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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Protection and
Other Measures) Bill 2014
No. , 2014
(Immigration and Border Protection)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 3
Schedule 1--Protection visas
4
Part 1--Amendments commencing on day after Royal Assent
4
Migration Act 1958
4
Part 2--Amendments commencing on Proclamation
5
Migration Act 1958
5
Part 3--Application
9
Schedule 2--Amendments relating to Australia's protection
obligations under certain international
instruments
10
Part 1--Amendments commencing on the day after Royal
Assent
10
Migration Act 1958
10
Part 2--Contingent amendments
13
Migration Act 1958
13
Schedule 3--Unauthorised maritime arrivals and transitory
persons
16
Part 1--Amendments
16
Migration Act 1958
16
Part 2--Application and transitional
19
Schedule 4--Migration Review Tribunal and Refugee Review
Tribunal
21
Part 1--Amendments
21
Migration Act 1958
21
Part 2--Application
38
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
1
A Bill for an Act to amend the Migration Act 1958,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Migration Amendment (Protection
5
and Other Measures) Act 2014.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Part 1
The day after this Act receives the Royal
Assent.
3. Schedule 1,
Part 2
A single day to be fixed by Proclamation.
However, if the provision(s) 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.
4. Schedule 1,
Part 3
The day after this Act receives the Royal
Assent.
5. Schedule 2,
items 1 to 4
The day after this Act receives the Royal
Assent.
6. Schedule 2,
item 5
The day after this Act receives the Royal
Assent.
However, if the Migration Amendment
(Regaining Control Over Australia's
Protection Obligations) Act 2014 receives
the Royal Assent before that day, the
provision(s) do not commence at all.
7. Schedule 2,
item 6
The day after this Act receives the Royal
Assent.
8. Schedule 2,
Part 2
Immediately after the commencement of
Schedule 1 to the Migration Amendment
(Regaining Control Over Australia's
Protection Obligations) Act 2014.
However, if that Schedule does not
commence, the provision(s) do not
commence at all.
9. Schedule 3
A single day to be fixed by Proclamation.
However, if the provision(s) do not
commence within the period of 6 months
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
10. Schedule 4
A single day to be fixed by Proclamation.
However, if the provision(s) 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.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Schedule 1 Protection visas
Part 1 Amendments commencing on day after Royal Assent
4
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
Schedule 1
--Protection visas
1
Part 1
--Amendments commencing on day after
2
Royal Assent
3
Migration Act 1958
4
1 After section 5
5
Insert:
6
5AAA Non-citizen's responsibility in relation to protection claims
7
(1) This section applies in relation to a non-citizen who claims to be a
8
person in respect of whom Australia has protection obligations
9
(however arising).
10
(2) For the purposes of this Act, it is the responsibility of the
11
non-citizen to specify all particulars of his or her claim to be such a
12
person and to provide sufficient evidence to establish the claim.
13
(3) The purposes of this Act include:
14
(a) the purposes of a regulation or other instrument under this
15
Act; and
16
(b) the purposes of any administrative process that occurs in
17
relation to:
18
(i) this Act; or
19
(ii) a regulation or instrument under this Act.
20
(4) To remove doubt, the Minister does not have any responsibility or
21
obligation to:
22
(a) specify, or assist in specifying, any particulars of the
23
non-citizen's claim; or
24
(b) establish, or assist in establishing, the claim.
25
Protection visas Schedule 1
Amendments commencing on Proclamation Part 2
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
5
Part 2
--Amendments commencing on Proclamation
1
Migration Act 1958
2
2 Subsection 5(1)
3
Insert:
4
bogus document, in relation to a person, means a document that
5
the Minister reasonably suspects is a document that:
6
(a) purports to have been, but was not, issued in respect of the
7
person; or
8
(b) is counterfeit or has been altered by a person who does not
9
have authority to do so; or
10
(c) was obtained because of a false or misleading statement,
11
whether or not made knowingly.
12
3 Subparagraph 65(1)(a)(iii)
13
After "section 40 (circumstances when granted),", insert "91W
14
(evidence of identity and bogus documents), 91WA (bogus documents
15
and destroying identity documents), 91WB (applications for protection
16
visas by members of same family unit),".
17
4 Section 91W (heading)
18
Repeal the heading, substitute:
19
91W Evidence of identity and bogus documents
20
5 Subsection 91W(2)
21
Omit "If", substitute "The Minister must refuse to grant the protection
22
visa to the applicant if".
23
6 Paragraph 91W(2)(b)
24
After "request", insert ", or produces a bogus document in response to
25
the request".
26
7 Paragraph 91W(2)(c)
27
After "request", insert ", or for producing the bogus document".
28
Schedule 1 Protection visas
Part 2 Amendments commencing on Proclamation
6
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
8 Paragraph 91W(2)(d)
1
Repeal the paragraph, substitute:
2
(d) when the request was made, the applicant was given a
3
warning, either orally or in writing, that the Minister cannot
4
grant the protection visa to the applicant if the applicant:
5
(i) refuses or fails to comply with the request; or
6
(ii) produces a bogus document in response to the request.
7
9 Subsection 91W(2)
8
Omit all the words after paragraph (d).
9
10 At the end of section 91W
10
Add:
11
(3) Subsection (2) does not apply if the Minister is satisfied that the
12
applicant:
13
(a) has a reasonable explanation for refusing or failing to comply
14
with the request or producing the bogus document; and
15
(b) either:
16
(i) produces documentary evidence of his or her identity,
17
nationality or citizenship; or
18
(ii) has taken reasonable steps to produce such evidence.
19
(4) For the purposes of this section, a person produces a document if
20
the person produces, gives, presents or provides the document or
21
causes the document to be produced, given, presented or provided.
22
11 After section 91W
23
Insert:
24
91WA Providing bogus documents or destroying identity documents
25
(1) The Minister must refuse to grant a protection visa to an applicant
26
for a protection visa if:
27
(a) the applicant provides a bogus document as evidence of the
28
applicant's identity, nationality or citizenship; or
29
(b) the Minister is satisfied that the applicant:
30
(i) has destroyed or disposed of documentary evidence of
31
the applicant's identity, nationality or citizenship; or
32
Protection visas Schedule 1
Amendments commencing on Proclamation Part 2
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
7
(ii) has caused such documentary evidence to be destroyed
1
or disposed of.
