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

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2013 - 2014

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

SENATE

 

 

 

MIGRATION AND MARITIME POWERS LEGISLATION AMENDMENT (RESOLVING THE ASYLUM LEGACY CASELOAD) BILL 2014

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

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

the Hon. Scott Morrison MP)



Amendments to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 [HA110]

 

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 Maritime Powers Act 2013 and other relevant legislation to support the Government’s key strategies for combatting people smuggling and managing asylum seekers both onshore and offshore.  The measures in the 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.

Government amendments are proposed to introduce amendments to create the Safe Haven Enterprise visa (SHEV) as a new class of visa in the Migration Regulations 1994 (the Migration Regulations).  This amendment will make it clear to Parliament what the criteria are for the grant of a SHEV.  The criteria for the grant of a SHEV will be substantially the same as the criteria for a Temporary Protection (Class XD) visa.

The purpose of the SHEV is to both provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.

These Government amendments will also amend Schedule 2 and Schedule 7 to the Bill to:

·          Provide a pathway for the grant of a further visa for illegal maritime arrivals who hold or have held a SHEV,  who have met the SHEV work/study/social security requirements and who are applying for a visa specified in a prescribed list of visas, which will include skilled and family visas; and

·          Prevent the Minister from placing a statutory limit (or cap) on the number of Temporary Protection Visas or SHEVs granted in a programme year for the purposes of section 85 of the Migration Act.

The amendments proposed for the SHEV, provide certainty regarding the framework for this new visa. 

 

financial impact statement

The financial impact of these amendments will be met from within existing resources of the Department of Immigration and Border Protection.

 



 

AmENDMENTS TO THE Migration amendment (RESOLVING THE ASUYLUM LEGACY) B ILL 2014

 

notes on AMENDMENTS

 

Amendment (1) - Clause 2, page 2 (after table item 4), insert:

1.               This amendment inserts new table item 4A into subclause 2(1) of the Bill.  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. 

2.               New table item 4A provides that Schedule 2, Part 1, Division 2A commences the later of:

·          the commencement of the provisions covered by table item 4; and

·          the commencement of Schedule 3 to the Migration Amendment (Protection and Other Measures) Act 2014 .

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

Amendment (2) - Schedule 2, item 16, page 27 (after line 24), after subsection 35A(3A), insert:

3.               This amendment inserts new subsection 35A(3B) after new subsection 35A(3A) in the Bill. 

4.               New subsection 35A(3B) provides that the purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.

5.               This amendment also inserts a note after new subsection 35A(3B) that provides that if a person satisfies the requirement for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), he or she may make a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b).  This does not include permanent protection visas.

Amendment (3) - Schedule 2, Part 1, page 28 (after line 1), at the end of Division 2, add:

6.               This amendment inserts new items into the Bill that provide for the Migration Regulations to be changed to provide for the criteria that applies to the new safe haven enterprise visas.

Migration Regulations 1994

18B After subparagraph 1401(3)(d)(i)

7.               New item 18B inserts new paragraph 1401(3)(d)(ia) after subparagraph 1401(3)(d)(i) of the Migration Regulations.  Current clause 1401 of the Migration Regulations provides for the criteria for Protection (Class XA) visas.  Paragraph 1401 (3)(d) provides the circumstances in which an application by a person for a Protection (Class XA) visa is valid.  New paragraph 1401(3)(d)(ia) provides that in addition to the other conditions, 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 Safe Haven Enterprise (Class XE) visa.



 

18C After subparagraph 1403(3)(d)(i)

8.               New item 18B inserts new paragraph 1403(3)(d)(ia) after subparagraph 1401(3)(d)(i) of the Migration Regulations.  New item 1403 of the Migration Regulations provides for the criteria for Temporary Protection (Class XD) visa.  New paragraph 1403 (3)(d) provides the circumstances in which an application by a person for a Temporary Protection (Class XD) visa is valid.  New paragraph 1403(3)(d)(ia) provides that in addition to the other conditions, an application by a person for a Temporary Protection (Class XD) visa is valid only if the person holds, or has ever held, a Safe Haven Enterprise (Class XE) visa.

