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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 and Maritime Powers
Legislation Amendment (Resolving the
Asylum Legacy Caseload) Bill 2014
No. , 2014
(Immigration and Border Protection)
A Bill for an Act to amend the law relating to
migration and maritime powers, and for related
purposes
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 4
Schedule 1--Amendments relating to maritime powers
5
Part 1--Main amendments
5
Maritime Powers Act 2013
5
Part 2--Other amendments
20
Administrative Decisions (Judicial Review) Act 1977
20
Immigration (Guardianship of Children) Act 1946
20
Migration Act 1958
20
Part 3--Application
22
Schedule 2--Protection visas and other measures
24
Part 1--Protection visas
24
Division 1--Protection visas generally
24
Migration Act 1958
24
Division 2--Safe haven enterprise visas
27
Migration Act 1958
27
Division 3--Application
28
Part 2--Visa applications taken to be applications for a
different visa
29
Division 1--Amendments
29
Migration Act 1958
29
Division 2--Application
32
Part 3--Deemed visa applications
33
Division 1--Amendments
33
Migration Act 1958
33
Division 2--Application
34
ii
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Part 4--Permanent protection visas and temporary protection
visas
35
Division 1--Main amendments
35
Migration Regulations 1994
35
Division 2--Main amendments commencing immediately after
Division 1
44
Migration Regulations 1994
44
Division 3--Consequential amendments
46
Migration Regulations 1994
46
Division 4--Amendments relating to application
49
Migration Regulations 1994
49
Schedule 3--Act-based visas
50
Part 1--Amendment of the Migration Act 1958
50
Division 1--Amendments
50
Migration Act 1958
50
Division 2--Application
53
Part 2--Amendment of the Migration Regulations 1994
54
Migration Regulations 1994
54
Schedule 4--Amendments relating to fast track assessment
process
57
Part 1--Fast track assessment process
57
Migration Act 1958
57
Part 2--Application
89
Schedule 5--Clarifying Australia's international law
obligations
90
Part 1--Removal of unlawful non-citizens
90
Division 1--Amendments commencing on the day after Royal Assent
90
Migration Act 1958
90
Division 2--Amendments if this Act commences after the Migration
Amendment (Protection and Other Measures) Act 2014
91
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
iii
Part 2--Amendments commencing on Proclamation
92
Migration Act 1958
92
Part 3--Contingent amendments
98
Division 1--Amendments if this Act commences before the Migration
Amendment (Protection and Other Measures) Act 2014
98
Migration Act 1958
98
Division 2--Amendments if this Act commences before the Migration
Amendment (Regaining Control Over Australia's
Protection Obligations) Act 2014
98
Migration Act 1958
98
Division 3--Amendments if this Act commences after the Migration
Amendment (Regaining Control Over Australia's
Protection Obligations) Act 2014
99
Migration Act 1958
99
Part 4--Application and transitional provisions
100
Schedule 6--Unauthorised maritime arrivals and transitory
persons: newborn children
101
Part 1--Amendments
101
Migration Act 1958
101
Part 2--Application of amendments
106
Schedule 7--Caseload management
110
Part 1--Amendments
110
Migration Act 1958
110
Part 2--Application and savings
112
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
1
A Bill for an Act to amend the law relating to
1
migration and maritime powers, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Migration and Maritime Powers
6
Legislation Amendment (Resolving the Asylum Legacy Caseload)
7
Act 2014.
8
2 Commencement
9
(1) Each provision of this Act specified in column 1 of the table
10
commences, or is taken to have commenced, in accordance with
11
2
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
column 2 of the table. Any other statement in column 2 has effect
1
according to its terms.
2
3
Commencement information
Column 1
Column 2
Column 3
Provisions
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,
Part 1, Division 1
The day after this Act receives the Royal
Assent.
4. Schedule 2,
Part 1, Division 2
A single day to be fixed by Proclamation.
However, if the provisions 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.
5. Schedule 2,
Part 1, Division 3
The day after this Act receives the Royal
Assent.
