application for the second visa is finally determined or withdrawn.

481.       For example, a person is granted a first visa on 17 September 2014, and the Minister has specified for that visa to cease 1 year from the date of grant (i.e. on 17 September 2015).  The person makes a valid application for a second visa 10 months after the date of grant (i.e. on 17 July 2015), while still being the holder of the first visa.  The application for the second visa is finally determined on 17 July 2016.  Under new clause 785.511, the person’s first visa will cease on 17 July 2016.

482.       If the person makes an application for a second visa on 1 January 2016, then the first visa will have already ceased on 17 September 2015 because the person did not apply for the second visa before the cessation of the first visa.

483.       The purpose of new clause 785.511 is to encourage a holder of a Subclass 785 (Temporary Protection) visa to apply for the second visa before the cessation of the first visa.  This will ensure that the first visa will not cease until the day the second visa application is finally determined or withdrawn, and that the person will continue to receive any benefits associated with a Subclass 785 (Temporary Protection) visa.  If the person’s first visa ceases, then the person would be required to apply for, and be granted, a bridging visa in order to become a lawful non-citizen.  The bridging visa may not have the same benefits as a Subclass 785 (Temporary Protection) visa. 

785.6 - Conditions

484.       New clause 785.6 provides for the conditions to be attached to a Subclass 785 (Temporary Protection) visa. 

485.       New clause 785.611 provides for conditions 8503 and 8565 to apply.

486.       The effect of new clause 785.611 is that those conditions apply by operation of law to a Subclass 785 (Temporary Protection) visa.  If a visa holder does not comply with a condition of the visa, their visa may be cancelled under paragraph 116(1)(b) of the Migration Act.

487.       Condition 8503 provides that the visa holder will not, after entering Australia, be entitled to be granted a substantive visa , other than a protection visa , while the holder remains in Australia.

488.       A substantive visa is defined in subsection 5(1) of the Migration Act as a visa other than a bridging visa, criminal justice visa, or an enforcement visa.

489.       The effect of this condition is that, unless the Minister waives the condition under current subsection 41(2A) of the Migration Act, a person who holds, or who held, a visa with condition 8503 attached cannot make a valid application for a visa (other than a protection visa) while they remain in Australia (see current subsection 46(1A) of the Migration Act).

490.       Condition 8503 allows a visa holder to be eligible for the grant of a protection visa.  However, a holder of a Temporary Protection (Class XD) visa is only eligible for the grant of a Temporary Protection (Class XD) visa because they cannot validly apply for a Protection (Class XA) visa.  In other words, the imposition of condition 8503 on a Subclass 785 (Temporary Protection) visa would not allow the visa holder to have access to all classes of protection visas.

491.       The purpose of making condition 8503 a mandatory condition for a Subclass 785 (Temporary Protection) visa is to implement the government’s intention that a Subclass 785 (Temporary Protection) visa holder is not able to apply for any substantive visas aside from a protection visa. Specifically, such a person may apply for a Temporary Protection (Class XD) visa.

492.       New condition 8565, inserted by item 37 of Schedule 2 to the Bill, provides that the holder must notify Immigration of any change in the holder’s residential address within 28 days after the change occurs.

493.       The purpose of condition 8565 is to ensure that the Department of Immigration and Border Protection is made aware of any change in address of a Subclass 785 (Temporary Protection) visa holder.

Item 32           Clause 866.211 of Schedule 2

494.       This item repeals current clause 866.211 of Schedule 2 to the Migration Regulations and substitutes a new clause 866.211 of Schedule 2.  Clause 866.211 provides for criteria to be satisfied at time of application.

495.       Current subclause 866.211(1) provides that one of the subclauses 866.211(2) to 866.211(5) is satisfied.

496.       Current subclause 866.211(2) of Schedule 2 to the Migration Regulations provides that the applicant:

·          claims to be a person to whom Australia has protection obligations under the Refugees Convention; and

·          makes specific claims under the Refugees Convention.

497.       Current subclause 866.211(3) provides that the applicant claims to be a member of the same family unit as a person who is:

·          mentioned in subclause 866.211(2); and

·          an applicant for a Protection (Class XA) visa.

498.       New subclause 866.211(1) provides that new subclause 866.211(2) or 866.211(3) is satisfied.

499.       New subclause 866.211(2) provides that the applicant:

·          claims that a criterion mentioned in paragraph 36(2)(a) or 36(2)(aa) of the Migration Act is satisfied in relation to the applicant; and

·          makes specific claims as to why that criterion is satisfied.

500.       A new note is inserted after new subclause 866.211(2). The new note provides that paragraphs 36(2)(a) and 36(2)(aa) of the Migration Act sets out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

501.       The purpose of this amendment is to take the opportunity to update the language used in subclause 866.211(2) and to reflect the language used in subsection 36(2) of the Migration Act. 

502.       New subclause 866.211(3) provides that the applicant claims to be a member of the same family unit as a person:

·          to whom subclause 866.211(2) applies; and

·          who is an applicant for a Subclass 866 (Protection) visa.

503.       A new note is inserted after new subclause 866.211(3).  The new note provides: see paragraphs 36(2)(b) and 36(2)(c) of the Migration Act.

504.       The purpose of this amendment is to substitute the reference to “Protection (Class XA) visa” with “Subclass 866 (Protection) visa”.  The effect of this amendment is to make clear that only a member of the same family unit as a person who has been granted a Subclass 866 (Protection) visa is eligible for the grant of a Subclass 866 (Protection) visa.  The amendments do no substantially alter current clause 866.211 of Schedule 2 to the Migration Regulations. 

505.       Current subclauses 866.211(4) and 866.211(5) are repealed by this amendment.  These subclauses are repealed because the amendment to subclause 866.211(2), to refer to a criterion mentioned in paragraph 36(2)(a) or 36(2)(aa) of the Migration Act, covers those matters that are included in current subclauses 866.211(4) and 866.211(5).

 

Item 33           Clause 866.221 of Schedule 2

506.       This item repeals current clause 866.221 of Schedule 2 to the Migration Regulations and substitutes new clause 866.221 of Schedule 2.  Clause 866.221 provides for criteria to be satisfied at time of decision.

507.       Current subclause 866.221(1) provides that one of subclauses 866.221(2) to 866.221(5) is satisfied.

508.       Current subclause 866.221(2) provides that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

509.       Current subclause 866.221(3) provides that the Minister is satisfied that:

·          the applicant is a person who is a member of the same family unit   as an applicant mentioned in subclause 866.221(2); and

·          the applicant mentioned in subclause 866.221(2) has been granted a Protection (Class XA) visa.

510.       New subclause 866.221(1) provides that subclause 866.221(2) or 866.221(3) is satisfied.

511.       New subclause 866.221(2) provides that the Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or 36(2)(aa) of the Migration Act is satisfied in relation to the applicant.

512.       A new note is inserted after new subclause 866.221(2). The new note provides that paragraphs 36(2)(a) and 36(2)(aa) of the Migration Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

513.       The purpose of this amendment is to take the opportunity to update the language used in subclause 866.221(2) and to reflect the language used in subsection 36(2) of the Migration Act.

514.       New subclause 866.221(3) provides that the Minister is satisfied that:

·          the applicant is a member of the same family unit as an applicant mentioned in subclause 866.221(2); and

·          the applicant mentioned in subclause 866.221(2) has been granted a Subclass 866 (Protection) visa.

515.       A new note is inserted after new subclause 866.221(3). The new note provides: see paragraphs 36(2)(b) and 36(2)(c) of the Migration Act.

516.       The effect of this amendment is to ensure that only a member of the same family unit as a person who has been granted a Subclass 866 (Protection) visa is eligible for the grant of a Subclass 866 (Protection) visa.  The amendments do no substantially alter the effect of current clause 866.221 of Schedule 2 to the Migration Regulations. 

517.       The purpose of this amendment is to substitute the reference to “Protection (Class XA) visa” with “Subclass 866 (Protection) visa”. 

518.       Current subclauses 866.221(4) and 866.221(5) are repealed by this amendment.  These subclauses are repealed because the amendment to subclause 866.221(2), to refer to a criterion mentioned in paragraph 36(2)(a) or 36(2)(aa) of the Migration Act, covers those matters that are included in current subclauses 866.221(4) and 866.221(5).

Item 34           Clause 866.223 of Schedule 2

519.       This item omits “relevant medical practitioner” from clause 866.223 of Schedule 2 to the Migration Regulations and substitutes “ relevant medical practitioner ”. 

520.       This amendment is makes clear that the term “ relevant medical practitioner ” has a particular meaning for the purposes of clause 866.223.  The meaning of “ relevant medical practitioner ” is the same in clause 866.223 and in clause 785.222, as inserted by item 31 of Schedule 2 to the Bill.

Item 35           Paragraph 866.225(a)

521.       This item omits reference to “, 4002” from paragraph 866.225(a).

522.       This amendment is consequential to the amendments made by the Migration Amendment Bill 2013 which inserted subsection 36(1B) into the Migration Act.  This was to address the finding of the High Court in the matter of Plaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46 (Plaintiff M47).  In Plaintiff M47, the High Court held that paragraph 866.225(a) of Part 866 of Schedule 2 to the Migration Regulations is invalid to the extent that it makes public interest criterion 4002 a criterion for the grant of a protection visa.

523.       The majority of the High Court in Plaintiff M47 found that the Migration Regulations could not validly prescribe public interest criterion 4002 as a criterion for the grant of a protection visa because doing so was inconsistent with the scheme provided in the Migration Act for the making of a decision to refuse a protection visa relying on Articles 32 and 33(2) of the Convention Relating to the Status of Refugees as amended by the Refugees Protocol.  Current subsection 36(1B) of the Migration Act provides that a criterion for the grant of a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).

Item 36           Clause 866.230 of Schedule 2

524.       This item repeals current clause 866.230 of Schedule 2 to the Migration Regulations and substitutes new clause 866.230 of Schedule 2.  Clause 866.230 provides for criteria to be satisfied at time of decision.

525.       Current subclause 866.230(1) provides that if the applicant is a child mentioned in paragraph 2.08(1)(b), subclause 866.230(2) or 866.230(3) is satisfied.

526.       Current subclause 866.230(2) provides both of the following apply:

·          the applicant is a member of the same family unit as an applicant mentioned in subclause 866.221(2);

·          the applicant mentioned in subclause 866.221(2) has been granted a Subclass 866 (Protection) visa.

527.       Current subclause 866.230(3) provides both of the following apply:

·          the applicant is a member of the same family unit as an applicant mentioned in subclause 866.221(4);

·          the applicant mentioned in subclause 866.221(4) has been granted a Subclass 866 (Protection) visa.

528.       New subclause 866.230(1) provides if the applicant is a child to whom subregulation 2.08(2) applies, subclause 866.230(2) is satisfied.

529.       New subclause 866.230(2) provides the Minister is satisfied that:

·          the applicant is a member of the same family unit as an applicant to whom subclause 866.221(2) applies; and

·          the applicant mentioned in subclause 866.221(2) has been granted a Subclass 866 (Protection) visa.

530.       Two notes are inserted after new subclause 866.230(2). New note 1 provides that subregulation 2.08(2) applies, generally, to a child born to a non-citizen after the non-citizen has applied for a visa but before the application is decided.

531.       New note 2 provides that subclause 866.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or 36(2)(aa) of the Migration Act.

532.       Current subregulation 2.08(1) provides:

·          if a non-citizen applies for a visa; and

·          after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to that non-citizen; then

·          the child is taken to have applied for a visa of the same class at the time he or she was born; and

·          the child’s application is taken to be combined with the non-citizen’s application.

533.       Current subregulation 2.08(2) provides that despite any provision in Schedule 2 to the Migration Regulations, a child referred to in subregulation 2.08(1):

·          must satisfy the criteria to be satisfied at time of decision; and

·          at the time of decision, must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.

534.       The effect of new clause 866.230 is to ensure that a child who is taken to have applied for a Subclass 866 (Protection) visa due to subregulation 2.08(1) is only eligible for the grant of the visa if they are a member of the same family unit as a person who was granted a Subclass 866 (Protection) visa on the basis of being a person to whom Australia has protection obligations, as mentioned in paragraph 36(2)(a) and 36(2)(aa) of the Migration Act.

535.       The purpose of new clause 866.230 is to ensure that a child is eligible to be granted the same visa that is held by a member of the same family unit .

Item 37           After clause 8564 of Schedule 8

536.       This item inserts new condition 8565 after condition 8564 into Schedule 8 to the Migration Regulations.

537.       New condition 8565 provides that a visa holder must notify Immigration of any change in the holder’s residential address within 28 days after the change occurs.

538.       The purpose of new condition 8565 is to require the visa holder to inform the Department of Immigration and Border Protection of any change to their residential address.

Division 2 - Main amendments commencing immediately after Division 1

Migration Regulations 1994

Item 38           After regulation 2.08E

539.       This item inserts new regulation 2.08F after regulation 2.08E of the Migration Regulations.  The heading for new regulation 2.08F is “Certain applications for Protection (Class XA) visas taken to be applications for Temporary Protection (Class XD) visas”.

Conversion regulation

540.       New subregulation 2.08F(1) provides that for new section 45AA of the Migration Act, despite anything else in the Migration Act, a valid application (a pre-conversion application) for a Protection (Class XA) visa made before the commencement of regulation 2.08F by an applicant prescribed by subregulation 2.08F(2) is, immediately after regulation 2.08F starts to apply in relation to the application under subsection 2.08F(3):

·          taken not to be, and never to have been , a valid application for a Protection (Class XA) visa; and

·          taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa,  made by the prescribed applicant.