18D At the end of Schedule 1

9.               New item 18D adds at the end of Schedule 1 to the Migration Regulations criteria for a Safe Haven Enterprise (Class XE) visa.  The heading for the item inserted by new item 18D is ‘1404. Safe Haven Enterprise (Class XE)’. 

1404. Safe Haven Enterprise (Class XE)

10.               In accordance with new subsection 35A(3A) of the Migration Act, as inserted by item 16 of Part 1 of Schedule 2 to the Bill, safe haven enterprise visas are classified by the Migration Regulations as a class of protection visa known as a Safe Have Enterprise (Class XE) 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.

11.               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).

12.               New clause 1404 of Schedule 1 to the Migration Regulations will provide the requirements for making a valid application for a Safe Haven Enterprise (Class XE) visa.  The effect of this amendment is that a person making an application for a Safe Haven Enterprise (Class XE) visa will only be able to make a valid application if they meet the requirements in new Item 1404 of Schedule 1. 

13.               Subclause 1404(1) provides that Form 790 applies to Safe Haven Enterprise (Class XE) visas.  The effect of this provision is that an application for a Safe Haven Enterprise (Class XE) visa must be made using a Form 790 visa application form. 

14.               Subclause 1404(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'.

15.               A note is inserted after paragraph 1404(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.

16.               The effect of this amendment is that an applicant must have paid the required visa application charge for the Safe Haven Enterprise Visa (Class XE) visa application to be valid.

17.               Subclause 1404(3) provides for other requirements for a valid Safe Haven Enterprise (Class XE) 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 Safe Haven Enterprise (Class XE) 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 Safe Haven Enterprise (Class XE) 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 Safe Haven Enterprise (Class XE) visa; 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.

·          An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person indicated in writing an intention to work or study while accessing minimum social security benefits in a regional area specified under subclause 1404(4).

18.               New subclause 1404(4) provides that the Minister may, by legislative instrument, specify a regional area for the purposes of the Migration Regulations.  A note under new subclause 1404(4), refers the reader to see also regulation 2.06AAB (visa applications by holders and certain former holders of safe haven enterprise visas).

19.               New subclause 1404(5) provides that the relevant subclass for the Safe Haven Enterprise (Class XE) visa is ‘790 (Safe Haven Enterprise)’. 

18E After Part 785 of Schedule 2

Subclass 790 - Safe Haven Enterprise

790.1 - Interpretation

20.               This amendment adds new item 18E to the Bill. 

21.               This item inserts new Subclass 790 after Part 785 of Schedule 2 to the Migration Regulations.  The heading is “Subclass 790 - Safe Haven Enterprise”.  This item provides for:

·          the criteria for the grant of the new Subclass 790 (Safe Haven Enterprise) visa;

·          the circumstances applicable to grant;

·          when the visa is in effect; and

·          the conditions to be attached to the visa.

790.1 - Interpretation

22.               New clause 790.111 provides that for the purposes of Part 790, 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.

790.2 - Primary criteria

23.               New clause 790.2 provides for the primary criteria for the grant of a Subclass 790 (Safe Haven Enterprise) visa.  The new note after new clause 790.2 provides that all applicants must satisfy the primary criteria. 

24.               The purpose of the new note is to make clear that all applicants seeking to satisfy the criteria for the grant of a Subclass 790 (Safe Haven Enterprise) visa must satisfy the primary criteria.

25.               The primary criteria for the grant of a Subclass 790 (Safe Haven Enterprise) visa largely replicate the primary criteria for the grant of a Subclass 866 (Protection) visa. 

790.21 - Criteria to be satisfied at time of application

26.               New clause 790.21 provides for the primary criteria to be satisfied at the time of application for the Subclass 790 (Safe Haven Enterprise) visa.

27.               New subclause 790.211(1) provides that new subclause 790.211(2) or 790.211(3) is satisfied.

28.               New subclause 790.211(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.

29.               The new note after new subclause 790.211(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.

30.               New subclause 790.211(3) provides that the applicant claims to be a member of the same family unit as a person:

·          to whom subclause 790.211(2) applies; and

·          who is an applicant for a Subclass 790 (Safe Haven Enterprise) visa.

31.               A new note is inserted after new subclause 790.211(3).  The note provides: see paragraphs 36(2)(b) and 36(2)(c) of the Migration Act.

