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Migration Amendment (Temporary Visa Extensions and Reinstatements) Bill 2021

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2021

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

MIGRATION AMENDMENT (TEMPORARY VISA EXTENSIONS AND REINSTATEMENTS) BILL 2021

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Nick McKim)



 

MIGRATION AMENDMENT (TEMPORARY VISA EXTENSIONS AND REINSTATEMENTS) BILL 2021

 

OUTLINE

 

The Bill will provide uniform and automatic extensions to time-limited temporary visa subclasses where the visa holder has been unable to enter the country due to Australia's immigration and border policies during the Coronavirus disease 2019 (COVID-19) pandemic.

Australia’s international border was closed on 20 March 2020 as part of the human biosecurity emergency period declared under the Biosecurity Act 2015 , in response to the global pandemic of COVID-19.

At the time of Australia’s international border closure, many temporary visa holders - some of whom had lived in Australia for many years on a pathway to permanent residency - were overseas. Due to the necessary speed of the border closure, most were unable to return to Australia before the closure and have been unable to return since.

The international border closure also affected a large cohort of visa holders who had received their visa grants, quit their jobs, packed up their homes, and sent their possessions to Australia only to be unable to move to Australia themselves.

Through no fault of their own, this situation has had a devastating impact on many temporary visa holders and on their workplaces, communities, and families as many affected temporary visa holders have been separated from their incomes, partners, and children.

The Bill will provide concessions to temporary visa holders who have been stranded overseas because of Australia’s international border closure with uniform and automatic visa extensions that will enable them to receive all the rights and privileges within the conditions of the visa they paid for and were granted. For many temporary visa holders, this will mean being able to continue on their visa pathways following the re-opening of our international borders without further disadvantage, penalty, or forfeiture.

Automatic extensions have already been provided to holders of some temporary visa subclasses including Prospective Marriage visa (subclass 300) or a Sponsored Parent (Temporary) visa (subclass 870). This legislation will ensure that all eligible temporary visas are treated uniformly.

Eligible temporary visas will be any temporary visa whose holder was, at any point during the visa period, unable to enter Australia only because of its international border closure under a travel restriction imposed by the Commonwealth Government. This means that the provision will not apply if the temporary visa holder was unable to enter Australia for some other reason than the travel ban, such as medical advice that they should not fly, financial issues, conditions on the visa, etc.

The Bill will do this by providing automatic visa extensions for existing temporary visa holders who are, or were, stranded offshore while holding valid temporary visas. Eligible temporary visas will be automatically credited with the amount of time the temporary visa holder has lost from the remaining balance of their period of stay due to Australia’s international border closure.

The maximum possible extension provided under the Bill will be the full amount of days Australia’s international border was closed under a travel restriction imposed by the Commonwealth Government, such as the COVID-19 human biosecurity emergency period, if the temporary visa was in effect for that entire period and the visa holder was unable to enter Australia at all. However, extensions provided could be for lesser amounts in circumstances where a temporary visa holder:

●        was granted a travel exemption and re-entered Australia before its international border is reopened;

●        was granted a visa after the international border was closed; or

●        holds a visa with a period of stay balance less than the full amount of days Australia’s international border was closed under a travel restriction imposed by the Commonwealth Government, such as the COVID-19 human biosecurity emergency period.

The Bill will also provide for automatic visa reinstatements of temporary visas for persons whose visas have expired by the time Australia’s international borders open. These reinstated visas will then be eligible for the automatic extensions provided by this Bill.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.           This clause provides for the Act to be cited as the Migration Amendment (Temporary Visa Extensions and Reinstatements) Act 2021.

Clause 2: Commencement

2.           This clause provides for the whole of this Act to commence the day after it receives Royal Assent.

Clause 3 - Schedules

3.                   Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule.  Any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

Migration Act 1958

Item 1 - After section 68

6.                   This item inserts a new section - section 68A - into the Act.



Subsection 68A(1)

This subsection provides a definition of eligible temporary visas covered by the Bill.

The tests in subsection 68A(1) can be applied to any temporary visa in Australia’s migration program, which are currently listed by the Department of Home Affairs as:

●        Electronic Travel Authority (subclass 601)

●        eVisitor (subclass 651)

●        Transit visa (subclass 771)

●        Visitor (subclass 600)

●        Work and Holiday visa (subclass 462)

●        Working Holiday visa (subclass 417)

●        Student visa (subclass 500)

●        Student Guardian visa (subclass 590)

●        Training visa (subclass 407)

●        Contributory Aged Parent (Temporary) visa (subclass 884)

●        Contributory Parent (Temporary) visa (subclass 173)

●        Dependent Child visa (subclass 445)

●        New Zealand Citizen Family Relationship (temporary) visa (subclass 461)

●        Partner (Provisional and Migrant) visa (subclass 309 100)

●        Partner visa (subclass 820 801)

●        Prospective Marriage visa (subclass 300)

●        Sponsored Parent (Temporary) visa (subclass 870)