541.       Two notes are inserted after new subregulation 2.08F(1).  New note 1 provides: as a result, the Minister is required to make a decision on the pre-conversion application as if it were a valid application for a Temporary Protection (Class XD) visa.

542.       New note 2 provides: if the first instalment of the visa application charge for the pre-conversion application had been paid before regulation 2.08F starts to apply, the first instalment of visa application charge for an application for a Temporary Protection (Class XD) visa (if any) is taken to have been paid.  See new section 45AA of the Migration Act.

543.       New subregulation 2.08F(1) operates in accordance with new subsection 45AA(3) and new paragraph 45AA(4)(a) of the Migration Act, as inserted by item 20 of Schedule 2 to the Bill.

544.       New subsection 45AA(3) allows a conversion regulation to provide that the pre-conversion application for the pre-conversion visa is taken not to be, and never to have been a valid application for the pre-conversion visa.  Rather the pre-conversion application for the pre-conversion visa is taken to be, and always to have been, a valid application (the converted application) for a visa of a different class (specified by the conversion regulation), made by the applicant for the pre-conversion visa.

545.       New paragraph 45AA(4)(a) allows for a conversion regulation to prescribe a class or classes of pre-conversion visas, such as the Protection (Class XA) visa, without limiting the operation of subsection 45AA(3).

546.       The effect of new subregulation 2.08F(1) is that a valid application for a Protection (Class XA) visa, made by an applicant prescribed in subregulation 2.08F(2) is, upon conversion, taken not to be, and never to have been, a valid application for a Protection (Class XA) visa.  Rather, upon conversion, the application for the Protection (Class  XA) visa is taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the applicant prescribed in subregulation 2.08F(2). 

547.       For example, an application for a Protection (Class XA) visa was made by an applicant prescribed in subregulation 2.08F(2) on 17 September 2014.  The conversion regulation starts to apply on 1 October 2014.  In such a scenario, the application for the Protection (Class XA) visa is taken to be invalid from 17 September 2014 and instead an application for a Temporary Protection (Class XD) visa is taken to have been, and always to have been, validly made on 17 September 2014.  This is the outcome achieved by regulation 2.08F, regardless of the fact that Part 1, Division 1 and Part 4, Division 1 of Schedule 2 to the Bill, which introduce the Temporary Protection (Class XD) visa, were not in effect on 17 September 2014.

548.       The purpose and effect of new note 1 after subregulation 2.08F(1) is to make clear that, as a result of the conversion regulation, the Minister must treat the Protection (Class XA) visa application as a Temporary Protection (Class XD) visa application. Accordingly, the Minister must make a decision as if the Protection (Class XA) visa application was, and had always been, a valid application for a Temporary Protection (Class XD) visa.

549.       The purpose and effect of new note 2 after subregulation 2.08F(1) is to make clear that if the first instalment of the visa application charge has been paid for the Protection (Class XA) visa application, then upon the conversion regulation starting to apply, that visa application charge is taken to have been paid for an application for a Temporary Protection (Class XD) visa application.

550.       The intention of new note 2 is to reiterate the effect of new subsection 45AA(5) of the Migration Act on the first instalment of visa application charges paid in relation to a pre-conversion application in the context of a Protection (Class XA) visa that is ‘converted’ into a Temporary Protection (Class XD) visa.

Prescribed applicants

551.       New subregulation 2.08F(2) provides that the following are prescribed applicants:

·          an applicant who holds, or has ever held, any of the following visas:

o    a Subclass 785 (Temporary Protection) visa granted before 2 December 2013;

o    a Temporary Safe Haven (Class UJ) visa;

o    a Temporary (Humanitarian Concern) (Class UO) visa;

·          an applicant who did not hold a visa that was in effect on the applicant’s last entry into Australia;

·          an applicant who is an unauthorised maritime arrival;

·          an applicant who was not immigration cleared on the applicant’s last entry into Australia.

552.       Subregulation 2.08F(2) operates in accordance with new paragraph 45AA(4)(b) of the Migration Act, as inserted by item 20 of Schedule 2 to the Bill, which allows for a conversion regulation to prescribe a class of applicants for pre-conversion visas to be covered by the conversion regulation.

553.       The purpose of new subregulation 2.08F(2) is to identify the classes of applicants, including applicants having a particular status, for a Protection (Class XA) visa to whom new regulation 2.08F applies.  If a person prescribed in new subregulation 2.08F(2) applies for a Protection (Class XA) visa and new regulation 2.08F starts to apply (as outlined in new subregulation 2.08F(3)) then the Protection (Class XA) visa is taken not to be, and never to have been, a valid application.  Rather, the Protection (Class XA) visa is taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa made by the person prescribed in new subregulation 2.08F(2). 

554.       Subregulation 2.08F(2) is consistent with and supports the implementation of  the government’s policy intention that certain applicants for a Protection (Class XA) visa, such as an unauthorised maritime arrival, will not be granted permanent protection in Australia.

When this regulation starts to apply

555.       New subregulation 2.08F(3) provides that new regulation 2.08F starts to apply in relation to a pre-conversion application immediately after the occurrence of whichever of the following events is applicable to the application:

·          if, before the commencement of regulation 2.08F, the Minister had not made a decision in relation to the pre-conversion application under section 65 of the Migration Act - the commencement of regulation 2.08F;

·          in a case in which the Minister had made such a decision before the commencement of regulation 2.08F - one of the following events, if the event occurs on or after the commencement of regulation 2.08F:

o    the Refugee Review Tribunal remits a matter in relation to the pre-conversion application in accordance with paragraph 415(2)(c) of the Migration Act;

o    the Administrative Appeals Tribunal remits a matter in relation to the pre-conversion application in accordance with paragraph 43(1A)(c) of the Administrative Appeals Tribunals Act 1975 (as substituted in relation to an RRT-reviewable decision by section 452 of the Migration Act);

o    a court quashes a decision of the Minister in relation to the pre-conversion application and orders the Minister to reconsider the application in accordance with the law.

556.       New subregulation 2.08F(3) operates in accordance with new paragraph 45AA(4)(c) of the Migration Act, as inserted by item 20 of Schedule 2 to the Bill.  New paragraph 45AA(4)(c) makes clear that a conversion regulation may prescribe a time when the conversion regulation is to start to apply in relation to the pre-conversion application, including different conversion times depending on the occurrence of different events. The intention behind new paragraph 45AA(4)(c) (as inserted by item 20 of Schedule 2 to the Bill) is that the time when the conversion regulation starts to apply in relation to a pre-conversion application may be specified by reference to the occurrence of an event or events. 

557.       The effect of new subregulation 2.08F(3) is that if a person prescribed in new subregulation 2.08F(2) applied for a Protection (Class XA) visa and one of the events outlined in new subregulation 2.08F(3) occurs then, immediately after the occurrence of the applicable event to the Protection (Class XA) visa application, new regulation 2.08F starts to apply.

558.       The purpose of new subregulation 2.08F(3) is to specify the point in time when regulation 2.08F starts to apply and ‘converts’ a Protection (Class XA) visa application to a Temporary Protection (Class XD) visa application.

Division 3 - Consequential amendments

Migration Regulations 1994

Item 39           Regulation 2.06AA

559.       This item repeals regulation 2.06AA of the Migration Regulations.

560.       Regulation 2.06AA is made for current sections 65A and 91Y of the Migration Act and those sections are being repealed by Schedule 7 to the Bill.   The repeal of regulation 2.06AA is consequential to the amendment to repeal sections 65A and 91Y of the Migration Act.

Item 40           Subregulation 2.07AQ(3) (table item 1, column headed “Criterion  2”, paragraph (c))

561.       This item omits the word “or” from between paragraphs (c) and (d) of subregulation 2.07AQ(3) in table item 1, column headed “Criterion 2”.

562.       This amendment is consequential to the amendment made by item 41 of Schedule 2 to the Bill.   Currently there are four paragraphs in subregulation 2.07AQ(3) table item 1, column headed “Criterion 2” and item 41 repeals paragraph (d).

Item 41           Subregulation 2.07AQ(3) (table item 1, column headed “Criterion  2”, paragraph (d))

563.       This item repeals paragraph (d) from subregulation 2.07AQ(3) table item 1, column headed “Criterion 2”.

564.       Current subregulation 2.07AQ(2) provides that an application for a Resolution of Status (Class CD) visa is taken to have been validly made by a person only if the requirements of subregulation 2.07AQ(3) or Item 1127AA of Schedule 1 to the Migration Regulations have been met.

565.       Current subregulation 2.07AQ(3), table item 1, column headed “Criterion 2”, paragraph (d), provides that a criterion for making a valid application for a Resolution of Status (Class CD) visa is that the person holds a Subclass 785 (Temporary Protection) visa. 

566.       New subregulation 2.07AQ(3), table item 1, column headed “Criterion 2” provides that a criterion for making a valid application for a Resolution of Status (Class CD) visa is that the person holds a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa, or a Subclass 451 (Secondary Movement Relocation (Temporary)) visa or a Subclass 695 (Return Pending) visa.

567.       The effect of this amendment is that a person who holds a Subclass 785 (Temporary Protection) visa that is in effect will no longer be eligible to be taken to have made a valid application for a Resolution of Status (Class CD) visa.

568.       The purpose of this amendment is to clarify the Government’s intention that a holder of a Subclass 785 (Temporary Protection) visa cannot be taken to have validly made an application for a Resolution of Status visa (Class CD).

Item 42           Subregulation 2.07AQ(3) (table item 2, column headed “Criterion 1”)

569.       This item omits “Protection (Class XA)” and substitutes “protection” in subregulation 2.07AQ(3), table item 2, column headed “Criterion 1”.

570.       Current subregulation 2.07AQ(3), table item 2, column headed “Criterion 1” provides that a criterion for making a valid application for a Resolution of Status (Class CD) visa is that the person makes a valid application for a Protection (Class XA) visa.

571.       New subregulation 2.07AQ(3), table item 2, column headed “Criterion 1” provides that a criterion for making a valid application for a Resolution of Status (Class CD)  visa is that the person makes a valid application for a protection visa.

572.       The effect of this amendment is to provide an applicant who held, but no longer holds, a visa of a kind mentioned in subregulation 2.07AQ(3) table item 1, column headed “Criterion 2” with a pathway to the Resolution of Status (Class CD) visa.  The amendments provide that if such an applicant makes a valid application for any class of protection visa, then they would meet Criterion 1 in table item 2 of subregulation 2.07AQ(3) for a Resolution of Status (Class CD) visa.  Item 1 of Schedule 2 to the Bill discusses the new definition of protection visa in subsection 5(1)) of the Migration Act.

Item 43           Subregulation 2.07AQ(3) (table item 2, column headed “Criterion  2”)

573.       This item inserts “or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008” after “item 1,” in subregulation 2.07AQ(3), table item 2, column headed “Criterion 2”.

574.       Current subregulation 2.07AQ(3), table item 2, column headed “Criterion 2” provides that the person held, but no longer holds, a visa of a kind mentioned in criterion 2 of item 1, and the visa was not cancelled.

575.       New subregulation 2.07AQ(3), table item 2, column headed “Criterion 2” provides that a criterion for making a valid application for a Resolution of Status (Class CD) visa is that the person held, but no longer holds, a visa of a kind mentioned in criterion 2 of item 1, or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008, and the visa was not cancelled.

576.       The purpose of this amendment is to allow a former holder of a Subclass 785 (Temporary Protection) visa granted before 9 August 2008 to be eligible to be taken to have applied for a Resolution of Status (Class CD) visa.  The Government does not intend to limit those visa holders from being eligible to apply for, and be granted, a Resolution of Status (Class CD) visa.

Item 44           Subregulation 2.07AQ(5)

577.       This item omits “Protection (Class XA)” (wherever occurring) and substitutes “protection” in subregulation 2.07AQ(5).

578.       This amendment is consequential to the amendments in item 42 of Schedule 2 to the Bill.

Item 45           Subregulation 2.07AQ(7)

579.       This item, after the reference to “Subclass 785 (Temporary Protection) visa” inserts reference to “granted before 9 August 2008”.

580.       Current subregulation 2.07AQ(7) provides that subregulation 2.07AQ(2) applies whether or not the applicant holds, or held, a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa, a Subclass 451 (Secondary Movement Relocation (Temporary)) visa, a Subclass 695 (Return Pending) visa or a Subclass 785 (Temporary Protection) visa that is, or was, subject to a condition mentioned in paragraph 41(2)(a) of the Migration Act relating to the making of applications for other visas.

581.       New subregulation 2.07AQ(7) provides that subregulation 2.07AQ(2) applies whether or not the applicant holds, or held, a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa, a Subclass 451 (Secondary Movement Relocation (Temporary)) visa, a Subclass 695 (Return Pending) visa or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008, that is, or was, subject to a condition mentioned in paragraph 41(2)(a) of the Migration Act relating to the making of applications for other visas.

582.       The purpose of this amendment is to make clear the intention that a person who was granted the Subclass 785 (Temporary Protection) visa after 9 August 2008 cannot be taken to have validly made an application for a Resolution of Status (Class CD) visa.