2
(2) Subsection (1) does not apply if the Minister is satisfied that the
3
applicant:
4
(a) has a reasonable explanation for providing the bogus
5
document or for the destruction or disposal of the
6
documentary evidence; and
7
(b) either:
8
(i) provides documentary evidence of his or her identity,
9
nationality or citizenship; or
10
(ii) has taken reasonable steps to provide such evidence.
11
(3) For the purposes of this section, a person provides a document if
12
the person provides, gives or presents the document or causes the
13
document to be provided, given or presented.
14
91WB Application for protection visa by member of same family
15
unit
16
(1) This section applies to a non-citizen in Australia (the family
17
applicant):
18
(a) who applies for a protection visa; and
19
(b) who is a member of the same family unit as a person
20
(the family visa holder) who has been granted a
21
protection visa.
22
(2) Despite anything else in this Act, the Minister must not grant the
23
protection visa to the family applicant on the basis of a criterion
24
mentioned in paragraph 36(2)(b) or (c) unless the family applicant
25
applies for the protection visa before the family visa holder is
26
granted a protection visa.
27
12 Section 97 (definition of bogus document)
28
Repeal the definition.
29
13 At the end of section 97
30
Add:
31
Note:
Bogus document is defined in subsection 5(1).
32
Schedule 1 Protection visas
Part 2 Amendments commencing on Proclamation
8
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
14 After section 423
1
Insert:
2
423A How Tribunal is to deal with new claims or evidence
3
(1) This section applies if, in relation to an application for review of an
4
RRT-reviewable decision (the primary decision) in relation to a
5
protection visa, the applicant:
6
(a) raises a claim that was not raised in the application before the
7
primary decision was made; or
8
(b) presents evidence in the application that was not presented in
9
the application before the primary decision was made.
10
(2) In making a decision on the application, the Tribunal is to draw an
11
inference unfavourable to the credibility of the claim or evidence if
12
the Tribunal is satisfied that the applicant does not have a
13
reasonable explanation why the claim was not raised, or the
14
evidence was not presented, before the primary decision was made.
15
Protection visas Schedule 1
Application Part 3
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
9
Part 3
--Application
1
15 Application of amendments
2
(1)
Section 5AAA of the Migration Act 1958 as amended by Part 1 of this
3
Schedule applies to an application:
4
(a) made on or after the commencement of that Part; or
5
(b) made before the commencement of that Part but not finally
6
determined as at the commencement of that Part.
7
(2)
Section 5AAA of the Migration Act 1958 as amended by Part 1 of this
8
Schedule also applies in relation to an administrative process:
9
(a) starting on or after the commencement of that Part; or
10
(b) starting before the commencement of that Part and not
11
completed as at the commencement of that Part.
12
(3)
Sections 91W, 91WA and 91WB of the Migration Act 1958 as amended
13
by Part 2 of this Schedule apply to an application for a protection visa:
14
(a) made on or after the commencement of that Part; or
15
(b) made before the commencement of that Part but not finally
16
determined as at the commencement of that Part.
17
(4)
Section 423A of the Migration Act 1958 as amended by Part 2 of this
18
Schedule applies to an application for a protection visa made on or after
19
the commencement of Part 1 of this Schedule.
20
Schedule 2 Amendments relating to Australia's protection obligations under certain
international instruments
Part 1 Amendments commencing on the day after Royal Assent
10
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
Schedule 2
--Amendments relating to
1
Australia's protection obligations
2
under certain international
3
instruments
4
Part 1
--Amendments commencing on the day after
5
Royal Assent
6
Migration Act 1958
7
1 Subsection 5(1) (definition of Covenant)
8
Omit ", a copy of the English text of which is set out in Schedule 2 to
9
the Australian Human Rights Commission Act 1986", substitute "done
10
at New York on 16 December 1966".
11
2 Subsection 5(1) (at the end of the definition of Covenant)
12
Add:
13
Note:
The International Covenant on Civil and Political Rights is in
14
Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in
15
2014 be viewed in the Australian Treaties Library on the AustLII
16
website (http://www.austlii.edu.au).
17
3 Subsection 5(1) (definition of receiving country)
18
Repeal the definition, substitute:
19
receiving country, in relation to a non-citizen, means:
20
(a) a country of which the non-citizen is a national, to be
21
determined solely by reference to the law of the relevant
22
country; or
23
(b) if the non-citizen has no country of nationality--a country of
24
his or her former habitual residence, regardless of whether it
25
would be possible to return the non-citizen to the country.
26
4 After section 6
27
Insert:
28
Amendments relating to Australia's protection obligations under certain international
instruments Schedule 2
Amendments commencing on the day after Royal Assent Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
11
6A Determining whether Australia has protection obligations in
1
relation to a non-citizen
2
(1) The section applies for the purposes of determining whether
3
Australia has protection obligations in relation to a non-citizen in
4
Australia under:
5
(a) this Act; or
6
(b) a regulation or other instrument made under this Act; or
7
(c) an administrative process that occurs in relation to:
8
(i) this Act; or
9
(ii) a regulation or other instrument made under this Act.
10
(2) The Minister can only be satisfied that Australia has protection
11
obligations in respect of the non-citizen if the Minister considers
12
that it is more likely than not that the non-citizen will suffer
13
significant harm if the non-citizen is removed from Australia to a
14
receiving country.
15
(3) A non-citizen will suffer significant harm if:
16
(a) the non-citizen will be arbitrarily deprived of his or her life;
17
or
18
(b) the death penalty will be carried out on the non-citizen; or
19
(c) the non-citizen will be subjected to torture; or
20
(d) the non-citizen will be subjected to cruel or inhuman
21
treatment or punishment; or
22
(e) the non-citizen will be subjected to degrading treatment or
23
punishment.
24
(4) In this section:
25
protection obligations means any obligations that may arise
26
because Australia is a party to:
27
(a) the Covenant; or
28
(b) the Convention Against Torture and Other Cruel, Inhuman or
29
Degrading Treatment or Punishment done at New York on
30
10 December 1984.
31
Note 1:
Paragraph (a)--for the definition of Covenant, see subsection 5(1).
32
Note 2:
Paragraph (b)--the Convention Against Torture and Other Cruel,
33
Inhuman or Degrading Treatment or Punishment is in Australian
34
Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be
35
Schedule 2 Amendments relating to Australia's protection obligations under certain
international instruments
Part 1 Amendments commencing on the day after Royal Assent
12
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
viewed in the Australian Treaties Library on the AustLII website
1
(http://www.austlii.edu.au).
