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This is a Bill, not an Act. For current law, see the Acts databases.
2013
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment Bill 2013
No. , 2013
(Immigration and Border Protection)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
No. , 2013
Migration Amendment Bill 2013
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 4
Schedule 1--When decisions are made and finally determined
5
Migration Act 1958
5
Schedule 2--Bar on further applications for protection visas
13
Migration Act 1958
13
Schedule 3--Security assessments
15
Migration Act 1958
15
No. , 2013
Migration Amendment Bill 2013
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 Act 2013.
5
2 Commencement
6
(1) Each provision of this Act specified in column 1 of the table
7
commences, or is taken to have commenced, in accordance with
8
column 2 of the table. Any other statement in column 2 has effect
9
according to its terms.
10
11
2
Migration Amendment Bill 2013
No. , 2013
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
The day after this Act receives the Royal
Assent.
3. Schedule 2,
items 1 and 2
The day after this Act receives the Royal
Assent.
4. Schedule 2,
item 3
Immediately after the start of the day after
this Act receives the Royal Assent.
5. Schedule 2,
item 4
Immediately after the commencement of
item 10 of Schedule 1 to the Migration
Amendment (Regaining Control Over
Australia's Protection Obligations) Act
2013.
However, the provision(s) do not commence
at all if that item commences before or on
the same day as the provision(s) covered by
table item 4.
6. Schedule 2,
item 5
The day after this Act receives the Royal
Assent.
7. Schedule 3,
item 1
The day after this Act receives the Royal
Assent.
8. Schedule 3,
item 2
The day after this Act receives the Royal
Assent.
However, the provision(s) do not commence
at all if item 17 of Schedule 1 to the
Migration Amendment (Regaining Control
Over Australia's Protection Obligations) Act
2013 commences before or on the same day
as the provision(s) covered by table item 7.
9. Schedule 3,
item 3
The later of:
(a) the start of the day after this Act receives
the Royal Assent; and
(b) immediately after the commencement of
No. , 2013
Migration Amendment Bill 2013
3
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
item 17 of Schedule 1 to the Migration
Amendment (Regaining Control Over
Australia's Protection Obligations) Act
2013.
However, the provision(s) do not commence
at all if the event mentioned in paragraph (b)
does not occur.
10. Schedule 3,
item 4
The day after this Act receives the Royal
Assent.
However, the provision(s) do not commence
at all if item 17 of Schedule 1 to the
Migration Amendment (Regaining Control
Over Australia's Protection Obligations) Act
2013 commences before or on the same day
as the provision(s) covered by table item 7.
11. Schedule 3,
item 5
The later of:
(a) the start of the day after this Act receives
the Royal Assent; and
(b) immediately after the commencement of
item 17 of Schedule 1 to the Migration
Amendment (Regaining Control Over
Australia's Protection Obligations) Act
2013.
However, the provision(s) do not commence
at all if the event mentioned in paragraph (b)
does not occur.
12. Schedule 3,
items 6 and 7
The day after this Act receives the Royal
Assent.
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
4
Migration Amendment Bill 2013
No. , 2013
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
When decisions are made and finally determined Schedule 1
No. , 2013
Migration Amendment Bill 2013
5
Schedule 1
--
When decisions are made and
1
finally determined
2
3
Migration Act 1958
4
1 Subsection 5(1)
5
Insert:
6
finally determined: for when an application under this Act is
7
finally determined, see subsections (9) and (9A).
8
2 Subsection 5(9)
9
Omit "finally determined", substitute " finally determined".
10
3 After subsection 5(9)
11
Insert:
12
(9A) Without limiting subsection (9), if a review of a decision that has
13
been made in respect of an application under this Act is instituted
14
under Part 5 or 7 as prescribed, the application is finally
15
determined when a decision on the review in respect of the
16
application is taken to have been made as provided by any of the
17
following provisions:
18
(a) subsection 368(2) (Migration Review Tribunal written
19
decisions);
20
(b) subsection 368D(1) (Migration Review Tribunal oral
21
decisions);
22
(c) subsection 430(2) (Refugee Review Tribunal written
23
decisions);
24
(d) subsection 430D(1) (Refugee Review Tribunal oral
25
decisions).