Item 46           Subregulation 2.43(3) (paragraph (i) of the definition of relevant visa )

583.       This item repeals paragraph 2.43(3)(i) and substitutes new paragraph 2.43(3)(i) into the definition of relevant visa for the purposes of regulation 2.43.  Regulation 2.43 provides for the grounds for cancellation of visa for the purposes of paragraph 116(1)(g) of the Migration Act.

584.       Paragraph 116(1)(g) of the Migration Act generally provides that the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder.  Regulation 2.43 generally prescribes the grounds for cancelling a visa for the purposes of paragraph 116(1)(g) of the Migration Act.

585.       One of the prescribed grounds for cancelling a visa in subparagraph 2.43(1)(a)(ii) is that the Foreign Minister has personally determined that, in the case of a relevant visa - the holder of the visa is a person whose presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction.

586.       In regulation 2.43, relevant visa means a visa listed in subregulation 2.43(3). 

587.       Current paragraph 2.43(i) provides that relevant visa means a Subclass 785 (Temporary Protection) visa.

588.       New paragraph 2.43(i) provides that a relevant visa means a Subclass 785 (Temporary Protection) visa, including a Subclass 785 (Temporary Protection) visa granted before 2 December 2013.

589.       The purpose of this amendment is to make clear that any Subclass 785 (Temporary Protection) visa, including a Subclass 785 (Temporary Protection) visa granted before 2 December 2013, is included in the list of relevant visas for the purposes of subparagraph 2.43(1)(a)(ii) of the Migration Regulations.

Item 47           Subitem 1127AA(3) of Schedule 1 (table item 1, column headed “Criterion 1”, paragraph (c))

590.       This item omits the word “or” from between paragraphs (c) and (d) of subitem 1127AA(3) of Schedule 1 to the Migration Regulations in table item 1, column headed “Criterion 1”.

591.       This amendment is consequential to the amendment made by item 48 of Schedule 2 to the Bill.  Currently there are four paragraphs in subitem 1127AA(3) of Schedule 1 in table item 1, column headed “Criterion 1” and this item repeals paragraph (d).

 

Item 48           Subitem 1127AA(3) of Schedule 1 (table item 1, column headed “Criterion 1”, paragraph (d))

592.       This item repeals paragraph (d) in subitem 1127AA(3) of Schedule 1 to the Migration Regulations, table item 1, column headed “Criterion 1”.

593.       Item 1127AA sets out some of the circumstances in which a person is taken to have made a valid application for a Resolution of Status (Class CD) visa.  Currently, paragraph (d) of subitem 1127AA(3), table item 1, column headed “Criterion 1” provides that a person is taken to have made a valid application for a Resolution of Status (Class CD) visa where the person holds a Subclass 785 (Temporary Protection) visa.

594.       New subitem 1127AA(3), table item 1, column headed “Criterion 1” provides that an applicant meets the requirements of “Criterion 1” if the applicant holds a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa, or a Subclass 451 (Secondary Movement Relocation (Temporary)) visa or a Subclass 695 (Return Pending) visa.

595.       The effect of this amendment is that a person who holds a Subclass 785 (Temporary Protection) visa will no longer be eligible to make a valid application for a Resolution of Status (Class CD) visa. 

596.       The purpose of this amendment is to clarify the Government’s intention that a person who holds a Subclass 785 (Temporary Protection) visa cannot make a valid application for a Resolution of Status (Class CD) visa.

Item 49           Subitem 1127AA(3) of Schedule 1 (table item 2, column headed “Criterion 1”)

597.       This item inserts “or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008” after “item 1” in subitem 1127AA(3), table item 2, column headed “Criterion 1”.

598.       Current subitem 1127AA(3), table item 2, column headed “Criterion 1” provides that a criterion for making a valid application for a Resolution of Status (Class CD) visa is that the applicant held, but no longer holds, a visa of a kind mentioned in criterion 1 of item 1, and the visa was not cancelled.

599.       New subitem 1127AA(3), table item 2, column headed “Criterion 1” provides that a criterion for making a valid application for a Resolution of Status (Class CD) visa is that the applicant held, but no longer holds, a visa of a kind mentioned in criterion 1 of item 1, or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008, and the visa was not cancelled.

600.       The purpose of this amendment is to allow a former holder of a Subclass 785 (Temporary Protection) visa granted before 9 August 2008 to be eligible to make a valid application for a Resolution of Status (Class CD) visa.  The Government does not intend to limit those visa holders from being eligible to apply for, and be granted, a Resolution of Status (Class CD) visa.

 

Item 50           Subparagraphs 1302(3)(bb)(i) and (ii) of Schedule 1

601.       This item inserts the reference “, including a Subclass 785 (Temporary Protection) visa granted before 2 December 2013” after the reference to “visa”.

602.       Item 1302 sets out some of the circumstances in which a person is taken to have made a valid application for a Bridging B (Class WB) visa.  Current paragraph 1302(3)(bb) provides that an applicant for a Bridging B (Class WB) visa must not be:

·          the holder of a Subclass 785 (Temporary Protection) visa; or

·          a person whose last substantive visa was a Subclass 785 (Temporary Protection) visa.

603.       New paragraph 1302(3)(bb) provides that an applicant for a Bridging B (Class WB) visa must not be:

·          the holder of a Subclass 785 (Temporary Protection) visa, including a Subclass 785 (Temporary Protection) visa granted before 2 December 2013; or

·          a person whose last substantive visa was a Subclass 785 (Temporary Protection) visa, including a Subclass 785 (Temporary Protection) visa granted before 2 December 2013.

604.       The purpose of this amendment is to make clear that the holder of any Subclass 785 (Temporary Protection) visa, including a Subclass 785 (Temporary Protection) visa granted before 2 December 2013, cannot be taken to have made a valid application for a Bridging B (Class WB) visa. 

Item 51           Paragraphs 773.213(2)(zf) and (zfa) of Schedule 2

605.       This item repeals paragraphs 773.213(2)(zf) and (zfa) of Schedule 2 to the Migration Regulations and substitutes new paragraph 773.213(2)(zf), which provides for the classes of visa referred to in sub-subparagraph 773.213(1)(d)(i)(B) of Schedule 2 to the Migration Regulations to include protection visas (including Protection (Class AZ) visas, see new subsection 35AA(5) of the Migration Act).

606.       Clause 773.2 provides for the primary criteria that all applicants for a Subclass 773 (Border) visa must meet.  Subparagraph 773.213(1)(d)(i)(B) relevantly provides that the applicant is a person who is a dependent child of the holder of the holder of a visa of a class set out in subclause 773.213(2) who arrives in Australia in the care of a person who is an Australia citizen or the holder of a visa.  This amendment provides that subclause 773.213(2) is amended to repeal the reference to Protection (Class AZ) and Protection (Class XA) are repealed and replaced with a reference to protection visas generally.  This amendment is consequential to the amendments made by item 5 of Schedule 2 to the Bill to insert new section 35A which provides for protection visas generally.

Item 52           Amendments of listed provisions - protection visas

607.       This item makes minor amendments to the Migration Regulations that are consequential to the amendments made by item 5 of Schedule 2 to the Bill to insert new section 35A which provides for protection visas.

608.       The following table items omit reference to “Protection (Class XA)” and substitute with reference to “protection”:

·          table item 1 amends regulation 1.03 (paragraph (a) of the definition of relative );

·          table item 2 amends paragraph 1.05A(2)(d);

·          table item 3 amends paragraph 2.04(2)(a);

·          table item 5 amends regulation 2.20;

·          table item 6 amends paragraphs 4.31A;

·          table item 7 amends subregulation 4.33(1);

·          table item 8 amends paragraph 010.211(4)(b) of Schedule 2;

·          table item 9 amends paragraphs 010.611 of Schedule 2;

·          table item 10 amends paragraphs 020.611 of Schedule 2;

·          table item 11 amends paragraph 030.612(a) of Schedule 2 to omit “Protection (Class XA)” and substitute “protection”;

·          table item 12 amends paragraph 050.212(8)(c) of Schedule 2;

·          table item 13 amends paragraph 050.613A(1)(a) of Schedule 2;

·          table item 14 amends paragraph 050.614(1)(a) of Schedule 2; and

·          table item 15 amends paragraph 051.611A(1)(a) of Schedule 2.

 

609.       Table item 4 amends paragraph 2.12(1)(c) to omit “Protection (Class XA)” and substitute “protection visas”.

Division 4 - Amendments relating to application

Migration Regulations 1994

Item 53           At the end of Schedule 13

610.       This item adds new Part 50 - Amendments made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 at the end of Schedule 13 to the Migration Regulations.

611.       New regulation 5000 of Part 50 of Schedule 13 to the Migration Regulations provides that the amendments of these Migration Regulations made by Division 1 and 3 of Part 4 of Schedule 2 to the Migration Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 apply in relation to:

·          a visa application made on or after the commencement of Division 1 of Part 4 of Schedule 2; and

·          a visa application that is taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa by the operation of paragraph 2.08F(1)(b) of these Migration Regulations (as inserted by Division 2 of Part4 of Schedule 2).

612.       This item adds a note after new paragraph 5000(b).  The new note provides that new regulation 2.08F applies, by its own terms, in relation to some protection visa applications made before the commencement of Part 4.  The new note refers to new subregulation 2.08F(1), which has the effect of applying to applications for a Protection (Class XA) visa that were made before the commencement of new regulation 2.08F.

613.       Schedule 13 to the Migration Regulations makes transitional arrangements in relation to amendments to the Migration Regulations.  For visa applications made on or after the commencement of Division 1 of Part 4 of Schedule 2, the amendments made to the Migration Regulations by Divisions 1 and 3 of Part 4 apply in relation to such a visa application.

614.       For a visa application that is taken to be a valid application for a Temporary Protection (Class XD) visa by operation of new regulation 2.08F, the amendments made to the Migration Regulations by Divisions 1 and 3 of Part 4 apply to such an application.  New regulation 2.08F applies in relation to some protection visa applications made before the commencement of these amendments.  The intention is that the amendments made to the Migration Regulations by Divisions 1 and 3 of Part 4 apply to an application for a visa captured by new regulation 2.08F (i.e. an application for a Protection (Class XA) visa that is, as a result of regulation 2.08F, taken to be an application for a Temporary Protection (Class XD) visa).

 

 

 

 

SCHEDULE 3 - Act-based visas

Part 1 - Amendment of the Migration Act 1958

Division 1 - Amendments

Migration Act 1958

Item 1             After subsection 31(3)

615.       This item inserts new subsection 31(3A). 

616.       This item provides that to avoid doubt, subsection 31(3) does not require criteria to be prescribed for a visa or visas including, without limitation, visas of the following classes:

·      special category visas (see section 32);

·      permanent protection visas (see subsection 35A(2));

·      temporary protection visas (see subsection 35A(3));

·      bridging visas (see section 37);

·      temporary safe haven visas (see section 37A);

·      maritime crew visas (see section 38B).

 

617.       Note 1 to new subsection 31(3A) provides that an application for any of these visas is invalid if criteria relating to both the application and the grant of the visa have not been prescribed (see new subsection 46AA(2)). 

 

618.       Note 2 to new subsection 31(3A) provides that if criteria are prescribed by the regulations for any of these visas, the visa cannot be granted unless any criteria prescribed by the Migration Act, as well as any prescribed by regulation, are satisfied (see new subsection 46AA(4)). 

 

619.       This item refers to current subsection 31(3) of the Migration Act.  That subsection provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of the subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).

 

620.       Current subsection 31(3) will be amended by item 4 of Schedule 2 to the Bill to omit the reference to section 36 and insert a reference to new section 35A.  New section 35A provides for permanent protection visas and for temporary protection visas. 

 

621.       The amendment in this item clarifies that the regulations may, but need not, prescribe criteria for the classes of visa covered by current subsection 31(3) including the classes provided for by current sections 32, 37, 37A, 38B, and by new subsections 35A(2) and 35A(3).

 

622.       The amendment in this item complements the amendment made at item 7 of Schedule 3 to the Bill.  The effect of that amendment is that, for each of the visa classes mentioned in new subsection 31(3A), if regulations do not prescribe any criteria which relate to making a valid application for the visa and being granted the visa, non-citizens cannot make a valid application for the visa.  Another effect of that amendment is that, for each of the visa classes mentioned in new subsection 31(3A), if regulations prescribe criteria which relate to making a valid application for the visa or being granted the visa, an application for the visa must satisfy those criteria as well as any criteria set out in the Migration Act. 

 

623.       The amendments at item 7 of Schedule 3 to the Bill prevent non-citizens from applying directly under the Migration Act for one of the classes of visa provided for by current sections 32, 37, 37A, and 38B, and new subsections 35A(2) and 35A(3). 

Item 2             Before subsection 46(1)

624.       This item inserts the subheading “ Validity - general ” before current subsection 46(1). 

 

625.       This amendment is technical in nature.  It clarifies that current subsections 46(1), 46(1A) and 46(2) deal with general matters relating to making valid visa applications.

 

626.       The amendment in this item complements the amendment made by item 3 of Schedule 3 to the Bill.  That amendment repeals current paragraph 46(1)(d) and inserts new paragraphs 46(1)(d) and 46(1)(e) into current subsection 46(1), which increases the size of current section 46.  The inclusion of the new subheading is intended to make current section 46 easier to read. 

Item 3             Paragraph 46(1)(d)

627.       This item repeals current paragraph 46(1)(d) and substitutes new paragraphs 46(1)(d) and 46(1)(e) into current subsection 46(1).