2
5 Paragraph 36(2)(aa)
3
Repeal the paragraph, substitute:
4
(aa) a non-citizen in Australia (other than a non-citizen mentioned
5
in paragraph (a)) in respect of whom the Minister is satisfied
6
Australia has protection obligations because the Minister
7
considers that it is more likely than not that the non-citizen
8
will suffer significant harm if the non-citizen is removed
9
from Australia to a receiving country; or
10
6 Application
11
(1)
The amendments made by this Part apply in relation to an assessment
12
under:
13
(a) the Migration Act 1958; or
14
(b) a regulation or other instrument made under that Act; or
15
(c) an administrative process that occurs in relation to that Act,
16
regulation or other instrument;
17
of whether Australia has protection obligations in respect of a person,
18
regardless of whether the assessment is made as a result of an
19
application for a visa by a person.
20
(2)
Subitem (1) covers the following assessments:
21
(a) an assessment made on or after the day this item commences;
22
(b) if an assessment is made as a result of an application for a
23
visa--an assessment that begins before the day this item
24
commences, if the application has not been finally
25
determined before that day;
26
(c) if an assessment is made as part of an administrative
27
process--an assessment that begins before the day this item
28
commences, if the administrative process has not been
29
completed before that day.
30
Amendments relating to Australia's protection obligations under certain international
instruments Schedule 2
Contingent amendments Part 2
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
13
Part 2
--Contingent amendments
1
Migration Act 1958
2
7 Subsection 5(1)
3
Insert:
4
Covenant means the International Covenant on Civil and Political
5
Rights done at New York on 16 December 1966.
6
Note:
The International Covenant on Civil and Political Rights is in
7
Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in
8
2014 be viewed in the Australian Treaties Library on the AustLII
9
website (http://www.austlii.edu.au).
10
cruel or inhuman treatment or punishment means an act or
11
omission by which:
12
(a) severe pain or suffering, whether physical or mental, is
13
intentionally inflicted on a person; or
14
(b) pain or suffering, whether physical or mental, is intentionally
15
inflicted on a person so long as, in all the circumstances, the
16
act or omission could reasonably be regarded as cruel or
17
inhuman in nature;
18
but does not include an act or omission:
19
(c) that is not inconsistent with Article 7 of the Covenant; or
20
(d) arising only from, inherent in or incidental to, lawful
21
sanctions that are not inconsistent with the Articles of the
22
Covenant.
23
degrading treatment or punishment means an act or omission that
24
causes, and is intended to cause, extreme humiliation which is
25
unreasonable, but does not include an act or omission:
26
(a) that is not inconsistent with Article 7 of the Covenant; or
27
(b) that causes, and is intended to cause, extreme humiliation
28
arising only from, inherent in or incidental to, lawful
29
sanctions that are not inconsistent with the Articles of the
30
Covenant.
31
receiving country, in relation to a non-citizen, means:
32
Schedule 2 Amendments relating to Australia's protection obligations under certain
international instruments
Part 2 Contingent amendments
14
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
(a) a country of which the non-citizen is a national, to be
1
determined solely by reference to the law of the relevant
2
country; or
3
(b) if the non-citizen has no country of nationality--a country of
4
his or her former habitual residence, regardless of whether it
5
would be possible to return the non-citizen to the country.
6
significant harm means harm of a kind mentioned in
7
subsection 6A(3).
8
torture means an act or omission by which severe pain or
9
suffering, whether physical or mental, is intentionally inflicted on a
10
person:
11
(a) for the purpose of obtaining from the person or from a third
12
person information or a confession; or
13
(b) for the purpose of punishing the person for an act which that
14
person or a third person has committed or is suspected of
15
having committed; or
16
(c) for the purpose of intimidating or coercing the person or a
17
third person; or
18
(d) for a purpose related to a purpose mentioned in paragraph (a),
19
(b) or (c); or
20
(e) for any reason based on discrimination that is inconsistent
21
with the Articles of the Covenant;
22
but does not include an act or omission arising only from, inherent
23
in or incidental to, lawful sanctions that are not inconsistent with
24
the Articles of the Covenant.
25
8 Application
26
(1)
The amendments made by this Part apply in relation to an assessment
27
under:
28
(a) the Migration Act 1958; or
29
(b) a regulation or other instrument made under that Act; or
30
(c) an administrative process that occurs in relation to that Act,
31
regulation or other instrument;
32
of whether Australia has protection obligations in respect of a person,
33
regardless of whether the assessment is made as a result of an
34
application for a visa by a person.
35
(2)
Subitem (1) covers the following assessments:
36
Amendments relating to Australia's protection obligations under certain international
instruments Schedule 2
Contingent amendments Part 2
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
15
(a) an assessment made on or after the day this item commences;
1
(b) if an assessment is made as a result of an application for a
2
visa--an assessment that begins before the day this item
3
commences, if the application has not been finally
4
determined before that day;
5
(c) if an assessment is made as part of an administrative
6
process--an assessment that begins before the day this item
7
commences, if the administrative process has not been
8
completed before that day.
9
Schedule 3 Unauthorised maritime arrivals and transitory persons
Part 1 Amendments
16
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
Schedule 3
--Unauthorised maritime arrivals
1
and transitory persons
2
Part 1
--Amendments
3
Migration Act 1958
4
1 Paragraph 46A(1)(b)
5
Repeal the paragraph, substitute:
6
(b) either:
7
(i) is an unlawful non-citizen; or
8
(ii) holds a bridging visa or a temporary visa of a class
9
prescribed for the purposes of this subparagraph.
10
2 After subsection 46A(2)
11
Insert:
12
(2A) A determination under subsection (2) may provide that it has effect
13
only for the period specified in the determination and, if it does so,
14
the determination ceases to have effect at the end of the specified
15
period.
16
(2B) The period specified in a determination may be different for
17
different classes of unauthorised maritime arrivals.
18
(2C) The Minister may, in writing, vary or revoke a determination made
19
under subsection (2) if the Minister thinks that it is in the public
20
interest to do so.
21
3 Subsection 46A(3)
22
After "subsection (2)", insert "or (2C)".
23
4 Subsection 46A(4)
24
Repeal the subsection, substitute:
25
(4) If the Minister makes, varies or revokes a determination under this
26
section, the Minister must cause to be laid before each House of
27
the Parliament a statement that:
28
Unauthorised maritime arrivals and transitory persons Schedule 3
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
17
(a) sets out the determination, the determination as varied or the
1
instrument of revocation; and
2
(b) sets out the reasons for the determination, variation or
3
revocation, referring in particular to the Minister's reasons
4
for thinking that the Minister's actions are in the public
5
interest.