32.               The purpose of new clause 790.21 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.

790.22 - Criteria to be satisfied at time of decision

33.               New clause 790.22 provides for the primary criteria to be satisfied at the time of decision for a Subclass 790 (Safe Haven Enterprise) visa. 

34.               New subclause 790.221(1) provides that new subclause 790.221(2) or 790.221(3) is satisfied.

35.               New subclause 790.221(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. 

36.               A new note is inserted after new subclause 790.221(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.

37.               New subclause 790.221(3) provides that the Minister is satisfied that:

·          the applicant is a member of the same family unit as an applicant mentioned in subclause 790.221(2); and

·          the applicant mentioned in subclause 790.221(2) has been granted a Subclass 790 (Safe Haven Enterprise) visa. 

38.               The new note after subclause 790.221(3) provides: see paragraphs 36(2)(b) and 36(2)(c) of the Migration Act.

39.               The purpose of new clause 790.221 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 790 (Safe Haven Enterprise) visa.

40.               New clause 790.222 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 790.222(b);

·          a medical practitioner employed by an organisation approved by the Minister for the purposes of paragraph 790.222(c).

41.               The purpose of new clause 790.222 is to ensure that an applicant must meet health requirements.  The health requirements are the same as those for Subclass 866 (Protection) visas.

42.               New subclause 790.223(1) specifies that one of new subclauses 790.223(2) to 790.223(4) must be satisfied.

43.               New subclause 790.223(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.

44.               New subclause 790.223(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 790.223(2).

45.               New subclause 790.223(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.

46.               The purpose of new clause 790.223 is to ensure that an applicant meets the required health standards.  The health requirements are the same as those for Subclass 866 (Protection) visas.

47.               New subclause 790.224(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 790.222; and

·          the radiological report (if any) required under clause 790.223 in respect of the applicant.

48.               New subclause 790.224(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.

49.               The purpose of new clause 790.224 is to ensure that an applicant meets the required health standards.  The health requirements are the same as those for Subclass 866 (Protection) visas.

50.               New clause 790.225 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.

51.               The purpose of new clause 790.225 is to ensure that an applicant meets the required health standards.  The health requirements are the same as those for Subclass 866 (Protection) visas.

52.               New clause 790.226 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.

53.               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.

54.               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.

55.               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.

56.               The purpose of new clause 790.226 is to replicate the public interest criteria that currently apply to the Subclass 866 (Protection) visa.

57.               New clause 790.227 provides that the Minister is satisfied that the grant of the visa is in the national interest.

58.               The purpose of new clause 790.227 is that the Minister is able to refuse to grant a Subclass 790 ( Safe Haven Enterprise) visa where the Minister is not satisfied that the grant is in the national interest.

59.               New subclause 790.228(1) provides that if the applicant is a child to whom subregulation 2.08(2) applies, subclause 790.228(2) is satisfied.

60.               New subclause 790.228(2) provides the Minister is satisfied that:

·          the applicant is a member of the same family unit as an applicant to whom subclause 790.221(2) applies; and

·          the applicant to whom subclause 790.221(2) applies has been granted a Subclass 790 (Safe Haven Enterprise) visa.

61.               Two notes are inserted after new clause 790.228. 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.

62.               New note 2 provides that new subclause 790.221(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.

63.               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.

64.               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.

65.               The effect of new clause 790.228 is to ensure that a child who is taken to have applied for a Subclass 790 (Safe Haven Enterprise) 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 790 (Safe Haven Enterprise) 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.

66.               The purpose of new clause 790.228 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 .

790.3 - Secondary criteria

67.               New clause 790.3 provides for secondary criteria which must be satisfied for the grant of a Subclass 790 (Safe Haven Enterprise) visa.  The new note to new clause 790.3 provides that all applicants must satisfy the primary criteria.

68.               The purpose of the note is to make clear that all applicants seeking to satisfy the criteria for the grant of a Subclass 790 (Safe Haven Enterprise) visa must satisfy the primary criteria.

790.4 - Circumstances applicable to grant

69.               New clause 790.4 provides for the circumstances applicable to the grant of a Subclass 790 (Safe Ha ven Enterprise) visa.