 

628.       Currently, subsection 46(1) provides that, subject to subsections 46(1A), 46(2) and 46(2A), an application for a visa is valid if, and only if:

 

·      it is for a visa of a class specified in the application; and

·      it satisfies the criteria and requirements prescribed under this section; and

·      subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

·      any fees payable in respect of it under the regulations have been paid; and

·      it is not prevented by section 48 (visa refused or cancelled earlier), section 48A (protection visa), section 91E (CPA and safe third countries), section 91K (temporary safe haven visa), section 91P (non-citizens with access to protection from third countries), section 161 (criminal justice), section 164D (enforcement visa), section 195 (detainees) or section 501E (visa refused or cancelled on character grounds).

 

629.       Current paragraph 46(1)(d) lists the sections which prevent or invalidate an application for a visa under the Migration Act.  The opportunity is taken in the amendment in this item to modernise and clarify the drafting of current paragraph 46(1)(d) by splitting it into two paragraphs, one that deals with provisions that prevent the making of a valid application (new paragraph 46(1)(d)) and one that deals with provisions that make applications invalid (new paragraph 46(1)(e)).  This item also lists four additional provisions (three current provisions and new section 46AA) that make visa applications invalid.

 

630.       In addition to the requirements in current subsection 46(1), new paragraph 46(1)(d) provides that subject to subsections 46(1A), 46(2) and 46(2A), an application for a visa is valid if, and only if it is not prevented by any provision of the Migration Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of the Migration Act:

 

·      section 48 (visa refused or cancelled earlier);

·      section 48A (protection visa refused or cancelled earlier);

·      section 161 (criminal justice visa holders);

·      section 164D (enforcement visa holders);

·      section 195 (detainee applying out of time);

·      section 501E (earlier refusal or cancellation on character grounds).

 

631.       New paragraph 46(1)(d) lists the sections already listed in current paragraph 46(1)(d) that prevent an application for a visa.  New paragraph 46(1)(d) no longer lists provisions that make an application invalid, because those provisions are now listed in new paragraph 46(1)(e).

 

632.       The descriptions of each section listed in new paragraph 46(1)(d) are amended to more clearly explain the matters that each section deals with.

 

633.       For example, in current paragraph 46(1)(d), section 195 is described using the term “(detainees)”, whereas in new paragraph 46(1)(d) section 195 is described using the phrase “(detainee applying out of time)”.

 

634.       The new descriptions are not intended to alter the effect of the sections listed in subsection 46(1).   

 

635.       The opportunity is also taken to modernise the drafting of subsection 46(1) to provide that new paragraphs 46(1)(d) and 46(1)(e) are non-exhaustive lists and provide for further grounds for prevention or invalidity of applications without the necessity for subsection 46(1) to be amended to list the relevant specific provisions.  This is provided for by inserting “any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act” into both new paragraphs 46(1)(d) and 46(1)(e) of the Migration Act. 

 

636.       In addition to the application validity requirements set out in current subsection 46(1), new paragraph 46(1)(e) provides that subject to section 46(1A), 46(2) and 46(2A), an application for a visa is valid if, and only if it is not invalid under any provision of the Migration Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of the Migration Act:

 

·      section 46AA (visa applications, and the grant of visas, for some Act-based visas);

·      section 46A (visa applications by unauthorised maritime arrivals );

·      section 46B (visa applications by transitory persons );

·      section 91E or 91G (CPA and safe third countries);

·      section 91K (temporary safe haven visas);

·      section 91P (non-citizens with access to protection from third countries). 

 

637.       New paragraph 46(1)(e) mentions new section 46AA of the Migration Act.  That section is inserted in the Migration Act by item 7.  New section 46AA will prevent non-citizens from applying directly under the Migration Act for one of the visa classes provided for by current sections 32, 37, 37A, 38B, and by new subsections 35A(2) and 35A(3).

 

638.       New paragraph 46(1)(e) mentions current sections 46A and 46B of the Migration Act.

 

639.       Current section 46A deals with visa applications by unauthorised maritime arrivals .  Current subsection 46A(1) provides that an application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:

 

·      is in Australia; and

·      is an unlawful non-citizen.

 

640.       Current subsection 46A(2) provides that if the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival , determine that subsection 46A(1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination. 

 

641.       The remaining subsections in current section 46A deal with other matters, including that the power in current subsection 46A(2) may only be exercised by the Minster personally, and that the Minister does not have a duty to consider whether to exercise the power under current subsection 46A(2).

 

642.       This amendment does not alter the effect of current section 46A.

 

643.       Current section 46B deals with visa applications by transitory persons .  Current subsection 46B(1) provides that an application for a visa is not a valid application if it is made by a transitory person who:

 

·      is in Australia; and

·      is an unlawful non-citizen.

 

644.       Current subsection 46B(2) provides that if the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person , determine that subsection 46B(1) does not apply to an application by the person for a visa of a class specified in the determination. 

 

645.       The remaining subsections in current section 46B deal with other matters, including that the power in current subsection 46B(2) may only be exercised by the Minster personally, and that the Minister does not have a duty to consider whether to exercise the power under current subsection 46B(2).

 

646.       This amendment does not alter the effect of current section 46B.

 

647.       New paragraph 46(1)(e) mentions current section 91G of the Migration Act.

 

648.       In general terms, current section 91G deals with valid visa applications made during a transitional period that begins at a cut off day and ends immediately before a regulation that prescribes a country as a safe third country takes effect.  If current section 91G applies to a non-citizen and the non-citizen had not been immigration cleared at the time of making the application, any visa application made by the non-citizen during the transitional period ceases to be a valid application when the regulation takes effect.  If current section 91G applies to a non-citizen and the non-citizen had been immigration cleared at the time of making the application, any protection visa application made by the non-citizen during the transitional period ceases to be a valid application when the regulation takes effect. 

 

649.       This amendment does not alter the effect of current section 91G.

 

650.       New paragraph 46(1)(e) mentions current sections 91E, 91K and 91P of the Migration Act.

 

651.       Sections 91E, 91K and 91P were originally listed in current paragraph 46(1)(d) but are moved to new paragraph 46(1)(e) because they are provisions that make visa applications invalid rather than provisions that prevent valid visa applications as is now dealt with by new paragraph 46(1)(d).  This amendment does not alter the effect of current sections 91E, 91K and 91P.

Item 4             Before subsection 46(2A)

652.       This item inserts the heading “ Provision of personal identifiers ” before current subsection 46(2A). 

 

653.       This amendment is technical in nature.  It clarifies that current subsections 46(2A), 46(2AA), 46(2AB), 46(2AC), 46(2B) and 46(2C) deal with the provision of personal identifiers with visa applications.

 

654.       The amendment in this item complements the amendment made by item 3 of Schedule 3 to the Bill.  That amendment inserts new paragraphs 46(1)(d) and 46(1)(e) into current subsection 46(1), which increases the size of current section 46.  The inclusion of the new subheading is intended to make current section 46 easier to read. 

Item 5             Before subsection 46(3)

655.       This item inserts the heading “ Prescribed criteria for validity ” before current subsection 46(3). 

 

656.       This amendment is technical in nature.  It clarifies that current subsections 46(3) and 46(4), and new subsection 46(5) deal with the prescribed criteria for making valid visa applications.

 

Item 6             At the end of section 46

657.       This item adds new subsection 46(5).

 

658.       New subsection 46(5) provides that to avoid doubt, subsections 46(3) and 46(4) do not require criteria to be prescribed in relation to the validity of visa applications including, without limitation, applications for visas of the following classes:

 

·      special category visas (see section 32);

·      permanent protection visas (see subsection 35A(2));

·      temporary protection visas (see subsection 35A(3));

·      bridging visas (see section 37);

·      temporary safe haven visas (see section 37A);

·      maritime crew visas (see section 38B).

 

659.       This item refers to current subsections 46(3) and 46(4) of the Migration Act.  Current subsection 46(3) provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.  Current subsection 46(4) provides that without limiting current subsection 46(3), the regulations may also prescribe:

 

·      the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

·      how an application for a visa of a specified class must be made; and

·      where an application for a visa of a specified class must be made; and

·      where an applicant must be when an application for a visa of a specified class is made.

 

660.       The amendment in this item clarifies that regulations may, but need not, prescribe criteria for the classes of visa covered by current subsections 46(3) and 46(4) including the classes provided for by current sections 32, 37, 37A, 38B, and by new subsections 35A(2) and 35A(3).

 

661.       The amendment in this item complements the amendment made at item 7 of Schedule 3 to the Bill.  The effect of that amendment is that, for each of the visa classes mentioned in new subsection 46(5), if regulations do not prescribe any criteria which relate to making a valid application for the visa and being granted the visa, non-citizens cannot make a valid application for the visa.  Another effect of that amendment is that, for each of the visa classes mentioned in new subsection 46(5), if regulations prescribe criteria which relate to making a valid application for the visa or being granted the visa, an application for the visa must satisfy those criteria as well as any criteria set out in the Migration Act. 

 

662.       The amendments at item 7 prevent non-citizens from applying directly under the Migration Act for one of the classes of visa provided for by current sections 32, 37, 37A, 38B, and by new subsections 35A(2) and 35A(3). 

Item 7             After section 46

663.       This item inserts new section 46AA. 

 

664.       New subsection 46AA(1) provides that the following classes of visas are covered by new section 46AA:

 

·      special category visas (see section 32);

·      permanent protection visas (see subsection 35A(2));

·      temporary protection visas (see subsection 35A(3));

·      bridging visas (see section 37);

·      temporary safe haven visas (see section 37A);

·      maritime crew visas (see section 38B).

 

665.       The purpose of new subsection 46AA(1) is to ensure that new section 46AA applies only to the classes of visas set out in new subsection 46AA(1).

 

666.       New subsection 46AA(2) provides that an application for a visa of any of the classes covered by new section 46AA is invalid if, when the application is made, both of the following conditions are satisfied:

 

·      there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be a valid application;

·      there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be granted. 

 

667.       The note for new subsection 46AA(2) provides that new subsection 46AA(2) does not apply if regulations are in effect prescribing criteria mentioned in new paragraph 46AA(2)(a) or 46AA(2)(b) (or both) for a visa.

 

668.       The effect of new subsection 46AA(2) is that, for each of the visa classes mentioned in new subsection 46AA(1), if regulations do not prescribe any criteria which relate to making a valid application for the visa and being granted the visa, non-citizens cannot make a valid application for the visa.

 

669.       The purpose of this amendment is to ensure that non-citizens cannot make a valid application for one of the visa classes mentioned in new subsection 46AA(1), in circumstances where regulations do not prescribe any criteria which relate to making a valid application for the visa and being granted the visa. 

 

670.       This item clarifies that for each of the classes of visa provided for by current sections 32, 37, 37A, 38B, and by new subsections 35A(2) and 35A(3), the criteria in regulations made under the Migration Act are inextricably linked to the visa provided for by the Migration Act.

 

671.       New subsection 46AA(3) provides that the criteria mentioned in new subsection 46AA(2) do not include prescribed criteria that apply generally to visa applications or the granting of visas. 

 

672.       The example for new subsection 46AA(3) provides that the criteria mentioned in new subsection 46AA(2) do not include the criteria set out in current regulation 2.07  of the Migration Regulations (application for a visa - general).

 

673.       The effect of new subsection 46AA(3) is that criteria in regulations made under the Migration Act that apply generally to visa applications or to the granting of visas are not considered to be criteria for the purposes of new subsection 46AA(2). 

 

674.       An example of such a criterion is current regulation 2.07 of the Migration Regulations.  That regulation prescribes general matters relating to making an application for a visa including, but not limited to, the visa classes mentioned in new subsection 46AA(1).  Because current regulation 2.07 also applies to visas other than the visa classes mentioned in new subsection 46AA(1), its existence would not cause new subsection 46AA(2) not to apply to an application.

 

675.       New subsection 46AA(4) provides that if regulations are in effect prescribing criteria mentioned in new paragraph 46AA(2)(a) or 46AA(2)(b) (or both) for a visa covered by this section:

 

·      an application for the visa is invalid unless the application satisfies both:

o    any applicable criteria under the Migration Act that relate to applications for visas of that class; and

o    any applicable criteria prescribed by regulation that relate to applications for visas of that class; and

 

·      the visa must not be granted unless the application satisfies both:

o    any applicable criteria under the Migration Act that relate to the grant of visas of that class; and

o    any applicable criteria prescribed by regulation that relate to the grant of visas of that class. 

 

676.       The note for new subsection 46AA(4) provides that for visa applications generally, see current section 46 of the Migration Act.  For the grant of a visa generally, see current section 65 of the Migration Act. 

 

677.       The effect of new subsection 46AA(4) is that, for each of the visa classes mentioned in new subsection 46AA(1), if regulations prescribe criteria which relate to making a valid application for the visa or being granted the visa, an application for the visa must satisfy those criteria as well as any criteria set out in the Migration Act. 

 

678.       The purpose of this amendment is to ensure that for each of the visa classes mentioned in new subsection 46AA(1), if regulations prescribe criteria which relate to making a valid application for the visa or being granted the visa, non-citizens cannot apply for, or be granted, any of those visas without satisfying the criteria prescribed in the regulations as well as any criteria set out in the Migration Act. 

 

679.       New section 46AA creates a link between the classes of visa that are provided for by the Migration Act for which criteria can be prescribed in the Migration Regulations, and the criteria prescribed in the Migration Regulations for those classes of visa.  The amendments do not affect the classes of visa that are provided for by the Migration Act for which criteria cannot be prescribed in the Migration Regulations.