6
5 Subsection 46A(7)
7
After "subsection (2)", insert "or (2C)".
8
6 Paragraph 46B(1)(b)
9
Repeal the paragraph, substitute:
10
(b) either:
11
(i) is an unlawful non-citizen; or
12
(ii) holds a bridging visa or a temporary visa of a class
13
prescribed for the purposes of this subparagraph.
14
7 After subsection 46B(2)
15
Insert:
16
(2A) A determination under subsection (2) may provide that it has effect
17
only for the period specified in the determination and, if it does so,
18
the determination ceases to have effect at the end of the specified
19
period.
20
(2B) The period specified in a determination may be different for
21
different classes of transitory persons.
22
(2C) The Minister may, in writing, vary or revoke a determination made
23
under subsection (2) if the Minister thinks that it is in the public
24
interest to do so.
25
8 Subsection 46B(3)
26
After "subsection (2)", insert "or (2C)".
27
9 Subsection 46B(4)
28
Repeal the subsection, substitute:
29
(4) If the Minister makes, varies or revokes a determination under this
30
section, the Minister must cause to be laid before each House of
31
the Parliament a statement that:
32
Schedule 3 Unauthorised maritime arrivals and transitory persons
Part 1 Amendments
18
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
(a) sets out the determination, the determination as varied or the
1
instrument of revocation; and
2
(b) sets out the reasons for the determination, variation or
3
revocation, referring in particular to the Minister's reasons
4
for thinking that the Minister's actions are in the public
5
interest.
6
10 Subsection 46B(7)
7
After "subsection (2)", insert "or (2C)".
8
11 Section 91H
9
Omit "non-citizen who holds", substitute "non-citizen (other than an
10
unauthorised maritime arrival or a transitory person) who holds".
11
12 Section 91J
12
Before "This", insert "(1)".
13
13 At the end of section 91J
14
Add:
15
(2) This Subdivision does not apply to an unauthorised maritime
16
arrival or a transitory person.
17
Note:
Unauthorised maritime arrivals are covered by section 46A and
18
transitory persons are covered by section 46B.
19
Unauthorised maritime arrivals and transitory persons Schedule 3
Application and transitional Part 2
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
19
Part 2
--Application and transitional
1
14 Definitions
2
In this Part:
3
amended Act means the Migration Act 1958 as in force on and after the
4
commencement time.
5
commencement time means the commencement of this Schedule.
6
old Act means the Migration Act 1958 as in force immediately before
7
the commencement time.
8
15 Transitional arrangements for unauthorised maritime
9
arrivals who hold or have held temporary safe haven
10
visas
11
(1)
This item applies in relation to an unauthorised maritime arrival to
12
whom Subdivision AJ of Division 3 of Part 2 of the old Act applies
13
immediately before the commencement time.
14
(2)
On and after the commencement time:
15
(a) that Subdivision of the old Act ceases to apply to the
16
unauthorised maritime arrival; and
17
(b) subject to subitem (3), section 46A of the amended Act
18
applies in relation to an application for a visa by the
19
unauthorised maritime arrival made on or after the
20
commencement time.
21
(3)
For the purposes of subitem (2), section 46A of the amended Act
22
applies as if each of the following classes of visa were a class of
23
temporary visa prescribed for the purposes of
24
subparagraph 46A(1)(b)(ii) of the amended Act on and after the
25
commencement time:
26
(a) a temporary safe haven visa;
27
(b) a temporary humanitarian concern visa;
28
(c) a temporary protection visa.
29
Schedule 3 Unauthorised maritime arrivals and transitory persons
Part 2 Application and transitional
20
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
16 Transitional arrangements for transitory persons who
1
hold or have held temporary safe haven visas
2
(1)
This item applies in relation to a transitory person to whom Subdivision
3
AJ of Division 3 of Part 2 of the old Act applies immediately before the
4
commencement time.
5
(2)
On and after the commencement time:
6
(a) that Subdivision of the old Act ceases to apply to the
7
transitory person; and
8
(b) subject to subitem (3), section 46B of the amended Act
9
applies in relation to an application for a visa by the
10
transitory person on or after the commencement time.
11
(3)
For the purposes of subitem (2), section 46B of the amended Act
12
applies as if each of the following classes of visa were a class of
13
temporary visa prescribed for the purposes of
14
subparagraph 46B(1)(b)(ii) of the amended Act on and after the
15
commencement time:
16
(a) a temporary safe haven visa;
17
(b) a temporary humanitarian concern visa;
18
(c) a temporary protection visa.
19
Migration Review Tribunal and Refugee Review Tribunal Schedule 4
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
21
Schedule 4
--Migration Review Tribunal and
1
Refugee Review Tribunal
2
Part 1
--Amendments
3
Migration Act 1958
4
1 Subsection 5(9)
5
After "For the purposes of this Act,", insert "subject to
6
subsection (9A),".
7
2 Subsection 5(9A)
8
Omit "Without limiting subsection (9), if", substitute "If".
9
3 Section 337
10
Insert:
11
decision on a review means any of the following decisions of the
12
Tribunal in relation to an application for review of an
13
MRT-reviewable decision:
14
(a) a decision to affirm the MRT-reviewable decision;
15
(b) a decision to vary the MRT-reviewable decision;
16
(c) a decision under paragraph 349(2)(c) to remit a matter in
17
relation to the MRT-reviewable decision for reconsideration;
18
(d) a decision to set the MRT-reviewable decision aside and
19
substitute a new decision;
20
(e) a decision under paragraph 362B(1C)(b) or
21
subsection 362B(1E) to confirm a decision to dismiss the
22
application.
23
4 At the end of subsection 349(2)
24
Add:
25
; or (e) if the applicant fails to appear--exercise a power under
26
section 362B in relation to the dismissal or reinstatement of
27
an application.
28
5 Subsection 353A(2)
29
Repeal the subsection, substitute:
30
Schedule 4 Migration Review Tribunal and Refugee Review Tribunal
Part 1 Amendments
22
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
(2) Without limiting subsection (1), the directions may:
1
(a) relate to the application of efficient processing practices in
2
the conduct of reviews by the Tribunal; or
3
(b) set out procedures to be followed by applicants and their
4
representatives in relation to proceedings before the Tribunal.
5
6 Subsection 353A(3)
6
After "review", insert "(or a decision under paragraph 362B(1A)(b) or
7
(1C)(a))".