26
(9B) However, subsection (9A) does not apply in relation to the
27
following decisions:
28
(a) a decision of the Migration Review Tribunal under
29
paragraph 349(2)(c);
30
(b) a decision of the Refugee Review Tribunal under
31
paragraph 415(2)(c).
32
Schedule 1 When decisions are made and finally determined
6
Migration Amendment Bill 2013
No. , 2013
Note:
These decisions are for the remission of some matters by the relevant
1
Tribunal.
2
4 Section 67
3
Repeal the section, substitute:
4
67 Grant and refusal of visa--how and when
5
(1) The following decisions are taken to be made by the Minister
6
causing a record to be made of the decision:
7
(a) a decision to grant a visa;
8
(b) a decision to refuse to grant a visa.
9
(2) The record must state the day and time of its making.
10
(3) The decision is taken to have been made on the day and at the time
11
the record is made.
12
(4) The Minister has no power to vary or revoke the decision after the
13
day and time the record is made.
14
(5) Failure to comply with subsection (2) does not affect the validity of
15
the decision or the operation of subsection (4).
16
5 Subsection 134(1)
17
Omit ", by written notice given to its holder,".
18
6 Subsection 134(3A)
19
Omit ", by written notice to its holder,".
20
7 Subsection 134(4)
21
Omit "by giving written notice to that person".
22
8 Subsection 134(7)
23
Omit "include in the notice given to its holder", substitute "give written
24
notice of the cancellation decision to its holder, including".
25
9 Section 138
26
Repeal the section, substitute:
27
When decisions are made and finally determined Schedule 1
No. , 2013
Migration Amendment Bill 2013
7
138 Cancellation and revocation of cancellation of visas--how and
1
when
2
(1) The following decisions are taken to be made by the Minister
3
causing a record to be made of the decision:
4
(a) a decision to cancel a visa, or not to cancel a visa;
5
(b) a decision to revoke the cancellation of a visa, or not to
6
revoke the cancellation of a visa.
7
(2) The record must state the day and time of its making.
8
(3) The decision is taken to have been made on the day and at the time
9
the record is made.
10
(4) The Minister has no power to vary or revoke the decision after the
11
day and time the record is made.
12
(5) Failure to comply with subsection (2) does not affect the validity of
13
the decision or the operation of subsection (4).
14
10 After subsection 355(1)
15
Insert:
16
(1A) To avoid doubt, this section does not apply after a decision on the
17
review is taken to have been made as provided by
18
subsection 368(2) (written decisions) or subsection 368D(1) (oral
19
decisions).
20
11 Paragraph 355A(2)(a)
21
Repeal the paragraph, substitute:
22
(a) the Tribunal's decision on the review has not been taken to
23
have been made as provided by subsection 368(2) (written
24
decisions) or subsection 368D(1) (oral decisions); and
25
12 Section 368 (heading)
26
Repeal the heading, substitute:
27
Schedule 1 When decisions are made and finally determined
8
Migration Amendment Bill 2013
No. , 2013
368 Tribunal's decision and written statement
1
Written statement of decision
2
13 Subsection 368(1)
3
Omit "prepare", substitute "make".
4
14 Paragraph 368(1)(a)
5
Omit "review;", substitute "review; and".
6
15 Paragraph 368(1)(b)
7
Omit "decision;", substitute "decision; and".
8
16 At the end of subsection 368(1)
9
Add:
10
; and (e) unless the decision is given orally--records the day and time
11
the statement is made; and
12
(f) if the decision is given orally--records the day and time the
13
decision is given orally.
14
17 Subsection 368(2)
15
Repeal the subsection, substitute:
16
How and when written decisions are taken to be made
17
(2) A decision on a review (other than an oral decision) is taken to
18
have been made:
19
(a) by the making of the written statement; and
20
(b) on the day, and at the time, the written statement is made.
21
Note:
For oral decisions, see section 368D.
22
(2A) The Tribunal has no power to vary or revoke a decision to which
23
subsection (2) applies after the day and time the written statement
24
is made.