 

Division 2 - Application

Item 8             Application of amendments

680.       The amendments made by Division 1 of Part 1 of Schedule 3 to the Bill apply in relation to an application for a visa made on or after the commencement of the amendments.

 

 

Part 2 - Amendment of the Migration Regulations 1994

Migration Regulations 1994

Item 9                         Regulation 2.01 (heading)

681.       This item repeals the heading of current regulation 2.01 and substitutes a new heading and a new subheading.

 

682.       The current heading is “Classes of visas (Act, s31)”.  The new heading is “Classes of visas”, and the new subheading, which appears immediately under the new heading, is “ Classes of visas prescribed by section 31 of the Act ”.

 

683.       This amendment is technical in nature, and complements the amendment made by item 12 of Schedule 3 to the Bill.  It clarifies that current paragraph 2.01(a) deals with matters relating to applications for classes of visas prescribed by current section 31 of the Migration Act.  The inclusion of the new subheading is intended to make regulation 2.01 easier to read.

Item 10           Regulation 2.01

684.       This item amends current regulation 2.01 to insert “(1)” before “For”.

 

685.       This amendment is technical in nature.  It is consequential to the insertion of new subregulation 2.01(2) in current regulation 2.01.  It causes current paragraphs 2.01(a) and 2.01(b) to become new paragraphs 2.01(1)(a) and 2.01(1)(b).

Item 11           Paragraph 2.01(a)

686.       This item amends current paragraph 2.01(a) by omitting “created by the Act” and substituting “identified by an item in the table in subregulation (2)”. 

 

687.       Following this amendment, new paragraph 2.01(1)(a) provides that for the purposes of current section 31 of the Migration Act, the prescribed classes of visas are such classes (other than those identified by an item in the table in new subregulation 2.01(2)) as are set out in the respective items in Schedule 1 to the Migration Regulations. 

 

688.       Current subsection 31(1) of the Migration Act provides that there are to be prescribed classes of visas.  Under current subsection 5(1) of the Migration Act, prescribed means prescribed by the regulations. 

 

689.       The effect of the amendment is that new paragraph 2.01(1)(a) prescribes the classes of visas set out in the respective items of Schedule 1 to the Migration Regulations, other than the classes of visas identified in an item in the table in new subregulation 2.01(2).

 

690.       New paragraph 2.01(1)(a) does not prescribe the classes of visas identified in an item in the table because those visa classes are provided for by the provisions of the Migration Act mentioned in new subsection 46AA(1).  

 

Item 12           Regulation 2.01 (note)

691.       This item repeals the current note.  The current note explains that for the classes created by the Migration Act, see sections 32 to 38B. 

 

692.       This amendment is consequential to the amendment that inserts new subregulation 2.01(2).  New subregulation 2.01(2) contains a table that sets out the classes of visas provided for by the Migration Act, so the current note is unnecessary.

 

693.       As well as repealing the current note after current regulation 2.01, this item inserts a new subheading which reads “ Classes of visas provided for by the Act ”. 

 

694.       This amendment is technical in nature, and complements the amendment that inserts new subregulation 2.01(2).  This amendment clarifies that new subregulation 2.01(2) deals with matters relating to the classes of visas provided for by the Migration Act. 

 

695.       New subregulation 2.01(2) provides that a class of visas provided for by the Migration Act that is identified by an item in the table in new subregulation 2.01(2) is classified under the Migration Regulations, by Class and Subclass, as indicated in the item. 

 

696.       Table item 1 identifies special category visas as a class of visa provided for by section 32 of the Migration Act.  The classification by Class under the Migration Regulations is “Special Category (Temporary) (Class TY)”.  The classification of the Subclass under the Migration Regulations is “Subclass 444 (Special Category)”. 

 

697.       Table item 2 identifies permanent protection visas as a class of visa provided for by new subsection 35A(2) of the Migration Act.  The classification of the Class under the Migration Regulations is “Protection (Class XA)”.  The classification of the Subclass under the Migration Regulations is “Subclass 866 (Protection)”. 

 

698.       Table item 3 identifies temporary protection visas as a class of visa provided for by new subsection 35A(3) of the Migration Act.  The classification of the Class under the Migration Regulations is “Temporary Protection (Class XD)”.  The classification of the Subclass under the Migration Regulations is “Subclass 785 (Temporary Protection)”. 

 

699.       Table items 4, 5, 6, 7, 8, 9, 10, 11 and 12 identify bridging visas as a class of visa provided for by section 37 of the Migration Act.  The classifications of the Classes under the Migration Regulations are, respectively:

 

·      Bridging Visa A (Class WA)

·      Bridging Visa B (Class WB)

·      Bridging Visa C (Class WC)

·      Bridging Visa D (Class WD) (table items 7 and 8)

·      Bridging Visa E (Class WE) (table items 9 and 10)

·      Bridging Visa F (Class WF)

·      Bridging Visa R (Class WR)

 

700.       The classifications of the Subclasses under the Migration Regulations are, respectively:

 

·      Subclass 010 (Bridging A)

·      Subclass 020 (Bridging B)

·      Subclass 030 (Bridging C)

·      Subclass 040 (Bridging (Prospective Applicant))

·      Subclass 041 (Bridging (Non-applicant))

·      Subclass 050 (Bridging (General))

·      Subclass 051 (Bridging (Protection Visa Applicant))

·      Subclass 060 (Bridging F)

·      Subclass 070 (Bridging (Removal Pending))

 

701.       Table item 13 identifies temporary safe haven visas as a class of visa provided for by section 37A of the Migration Act.  The classification of the Class under the Migration Regulations is “Temporary Safe Haven (Class UJ)”.  The classification of the Subclass under the Migration Regulations is “Subclass 449 (Humanitarian Stay (Temporary))”. 

 

702.       Table item 14 identifies maritime crew visas as a class of visa provided for by section 38B of the Migration Act.  The classification of the Class under the Migration Regulations is “Maritime Crew (Temporary) (Class ZM)”.  The classification of the Subclass under the Migration Regulations is “Subclass 988 (Maritime Crew)”. 

 

703.       The table clarifies how each class of visa that is provided for by the Migration Act and identified in the table is classified, by visa Class and Subclass, in the Migration Regulations.

 

704.       The first note for the table provides that new subsection 35A(4) of the Migration Act provides that additional classes of permanent and temporary visas may be prescribed as protection visas for the purposes of section 31.

 

705.       The purpose of this note is to make the reader aware that new subsection 35A(4) of the Migration Act provides for additional classes of permanent and temporary visas, and that those additional classes may be prescribed as protection visas for the purposes of section 31 of the Migration Act.

 

706.       New section 35A will be inserted by item 5 of Schedule 2.  New section 35A provides for permanent protection visas and temporary protection visas, and allows the Migration Regulations to prescribe additional classes of permanent and temporary visas as protection visas. 

 

707.       The second note for the table provides that for table items 4 to 12, section 37 of the Migration Act provides that there are classes of temporary visas, to be known as bridging visas.

 

708.       The purpose of this note is to make the reader aware of the effect of section 37 of the Migration Act. 

SCHEDULE 4 - Amendments relating to fast track assessment process

Part 1 - Fast track assessment process

Migration Act 1958

Item 1             Subsection 5(1)

709.       This item inserts new defined terms excluded fast track review applicant , fast track applicant , fast track decision , fast track reviewable decision, fast track review applicant and Immigration Assessment Authority into subsection 5(1) of Part 1 of the Migration Act.

710.       The new defined term excluded fast track review applicant means a fast track applicant:

·       who, in the opinion of the Minister:

o    is covered by section 91C or 91N; or

o    has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or

o    has made a claim for protection in a country other than Australia, that was refused by that country; or

o    has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or 

o    makes a manifestly unfounded claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application; or

o    without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or

·       who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph 5(1AA)(a).

711.       The purpose of this amendment is to specify which fast track decisions made in respect of excluded fast track review applicants cannot be referred to the Immigration Assessment Authority (the IAA) by the Minister under new section 473CA of new Part 7AA inserted by item 21 below.  In addition, excluded fast track review applicants would not be entitled to apply for review to the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT) under Part 5 or Part 7 of the Migration Act.

712.       The intention is to exclude fast track decisions from merits review for those fast track applicants who, after an assessment of their protection claims, are determined to have put forward disingenuous information in support of their application or have access to protection elsewhere.  This measure is also aimed at discouraging the making of non-genuine, unmeritorious claims for protection as a means of delaying an applicant’s departure from Australia.   It is the Government’s position that such cases warrant being channelled towards a direct immigration outcome rather than access merits review in order to delay the finalisation of their cases and prolong their stay in Australia.  

713.       Subparagraph (a)(i) of this definition provides that an excluded fast track review applicant means a fast track applicant who, in the opinion of the Minister is covered by section 91C or 91N.  Section 91C deals with non-citizens who are covered by the Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees or those in relation for whom there is a safe third country.  Section 91N deals with non-citizens who have a right to re-enter and reside in another third country. 

714.       This provision captures those fast track applicants who hold nationality or a right to enter and reside in a third country and therefore, can access protection elsewhere.  It is the Government’s position that such persons do not warrant access to review because Australia’s protection framework should be dedicated towards identifying and granting protection to asylum seekers who have no alternative country which they can claim protection from and safely reside in.

715.       Subparagraph (a)(ii) of this definition provides that an excluded fast track review applicant means a fast track applicant who, in the opinion of the Minister has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn. 

716.       This provision captures those fast track applicants who have previously made a valid protection visa application in Australia which was refused or withdrawn and have subsequently re-entered and been refused protection as a fast track applicant.  It is the Government’s position that such persons have already accessed and been refused protection under Australia’s framework and should be excluded from merits review as it will unnecessarily delay the finalisation of their cases.

717.       Subparagraph (a)(iii) of this definition provides that an excluded fast track review applicant means a fast track applicant who, in the opinion of the Minister has made a claim for protection in a country other than Australia, that was refused by that country. 

718.       This provision captures those fast track applicants who have had their asylum claims assessed and refused in a third country and have now received a further assessment and refusal under Australia’s protection visa framework.  It is the Government’s position that persons who have had the benefit of accessing protection determination procedures both overseas and in Australia should be excluded from further ‘forum shopping’ where they have again had their application refused because merits review will unnecessarily delay the finalisation of their cases.

719.       Subparagraph (a)(iv) of this definition provides that an excluded fast track review applicant means a fast track applicant who, in the opinion of the Minister has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees (UNHCR) in that country.

720.       This provision captures those fast track applicants who have had their asylum claims assessed and refused in a third country by the UNHCR and have now received a further assessment and refusal under Australia’s protection visa framework.  It is the Government’s position that persons who have had the benefit of accessing protection determination procedures both overseas and in Australia should be excluded from further ‘forum shopping’ where they have again had their application refused because merits review will unnecessarily delay the finalisation of their cases.

721.       Subparagraph (a)(v) of this definition provides that an excluded fast track review applicant means a fast track applicant who, in the opinion of the Minister makes a manifestly unfounded claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with his or her application. 

722.       This provision is intended to capture those fast track applicants who have put forward claims that are without any substance (such as having no fear of mistreatment), have no plausible basis (such as where there is no objective evidence supporting the claimed mistreatment) or are based on a deliberate attempt to deceive or abuse Australia’s asylum process in an attempt to avoid removal.  It is the Government’s position that such persons should not have access to merits review because the nature of their claims are so lacking in substance that further review would waste resources and unnecessarily delay their finalisation.

723.       Subparagraph (a)(vi) of this definition provides that an excluded fast track review applicant means a fast track applicant who, in the opinion of the Minister without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application.   

724.       This provision captures those fast track applicants who have used a bogus document in an attempt to support any part of their protection visa application and where, after being confronted regarding the authenticity of the document, do not have a reasonable explanation for having done so.  The Government considers it is not reasonable for an asylum seeker to continue presenting or relying on bogus documents beyond the time when those documents may have facilitated the asylum seeker’s safe passage until such a time as they could claim protection at the first available opportunity.  To continue to rely on them is considered purposefully misleading.  The intention is to encourage applicants to comply with requirements and assist with providing authentic documents and evidence which support their protection claims.

725.       Paragraph (b) of this definition further provides that an excluded fast track review applicant is a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph 5(1AA)(a). 

726.       This provision captures a fast track applicant, or a fast track applicant who is included in a class of persons, who are specified by the legislative instrument in new paragraph 5(1AA)(a) which is inserted by item 2 below.  New paragraph 5(1AA)(b) will provide that the Minister may make a legislative instrument for the purposes of paragraph (1)(b) of the definition of excluded fast track applicant in subsection 5(1).  The intention is to exclude from merits review other persons who do not fall within the definition of paragraph (a) of excluded fast track review applicant but have also put forward disingenuous information in support of their application or have access to protection elsewhere.  Any persons brought within the definition of excluded fast track applicant would still need to be fast track applicants as defined below. 

727.       The new defined term fast track applicant means:

·       a person:

o    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012; and

o    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

o    who has made a valid application for a protection visa in accordance with the determination; or

·       a person who is, or who is included in a class of persons who are, specified by legislative instrument made under new paragraph 5(1AA)(b).

728.       The note to the new defined term fast track applicant further states that some unauthorised maritime arrivals born in Australia on or after 13 August 2012 may not be fast track applicants even if paragraph (a) applies: see subsection (1AC).