8
7 After section 353A
9
Insert:
10
353B Guidance decisions
11
(1) The Principal Member may, in writing, direct that a decision (the
12
guidance decision) of the Tribunal specified in the direction is to
13
be complied with by the Tribunal in reaching a decision on a
14
review of an MRT-reviewable decision of a kind specified in the
15
direction.
16
(2) In reaching a decision on a review of a decision of that kind, the
17
Tribunal must comply with the guidance decision unless the
18
Tribunal is satisfied that the facts or circumstances of the decision
19
under review are clearly distinguishable from the facts or
20
circumstances of the guidance decision.
21
(3) However, non-compliance by the Tribunal with a guidance
22
decision does not mean that the Tribunal's decision on a review is
23
an invalid decision.
24
8 Section 359AA
25
Before "If", insert "(1)".
26
9 At the end of section 359AA
27
Add:
28
(2) A reference in this section to affirming a decision that is under
29
review does not include a reference to the affirmation of a decision
30
that is taken to be affirmed under subsection 362B(1F).
31
Migration Review Tribunal and Refugee Review Tribunal Schedule 4
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
23
10 At the end of section 359A
1
Add:
2
(5) A reference in this section to affirming a decision that is under
3
review does not include a reference to the affirmation of a decision
4
that is taken to be affirmed under subsection 362B(1F).
5
11 Subsection 362B(1)
6
Repeal the subsection, substitute:
7
Scope
8
(1) This section applies if the applicant:
9
(a) is invited under section 360 to appear before the Tribunal;
10
but
11
(b) does not appear before the Tribunal on the day on which, or
12
at the time and place at which, the applicant is scheduled to
13
appear.
14
Tribunal may make a decision on the review or dismiss
15
proceedings
16
(1A) The Tribunal may:
17
(a) by written statement under section 368, make a decision on
18
the review without taking any further action to allow or
19
enable the applicant to appear before it; or
20
(b) by written statement under section 362C, dismiss the
21
application without any further consideration of the
22
application or information before the Tribunal.
23
Note 1:
Under section 368A, the Tribunal must notify the applicant of a
24
decision on the review.
25
Note 2:
Under section 362C, the Tribunal must notify the applicant of a
26
decision to dismiss the application.
27
Reinstatement of application or confirmation of dismissal
28
(1B) If the Tribunal dismisses the application, the applicant may, within
29
7 days after receiving notice of the decision under section 362C,
30
apply to the Tribunal for reinstatement of the application.
31
Schedule 4 Migration Review Tribunal and Refugee Review Tribunal
Part 1 Amendments
24
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
Note:
Section 379C sets out when a person (other than the Secretary) is
1
taken to have received a document from the Tribunal for the purposes
2
of this Part.
3
(1C) On application for reinstatement in accordance with
4
subsection (1B), the Tribunal must:
5
(a) if it considers it appropriate to do so--reinstate the
6
application, and give such directions as it considers
7
appropriate in the circumstances, by written statement under
8
section 362C; or
9
(b) confirm the decision to dismiss the application, by written
10
statement under section 368.
11
Note 1:
Under section 362C, the Tribunal must notify the applicant of a
12
decision to reinstate the application.
13
Note 2:
Under section 368A, the Tribunal must notify the applicant of a
14
decision to confirm the dismissal of the application.
15
(1D) If the Tribunal reinstates the application:
16
(a) the application is taken never to have been dismissed; and
17
(b) the Tribunal must conduct (or continue to conduct) the
18
review accordingly.
19
(1E) If the applicant fails to apply for reinstatement within the 7-day
20
period mentioned in subsection (1B), the Tribunal must confirm
21
the decision to dismiss the application, by written statement under
22
section 368.
23
Note:
Under section 368A, the Tribunal must notify the applicant of a
24
decision to confirm the dismissal of the application.
25
(1F) If the Tribunal confirms the decision to dismiss the application, the
26
decision under review is taken to be affirmed.
27
(1G) To avoid doubt, the Tribunal cannot give a decision orally under
28
subsection (1A), (1C) or (1E).
29
Other measures to deal with failure of applicant to appear
30
12 After section 362B
31
Insert:
32
Migration Review Tribunal and Refugee Review Tribunal Schedule 4
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
25
362C Failure to appear--Tribunal's decisions, written statements
1
and notifying the applicant
2
Decisions to which this section applies
3
(1) This section applies in relation to the following decisions (each of
4
which is a non-appearance decision):
5
(a) a decision to dismiss an application under
6
paragraph 362B(1A)(b);
7
(b) a decision to reinstate an application under
8
paragraph 362B(1C)(a) and to give directions (if any) under
9
that paragraph.
10
Note:
For similar provisions applying to a decision to confirm the dismissal
11
of an application under section 362B, see sections 368 and 368A.
12
Written statement of decision
13
(2) If the Tribunal makes a non-appearance decision, the Tribunal
14
must make a written statement that:
15
(a) sets out the decision; and
16
(b) sets out the reasons for the decision; and
17
(c) in the case of a decision to reinstate an application:
18
(i) sets out the findings on any material questions of fact;
19
and
20
(ii) refers to the evidence or any other material on which the
21
findings of fact were based; and
22
(d) records the day and time the statement is made.
23
(3) A non-appearance decision is taken to have been made:
24
(a) by the making of the written statement; and
25
(b) on the day, and at the time, the written statement is made.
26
(4) The Tribunal has no power to vary or revoke a non-appearance
27
decision after the day and time the written statement is made.
28
Note:
However, if the application is reinstated, the application is taken never
29
to have been dismissed (see subsection 362B(1D)).
30
Notice to applicant
31
(5) The Tribunal must notify the applicant of a non-appearance
32
decision by giving the applicant a copy of the written statement
33
Schedule 4 Migration Review Tribunal and Refugee Review Tribunal
Part 1 Amendments
26
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
made under subsection (2). The copy must be given to the
1
applicant:
2
(a) within 14 days after the day on which the decision is taken to
3
have been made; and
4
(b) by one of the methods specified in section 379A.
5
(6) In the case of a decision to dismiss the application, the copy of the
6
statement must be given to the applicant together with a statement
7
describing the effect of subsections 362B(1B) to (1F).
8
Notice to Secretary
9
(7) A copy of the written statement made under subsection (2) must
10
also be given to the Secretary:
11
(a) within 14 days after the day on which the decision is taken to
12
have been made; and
13
(b) by one of the methods specified in section 379B.
