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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000-2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Migration
Amendment (Excision from Migration Zone) (Consequential Provisions) Bill
2001
No. ,
2001
(Immigration and Multicultural
Affairs)
A Bill for an Act to make
consequential provision for dealing with unauthorised arrivals in places excised
from the migration zone under the Migration Act 1958 for purposes related
to unauthorised arrivals, and for related purposes
Contents
A Bill for an Act to make consequential provision for
dealing with unauthorised arrivals in places excised from the migration zone
under the Migration Act 1958 for purposes related to unauthorised
arrivals, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Amendment (Excision from
Migration Zone) (Consequential Provisions) Act 2001.
This Act commences, or is taken to have commenced, at the same time as
the Migration Amendment (Excision from Migration Zone) Act
2001.
(1) Each Act, and each set of regulations, that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
(2) The amendment of any regulation under subsection (1) does not
prevent the regulation, as so amended, from being amended or repealed by the
Governor-General.
(3) To avoid doubt, regulations amended under subsection (1) are
taken to still be regulations.
The amendment made by item 7 of Schedule 1 applies
to:
(a) the institution of proceedings on or after the day on which this Act
receives the Royal Assent; and
(b) the continuation, after the day on which this Act receives the Royal
Assent, of proceedings that were instituted before that day, being proceedings
instituted after the excision time for the excised offshore place
concerned.
Example: Proceedings of the kind mentioned in
section 494AA of the Migration Act are instituted, before the day on which
this Act receives the Royal Assent, in relation to a person who became an
offshore entry person by entering Australia at Christmas Island. Those
proceedings cannot be continued after the day on which this Act receives the
Royal Assent.
1 Subsection 5(1) (at the end of the definition
of immigration detention)
Add:
Note: See also section 198A, which provides that being
dealt with under that section does not amount to immigration
detention.
2 Subsection 189(1)
After “migration zone”, insert “(other than an excised
offshore place)”.
3 Paragraph 189(2)(a)
After “migration zone”, insert “(other than an excised
offshore place)”.
4 At the end of
section 189
Add:
(3) If an officer knows or reasonably suspects that a person in an excised
offshore place is an unlawful non-citizen, the officer may detain the
person.
(4) If an officer reasonably suspects that a person in Australia but
outside the migration zone:
(a) is seeking to enter an excised offshore place; and
(b) would, if in the migration zone, be an unlawful non-citizen;
the officer may detain the person.
(5) In subsections (3) and (4) and any other provisions of this Act
that relate to those subsections, officer means an officer within
the meaning of section 5, and includes a member of the Australian Defence
Force.
5 At the end of paragraph
193(1)(c)
Add “, (3) or (4)”.
6 After section 198
Insert:
(1) An officer may take an offshore entry person from Australia to a
country in respect of which a declaration is in force under
subsection (3).
(2) The power under subsection (1) includes the power to do any of
the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) The Minister may:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures
for assessing their need for protection; and
(ii) provides protection for persons seeking asylum, pending determination
of their refugee status; and
(iii) provides protection to persons who are given refugee status, pending
their voluntary repatriation to their country of origin or resettlement in
another country; and
(iv) meets relevant human rights standards in providing that protection;
and
(b) in writing, revoke a declaration made under
paragraph (a).
(4) An offshore entry person who is being dealt with under this section is
taken not to be in immigration detention (as defined in subsection
5(1)).
(5) In this section, officer means an officer within the
meaning of section 5, and includes a member of the Australian Defence
Force.
7 After section 494
Insert:
(1) The following proceedings against the Commonwealth may not be
instituted or continued in any court:
(a) proceedings relating to an offshore entry by an offshore entry
person;
(b) proceedings relating to the status of an offshore entry person as an
unlawful non-citizen during any part of the ineligibility period;
(c) proceedings relating to the lawfulness of the detention of an offshore
entry person during the ineligibility period, being a detention based on the
status of the person as an unlawful non-citizen;
(d) proceedings relating to the exercise of powers under
section 198A.
(2) This section has effect despite anything else in this Act or any other
law.
(3) Nothing in this section is intended to affect the jurisdiction of the
High Court under section 75 of the Constitution.
(4) In this section:
Commonwealth includes:
(a) an officer of the Commonwealth; and
(b) any other person acting on behalf of the Commonwealth.
ineligibility period means the period from the time of the
offshore entry until the time when the person next ceases to be an unlawful
non-citizen.
offshore entry means an entry into Australia that
occurs:
(a) at an excised offshore place; and
(b) after the excision time for the offshore place
concerned.