729.       The purpose of this amendment is to set out the criteria for fast track applicants who will be subject to the fast track assessment process.  The Government believes the faster a case can be finally determined, the better outcomes it can deliver for both the applicant and those who support them in the Australian community - eliminating long periods of uncertainty and allowing people to move on and make decisions about the next stage of their lives.  The Government’s intention is to include non-citizens who arrived in Australia unauthorised, circumventing regular, lawful migration channels in this cohort.  

730.       Subparagraph (a)(i) of this definition provides that a fast track applicant means a person who is an unauthorised maritime arrival (UMA) and who entered Australia on or after 13 August 2012.  The term UMA is defined in section 5AA of the Migration Act.  Non-citizens who entered Australia by sea, and became an unlawful non-citizen because of that entry, on or after 13 August 2012 would be subject to the fast track assessment process.

731.       Subparagraph (a)(ii) and (a)(iii) of this definition provides that a fast track applicant means a person who, in addition to subparagraph 5(1)(a)(i), the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by that person for a protection visa and who has made a valid application for a protection visa in accordance with the determination.  Currently, while UMAs are in Australia and are unlawful non-citizens, they are prevented from making a valid application for a visa under subsection 46A(1) unless the Minister determined by written notice under subsection 46A(2) that he or she thinks it is in the public interest to allow them to apply for a visa.  The intention is that only those UMAs who entered Australia on or after 13 August 2012 and who have made a valid protection visa application in accordance with a determination made by the Minister would be subject to the fast track assessment process.

732.       Paragraph (b) of this definition further provides that a fast track applicant includes a person who is, or which is included in a class of persons who are, specified by legislative instrument made under paragraph 5(1AA)(b). 

733.       This provision covers a person who is, or which is included in a class of persons, who are specified by the legislative instrument in new paragraph 5(1AA)(b) which is inserted by item 2 below.  New paragraph 5(1AA)(b) will provide that the Minister may make a legislative instrument for the purposes of paragraph (b) of the definition of fast track applicant in subsection 5(1).  The intention is to include in the fast track assessment process, other persons who are not specified in paragraph (a) of the definition of fast track applicant within this definition.  Any persons brought within the definition of fast track applicant will either be an excluded fast track review applicant or a fast track review applicant.

734.       Where a fast track applicant is also determined to be an excluded fast track review applicant under paragraph 5(1AA)(a), that person would not have access to any form of review.  A person who is determined to be a fast track applicant under a legislative instrument made in new paragraph 5(1AA)(b) would also be a fast track review applicant.  A fast track reviewable decision made in respect of a fast track review applicant would be referred to the IAA under new Part 7AA inserted by item 21 below.

735.       The note provides there may be some unauthorised maritime arrivals who entered Australia on or after 13 August 2012 but will not meet the definition of fast track applicant because of new subsection 5(1AC).   New subsection 5(1AC) further provides that a person will not fulfil the requirements of paragraph (a) of the definition of fast track applicant only because they were born in Australia on or after 13 August 2012 and are the child of an unauthorised maritime arrival who entered Australia before 13 August 2012. 

736.       The purpose of the combined effect of the note and new subsection 5(1AC) is to ensure that children born on or after 13 August 2012 to unauthorised maritime arrivals who entered Australia before 13 August 2012  will have their immigration status processed consistently with that of their parents.  It is intended that only those children born on or after 13 August 2012 to unauthorised maritime arrivals who entered Australia on or after 13 August 2012 be processed under the Fast Track Assessment process.

737.       The new defined term fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

·       because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

·       relying on:

o    subsection 5H(2); or

o    subsection 36(1B) or (1C) of the Migration Act; or

o    paragraph 36(2C)(a) or 36(2C)(b) of the Migration Act.

738.       The purpose of this amendment is to define certain decisions made in respect of fast track applicants as fast track decisions.  Fast track decisions broadly cover a decision to refuse to grant a protection visa to a fast track applicant.  Paragraph (b) will carve out from this definition, decisions to refuse to grant protection visas to an applicant on character and security related grounds.  Decisions which fall within these exceptions cannot be fast track decisions even if they are made in respect of a fast track applicant.  It is intended that these types of decisions continue to have access to review in accordance with section 500 of the Migration Act noting that some decisions, including some decisions made by the Minister personally, are not subject to any form of review.

739.       Fast track decisions made in respect of fast track review applicants are fast track reviewable decisions.  Both the terms fast track review applicants and fast track reviewable decisions are defined below.  Fast track reviewable decisions must be referred to the IAA by the Minister under new section 473CA of new Part 7AA inserted by item 21 below.  These fast track review applicants would not be entitled to apply for review under Part 5 or Part 7 of the Migration Act to the MRT or the RRT in respect of their fast track reviewable decision.  Fast track decisions made in respect of excluded fast track review applicants will not be subject to review by the MRT, RRT or IAA under Part 5, Part 7 or Part 7AA.

740.       The note to the new defined term fast track decision provides that some decisions made in the circumstances mentioned in paragraph (a), or subparagraphs (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.

741.       The new defined term fast track reviewable decision has the meaning given by section 473BB.

742.       This definition will refer the reader to new section 473BB inserted by item 21 below for the definition of fast track reviewable decision .

743.       The new defined term fast track review applicant means a fast track applicant who is not an excluded fast track review applicant. 

744.       This definition provides that fast track review applicants are fast track applicants who are not excluded fast track review applicants.  The intention is for all fast track applicants who are not captured by the definition of excluded fast track review applicant to be eligible for review in relation to fast track decisions made in respect of them.  Fast track decisions made in respect of fast track review applicants are to be referred to the IAA by the Minister under new section 473CA of new Part 7AA inserted by item 21 below.  Fast track review applicants would not be entitled to apply for review under Part 5 or Part 7 of the Migration Act to the MRT or the RRT in respect of their fast track reviewable decision.

745.       The new defined term Immigration Assessment Authority means the Authority established by section 473JA.

746.       This definition refers the reader to new section 473JA inserted by item 21 below which establishes the Immigration Assessment Authority.

747.       The new definition of referred applicant has the meaning given by section 473BB.

748.       This definition refers the reader to new section 473BB inserted by item 21 below which inserts a definition of referred applicant .

Item 2             After subsection 5(1)

749.       This item inserts new subsection 5(1AA) after subsection 5(1) of Part 1 of the Migration Act.

750.       New subsection 5(1AA) provides that the Minister may make a legislative instrument for the purposes of the following provisions:

·       paragraph (b) of the definition of excluded fast track review applicant in subsection 5(1);

·       paragraph (b) of the definition of fast track applicant in subsection 5(1).

751.       New subsection 5(1AB) provides that a legislative instrument made under subsection 5(1AA) may apply, adopt or incorporate, with or without modification, the provisions of any other legislative instrument, whether or not the other legislative instrument is disallowable, as in force at a particular time or as in force from time to time.

752.       The purpose of this amendment is to provide the Minister with the flexibility and ability to include other cohorts in paragraph (b) of the definition of excluded fast track review applicant and fast track applicant by way of legislative instruments. 

753.       Only fast track decisions made in respect of fast track review applicants can be referred to the IAA under new section 473CA. The definition of fast track applicant inserted by item 1 above only captures UMAs who entered Australia on or after 13 August 2012 that made a valid application for a protection visa. Where it is determined that certain other persons should also be subject to the fast track assessment process, including certain other unauthorised arrivals, new subsection 5(1AA) would provide the Minister with the ability to bring these persons into the fast track process by way of legislative instrument. 

754.       As an example, the instrument could be used to specify unauthorised air arrivals.  An unauthorised air arrival does not have a visa that is in effect when they enter Australia or has had their visa cancelled in immigration clearance.  While some of these persons may have arrived in Australia by lawful means, they may have been refused entry at Australian airports or ports for reasons including that they are found not to intend to abide by the visa conditions (for example, where the reason for the grant of the visa no longer exists) or on the basis of document fraud.

755.       All fast track applicants are either excluded fast track review applicants or fast track review applicants.  Where it is determined that certain fast track decisions in relation to certain fast track applicants (who are specified in an instrument made under paragraph 5(1AA)(a)) should not have access to any form of review, new paragraph 5(1AA)(b) will also allow the Minister to include those persons in the definition of excluded fast track review applicant in that legislative instrument .  

756.       The intention is to exclude from merits review other fast track applicants who do not fall within the definition of paragraph 5(1)(a) of excluded fast track review applicant but have also put forward disingenuous information in support of their application or have access to protection elsewhere. 

757.       As an example, this instrument could be used to specify those fast track applicants who had previously arrived in Australia, but were not exempted from the statutory bar in subsection 46A(1) as they did not make claims that prima facie engaged Australia’s protection obligations, and who subsequently departed or were removed from Australia only to re-enter Australia and be refused protection as a fast track applicant.  

758.       As this instrument would be made under Part 1 of the Migration Act, it would be exempt from disallowance under item 26 of the table in subsection 44(2) of the Legislative Instruments Act 2003 . These instruments would be revised frequently to ensure that only those persons who should be subject to the fast track assessment process are put through that process.

759.       The purpose of subsection 5(1AB) is to overcome any potential issues under subsection 14(2) of the Legislative Instruments Act 2003 and not prevent an instrument created under new subsection 5(1AA) from referring to any instrument, whether it is a disallowable or non-disallowable instrument, that is in force at a particular time or as in force from time to time.

760.       Subsection 5(1AC) provides that a person is not a fast track applicant only because of paragraph (a) of the definition of fast track applicant in subsection (1) if:

·          the person is born in Australia on or after 13 August 2012; and

·          the person is the child of an unauthorised maritime arrival who entered Australia before 13 August 2012.

761.       The purpose of the combined effect of the note at the definition of fast track applicant and new subsection 5(1AC) is to ensure that children born on or after 13 August 2012 to unauthorised maritime arrivals who entered Australia before 13 August 2012  will have their immigration status processed consistently with that of their parents.  It is intended that only those children born on or after 13 August 2012 to unauthorised maritime arrivals who entered Australia on or after 13 August 2012 be processed under the Fast Track Assessment process.

. Item 3                        Subsection 5(9)

762.       This item omits the word “either” from subsection 5(9) of Part 1 of the Migration Act.

763.       This amendment is consequential to the amendment made by item 4 below.  Currently there are only two paragraphs in subsection 5(9) of the Migration Act.  Item 4 inserts new paragraph (c) into subsection 5(9) of the Migration Act.

Item 4             At the end of subsection 5(9)

764.       This item adds new paragraph 5(9)(c) at the end of subsection 5(9) of Part 1 of the Migration Act.

765.       Currently, subsection 5(9) provides that for the purposes of the Migration Act, an application under this Act is finally determined when either:

·       a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or Part 7; or

·       a decision that has been made in respect of the application was subject to some form of review under Part 5 or Part 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

766.       Part 5 of the Migration Act relates to review of decisions by the MRT.  Part 7 of the Migration Act relates to review of protection visa decision by the RRT.

767.       New paragraph 5(9)(c) provides that for the purposes of the Migration Act, an application under this Act is finally determined when in relation to an application for a protection visa by an excluded fast track review applicant - a decision has been made in respect of the application.

768.       The purpose of this amendment is to clarify that a decision in relation to an application for a protection visa by an excluded fast track review applicant is finally determined when a decision has been made in respect of the application.  As excluded fast track review applicants are not eligible for review under Part 5, 7 or new Part 7AA, a fast track decision made in respect of them is finally determined for the purposes of the Migration Act. 

Item 5             Subsection 5(9A)

769.       This item omits the words “Part 5 and 7” in subsection 5(9A) of Part 1 of the Migration Act, and substitutes the words “Part 5,7 or 7AA”

770.       Subsection 5(9A) provides that, without limiting subsection 5(9), if a review of a decision that has been made in respect of an application under this Act is instituted under Part 5 or Part 7 as prescribed, the application is finally determined when a decision on the review in respect of the application is taken to have been made as provided by any of the following provisions:

·       subsection 368(2) (MRT written decisions);

·       subsection 368D(1) (MRT oral decisions);

·       subsection 430(2) (RRT written decisions);

·       subsection 430D(1) (RRT oral decisions).

771.       Subsection 5(9A) refers directly to provisions under which the MRT and the RRT are taken to have made a decision.  Subsection 5(9A) provides these decisions are taken to be finally determined for the purposes of this Act. 

772.       The purpose of this amendment, in conjunction with the amendment made by item 6 below, is to clarify that a decision made by the IAA under new subsection 473EA(2) inserted by item21 below, is finally determined when a decision on the review in respect of the application is taken to have been made.  

Item 6             At the end of subsection 5(9A)

773.       This item adds new paragraph 5(9A)(e) at the end of subsection 5(9A) of Part 1 of the Migration Act.

774.       Subsection 5(9A) refers directly to provisions under which the MRT and the RRT are taken to have made a decision.  Subsection 5(9A) provides these decisions are taken to be finally determined for the purposes of this Act. 

775.       New paragraph 5(9A)(e), in conjunction with the amendment made by item 5 above provides that without limiting subsection 5(9), if a review of a decision has been instituted under 7AA of this Act, the application is finally determined when a decision on the review in respect of the application is taken to have been made under subsection 473EA(2) (IAA decisions).

776.       The purpose of this amendment, in conjunction with the amendment made by item 5 above, is to clarify that a decision made under new subsection 473EA(2) inserted by item21 below, is finally determined when a decision on the review in respect of the application is taken to have been made.  