14
Validity etc. not affected by procedural irregularities
15
(8) The validity of a non-appearance decision, and the operation of
16
subsection (4), are not affected by:
17
(a) a failure to record, under paragraph (2)(d), the day and time
18
when the written statement was made; or
19
(b) a failure to comply with subsection (5), (6) or (7).
20
13 Subsection 368(1)
21
After "decision on a review", insert "(other than an oral decision)".
22
14 Paragraphs 368(1)(e) and (f)
23
Repeal the paragraphs, substitute:
24
(e) in the case of a decision under paragraph 362B(1C)(b) or
25
subsection 362B(1E) to confirm the dismissal of an
26
application--indicates that under subsection 362B(1F), the
27
decision under review is taken to be affirmed; and
28
(f) records the day and time the statement is made.
29
15 At the end of subsection 368(1)
30
Add:
31
Migration Review Tribunal and Refugee Review Tribunal Schedule 4
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
27
Note:
Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b),
1
or under subsection 362B(1E), must be made by a written statement
2
under this section. They cannot be given orally. These decisions may
3
be made following the failure of an applicant to appear before the
4
Tribunal.
5
16 Paragraph 368(4)(a)
6
Repeal the paragraph, substitute:
7
(a) a failure to record, under paragraph (1)(f), the day and time
8
when the written statement was made; or
9
17 Section 368D
10
Repeal the section, substitute:
11
368D Tribunal's decisions given orally
12
How and when oral decisions are taken to have been made
13
(1) A decision on a review that is given orally by the Tribunal is taken
14
to have been made, and notified to the applicant for the review, on
15
the day and at the time the decision is given orally.
16
Statement in relation to oral decision
17
(2) If a decision on a review is given orally, the Tribunal must:
18
(a) make an oral statement that:
19
(i) describes the decision of the Tribunal on the review;
20
and
21
(ii) describes the reasons for the decision; and
22
(iii) describes the findings on any material questions of fact;
23
and
24
(iv) refers to the evidence or any other material on which the
25
findings of fact were based; and
26
(v) identifies the day and time the decision is given orally;
27
or
28
(b) make a written statement that:
29
(i) sets out the decision of the Tribunal on the review; and
30
(ii) sets out the reasons for the decision; and
31
(iii) sets out the findings on any material questions of fact;
32
and
33
Schedule 4 Migration Review Tribunal and Refugee Review Tribunal
Part 1 Amendments
28
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
(iv) refers to the evidence or any other material on which the
1
findings of fact were based; and
2
(v) records the day and time the decision is given orally.
3
(3) The Tribunal has no power to vary or revoke the decision after the
4
day and time the decision is given orally.
5
Written statement to be provided on request of applicant
6
(4) If the Tribunal makes an oral statement under paragraph (2)(a) and,
7
within the period prescribed by regulation, the applicant makes a
8
written request for the statement to be provided in writing, the
9
Tribunal must:
10
(a) reduce the oral statement to writing; and
11
(b) within 14 days after the day the request is received by the
12
Tribunal, give a copy of the written statement:
13
(i) to the applicant by one of the methods specified in
14
section 379A; and
15
(ii) to the Secretary by one of the methods specified in
16
section 379B.
17
Written statement to be provided on request of Minister
18
(5) If the Tribunal makes an oral statement under paragraph (2)(a) and,
19
at any time after the oral statement is made, the Minister makes a
20
written request for the oral statement to be provided in writing, the
21
Tribunal must:
22
(a) reduce the oral statement to writing; and
23
(b) within 14 days after the day the request is received by the
24
Tribunal, give a copy of the written statement:
25
(i) to the Secretary by one of the methods specified in
26
section 379B; and
27
(ii) to the applicant by one of the methods specified in
28
section 379A.
29
Return of documents etc.
30
(6) After the Tribunal makes a statement under subsection (2), the
31
Tribunal must:
32
(a) return to the Secretary any document that the Secretary has
33
provided in relation to the review; and
34
Migration Review Tribunal and Refugee Review Tribunal Schedule 4
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
29
(b) give the Secretary a copy of any other document that contains
1
evidence or material on which the findings of fact were
2
based.
3
Validity etc. not affected by procedural irregularities
4
(7) The validity of a decision on a review, and the operation of
5
subsection (3), are not affected by:
6
(a) a failure to identify or record, under subsection (2), the day
7
and time when the decision was given orally; or
8
(b) a failure to comply with subsection (4), (5) or (6).
9
Note:
Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b),
10
or under subsection 362B(1E), must be made by a written statement
11
under section 368. They cannot be given orally. These decisions may
12
be made following the failure of an applicant to appear before the
13
Tribunal.
14
18 Section 410
15
Insert:
16
decision on a review means any of the following decisions of the
17
Tribunal in relation to an application for review of an
18
RRT-reviewable decision:
19
(a) a decision to affirm the RRT-reviewable decision;
20
(b) a decision to vary the RRT-reviewable decision;
21
(c) a decision under paragraph 415(2)(c) to remit a matter in
22
relation to the RRT-reviewable decision for reconsideration;
23
(d) a decision to set the RRT-reviewable decision aside and
24
substitute a new decision;
25
(e) a decision under paragraph 426A(1C)(b) or
26
subsection 426A(1E) to confirm a decision to dismiss the
27
application.
28
19 At the end of subsection 415(2)
29
Add:
30
; or (e) if the applicant fails to appear--exercise a power under
31
section 426A in relation to the dismissal or reinstatement of
32
an application.
33
Schedule 4 Migration Review Tribunal and Refugee Review Tribunal
Part 1 Amendments
30
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
20 Subsection 420A(2)
1
Repeal the subsection, substitute:
2
(2) Without limiting subsection (1), the directions may:
3
(a) relate to the application of efficient processing practices in
4
the conduct of reviews by the Tribunal; or
5
(b) set out procedures to be followed by applicants and their
6
representatives in relation to proceedings before the Tribunal.
7
21 Subsection 420A(3)
8
After "review", insert "(or a decision under paragraph 426A(1A)(b) or
9
(1C)(a))".
10
22 After section 420A
11
Insert:
12
420B Guidance decisions
13
(1) The Principal Member may, in writing, direct that a decision (the
14
guidance decision) of the Tribunal specified in the direction is to
15
be complied with by the Tribunal in reaching a decision on a
16
review of an RRT-reviewable decision of a kind specified in the
17
direction.
18
(2) In reaching a decision on a review of a decision of that kind, the
19
Tribunal must comply with the guidance decision unless the
20
Tribunal is satisfied that the facts or circumstances of the decision
21
under review are clearly distinguishable from the facts or
22
circumstances of the guidance decision.