[1] Schedule 1,
item 1127
omit
[2] Schedule 1, Part 4,
heading
substitute
Part 4 Protection, Refugee and
Humanitarian visas
[3] Schedule 1, after
item 1401
insert
1402. Refugee and Humanitarian (Class XB)
(1) Form: 842.
(2) Visa application charge: Nil.
(3) Other:
(a) Application must be made outside Australia.
(b) Applicant must be outside Australia.
(c) Application by a person claiming to be a member of the family unit of
a person who is an applicant for a Refugee and Humanitarian (Class XB) visa may
be made at the same time and place as, and combined with, the application by
that person.
(4) Subclasses:
200 (Refugee)
201 (In-country Special Humanitarian)
202 (Global Special Humanitarian)
203 (Emergency Rescue)
204 (Woman at Risk)
447 (Secondary Movement Offshore Entry (Temporary))
451 (Secondary Movement Relocation (Temporary))
[4] Schedule 2, after
clause 200.211
insert
200.212 (1) The applicant, since leaving his or her home country, has not
ever resided, for a continuous period of at least 7 days, in a country in which
the applicant could have sought and obtained effective protection:
(a) of the country; or
(b) through the offices of the United Nations High Commissioner for
Refugees located in that country.
(2) The Minister may waive the requirement under subclause (1) if
the Minister is satisfied that it is in the public interest to do so.
[5] Schedule 2, after
clause 202.211
insert
202.212 (1) The applicant, since leaving his or her home country, has not
ever resided, for a continuous period of at least 7 days, in a country in which
the applicant could have sought and obtained effective protection:
(a) of the country; or
(b) through the offices of the United Nations High Commissioner for
Refugees located in that country.
(2) The Minister may waive the requirement under subclause (1) if
the Minister is satisfied that it is in the public interest to do so.
[6] Schedule 2, after
clause 204.212
insert
204.213 (1) The applicant, since leaving his or her home country, has not
ever resided, for a continuous period of at least 7 days, in a country in which
the applicant could have sought and obtained effective protection:
(a) of the country; or
(b) through the offices of the United Nations High Commissioner for
Refugees located in that country.
(2) The Minister may waive the requirement under subclause (1) if
the Minister is satisfied that it is in the public interest to do so.
[7] Schedule 2, after
Part 446
insert
Subclass 447 Secondary Movement Offshore
Entry (Temporary)
447.1 Interpretation
Note member of the family unit is defined in regulation
1.03.
No interpretation provisions specific to this Part.
447.2 Primary criteria
Note The primary criteria must be satisfied by at least 1 member
of a family unit. Other members of the family unit who are applicants for a visa
of this subclass need satisfy only the secondary criteria.
447.21 Criteria to be satisfied at time of
application
447.211 The applicant:
(a) is either:
(i) subject to persecution in the applicant’s home country; or
(ii) subject to substantial discrimination, amounting to gross violation
of human rights, in the applicant’s home country; or
(iii) a female person who is subject to persecution or is registered as
being of concern to the United Nations High Commissioner for Refugees;
and
(b) is an offshore entry person.
447.22 Criteria to be satisfied at time of
decision
447.221 The applicant continues to satisfy the criterion in
clause 447.211.
447.222 The Minister is satisfied that there are compelling reasons for
giving special consideration to granting the applicant a temporary visa, having
regard to:
(a) the extent of the applicant’s connection with Australia; and
(b) if the applicant continues to meet the requirement in subparagraph
447.211 (a) (i) — the degree of persecution to which the applicant is
subject in the applicant’s home country; and
(c) if the applicant continues to meet the requirement in subparagraph
447.211 (a) (ii) — the degree of discrimination to which the applicant is
subject in the applicant’s home country; and
(d) if the applicant continues to meet the requirement in subparagraph
447.211 (a) (iii) — whether the applicant has the protection of a male
relative and is in danger of victimisation, harassment or serious abuse because
of her sex; and
(e) whether there is any suitable country available, other than Australia,
that can provide for the applicant’s stay and protection from persecution,
discrimination, victimisation, harassment or serious abuse; and
(f) the capacity of the Australian community to provide for the temporary
stay of persons such as the applicant in Australia.
447.223 The Minister is satisfied that temporary stay in Australia would
not be contrary to the interests of Australia.