25
When decisions are made and finally determined Schedule 1
No. , 2013
Migration Amendment Bill 2013
9
Return of documents etc.
1
18 Subsection 368(3)
2
Omit "Where the Tribunal has prepared the written statement, the
3
Tribunal shall", substitute "After the Tribunal makes the written
4
statement, the Tribunal must".
5
19 At the end of section 368
6
Add:
7
Validity etc. not affected by procedural irregularities
8
(4) The validity of a decision on a review, and the operation of
9
subsection (2A), are not affected by:
10
(a) a failure to record, under paragraph (1)(e) or (f), the day and
11
time when the written statement was made or the decision
12
was given orally (as the case requires); or
13
(b) a failure to comply with subsection (3).
14
20 Section 368D
15
Repeal the section, substitute:
16
368D Tribunal's decision given orally
17
(1) A decision on a review that is given orally by the Tribunal is taken
18
to have been made, and notified to the applicant for the review, on
19
the day and at the time the decision is given orally.
20
(2) The Tribunal has no power to vary or revoke the decision after the
21
day and time the decision is given orally.
22
(3) The Tribunal must give the applicant and the Secretary a copy of
23
the statement made under subsection 368(1) within 14 days after
24
the decision is given orally.
25
(4) Failure to comply with subsection (3) does not affect the validity of
26
the decision or the operation of subsection (2).
27
21 After subsection 422(1)
28
Insert:
29
Schedule 1 When decisions are made and finally determined
10
Migration Amendment Bill 2013
No. , 2013
(1A) To avoid doubt, this section does not apply after a decision on the
1
review is taken to have been made as provided by
2
subsection 430(2) (written decisions) or subsection 430D(1) (oral
3
decisions).
4
22 Paragraph 422A(2)(a)
5
Repeal the paragraph, substitute:
6
(a) the Tribunal's decision on the review has not been taken to
7
have been made as provided by subsection 430(2) (written
8
decisions) or subsection 430D(1) (oral decisions); and
9
23 Section 430 (heading)
10
Repeal the heading, substitute:
11
430 Refugee Review Tribunal's decision and written statement
12
Written statement of decision
13
24 Subsection 430(1)
14
Omit "prepare", substitute "make".
15
25 At the end of subsection 430(1)
16
Add:
17
; and (e) unless the decision is given orally--records the day and time
18
the statement is made; and
19
(f) if the decision is given orally--records the day and time the
20
decision is given orally.
21
26 Subsection 430(2)
22
Repeal the subsection, substitute:
23
How and when written decisions are taken to be made
24
(2) A decision on a review (other than an oral decision) is taken to
25
have been made:
26
(a) by the making of the written statement; and
27
(b) on the day, and at the time, the written statement is made.
28
Note:
For oral decisions, see section 430D.
29
When decisions are made and finally determined Schedule 1
No. , 2013
Migration Amendment Bill 2013
11
(2A) The Tribunal has no power to vary or revoke a decision to which
1
subsection (2) applies after the day and time the written statement
2
is made.
3
Return of documents etc.
4
27 Subsection 430(3)
5
Omit "Where the Tribunal has prepared the written statement, the
6
Tribunal must", substitute "After the Tribunal makes the written
7
statement, the Tribunal must".
8
28 At the end of section 430
9
Add:
10
Validity etc. not affected by procedural irregularities
11
(4) The validity of a decision on a review, and the operation of
12
subsection (2A), are not affected by:
13
(a) a failure to record, under paragraph (1)(e) or (f), the day and
14
time when the written statement was made or the decision
15
was given orally (as the case requires); or
16
(b) a failure to comply with subsection (3).
17
29 Section 430D
18
Repeal the section, substitute:
19
430D Tribunal's decision given orally
20
(1) A decision on a review that is given orally by the Tribunal is taken
21
to have been made, and notified to the applicant for the review, on
22
the day and at the time the decision is given orally.
23
(2) The Tribunal has no power to vary or revoke the decision after the
24
day and time the decision is given orally.
25
(3) The Tribunal must give the applicant and the Secretary a copy of
26
the statement made under subsection 430(1) within 14 days after
27
the decision is given orally.