70.               Ne w clause 790.411 provides that the applicant must be in Australia when the visa is granted.

71.               The purpose of new clause 790.411 is to make clear that an applicant must be in Australia to be granted a Subclass 790 (Safe Haven Enterprise) visa.  This requirement is the same as the current requirement for a Subclass 866 (Protection) visa.

790.5 - When visa is in effect

72.               New clause 790.5 provides for when the Subclass 790 (Safe Haven Enterprise) visa is in effect.

73.               New clause 790.511 provides that a temporary visa permitting the holder to travel to, enter and remain in Australia until:

·          if the holder of the temporary visa (the first visa) makes a valid application for another Subclass 790 (Safe Haven Enterprise) visa within 5 years after the grant of the first visa -  the day when the application is finally determined or withdrawn; or

·          in any other case the end of 5 years from the date of grant of the first visa.

74.               The effect of this amendment is that if the Subclass 790 (Safe Haven Enterprise) visa holder does not apply for another Subclass 790 (Safe Haven Enterprise) visa before the cessation of their temporary visa, then the temporary visa will cease at the end of 5 years from the date of grant of the first visa.

75.               A Subclass 790 (Safe Haven Enterprise) visa will be granted for a period of 5 years. 

790.6 - Conditions

76.               New clause 790.6 provides for the conditions to be attached to a Subclass 790 (Safe Haven Enterprise) visa. 

77.               New clause 790.611 provides for conditions 8565 and 8570 to apply.  A note under new clause 790.611 provides that there is nothing in the Migration Act or the Migration Regulations which restricts the holder of the visa to study or work as he or she sees fit.

78.               The effect of new clause 790.611 is that those conditions apply by operation of law to a Subclass 790 (Safe Haven Enterprise) 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.

79.               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.

80.               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.

Amendment (4) - Schedule 2, Part 1, page 28 (after line 1), after Division 2, insert:

81.               This amendment inserts Division 2A after Division 2 of Part 1 of Schedule 2 of the Bill.  The heading to Division 2A is ‘Safe haven enterprise visas: pathways to other visas’. New Division 2A contains items 18F and 18G.

82.               Item 18F inserts new subsection 46A(1A) after subsection 46A(1) of the Migration Act. 

83.               New subsection 46A(1A) provides that subsection 46A(1) does not apply in relation to an application for a visa if:

·          Either the applicant holds a safe haven enterprise visa (see subsection 35A(3A)) or the applicant is a lawful non-citizen who has held a safe haven enterprise visa,

·          and the application is for a visa prescribed for the purposes of this paragraph,

·          and the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.

84.               Current section 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.

85.               The effect of this provision is that meeting the criteria in subsection 46A(1A) will allow SHEV holders to apply for prescribed visa classes.  Changes to the regulations made by item 18C below prescribe 32 subclasses of visas for the purposes of this paragraph.

86.               New item 18G inserts new regulation 2.06AAB after regulation 2.06AAA of the Migration Regulations 1994.  The heading to new regulation 2.06AAB is ‘Visas for which holders and certain former holders of safe haven enterprise visas may apply’.

87.               New subregulation 2.06AAB(1) provides that for paragraph 46A(1A)(b) of the Migration Act, visas of the following subclasses, which are listed in the table attached to that subregulation, are prescribed:

·          Subclass 132 (Business Talent)

·          Subclass 143 (Contributory Parent)

·          Subclass 186 (Employer Nomination Scheme)

·          Subclass 187 (Regional Sponsored Migration Scheme)

·          Subclass 188 (Business Innovation and Investment (Provisional))

·          Subclass 189 (Skilled—Independent)

·          Subclass 190 (Skilled—Nominated)

·          Subclass 402 (Training and Research)

·          Subclass 405 (Investor Retirement)

·          Subclass 416 (Special Program)

·          Subclass 445 (Dependent Child)

·          Subclass 457 (Temporary Work (Skilled))

·          Subclass 476 (Skilled—Recognised Graduate)

·          Subclass 489 (Skilled—Regional (Provisional))

·          Subclass 570 (Independent ELICOS Sector)

·          Subclass 571 (Schools Sector)

·          Subclass 572 (Vocational Education and Training Sector)

·          Subclass 573 (Higher Education Sector)

·          Subclass 574 (Postgraduate Research Sector)