Item 7             At the end of subsection 5(9B)

777.       This item adds new paragraph 5(9B)(c) at the end of subsection 5(9B) of Part 1 of the Migration Act.

778.       Subsection 5(9B) provides that subsection 5(9A) does not apply in relation to the following decisions:

·       a decision of the MRT under paragraph 349(2)(c);

·       a decision of the RRT under paragraph 415(2)(c).

779.       The note to subsection 5(9B) states that the decisions listed in subsection 5(9B) are for the remission of some matters by the relevant Tribunal.  These exceptions from the decisions listed in new subsection 5(9A) are necessary because an application is not intended to be finally determined if it is remitted by the MRT or the RRT to the Minister or delegate for further consideration.  

780.       New paragraph 5(9B)(c) provides that subsection 5(9A) does not apply in relation to a decision of the IAA under paragraph 473CC(2)(b).

781.       The purpose of this amendment is to clarify that an application is not intended to be finally determined if it is remitted by the IAA to the Minister or delegate for further consideration.

Item 8             Subsection 5(9B) (note)

782.       This item omits the word “Tribunal” and substitutes the words “review body” in the note to subsection 5(9B) of Part 1 of the Migration Act.

783.       The note to subsection 5(9B) states that the decisions listed in subsection 5(9B) are for the remission of some matters by the relevant Tribunal.

784.       The new note to subsection 5(9B) will provide that decisions listed in subsection 5(9B) are for the remission of some matters by the relevant review body.

785.       This amendment is consequential to the amendment made by item 7 above.  As the IAA is not a Tribunal, the term review body has been used in the note to capture the MRT, the RRT and the IAA.

Item 9             Paragraph 57(1)(a)

786.       This item repeals current paragraph 57(1)(a) and substitutes new paragraph 57(1)(a) in Division 3 of Part 2 of the Migration Act.

787.       Current paragraph 57(1)(a) provides that in this section, relevant information means information (other than non-disclosable information) that the Minister considers would be the reason, or part of the reason, for refusing to grant a visa.

788.       Section 57 of the Migration Act is part of the Code of Procedure in Subdivision AB of Division 3 of Part 2 of the Migration Act for dealing fairly, efficiently and quickly with visa applications.  Subdivision AB of Part 2 of the Migration Act sets out procedures for dealing with valid visa applications before a decision is made.  Subsection 57(2) provides that certain “relevant information” received by the Minister must be provided to a visa applicant for comment. 

789.       New paragraph 57(1)(a) provides that in this section, relevant information means information that the Minister considers would be the reason, or part of the reason:

·       for refusing to grant a visa; or

·       for deciding that the applicant is an excluded fast track review applicant.

790.       The purpose of this amendment is to set out the obligation for the Minister to put information to an applicant that is adverse and would be the reason, or part of the reason for deciding that that applicant is an excluded fast track review applicant and to provide the visa applicant with an opportunity to comment on any such information.  It codifies the procedural fairness (natural justice) requirements in relation to adverse information when determining a visa applicant is an excluded fast track review applicant.

 

Item 10           At the end of subsection 57(1)

791.       This item adds a new note at the end of subsection 57(1) in Division 3 of Part 2 of the Migration Act.

792.       The new note provides that excluded fast track review applicant is defined in subsection 5(1).

793.       The purpose of this amendment is to refer the reader to the definition of excluded fast track review applicant in subsection 5(1) of the Migration Act.

Item 11           Paragraph 57(3)(b)

794.       This item repeals current paragraph 57(3)(b) and substitutes new paragraph 57(3)(b).

795.       Section 57 of the Migration Act is part of the Code of Procedure in Subdivision AB of Division 3 of Part 2 of the Migration Act for dealing fairly, efficiently and quickly with visa applications.  Subdivision AB of Part 2 of the Migration Act sets out procedures for dealing with valid visa applications before a decision is made.  Current subsection 57(3) provides that section 57 does not apply in relation to an application for a visa unless:

·       the visa can be granted when the applicant is in the migration zone; and

·       this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

796.       New paragraph 57(3)(b), together with current paragraph 57(3)(a) provides that section 57 does not apply in relation to an application for a visa unless:

·       the visa can be granted when the applicant is in the migration zone; and

·       this Act provides, under Part 5 or 7, for an application for review of a decision to refuse a grant the visa; or

·       the applicant is a fast track applicant.

797.       The purpose of this amendment is to clarify that the obligation in subsection 57(2) applies if an applicant is a fast track applicant and is applying for a visa that can be granted when the applicant is in the migration zone.

798.       The note under paragraph 57(3)(b) provides that some applicants for protection visas are fast track applicants.  The term is defined in subsection 5(1).

799.       The purpose of this note is to refer the reader to subsection 5(1) for the definition of fast track applicant.

Item 12           Subsection 65(1) (note)

800.       This item omits the reference to “Note” after subsection 65(1) in Division 3 of Part 2 of the Migration Act and substitutes with “Note 1”.

801.       This amendment is consequential to the amendment made by item 13 below which adds Note 2 at the end of subsection 65(1).

Item 13           At the end of subsection 65(1)

802.       This item adds “Note 2” at the end of subsection 65(1) in Division 3 of Part 2 of the Migration Act.

803.       Subsection 65(1) is the power in which the Minister makes a decision to grant a visa or refuse to grant a visa.

804.       New note 2 provides that decisions to refuse to grant protection visas to fast track review applicants must generally be referred to the IAA: see Part 7AA.

805.       The purpose of this amendment is to refer the reader to Part 7AA of the Migration Act which deals with the fast track review process for certain protection visa decisions in respect of fast track review applicants.  Part 7AA is inserted by item 21below.

Item 14           At the end of subsection 66(2)

806.       This item adds new paragraph 66(2)(e) and 66(2)(f) at the end of subsection 66(2) in Division 3 of Part 2 of the Migration Act.

807.       Currently subsection 66(2) provides that notification of a decision to refuse an application for a visa must:

·       if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa - specify that criterion; and

·       if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa - specify that provision; and

·       unless subsection 66(3) applies to the application - give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

·       if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 - state:

o    that the decision can be reviewed; and

o    the time in which the application for review may be made; and

o    who can apply for the review; and

o    where the application for review can be made.

808.       New paragraph 66(2)(e) and 66(2)(f) provides that notification of a decision to refuse an application for a visa must:

·       in the case of a fast track reviewable decision - state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and

·       in the case of a fast track decision that is not a fast track reviewable decision - state that the decision is not subject to review under Part 5, 7 or 7AA.

809.       The purpose of this amendment is to clarify that when the Minister makes a decision to refuse to grant a visa to a fast track applicant, the notification to the applicant must specify that:

·       in the case of a fast track reviewable decision, the applicant’s decision has been referred to the IAA for review and they are not entitled to apply for review before the MRT and RRT; and

·       in the case of a fast track decision that is not a fast track reviewable decision, the applicant is not entitled to review before the MRT, RRT or the IAA.

810.       The effect of this amendment is to ensure that fast track applicants are notified about what, if any, review pathways are available to them if the Minister has made a decision to refuse to grant their visa.

Item 15           Section 275 (at the end of the definition of review authority )

811.       This item adds new paragraph (c) in the definition of review authority in section 275 in Division 1 of Part 3 of the Migration Act.

812.       Section 275 defines certain terms for the purposes of Part 3.  Part 3 deals with migration agents and immigration assistance.

813.       Currently, review authority means:

·       the Migration Review Tribunal; or

·       the Refugee Review Tribunal.

814.       New paragraph (c) will include the IAA in the definition of review authority .

815.       The purpose of this amendment is to include the IAA in the definition of review authority for the purposes of Part 3 of the Migration Act .

Item 16           At the end of subsection 338(1)

816.       This item adds new paragraph 338(1)(d) at the end of subsection 338(1) in Division 2 of Part 5 of the Migration Act.

817.       Currently subsection 338(1) provides that a decision is an MRT-reviewable decision if this section so provides, unless:

·       the Minister has issued a conclusive certificate under section 339 in relation to the decision; or

·       the decision is an RRT-reviewable decision; or

·       the decision is to refuse to grant, or to cancel, a temporary safe haven visa.

818.       New paragraph 338(1)(d) provides that a decision is an MRT-reviewable decision if this section so provides, unless the decision is a fast track decision .

819.       The purpose of this amendment is to provide that a fast track decision cannot be reviewed by the MRT.  Fast track decisions made in respect of fast track review applicants will be referred to the IAA by the Minister under new section 473CA of new Part 7AA inserted by item 19 below.  Fast track decisions made in respect of excluded fast track review applicants will not be subject to review by the MRT, RRT or the IAA.

Item 17           At the end of subsection 411(2)

820.       This item adds new paragraph 411(2)(c) at the end of subsection 411(2) in Division 2 of Part 7 of the Migration Act.

821.       Currently subsection 411(2) provides that the following decisions are not RRT-reviewable decisions:

·       decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made;

·       decisions in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

822.       New paragraph 411(2)(c) provides that the following decisions are not RRT-reviewable decisions: fast track decisions.

823.       The purpose of this amendment is to provide that a fast track decision cannot be reviewed by the RRT.  Fast track decisions made in respect of excluded fast track review applicants will not be subject to review by the MRT, RRT or the IAA.  Fast track decisions made in respect of fast track review applicants will be referred to the IAA by the Minister under new section 473CA of new Part 7AA inserted by item 21 below.

Item 18           At the end of subsection 460(2)

824.       This item adds a new note at the end of subsection 460(2) in Division 9 of Part 7 of the Migration Act.

825.       Subsection 460(2) provides that the Principal Member is responsible for:

·       monitoring the operations of the Tribunal to  ensure that those operations are as fair, just, economical, informal and quick as practicable; and

·       allocating the work of the Tribunal among the members (including himself or herself) in accordance with guidelines under subsection 460(3).

826.       The new note at the end of subsection 460(2) provides that the Principal Member is also responsible for the overall operation and administration of the IAA under Part 7AA.

827.       The purpose of this amendment is to clarify that the Principal Member of the RRT is also responsible for the overall operation and administration of the IAA in addition to the functions outlined in paragraph 460(2)(a) and 460(2)(b).

Item 19           At the end of section 470

828.       This item adds the words “and the Principal Member’s powers under Part 7AA” at the end of section 470 in Division 9 of Part 7 of the Migration Act.

829.       Current section 470 provides that the Principal Member, may, by writing signed by him or her, delegate to a member all or any of the Principal Member’s powers under this Act other than the power under section 443 to refer decisions to the AAT.

830.       New section 470 provides that the Principal Member, may, by writing signed by him or her, delegate to a member all or any of the Principal Member’s powers under this Act other than the power under section 443 to refer decisions to the AAT and the Principal Member’s powers under Part 7AA.

831.       The purpose of this amendment is to prevent the Principal Member from delegating his or her powers under Part 7AA to a member of the RRT.  New subsection 473JF(1) in Division 8 of Part 7AA inserted by item 21 below will provide that the Principal Member may delegate, in writing, all or any of the Principal Member’s powers or functions under Part 7AA to the Senior Reviewer of the IAA. 

832.       The effect of this amendment and new section 473JF is to confer power on the Principal Member to delegate his or her functions under Part 7AA to only the Senior Reviewer of the IAA.

Item 20           Paragraph 473A(a)

833.       This item repeals current paragraph 473A(a) and substitutes new paragraph 473A(a) in Part 7A of the Migration Act.

834.       Current paragraph 473A(a) and 473A(b) provide that for the purposes of the Public Service Act 1999:

·       the Principal Member of the RRT and the persons mentioned in subsection 407(4) and 472(4) together constitute a Statutory Agency; and

·       the Principal Member of the RRT is the Head of that Statutory Agency.

835.       The purpose of this provision is to provide that the Principal Member of the RRT together with the Registrar, Deputy Registrar and other officers of the MRT and RRT (including the persons who are made available to the IAA), and reviewers of the IAA together constitute a Statutory Agency for the purposes of the Public Service Act 1999.  The Principal Member of the RRT is the Head of that Statutory Agency.

836.       Both the MRT and RRT comprise members (appointed by the Governor-General under the Migration Act for fixed terms) and tribunal officers (appointed under the Migration Act and employed under the Public Service Act 1999 ).  Currently, all members and staff are cross-appointed to both the MRT and the RRT and the Principal Member of the MRT and the RRT is the same person.

837.       New paragraph 473A(a) together with current paragraph 473A(b) provides that the following persons constitute a Statutory Agency:

·       the Principal Member of the RRT;

·       the persons mentioned in subsection 407(4) (officers of the MRT);

·       the persons mentioned in subsection 472(4), including the persons who are made available to the IAA under subsection 473JE(2) (officers of the RRT);

·       the persons mentioned in subsection 473JE(1) (Reviewers of the IAA); and

·       the Principal Member of the RRT is the Head of that Statutory Agency.

838.       New subsection 473JA(1) inserted by item 21 below provides that the IAA is established within the RRT.  New subsection 473JE(1) inserted by item 21 below will provide that the Senior Reviewer and the other Reviewers of the IAA are to be persons engaged under the Public Service Act 1999.  New subsection 473JE(2) will provide that the Principal Member must make available persons employed in the RRT to assist the IAA in the performance of its administrative functions. 

839.       The purpose of this amendment is to clarify that the Principal Member of the RRT, officers of the MRT and RRT together with the Reviewers of the IAA constitute a Statutory Agency for the purposes of the Public Service Act 1999 .

Item 21           After Part 7A 

840.       This item inserts new Part 7AA after Part 7A of the Migration Act.  The heading of this new Part is “Fast track review process in relation to certain protection visa decisions”.

