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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

 

THE SENATE

 

 

 

 

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

 

 

(1)     Schedule 2, item 31, page 42 (line 3), omit “remain in Australia”, substitute “remain in, travel to and enter Australia”.

[temporary protection visas]

(2)     Schedule 2, item 31, page 42 (line 16), after “8503”, insert “, 8570”.

[temporary protection visas]

( 3 )     Schedule  2 , page 44 (after line 10) , after item  36 , insert:

36A  At the end of Schedule 8

Add:

8570           T he holder must not:

                     (a)  enter a country by reference to which:

                              (i)  the holder was found to be a person to whom Australia has protection obligations; or

                             (ii)  for a member of the family unit of another holder—the other holder was found to be a person to whom Australia has protection obligations; or

                     (b)  enter any other country unless:

                              (i)  the Minister is satisfied that there are compassionate or compelling circumstances justifying the entry; and

                             (ii)  the Minister has approved the entry in writing.

[temporary protection visas]

(4)     Schedule 4, item 1, page 57 (lines 20 to 22), omit subparagraph (a)(v) of the definition of excluded fast track review applicant .

[manifestly unfounded claim]

(5)     Schedule 4, item 1, page 57 (after line 27), after paragraph (a) of the definition of excluded fast track review applicant , insert:

                    (aa)  who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:

                              (i)  has no plausible or credible basis; or

                             (ii)  if the claim is based on conditions, events or circumstances in a particular country—is not able to be substantiated by any objective evidence; or

                            (iii)  is made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia; or

[manifestly unfounded claim]

(6)     Schedule 4, item 1, page 58 (line 2), after “13 August 2012”, insert “, but before 1 January 2014, and who has not been taken to a regional processing country”.

[fast track applicants]

(7)     Schedule 4, item 2, page 59 (after line 19), after subsection 5(1AC), insert:

       (1AD)  Despite subsection 44(2) of the Legislative Instruments Act 2003 , section 42 (disallowance) of that Act applies to an instrument made under subsection (1AA).

[disallowance]

(8)     Schedule 4, item 21, page 62 (line 17), after “13 August 2012”, insert “, but before 1 January 2014, and who have not been taken to a regional processing country”.

[fast track applicants]

(9)     Schedule 4, item 21, page 63 (lines 13 and 14), omit “and quick”, substitute “, quick, free of bias and consistent with Division 3 (conduct of review)”.

[exercise of functions]

(10)   Schedule 4, item 21, page 68 (lines 25 to 29), omit paragraph 473DD(b), substitute:

                     (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

                              (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

                             (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

[new information]

(11)   Schedule 4, item 21, page 72 (line 18), omit “and quick”, substitute “, quick, free of bias and consistent with Division 3 (conduct of review)”.

[exercise of functions]

(12)   Schedule 5, item 7, page 93 (lines 24 to 31), omit subsection 5J(2), substitute:

             (2)  A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:          For effective protection measures, see section 5LA.

[effective protection measures]

(13)   Schedule 5, item 7, page 95 (lines 15 to 31), omit section 5L, substitute:

5L   Membership of a particular social group other than family

                   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

                     (a)  a characteristic is shared by each member of the group; and

                     (b)  the person shares, or is perceived as sharing, the characteristic; and

                     (c)  any of the following apply:

                              (i)  the characteristic is an innate or immutable characteristic;

                             (ii)  the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

                            (iii)  the characteristic distinguishes the group from society; and

                     (d)  the characteristic is not a fear of persecution.

[membership of a particular social group]

(14)   Schedule 5, item 7, page 95 (after line 31), after section 5L, insert:

5LA   Effective protection measures

             (1)  For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

                     (a)  protection against persecution could be provided to the person by:

                              (i)  the relevant State; or

                             (ii)  a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

                     (b)  the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

             (2)  A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

                     (a)  the person can access the protection; and

                     (b)  the protection is durable; and

                     (c)  in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

[effective protection measures]