·          Subclass 575 (Non-Award Sector)

·          Subclass 580 (Student Guardian)

·          Subclass 801 (Partner)

·          Subclass 802 (Child)

·          Subclass 804 (Aged Parent)

·          Subclass 820 (Partner)

·          Subclass 835 (Remaining Relative)

·          Subclass 836 (Carer)

·          Subclass 837 (Orphan Relative)

·          Subclass 838 (Aged Dependent Relative)

·          Subclass 858 (Distinguished Talent)

·          Subclass 864 (Contributory Aged Parent)

·          Subclass 884 (Contributory Aged Parent (Temporary))

88.               New subregulation 2.06AAB(2) provides that for the purposes of  paragraph 46A(1A)(c) of the Migration Act, an applicant for a visa who currently holds, or has ever held, a safe haven enterprise visa must, for the period or periods totalling 42 months (which need not be continuous) while the visa is (or was) in effect, satisfy on of the following requirements:

·          the applicant does not receive any social security benefits determined under subregulation 2.06AAB(3), and is engaged in employment, as determined under that subregulation, in a regional area specified under subclause 1404(4) of Schedule 1;

·          the applicant is enrolled in full-time study at an educational institution, as determined under subregulation 2.06AAB(3), in a regional area specified under subclause 1404(4) of Schedule 1;

·          the applicant satisfies a combination of the requirements in paragraph 2.06AAB(2)(a) and paragraph 2.06AAB(2)(b), at different times.

89.               New subregulation 2.06AAB(3) provides that the Minister may, by legislative instrument, make a determination for the purposes of paragraph 2.06AAB(2)(a) and paragraph 2.06AAB(2)(b).

90.               This amendment supports the operation of new paragraph 46A(1A)(b) which is inserted by item 18B, above.  The effect of this change is that SHEV holders will be able to make valid applications for the preceding 32 subclasses of visa provided they meet the other criteria in subsection 46A(1A).  The purpose of this change is to give effect to the Government’s policy of providing a permanent visa pathway to SHEV holders.

Amendment (5) - Schedule 2, page 28 (after line 22), at the end of item 19, add:

91.               This amendment adds subitem 19(3) to item 19 of Schedule 2 to the Bill.  Item 19 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.  New subitem 19(3) provides that the amendment of the Migration Act and Migration Regulations made by Division 2A of Part 1 of Schedule 2 apply in relation to an application for a visa made on or after the commencement of that Division.

 



Statement of Compatibility with Human Rights

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

 

Amendments to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (the Bill) relating to the creation of the Safe Haven Enterprise Visa) 

 

These amendments are 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 amendments

Schedule 2 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (the Bill) will amend the Migration Act 1958 (Cth) (Migration Act) to create a new protection visa class to be known as Safe Haven Enterprise visas (SHEVs).  

The purpose of these amendments to Schedule 2 of the Bill is to create the SHEV visa subclass and provide its framework within the migration legislation.

The Migration Regulations will be amended to prescribe the requirements for a SHEV. The purpose of the SHEV is to both provide protection to Unauthorised Maritime Arrivals (UMAs) or Unauthorised Air Arrivals (UAAs) and to encourage enterprise through earning and learning while strengthening regional Australia. SHEV applicants will need to indicate an intention to work and/or study in regional Australia.  To be granted the visa, they will need to engage Australia’s protection obligations (or be the family member of a SHEV applicant who does) and meet other visa requirements, which are essentially the same as the requirements for other protection visas.  The SHEV will be valid for 5 years. SHEV holders who meet prescribed work/study/social security requirements including working and/or studying in regional Australia for at least three and a half years of their visa, will be able to apply for certain prescribed visas, including some permanent visas (but not Permanent Protection visas).

SHEV holders are free to leave Australia at any time and may re-enter Australia while the visa remains in effect.  However, the SHEV will be subject to a condition that will mean it can be cancelled if:

·          The visa holder enters the country from which they sought protection, or

·          The visa holder enters another country unless:

·          it is for compassionate and compelling reasons and

·          the Minister’s approval has been obtained for that entry.

Human Rights Implications

These amendments have been assessed against the seven core treaties that comprise Australia’s human rights obligations.