●        Business Innovation and Investment (provisional) visa (subclass 188)

●        Skilled Employer Sponsored Regional (provisional) visa (subclass 494)

●        Skilled-Recognised Graduate visa (subclass 476)

●        Skilled Regional (provisional) visa (subclass 489)

●        Skilled Work Regional (Provisional) visa (subclass 491)

●        Temporary Activity visa (subclass 408)

●        Temporary Graduate visa (subclass 485)

●        Temporary Work (International Relations) visa (subclass 403)

●        Temporary Work (Short Stay Specialist) visa (subclass 400)

●        Temporary Skill Shortage visa (subclass 482)

●        Temporary Protection visa (subclass 785)

●        Safe Haven Enterprise visa (subclass 790)

●        Bridging visa A - BVA - (subclass 010)

●        Bridging visa B - BVB - (subclass 020)

●        Bridging visa C - BVC - (subclass 030)

●        Bridging visa E - BVE - (subclass 050 and 051)

●        Crew Travel Authority visa (subclass 942)

●        Maritime Crew visa (subclass 988)

●        Medical Treatment visa (subclass 602)

●        Special Category visa (subclass 444)

●        Special Purpose visa

●        Investor Retirement visa (subclass 405)

The tests a visa applicant must pass for their visa to be eligible for an extension are (a) that they were unable to enter or reenter Australia due to travel restrictions imposed by the Commonwealth Government because of the COVID-19 pandemic, and (b) that their visa has ceased, or will cease, to be in effect because of subsection 82(5), (6) or (7) of the Migration Act 1958 (the Act). These sections of the Act deal with situations where a visa has been granted for a particular period, or until a particular date, and provide that those kinds of visas cease to have effect once the period of stay has ended, or the date has passed.

This means that although the Bill refers broadly to all temporary visa subclasses, as listed above, some temporary visa subclasses are exempt by Commonwealth Government legislation from Australia’s international border closure, and therefore would be ineligible for extension under the provisions of the Bill (such as subclasses 445, 309, 100, 820, 801, 188, 408 (Post COVID-19 Economic Recovery Event stream), 955, 942, 988, and 444) while others are not relevant (such as subclass 771 and the Special Purpose visa).

Subsection 68A(2)

This subsection provides for how many days an eligible temporary visa is to be extended by if that eligible visa is still in effect on the date travel restrictions are no longer imposed by the Commonwealth Government because of the COVID-19 pandemic.

Subsection 68A(3)

This subsection provides for the reinstatement of eligible temporary visas if the visa expired due to the period of stay having been exhausted while travel restrictions were in place by the Commonwealth Government because of the COVID-19 pandemic, and the visa holder was offshore and unable to enter Australia.

Subsection 68A(4)

This subsection provides that section 68A applies despite any other provision of this Act to the contrary.

Subsection 68A(5)

This subsection provides that the regulations may make provision for and in relation to the operation of section 68A.

Subsection 68A(6)

This subsection provides that, without limiting subsection 68A(5), the regulations may prescribe the circumstances in which the holder of a temporary visa is affected by COVID-19 travel restrictions for the purposes of section 68A.

Subsection 68A(7)

This subsection provides a definition for the terms “affected by COVID-19 travel restrictions” and “extension day” in the Bill.

“Affected by COVID-19 travel restrictions” is defined as restrictions imposed by the Commonwealth Government because of the COVID-19 pandemic. This includes the human biosecurity emergency period declared under the Biosecurity Act 2015 in response to the global pandemic of COVID-19, which is currently the instrument under which Australia’s international border is closed to inbound temporary visa holders. However, this legislation is drafted such that any Commonwealth Government action that removes the travel restrictions (for example, the provisions imposing the restrictions are repealed or sunset, or the Commonwealth Government otherwise permits inbound international travel by temporary visa holders) may trigger the ‘no restriction day’ provision of this legislation, where all eligible temporary visas cease to qualify for extensions under the ‘extension day’ provision of this legislation.

“Extension day” is a day where the holder of an eligible visa was outside of Australia and prevented from entering or re-entering the country because of Australia’s international border being closed because of COVID-19. The number of “extension days” will be refunded to the balance of the visa’s granted period of stay.

Item 2 - Subsection 82(9)

7.                   Inserts “68A” after “sections” in Subsection 82(9) so that it reads:

This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 68A, 173 and 174).

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Temporary Visa Extensions And Reinstatements) Bill 2021

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

This Bill will have the effect of:

●        reinstatement of eligible temporary visas that ceased to have effect while the holder was unable to enter Australia due to travel restrictions imposed by the Commonwealth Government because of the COVID-19 pandemic; and

●        reimbursement of eligible temporary visas with the number of days the visa holder lost off the balance of their period of stay because of being unable to enter or re-enter Australia due to travel restrictions imposed by the Commonwealth Government as a result of the COVID-19 pandemic.

 

Human rights implications

This Bill does not engage any of the applicable rights or freedoms.

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

Senator Nick McKim