Part 7AA - Fast track review process in relation to certain protection visa decisions

841.       This Part establishes a new framework to deal with review of decisions to refuse protection visas that are referred by the Minister to the IAA under new section 473CA.  These decisions are referred to as fast track reviewable decisions.

Division 1 - Introduction

842.       This Division provides for a simplified outline of new Part 7AA and definitions for the purposes of Part 7AA.  This Division also provides the power for the Minister to determine, by way of legislative instrument, that certain fast track decisions made in respect of an excluded fast track review applicant are to be reviewed under Part 7AA, and provides the Minister with the ability to issue conclusive certificates in relation to a fast track decision if he or she believes it would be contrary to the national interest for the decision to be changed or reviewed.

Section 473BA Simplified outline of this Part

843.       New section 473BA creates a simplified outline of new Part 7AA.  The simplified outline provides:

·          A limited form of review of fast track decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012.

·          F ast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants .

·          Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants .

·          Fast track reviewable decisions must be referred by the Minister to the IAA as soon as reasonably practicable after the decision is made . A person cannot make an application for review directly to the Authority.

·          Decisions to refuse to grant protection visas to fast track applicants are generally not reviewable by any other Tribunal under this Act, although some decisions are reviewable by the Administrative Appeals Tribunal.

·          The IAA consists of the Principal Member of the Refugee Review Tribunal, the Senior Reviewer and othe r Reviewers. The Principal Member is responsible for the overall administration and operation of the IAA. The Reviewers are appointed by the Minister.

·          In reviewing fast track reviewable decisions, the Authority is required to pursue the objective of providing a mechanism of limited review that is efficient and quick.

·          The IAA does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.

·          The IAA may affirm a referred decision or may remit the decision for reconsideration in accordance with directions.

·          The Authority may give directions restricting the disclosure of information. There are also specific requirements for the giving and receiving of documents.

844.       The purpose of this amendment is to guide the reader on the key aspects of new Part 7AA which deals with the fast track review process in relation to certain protection visa decisions.

 

Section 473BB             Definitions

845.       New section 473BB inserts new defined terms fast track reviewable decision, new information, Principal Member, referred applicant, Reviewer, review material and Senior Reviewer for the purposes of new Part 7AA of the Migration Act.

846.       The new defined term fast track reviewable decision means:  

·       a fast track decision in relation to a fast track review applicant; or

·       a fast track decision determined under section 473BC;

but does not include a fast track decision in relation to which the Minister has issued a conclusive certificate under section 473BD.

847.       The note following this defined term provides that fast track decisions are decisions (subject to some exceptions) to refuse to grant protection visas to certain applicants, known as fast track applicants .  Some specified fast track applicants are known as excluded fast track review applicants; all others are known as fast track review applicants.   The highlighted terms are defined in subsection 5(1).

848.       The purpose of this amendment is to identify which fast track decisions made in respect of fast track applicants must be referred to the IAA by the Minister under new section 473CA.  No fast track review applicants will be entitled to apply for review to the MRT and RRT under Part 5 or Part 7 of the Migration Act in relation to fast track decisions.

849.       The new defined term new information has meaning given by subsection 473DC(1).

850.       Subsection 473DC(1) provides that new information is any document or information ( new information ) that was not before the Minister when the Minister made the decision under section 65 and the Authority considers may be relevant.  The purpose of this amendment is to refer the reader to subsection 473DC(1) for the meaning of new information.

851.       The new defined term Principal Member means the Principal Member of the RRT.

852.       The purpose of this amendment is to clarify that a reference to the Principal Member in new Part 7AA is a reference to the Principal Member of the RRT.  New subsection 473JB(1) provides that the Principal Member is responsible for the overall operation and administration of the Authority and, for that purpose, may issue directions and determine policies.

853.       The new defined term referred applicant means an applicant for a protection visa in respect of whom a fast track reviewable decision is referred under section 473CA. 

854.       The purpose of this amendment is to identify all persons who will be referred to the IAA under section 473CA.  Section 473CA provides the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made.  As such, this defined term will capture:

·       fast track decisions made in respect of a fast track review applicants;

·       any fast track decisions made in respect of excluded fast track review applicants that the Minister determines under section 473BC should be reviewed under Part 7AA by way of legislative instrument.

855.       The new defined term Reviewer means a Reviewer engaged in accordance with Division 8, and includes the Senior Reviewer.

856.       The purpose of this amendment is to clarify that a reference to a Reviewer is a reference to a Reviewer engaged in accordance with Division 8.  Division 8 deals with the establishment of the IAA.

857.       The new defined term review material has the meaning given by section 473CB.

858.       The purpose of this amendment is to clarify references to review material is in Part 7AA.  Section 473CB outlines the material that the Secretary must give to the IAA in respect of each fast track reviewable decision referred to the IAA under section 473CA.  The items listed in subsection 473CB(1) are collectively known as review material.

859.       The new term Senior Reviewer means the Senior Reviewer appointed under section 473JC. 

860.       The purpose of this amendment is to clarify that a reference to the Senior Reviewer is a reference to the Senior Reviewer appointed under section 473JC.  Subsection 473JC(1) provides that the Principal Member must, by written instrument, appoint an SES employee to be the Senior Reviewer.  Subsection 473JB(2) provides that the Senior Reviewer is to manage the Authority subject to the directions of, and in accordance with policies determined by, the Principal Member.

Section 473BC - Minister may determine that certain decisions are to be reviewed under this Part

861.       New section 473BC provides that the Minister may, by legislative instrument, determine that a specified fast track decision, or a specified class of fast track decisions in relation to an excluded fast track review applicant, should be reviewed under this Part.

862.       Note 1 to section 473BC provides that an excluded fast track review applicant and fast track decision are defined in subsection 5(1).

863.       Note 2 to section 473BC provides that, if the Minister makes a determination, the fast track decision is a fast track reviewable decision (see paragraph (b) of the definition of fast track reviewable decision in section 473BB).

864.       The purpose of this amendment is to provide the Minister with the flexibility and ability to determine that certain fast track decisions made in respect of excluded fast track review applicants are to be reviewed by the IAA.

865.       It is anticipated that this mechanism would be used where certain excluded fast track review applicants are considered vulnerable and are provided with additional support.  This would be outlined by departmental policy and procedures.

866.       All fast track applicants are either excluded fast track review applicants or fast track review applicants.  Where the Minister is of the view that a fast track decision or decisions made in respect of an excluded fast track review applicant or applicants warrant review by the IAA, the Minister will be able to determine that these decisions should be reviewed under new Part 7AA.

867.       The purpose of note 1 is to refer the reader to the definition of excluded fast track review applicant and fast track decision in subsection 5(1).  The purpose of note 2 is to clarify that the effect of a determination under new section 473BC is that these fast track decisions become fast track reviewable decisions.  Under section 473CA, the Minster must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made.

Section 473BD - Minister may issue conclusive certificate in relation to certain decisions

868.       New section 473BD provides that the Minister may issue a conclusive certificate in relation to a fast track decision if the Minister believes that:

·       it would be contrary to the national interest to change the decision; or

·       it would be contrary to the national interest for the decision to be reviewed.

869.       The note to new section 473BD provides that if the Minister issues a conclusive certificate, the fast track decision is not a fast track reviewable decision (see definition of fast track reviewable decision in section 473BB).

870.       The purpose of this amendment is to exempt certain fast track decisions from review by the IAA under Part 7AA where the Minister has issued a conclusive certificate in relation to that decision. 

871.       New section 473BD aligns with current subsection 411(3) which provides the Minister with the ability to issue a conclusive certificate in relation to decision which would normally be reviewable by the RRT.  Similar to the RRT framework, the Minister would generally only issue a conclusive certificate in relation to a decision on the grounds that changing the decision or reviewing the decision could result in a prejudice to Australia’s security, defence, international relations or where a review would require the  IAA to consider Cabinet or Cabinet committee documents.

Division 2 - Referral of fast track reviewable decisions to Immigration Assessment Authority 

Section 473CA - Referral of fast track reviewable decisions

872.       New section 473CA provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made.

873.       The purpose of this amendment is to require the Minister to refer fast track reviewable decisions to the IAA as soon as reasonably practicable after the decision is made.  As a referred applicant cannot themselves apply for IAA review, new section 473CA will require the Minister to refer the decision to the IAA as soon as reasonably practicable after the decision is made under section 65 of the Migration Act.

Section 473CB - Material to be provided to Immigration Assessment Authority

874.       New subsection 473CB provides that the Secretary must give to the IAA the following material ( review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

·       a statement that:

o    sets out the findings of fact made by the person who made the decision; and

o    refers to the evidence on which those findings were based; and

o    gives reasons for the decision;

·       material provided by the referred applicant to the person making the decision before the decision was made;

·       any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

·       the following details:

o    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

o    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

o    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

o    if the address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct - such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

o    if the referred applicant is a minor - the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

875.       New subsection 473CB(2) provides that the Secretary must give the review material to the IAA at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

876.       The purpose of this amendment is to require the Secretary of the Department to give to the IAA relevant documents, material and details (collectively known as review material) that the IAA will need to conduct review. This is because applicants will not apply for review to the IAA and therefore will not be required to provide certain documents, material and details to the IAA in conjunction with their review.  Review material will include a copy of the notification that was sent to the fast track applicant in relation to the fast track decision. 

877.       As the IAA will be required to notify the applicant directly of the review outcome, paragraph 473CB(1)(d) will also require the Secretary to provide the IAA details of the referred applicant’s address and contact details (including electronic addresses) as provided by the referred applicant to the Minister. 

878.       When referring a decision to the IAA, the Secretary must also give the review material to the IAA at the same time as, or as soon as reasonably practicable after, that decision is referred.

Section 473CC - Review of decision

879.       New subsection 473CC(1) provides that the IAA must review a fast track reviewable decision referred to the Authority under section 473CA.

880.       New subsection 473CC(2) provides that the IAA may:

·       affirm the fast track reviewable decision; or

·       remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

881.       The purpose of this amendment is to require the IAA to review a decision referred to it by the Minister under section 473CA and set out what it can do in relation to the fast track reviewable decision.   

882.       Subsection 473CC(2) provides that the IAA may either affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

883.       The power to affirm a fast track reviewable decision will permit the IAA to decide that the Minister’s fast track decision should not be changed.  The effect of this is that the Minister’s decision under section 65 remains in force.

884.       The power to remit a fast track decision will permit the IAA to decide that the Minister’s decision should be reconsidered.  The effect of this is that the Minister is required to reconsider the application having regard to any permissible directions or recommendations made by the IAA.  The power to remit a fast track decision with directions or recommendations will permit the IAA to review the substantive matters which must be satisfied before the visa application can be approved and, if these are decided in favour of the applicant, to then remit the case back to the Department to consider the more procedural criteria, which would not be appropriate for the IAA to deal with.  

 

Division 3 - Conduct of review

Subdivision A - Natural justice requirements

Section 473DA - Exhaustive statement of natural justice hearing rule

885.       New subsection 473DA(1) provides that this Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule as they apply to the IAA. 

886.       The purpose of this amendment is to make clear that sections 473GA, 473GB and Division 3 of Part 7AA of the Migration Act are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.  Division 3 sets out how the IAA should conduct its review and outlines how the IAA is to review decisions on the papers and provides limits on the consideration of new information for the purposes of making a decision in relation to a fast track reviewable decision.  Section 473GA and 473GB deal with the disclosure of confidential information to and by the IAA .

887.       New subsection 473DA(2) provides that to avoid doubt, nothing in this Part requires the IAA to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

888.       The purpose of this provision is to put beyond doubt that the IAA is not required to give a referred applicant any material that was before the Minister for comment.  This is because under subsection 57(2) of the Migration Act and in relation to their fast track decision, an applicant would have already been provided an opportunity to comment on relevant information that the Minister considered was the reason, or part of the reason for refusing to grant a visa.  

Subdivision B - Review on the papers

Section 473DB - Immigration Assessment Authority to review decisions on the papers

889.       New subsection 473DB(1) provides that subject to this Part, the IAA must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

·       without accepting or requesting new information; and

·       without interviewing the referred applicant.

890.       New subsection 473DB(2) provides that subject to this Part, the IAA may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

891.       The purpose of this amendment is to describe what the limited merits review function of the IAA entails.  The intention is for the IAA to review a fast track reviewable decision by only considering the review material provided to the Authority by the Secretary of the Department.  The IAA is not required to accept or request new information or interview the referred applicant.  This is however subject to Subdivision C - Additional information which sets out the limited circumstances in which the IAA may consider new information for the purposes of making a decision in relation to a fast track reviewable decision.

892.       New section 473FA provides that the IAA, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient and quick.  As such, new subsection 473DB(2) puts beyond doubt that the IAA may make a decision any time after the decision has been referred to the Authority.  This will enable the IAA to conduct limited review of fast track reviewable decisions on the papers as soon as these decisions have been referred to it by the Minister without accepting or requesting new information or interviewing the referred applicant.

893.       The complete package of reforms proposed in this Bill intend to place an emphasis on all fast track applicants to articulate their protection claims in a legitimate and authentic way at the earliest possible opportunity.  As such, the IAA’s primary function of limited review is underpinned by a presumption that there should be no further requirement to consider new information in a case involving a fast track review applicant. A fast track review applicant has had ample opportunities to present their claims and supporting evidence to justify their request to international protection throughout the decision-making process and before a primary decision is made on their application.