Family Sponsorship

Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 23 of the ICCPR states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

There is no right to family reunification under international law. The protection of the family unit under articles 17 and 23 does not amount to a right to enter Australia where there is no other right to do so. Further, these rights can be subject to proportionate and reasonable limitations which are aimed at legitimate objectives.  These objectives include maintaining the integrity of the migration system and the national interest. SHEV holders will not be eligible to sponsor family members to migrate to Australia. There is therefore the possibility that some SHEV holders may remain separated from their family for years until they are either found not to engage Australia’s protection obligations and removed from Australia or choose to return home.

However, SHEV holders who meet the work/study and social security requirements may be able to apply for prescribed permanent visas. If granted, these visas may then allow family sponsorship in certain circumstances.

An UMA or UAA becomes separated from their family when they choose to travel to Australia without their family, Australia has not caused that separation, and it is therefore not an interference with the family within the meaning of Article 17. To the extent that Article 23 may be limited until such time as the person becomes able to sponsor family members if granted another visa, Australia considers that this is a necessary, reasonable and proportionate measure to achieve the legitimate aim of preventing UMAs from making the dangerous journey to Australia by boat.  The measures further the legitimate aim of encouraging people to arrive in Australia via regular means, such as by obtaining a permanent visa under Australia’s Refugee and Humanitarian Programme for persons outside Australia, which allows family groups to migrate together.  Therefore, the amendments are consistent with the rights contained under Articles 17 and 23 of the ICCPR.

Rights of the Child

Article 3 of the Convention on the Rights of the Child (CRC) requires that the best interests of the child are treated as a primary consideration in all actions concerning children.  However, these need to be weighed against other primary considerations including:

·          seeking to prevent anyone, including  minors, from taking potentially life threatening measures  to achieve resettlement for their families in Australia;

·          maintaining the integrity of Australia’s borders and national security;

·          maintaining the integrity of Australia’s migration system;

·          protection of the national interest; and

·          encouraging regular migration.

 

While it may be in the best interests of unaccompanied minors (UAMs) to be reunited with their family, it is clearly not in their best interests to be placed in the hands of people smugglers to take the dangerous journey by boat to Australia. 

The conditions of SHEVs are consistent with those of Temporary Protection Visas (TPVs) and seek, in part, to dissuade minors from taking potentially life threatening avenues to achieve resettlement for their families in Australia.  This goal, as well as the need to maintain the integrity of Australia’s migration system and protect the national interest, is also a primary consideration.  Australia considers that on balance these and other primary considerations outweigh the best interests of the child in seeking family reunification.  However, as stated above, SHEV holders who meet the work/study and social security requirements may be able to apply for prescribed permanent visas. If granted, these visas may then allow family sponsorship in certain circumstances. Therefore, Australia considers that these amendments are consistent with Article 3 of the CRC.

Article 10 of the CRC states:

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.

Article 10 of the CRC requires that applications for family reunification made by minors or their parents are treated in a positive, humane and expeditious manner.  However, Article 10 does not amount to a right to family reunification. The Australian Government will not provide a separate pathway to family reunification that will allow people smugglers to exploit children and encourage them to risk their lives on dangerous boat journeys. However, as  stated above, SHEV holders who meet the work/study and social security requirements may be able to apply for prescribed permanent visas. If granted, these visas may then allow family sponsorship in certain circumstances.  As such, to the extent that the rights under Article 10 are limited while the person holds a SHEV, Australia considers that these limitations are necessary, reasonable and proportionate to achieve a legitimate aim.

Non-discrimination

Article 2(1) of the ICCPR states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 26 of ICCPR provides that:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status .

However, not all treatment that differs among individuals or groups on any of the grounds mentioned in article 26 will amount to prohibited discrimination. The UN Human Rights Committee has recognised that “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant”.

The UN Human Rights Committee has recognised in the ICCPR context that “The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party.  It is in principle a matter for the State to decide who it will admit to its territory […] Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment” (CCPR General Comment 15, 11 April 1986).  Unlike permanent visa holders, all temporary visa holders (not just SHEV holders) are unable to sponsor family members for residence in Australia.