447.224 Grant of the visa would not result in either:
(a) the number of Subclass 447 visas granted in a financial year exceeding
the maximum number of Subclass 447 visas, as determined by Gazette Notice, that
may be granted in that financial year; or
(b) the number of visas of particular classes (including Refugee and
Humanitarian (Class XB) visa) granted in a financial year exceeding the maximum
number of visas of those classes, as determined by Gazette Notice, that may be
granted in that financial year.
447.225 The applicant satisfies public interest criteria 4001, 4002, 4003,
4004 and 4007.
447.226 If the applicant has previously been in Australia, the applicant
satisfies special return criterion 5001.
447.227 (1) In relation to the family unit of the applicant, each member
of the family unit who is an applicant for a Subclass 447 visa is a person
who:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007;
and
(b) if he or she has previously been in Australia — satisfies
special return criterion 5001.
(2) In relation to the family unit of the applicant, each member of the
family unit who is not an applicant for a Subclass 447 visa is a person
who:
(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and
(b) satisfies public interest criterion 4007, unless the Minister is
satisfied that it would be unreasonable to require the person to undergo
assessment in relation to that criterion.
447.3 Secondary criteria
Note These criteria must be satisfied by applicants who are
members of the family unit of a person who satisfies the primary criteria.
447.31 Criteria to be satisfied at time of
application
447.311 The applicant:
(a) is a member of the family unit of a person who satisfies, or has
satisfied, the criterion in clause 447.211; and
(b) is in the same country as that person.
447.32 Criteria to be satisfied at time of
decision
447.321 The applicant continues to be a member of the family unit of a
person who, having satisfied the primary criteria, is the holder of a Subclass
447 visa.
447.322 If the applicant has not turned 18, public interest criteria 4017
and 4018 are satisfied in relation to the applicant.
447.323 The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007;
and
(b) if he or she has previously been in Australia, satisfies special
return criterion 5001.
447.4 Circumstances applicable to grant
447.411 The applicant must be outside Australia at the time of grant.
447.5 When visa is in effect
447.511 Temporary visa permitting the holder:
(a) to travel to and enter Australia on 1 occasion, as specified by the
Minister; and
(b) to remain in Australia until:
(i) if the holder applies for a visa after the temporary visa is granted
and before the end of 36 months from the grant — the day on which the
application is finally determined; and
(ii) in any other case — the end of the 36 months.
447.6 Conditions
447.611 The holder cannot be granted a substantive visa other than a
protection visa.
447.612 Entry must be made before the date specified by the Minister for
the purpose.
447.613 Condition 8502 may be imposed.
447.7 Way of giving evidence
447.711 Visa label affixed to a Convention travel document or valid
passport.
[8] Schedule 2, after
Part 450
insert
Subclass 451 Secondary Movement
Relocation (Temporary)
451.1 Interpretation
Note member of the family unit is defined in regulation
1.03.
No interpretation provisions specific to this Part.
451.2 Primary criteria
Note The primary criteria must be satisfied by at least 1 member
of a family unit. Other members of the family unit who are applicants for a visa
of this subclass need satisfy only the secondary criteria.
451.21 Criteria to be satisfied at time of
application
451.211 The applicant:
(a) is either:
(i) subject to persecution in the applicant’s home country; or
(ii) subject to substantial discrimination, amounting to gross violation
of human rights, in the applicant’s home country; or
(iii) a female person who is subject to persecution or is registered as
being of concern to the United Nations High Commissioner for Refugees;
and
(b) is outside his or her home country and is not an offshore entry
person.
451.22 Criteria to be satisfied at time of
decision
451.221 The applicant continues to satisfy the criterion in
clause 451.211.
451.222 The Minister is satisfied that there are compelling reasons for
giving special consideration to granting the applicant a temporary visa, having
regard to:
(a) the extent of the applicant’s connection with Australia; and
(b) if the applicant continues to meet the requirement in subparagraph
451.211 (a) (i) — the degree of persecution to which the applicant is
subject in the applicant’s home country; and
(c) if the applicant continues to meet the requirement in subparagraph
451.211 (a) (ii) — the degree of discrimination to which the applicant is
subject in the applicant’s home country; and
(d) if the applicant continues to meet the requirement in subparagraph
451.211 (a) (iii) — whether the applicant has the protection of a male
relative and is in danger of victimisation, harassment or serious abuse because
of her sex; and
(e) whether there is any suitable country available, other than Australia,
that can provide for the applicant’s stay and protection from persecution,
discrimination, victimisation, harassment or serious abuse; and
(f) the capacity of the Australian community to provide for the temporary
stay of persons such as the applicant in Australia.
451.223 The Minister is satisfied that temporary stay in Australia would
not be contrary to the interests of Australia.