23
(3) However, non-compliance by the Tribunal with a guidance
24
decision does not mean that the Tribunal's decision on a review is
25
an invalid decision.
26
23 Section 424AA
27
Before "If", insert "(1)".
28
24 At the end of section 424AA
29
Add:
30
Migration Review Tribunal and Refugee Review Tribunal Schedule 4
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
31
(2) A reference in this section to affirming a decision that is under
1
review does not include a reference to the affirmation of a decision
2
that is taken to be affirmed under subsection 426A(1F).
3
25 At the end of section 424A
4
Add:
5
(4) A reference in this section to affirming a decision that is under
6
review does not include a reference to the affirmation of a decision
7
that is taken to be affirmed under subsection 426A(1F).
8
26 Subsection 426A(1)
9
Repeal the subsection, substitute:
10
Scope
11
(1) This section applies if the applicant:
12
(a) is invited under section 425 to appear before the Tribunal;
13
but
14
(b) does not appear before the Tribunal on the day on which, or
15
at the time and place at which, the applicant is scheduled to
16
appear.
17
Tribunal may make a decision on the review or dismiss
18
proceedings
19
(1A) The Tribunal may:
20
(a) by written statement under section 430, make a decision on
21
the review without taking any further action to allow or
22
enable the applicant to appear before it; or
23
(b) by written statement under section 426B, dismiss the
24
application without any further consideration of the
25
application or information before the Tribunal.
26
Note 1:
Under section 430A, the Tribunal must notify the applicant of a
27
decision on the review.
28
Note 2:
Under section 426B, the Tribunal must notify the applicant of a
29
decision to dismiss the application.
30
Schedule 4 Migration Review Tribunal and Refugee Review Tribunal
Part 1 Amendments
32
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
Reinstatement of application or confirmation of dismissal
1
(1B) If the Tribunal dismisses the application, the applicant may, within
2
7 days after receiving notice of the decision under section 426B,
3
apply to the Tribunal for reinstatement of the application.
4
Note:
Section 441C sets out when a person (other than the Secretary) is
5
taken to have received a document from the Tribunal for the purposes
6
of this Part.
7
(1C) On application for reinstatement in accordance with
8
subsection (1B), the Tribunal must:
9
(a) if it considers it appropriate to do so--reinstate the
10
application, and give such directions as it considers
11
appropriate in the circumstances, by written statement under
12
section 426B; or
13
(b) confirm the decision to dismiss the application, by written
14
statement under section 430.
15
Note 1:
Under section 426B, the Tribunal must notify the applicant of a
16
decision to reinstate the application.
17
Note 2:
Under section 430A, the Tribunal must notify the applicant of a
18
decision to confirm the dismissal of the application.
19
(1D) If the Tribunal reinstates the application:
20
(a) the application is taken never to have been dismissed; and
21
(b) the Tribunal must conduct (or continue to conduct) the
22
review accordingly.
23
(1E) If the applicant fails to apply for reinstatement within the 7-day
24
period mentioned in subsection (1B), the Tribunal must confirm
25
the decision to dismiss the application, by written statement under
26
section 430.
27
Note:
Under section 430A, the Tribunal must notify the applicant of a
28
decision to confirm the dismissal of the application.
29
(1F) If the Tribunal confirms the decision to dismiss the application, the
30
decision under review is taken to be affirmed.
31
(1G) To avoid doubt, the Tribunal cannot give a decision orally under
32
subsection (1A), (1C) or (1E).
33
Migration Review Tribunal and Refugee Review Tribunal Schedule 4
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
33
Other measures to deal with failure of applicant to appear
1
27 After section 426A
2
Insert:
3
426B Failure to appear--Tribunal's decisions, written statements
4
and notifying the applicant
5
Decisions to which this section applies
6
(1) This section applies in relation to the following decisions (each of
7
which is a non-appearance decision):
8
(a) a decision to dismiss an application under
9
paragraph 426A(1A)(b);
10
(b) a decision to reinstate an application under
11
paragraph 426A(1C)(a) and to give directions (if any) under
12
that paragraph.
13
Note:
For similar provisions applying to a decision to confirm the dismissal
14
of an application under section 426A, see sections 430 and 430A.
15
Written statement of decision
16
(2) If the Tribunal makes a non-appearance decision, the Tribunal
17
must make a written statement that:
18
(a) sets out the decision; and
19
(b) sets out the reasons for the decision; and
20
(c) in the case of a decision to reinstate an application:
21
(i) sets out the findings on any material questions of fact;
22
and
23
(ii) refers to the evidence or any other material on which the
24
findings of fact were based; and
25
(d) records the day and time the statement is made.
26
(3) A non-appearance decision is taken to have been made:
27
(a) by the making of the written statement; and
28
(b) on the day, and at the time, the written statement is made.
29
(4) The Tribunal has no power to vary or revoke a non-appearance
30
decision after the day and time the written statement is made.
31
Schedule 4 Migration Review Tribunal and Refugee Review Tribunal
Part 1 Amendments
34
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
Note:
However, if the application is reinstated, the application is taken never
1
to have been dismissed (see subsection 426A(1D)).
2
Notice to applicant
3
(5) The Tribunal must notify the applicant of a non-appearance
4
decision by giving the applicant a copy of the written statement
5
made under subsection (2). The copy must be given to the
6
applicant:
7
(a) within 14 days after the day on which the decision is taken to
8
have been made; and
9
(b) by one of the methods specified in section 441A.
10
(6) In the case of a decision to dismiss the application, the copy of the
11
statement must be given to the applicant together with a statement
12
describing the effect of subsections 426A(1B) to (1F).
13
Notice to Secretary
14
(7) A copy of the written statement made under subsection (2) must
15
also be given to the Secretary:
16
(a) within 14 days after the day on which the decision is taken to
17
have been made; and
18
(b) by one of the methods specified in section 441B.
19
Validity etc. not affected by procedural irregularities
20
(8) The validity of a non-appearance decision, and the operation of
21
subsection (4), are not affected by:
22
(a) a failure to record, under paragraph (2)(d), the day and time
23
when the written statement was made; or
24
(b) a failure to comply with subsection (5), (6) or (7).
25
28 Subsection 430(1)
26
After "decision on a review", insert "(other than an oral decision)".