28
(4) Failure to comply with subsection (3) does not affect the validity of
29
the decision or the operation of subsection (2).
30
Schedule 1 When decisions are made and finally determined
12
Migration Amendment Bill 2013
No. , 2013
30 Application
--
Schedule 1
1
(1)
The amendments of the Migration Act 1958 made by items 1 to 3 and
2
items 10 to 29 apply in relation to a decision of the Migration Review
3
Tribunal or the Refugee Review Tribunal that is taken to have been
4
made, as provided by that Act as so amended, on or after the
5
commencement of this Schedule.
6
(2)
The amendments of the Migration Act 1958 made by items 4 to 9 apply
7
in relation to a decision of the Minister that is taken to have been made,
8
as provided by that Act as so amended, on or after the commencement
9
of this Schedule.
10
Bar on further applications for protection visas Schedule 2
No. , 2013
Migration Amendment Bill 2013
13
Schedule 2
--
Bar on further applications for
1
protection visas
2
3
Migration Act 1958
4
1 Section 48A (heading)
5
Repeal the heading, substitute:
6
48A No further applications for protection visa after refusal or
7
cancellation
8
2 After subsection 48A(1B)
9
Insert:
10
(1C) Subsections (1) and (1B) apply in relation to a non-citizen
11
regardless of any of the following:
12
(a) the grounds on which an application would be made or the
13
criteria which the non-citizen would claim to satisfy;
14
(b) whether the grounds on which an application would be made
15
or the criteria which the non-citizen would claim to satisfy
16
existed earlier;
17
(c) the grounds on which an earlier application was made or the
18
criteria which the non-citizen earlier claimed to satisfy;
19
(d) the grounds on which a cancelled protection visa was granted
20
or the criteria the non-citizen satisfied for the grant of that
21
visa.
22
3 Subsection 48A(2) (paragraph (aa) of the definition of
23
application for a protection visa)
24
Repeal the paragraph, substitute:
25
(aa) an application for a visa that, under this Act or the
26
regulations as in force at any time, is or was a visa of the
27
class known as protection visas; and
28
4 Subsection 48A(2) (paragraph (aa) of the definition of
29
application for a protection visa)
30
Repeal the paragraph, substitute:
31
Schedule 2 Bar on further applications for protection visas
14
Migration Amendment Bill 2013
No. , 2013
(aa) an application for a visa that, under this Act or the
1
regulations as in force at any time, is or was a visa of the
2
class known as protection visas; and
3
Note:
This item does not commence at all if item 10 of Schedule 1 to the Migration
4
Amendment (Regaining Control Over Australia's Protection Obligations) Act 2013
5
commences before or on the same day as the provision(s) covered by table item 4 in
6
subsection 2(1) of this Act. See table item 5 in subsection 2(1) of this Act.
7
5 Application of amendments
8
(1)
For the purposes of the application of section 48A of the Migration Act
9
1958 after the commencement of item 2 of this Schedule, a non-citizen
10
is prevented from making an application for a protection visa after the
11
commencement of the item, because of a refusal or cancellation referred
12
to in subsection 48A(1) or (1B), whether the refusal or cancellation
13
happened before, on or after that commencement.
14
(2)
For the purposes of determining whether a non-citizen is prevented,
15
after the commencement of item 2 of this Schedule, from making an
16
application for a protection visa under section 48A of the Migration Act
17
1958, an amendment made by item 3 or 4 of this Schedule applies in
18
relation to any earlier application for a protection visa whether made
19
before, on or after the commencement of the item.
20
Security assessments Schedule 3
No. , 2013
Migration Amendment Bill 2013
15
Schedule 3
--
Security assessments
1
2
Migration Act 1958
3
1 After subsection 36(1)
4
Insert:
5
(1A) An applicant for a protection visa must satisfy:
6
(a) the criterion in subsection (1B); and
7
(b) at least one of the criteria in subsection (2).
8
(1B) A criterion for a protection visa is that the applicant is not assessed
9
by the Australian Security Intelligence Organisation to be directly
10
or indirectly a risk to security (within the meaning of section 4 of
11
the Australian Security Intelligence Organisation Act 1979).