451.224 Grant of the visa would not result in either:
(a) the number of Subclass 451 visas granted in a financial year exceeding
the maximum number of Subclass 451 visas, as determined by Gazette Notice, that
may be granted in that financial year; or
(b) the number of visas of particular classes (including Refugee and
Humanitarian (Class XB) visa) granted in a financial year exceeding the maximum
number of visas of those classes, as determined by Gazette Notice, that may be
granted in that financial year.
451.225 The applicant satisfies public interest criteria 4001, 4002, 4003,
4004 and 4007.
451.226 If the applicant has previously been in Australia, the applicant
satisfies special return criterion 5001.
451.227 (1) In relation to the family unit of the applicant, each member
of the family unit who is an applicant for a Subclass 451 visa is a person
who:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007;
and
(b) if he or she has previously been in Australia — satisfies
special return criterion 5001.
(2) In relation to the family unit of the applicant, each member of the
family unit who is not an applicant for a Subclass 451 visa is a person
who:
(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and
(b) satisfies public interest criterion 4007, unless the Minister is
satisfied that it would be unreasonable to require the person to undergo
assessment in relation to that criterion.
451.3 Secondary criteria
Note These criteria must be satisfied by applicants who are
members of the family unit of a person who satisfies the primary criteria.
451.31 Criteria to be satisfied at time of
application
451.311 The applicant:
(a) is a member of the family unit of a person who satisfies, or has
satisfied, the criterion in clause 451.211; and
(b) is in the same country as that person.
451.32 Criteria to be satisfied at time of
decision
451.321 The applicant continues to be a member of the family unit of a
person who, having satisfied the primary criteria, is the holder of a Subclass
451 visa.
451.322 If the applicant has not turned 18, public interest criteria 4017
and 4018 are satisfied in relation to the applicant.
451.323 The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004 and 4007;
and
(b) if he or she has previously been in Australia, satisfies special
return criterion 5001.
451.4 Circumstances applicable to grant
451.411 The applicant must be outside Australia at the time of grant.
451.5 When visa is in effect
451.511 Temporary visa permitting the holder:
(a) to travel to and enter Australia on 1 occasion, as specified by the
Minister; and
(b) to remain in Australia until:
(i) if the holder applies for a visa after the temporary visa is granted
and before the end of 60 months from the grant — the day on which the
application is finally determined; and
(ii) in any other case — the end of the 60 months.
451.6 Conditions
451.611 The holder cannot be granted a substantive visa other than a
protection visa.
451.612 Entry must be made before the date specified by the Minister for
the purpose.
451.613 Condition 8502 may be imposed.
451.7 Way of giving evidence
451.711 Visa label affixed to a Convention travel document or valid
passport.
[9] Schedule 2, after
866.213
insert
866.214 (1) The applicant has not held a Subclass 447 (Secondary Movement
Offshore Entry (Temporary)) visa since last entering Australia.
(2) The Minister may waive the requirement under subclause (1) if
the Minister is satisfied that it is in the public interest to do so.
866.215 (1) If the applicant has held a Subclass 785 (Temporary
Protection) visa since last entering Australia, the applicant, since leaving his
or her home country, has not ever resided, for a continuous period of at least 7
days, in a country in which the applicant could have sought and obtained
effective protection:
(a) of the country; or
(b) through the offices of the United Nations High Commissioner for
Refugees located in that country.
(2) The Minister may waive the requirement under subclause (1) if
the Minister is satisfied that it is in the public interest to do so.
[10] Schedule 2, after
866.228
866.228A If the applicant holds a Subclass 451 (Secondary Movement
Relocation (Temporary)) visa, the applicant has held that visa for the lesser
of:
(a) a continuous period of 54 months; and
(b) a shorter period specified in writing by the Minister in relation to
the applicant.
[11] Transitional
(1) The amendments made by items [1] to [10] apply to an application for a
visa made after the commencement of this Act.
(2) Despite anything in items [1] to [10], item 1127 and
Parts 200, 201, 202, 203 and 204 of the Migration Regulations 1994
as they read immediately before the commencement of this Act continue to apply
in relation to:
(a) applications for Subclass 200 (Refugee), 201 (In-country Special
Humanitarian), 202 (Global Special Humanitarian), 203 (Emergency Rescue) or 204
(Woman at Risk) visas made, but not finally determined within the meaning of
subsection 5(9) of the Migration Act 1958, before the commencement of
this Act; and
(b) Subclass 200, 201, 202, 203 or 204 visas in effect on that
date.