27
29 Paragraphs 430(1)(e) and (f)
28
Repeal the paragraphs, substitute:
29
(e) in the case of a decision under paragraph 426A(1C)(b) or
30
subsection 426A(1E) to confirm the dismissal of an
31
application--indicates that under subsection 426A(1F), the
32
decision under review is taken to be affirmed; and
33
Migration Review Tribunal and Refugee Review Tribunal Schedule 4
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
35
(f) records the day and time the statement is made.
1
30 At the end of subsection 430(1)
2
Add:
3
Note:
Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b),
4
or under subsection 426A(1E), must be made by a written statement
5
under this section. They cannot be given orally. These decisions may
6
be made following the failure of an applicant to appear before the
7
Tribunal.
8
31 Paragraph 430(4)(a)
9
Repeal the paragraph, substitute:
10
(a) a failure to record, under paragraph (1)(f), the day and time
11
when the written statement was made; or
12
32 Section 430D
13
Repeal the section, substitute:
14
430D Refugee Review Tribunal's oral decision and oral statement
15
How and when oral decisions are taken to have been made
16
(1) A decision on a review that is given orally by the Tribunal is taken
17
to have been made, and notified to the applicant for the review, on
18
the day and at the time the decision is given orally.
19
Statement in relation to oral decision
20
(2) If the Tribunal makes an oral decision on a review, the Tribunal
21
must:
22
(a) make an oral statement that:
23
(i) describes the decision of the Tribunal on the review;
24
and
25
(ii) describes the reasons for the decision; and
26
(iii) describes the findings on any material questions of fact;
27
and
28
(iv) refers to the evidence or any other material on which the
29
findings of fact were based; and
30
(v) identifies the day and time the decision is given orally;
31
or
32
Schedule 4 Migration Review Tribunal and Refugee Review Tribunal
Part 1 Amendments
36
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
(b) make a written statement that:
1
(i) sets out the decision of the Tribunal on the review; and
2
(ii) sets out the reasons for the decision; and
3
(iii) sets out the findings on any material questions of fact;
4
and
5
(iv) refers to the evidence or any other material on which the
6
findings of fact were based; and
7
(v) records the day and time the decision is given orally.
8
(3) The Tribunal has no power to vary or revoke the decision after the
9
day and time the decision is given orally.
10
Written statement to be provided on request of applicant
11
(4) If the Tribunal makes an oral statement under paragraph (2)(a) and,
12
within the period prescribed by regulation, the applicant makes a
13
written request for the oral statement to be provided in writing, the
14
Tribunal must:
15
(a) reduce the oral statement to writing; and
16
(b) within 14 days after the day the request is received by the
17
Tribunal, give a copy of the written statement:
18
(i) to the applicant by one of the methods specified in
19
section 441A; and
20
(ii) to the Secretary by one of the methods specified in
21
section 441B.
22
Written statement to be provided on request of Minister
23
(5) If the Tribunal makes an oral statement under paragraph (2)(a) and,
24
at any time after the oral statement is made, the Minister makes a
25
written request for the oral statement to be provided in writing, the
26
Tribunal must:
27
(a) reduce the oral statement to writing; and
28
(b) within 14 days after the day the request is received by the
29
Tribunal, give a copy of the written statement:
30
(i) to the Secretary by one of the methods specified in
31
section 441B; and
32
(ii) to the applicant by one of the methods specified in
33
section 441A.
34
Migration Review Tribunal and Refugee Review Tribunal Schedule 4
Amendments Part 1
No. , 2014
Migration Amendment (Protection and Other Measures) Bill 2014
37
Return of documents etc.
1
(6) After the Tribunal makes a statement under subsection (2), the
2
Tribunal must:
3
(a) return to the Secretary any document that the Secretary has
4
provided in relation to the review; and
5
(b) give the Secretary a copy of any other document that contains
6
evidence or material on which the findings of fact were
7
based.
8
Validity etc. not affected by procedural irregularities
9
(7) The validity of a decision on a review, and the operation of
10
subsection (3), are not affected by:
11
(a) a failure to identify or record, under subsection (2), the day
12
and time when the decision was given orally; or
13
(b) a failure to comply with subsection (4), (5) or (6).
14
Note:
Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b),
15
or under subsection 426A(1E), must be made by a written statement
16
under section 430. They cannot be given orally. These decisions may
17
be made following the failure of an applicant to appear before the
18
Tribunal.
19
33 Subsection 477(3) (paragraphs (b) and (c) of the definition
20
of date of the migration decision)
21
Repeal the paragraphs, substitute:
22
(b) in the case of a migration decision made by the Migration
23
Review Tribunal--the day the decision is taken to have been
24
made under subsection 362C(3), 368(2) or 368D(1); or
25
(c) in the case of a migration decision made by the Refugee
26
Review Tribunal--the day the decision is taken to have been
27
made under subsection 426B(3), 430(2) or 430D(1); or
28
Schedule 4 Migration Review Tribunal and Refugee Review Tribunal
Part 2 Application
38
Migration Amendment (Protection and Other Measures) Bill 2014
No. , 2014
Part 2
--Application
1
34 Application of amendments
2
General rule
3
(1)
Subject to subitem (2), the amendments of the Migration Act 1958 made
4
by Part 1 apply in relation to an application to the Migration Review
5
Tribunal or the Refugee Review Tribunal for review of a decision if:
6
(a) the application is made on or after the commencement of this
7
Schedule; or
8
(b) the application was made before the commencement of this
9
Schedule, but a decision on the review had not been made as
10
at the commencement of this Schedule.
11
Amendments relating to dismissal of Tribunal applications
12
(2)
The amendments of the Migration Act 1958 made by Part 1 that are
13
covered by subitem (3) apply in relation to an application to the
14
Migration Review Tribunal or the Refugee Review Tribunal for review
15
of a decision if:
16
(a) the application is made on or after the commencement of this
17
Schedule; or
18
(b) both:
19
(i) the application was made before the commencement of
20
this Schedule, but a decision on the review had not been
21
made as at the commencement of this Schedule; and
22
(ii) on or after the commencement of this Schedule, the
23
applicant is invited to appear before the Migration
24
Review Tribunal under section 360 of that Act, or the
25
Refugee Review Tribunal under section 425 of that Act,
26
as the case may be, for the purposes of the review.
27
(3)
The following amendments of the Migration Act 1958 made by Part 1
28
of this Schedule are covered by this subitem:
29
(a) amendments of sections 337, 349, 359AA, 359A, 362B, 410,
30
415, 424AA, 424A and 426A;
31
(b) the insertion of new sections 362C and 426B.
32