12
2 Paragraph 411(1)(c)
13
Repeal the paragraph, substitute:
14
(c) a decision to refuse to grant a protection visa, other than a
15
decision that was made relying on:
16
(i) one or more of Articles 1F, 32 or 33(2) of the Refugees
17
Convention; or
18
(ii) subsection 36(1B); or
19
(iii) paragraph 36(2C)(a) or (b);
20
Note:
This item does not commence at all if item 17 of Schedule 1 to the Migration
21
Amendment (Regaining Control Over Australia's Protection Obligations) Act 2013
22
commences before or on the same day as the provision(s) covered by table item 7 in
23
subsection 2(1) of this Act. See table item 8 in subsection 2(1) of this Act.
24
3 Paragraph 411(1)(c)
25
Repeal the paragraph, substitute:
26
(c) a decision to refuse to grant a protection visa, other than a
27
decision that was made relying on:
28
(i) one or more of Articles 1F, 32 or 33(2) of the Refugees
29
Convention; or
30
(ii) subsection 36(1B);
31
Note:
This item does not commence at all if item 17 of Schedule 1 to the Migration
32
Amendment (Regaining Control Over Australia's Protection Obligations) Act 2013 does
33
not commence. See table item 9 in subsection 2(1) of this Act.
34
Schedule 3 Security assessments
16
Migration Amendment Bill 2013
No. , 2013
4 Paragraph 411(1)(d)
1
Repeal the paragraph, substitute:
2
(d) a decision to cancel a protection visa, other than a decision
3
that was made because of:
4
(i) one or more of Articles 1F, 32 or 33(2) of the Refugees
5
Convention; or
6
(ii) an assessment by the Australian Security Intelligence
7
Organisation that the holder of the visa is directly or
8
indirectly a risk to security (within the meaning of
9
section 4 of the Australian Security Intelligence
10
Organisation Act 1979); or
11
(iii) paragraph 36(2C)(a) or (b).
12
Note:
This item does not commence at all if item 17 of Schedule 1 to the Migration
13
Amendment (Regaining Control Over Australia's Protection Obligations) Act 2013
14
commences before or on the same day as the provision(s) covered by table item 7 in
15
subsection 2(1) of this Act. See table item 10 in subsection 2(1) of this Act.
16
5 Paragraph 411(1)(d)
17
Repeal the paragraph, substitute:
18
(d) a decision to cancel a protection visa, other than a decision
19
that was made because of:
20
(i) one or more of Articles 1F, 32 or 33(2) of the Refugees
21
Convention; or
22
(ii) an assessment by the Australian Security Intelligence
23
Organisation that the holder of the visa is directly or
24
indirectly a risk to security (within the meaning of
25
section 4 of the Australian Security Intelligence
26
Organisation Act 1979).
27
Note:
This item does not commence at all if item 17 of Schedule 1 to the Migration
28
Amendment (Regaining Control Over Australia's Protection Obligations) Act 2013 does
29
not commence. See table item 11 in subsection 2(1) of this Act.
30
6 After subsection 500(4)
31
Insert:
32
(4A) The following decisions are not reviewable under this section, or
33
under Part 5 or 7:
34
(a) a decision to refuse to grant a protection visa relying on
35
subsection 36(1B);
36
Security assessments Schedule 3
No. , 2013
Migration Amendment Bill 2013
17
(b) a decision to cancel a protection visa because of an
1
assessment by the Australian Security Intelligence
2
Organisation that the holder of the visa is directly or
3
indirectly a risk to security (within the meaning of section 4
4
of the Australian Security Intelligence Organisation Act
5
1979).
6
7 Application provision
7
An amendment made by an item of this Schedule applies in relation to:
8
(a) an application for a protection visa made on or after the
9
commencement of the item; and
10
(b) an application for a protection visa made before the
11
commencement of the item but not finally determined as at
12
the commencement of the item; and
13
(c) a decision to cancel a protection visa made on or after the
14
commencement of the item, regardless of whether the visa
15
was granted before, on or after the commencement of the
16
item.
17
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