To the extent that the regulations result in differential treatment between permanent protection visa holders and SHEV holders in being unable to sponsor family members for reunification purposes, this treatment is based on reasonable and objective criteria. The criteria being applied is whether or not the individual entered Australia illegally, or applied to come to Australia via lawful means and is aimed at a legitimate purpose, that is the need to maintain the integrity of Australia’s migration system and encouraging the use of regular migration pathways to enter Australia.  However, as stated above, SHEV holders who meet the work/study and social security requirements may be able to apply for prescribed permanent visas. If granted, these visas may then allow family sponsorship in certain circumstances.

Permission to Travel

Article 12(2) of the ICCPR states:

2. Everyone shall be free to leave any country, including his own.

All SHEVs will include a new condition that will be prescribed under section 41 of the Migration Act that the visa holder may only able travel offshore in compassionate and compelling circumstances, as approved by the Minister, to places other than the country in respect of which protection was sought.

If the visa holder breaches this condition, and did not have permission to travel, a discretion to cancel the visa under s116(1)(b) of the Migration Act will be enlivened.

Cancellation for breach of the new travel condition is discretionary and will consider relevant international obligations such as family unity, the best interests of the child and non-refoulement obligations.

The potential effect of the condition as a limitation on travel is therefore considered to be reasonable in the circumstances and proportionate to Australia’s legitimate aim of offering protection to genuine refugees and those fearing significant harm, while also protecting the integrity of the protection visa regime by enabling cancellation of a protection visa where circumstances indicate the person does not, or no longer, requires Australia’s protection.  If the visa of a person within Australia’s jurisdiction is cancelled, removal would not proceed if to do so would breach Australia’s non-refoulement obligations.

 

The amendment is compatible with human rights because it is consistent with Australia’s human rights obligations and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate. 

Right to social security/right to an adequate standard of living/right to work

SHEV holders have permission to work. For those who are unable to work, legislative amendments will allow SHEV holders to be eligible for Special Benefit and Family Tax Benefit.  There are also a range of ancillary payments that will be available, depending on individual circumstances.

Right to education

Article 13 of the International Covenant on Economic Social and Cultural Rights (ICESCR) outlines those obligations to which Australia is bound as a State Party to the Covenant (subject to permissible limitations in accordance with article 4).

In Australia, school-age children - usually between 5 and 17 years old - must go to school.

·          The children of SHEV holders will be able to access school education through public schools and through non-government schools.

 Freedom of Movement

Article 12(1) of the ICCPR states:

 

Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

 

Australia’s international obligations mean that visa holders cannot be required to live or work in particular areas but they may be encouraged to do so. SHEVs require the applicant to indicate an intent to work and/or study in a regional area. However, IMAs and UAAs who believe they engage Australia’s protection obligations but who do not wish to work or study in a regional area may instead apply for a TPV.    If a SHEV holder intends to work and/or study in a regional area but is subsequently unable to do so or wishes to leave the regional area, they are not prevented from doing so.  Rather the consequence is that they would not able to make a valid onshore applications for one of the prescribed permanent visas once the term of the SHEV expires.  However, they would still be able to apply for another TPV or SHEV if they still believe they engage Australia’s protection obligations.

 

Right to health

Article 12 of the ICESCR recognises 'the right of everyone to the enjoyment of the highest attainable standard of physical and mental health' and requires steps to be taken to achieve the full realisation of this right.

The Government notes that SHEVs offer some certainty in that a person will be able to remain in Australia for five years and if they are still found to engage Australia’s protection obligations they will be eligible to be granted a further Temporary Protection visa or SHEV, or where they have met work/study and social security requirements they may be able to apply for a prescribed permanent visa. In addition, SHEV holders are entitled to access to Medicare and Australia’s public health system to the same extent as permanent Protection visa holders. 

Conclusion

The amendments to Schedule 2 of the Bill seek to express in the legislation key features of the SHEV.  The amendments are reasonable and proportionate in pursuit of the Government’s legitimate purpose of encouraging regional resettlement and development in regional Australia. 

To the extent that these amendments limit the rights and freedoms expressed in Australia’s international obligations identified above, those limitations are proportionate to the legitimate purposes identified in this Statement of Compatibility.  

This legislative amendment is compatible with human rights for the reasons outlined above.

 

The Hon. Scott Morrison, MP,

Minister for Immigration and Border Protection