6. Schedule 2,
Parts 2 and 3
The day after this Act receives the Royal
Assent.
7. Schedule 2,
Part 4, Division 1
The day after this Act receives the Royal
Assent.
8. Schedule 2,
Part 4, Division 2
Immediately after the commencement of the
provisions covered by table item 7.
9. Schedule 2,
Part 4,
Divisions 3 and 4
The day after this Act receives the Royal
Assent.
10. Schedule 3
The day after this Act receives the Royal
Assent.
11. Schedule 4
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
3
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
they commence on the day after the end of
that period.
12. Schedule 5,
items 1 and 2
The day after this Act receives the Royal
Assent.
13. Schedule 5,
item 3
Immediately after item 4 of Schedule 2 to
the Migration Amendment (Protection and
Other Measures) Act 2014 commences.
14. Schedule 5,
Part 2
A single day to be fixed by Proclamation.
However, if the provisions 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.
15. Schedule 5,
item 18
At the same time as the provisions covered
by table item 3.
However, if item 3 of Schedule 2 to the
Migration Amendment (Protection and
Other Measures) Act 2014 commences at or
before that time, the provisions do not
commence at all.
16. Schedule 5,
items 19 to 22
At the same time as the provisions covered
by table item 3.
However, if Schedule 1 to the Migration
Amendment (Regaining Control Over
Australia's Protection Obligations) Act 2014
commences at or before that time, the
provisions do not commence at all.
17. Schedule 5,
item 23
Immediately after the Migration Amendment
(Regaining Control Over Australia's
Protection Obligations) Act 2014
commences.
18. Schedule 5,
item 24
Immediately after item 3 of Schedule 3 to
the Migration Amendment Act 2014
commences.
19. Schedule 5,
Immediately after item 5 of Schedule 3 to
4
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
item 25
the Migration Amendment Act 2014
commences.
20. Schedule 5,
item 26
Immediately after the Migration Amendment
(Regaining Control Over Australia's
Protection Obligations) Act 2014
commences.
21. Schedule 5,
item 27
The day after this Act receives the Royal
Assent.
22. Schedule 5,
items 28 and 29
At the same time as the provisions covered
by table item 3.
23. Schedules 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
3 Schedules
7
(1) Legislation 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
(2) The amendment of any regulation under subsection (1) does not
12
prevent the regulation, as so amended, from being amended or
13
repealed by the Governor-General.
14
Amendments relating to maritime powers Schedule 1
Main amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
5
Schedule 1
--Amendments relating to
1
maritime powers
2
Part 1
--Main amendments
3
Maritime Powers Act 2013
4
1 Section 7
5
Omit:
6
In accordance with international law, the exercise of powers is
7
limited in places outside Australia.
8
2 Section 8
9
Insert:
10
destination:
11
(a) in relation to a vessel or aircraft detained under
12
subsection 69(1)--see subsections 69(2), (3) and (3A); or
13
(b) in relation to a person detained under subsection 72(4)--see
14
subsections 72(4), (4A) and (4B).
15
Note:
See also section 75C.
16
Marine Safety (Domestic Commercial Vessel) National Law has
17
the meaning given by section 17 of the Marine Safety (Domestic
18
Commercial Vessel) National Law Act 2012.
19
3 Section 8 (paragraph (e) of the definition of monitoring law)
20
After "Division", insert "73 or".
21
4 Section 11
22
Before "For the purposes", insert "(1)".
23
5 At the end of section 11
24
Add:
25
Schedule 1 Amendments relating to maritime powers
Part 1 Main amendments
6
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
(2) To avoid doubt, a continuous exercise of powers does not end
1
merely because the destination to which a vessel, aircraft or person
2
is to be taken (or caused to be taken) is changed to a different place
3
under subsection 69(3A) or 72(4B).
4
6 At the end of Division 2 of Part 2
5
Add:
6
22A Failure to consider international obligations etc. does not
7
invalidate authorisation
8
(1) The exercise of a power to give an authorisation under a provision
9
of this Division is not invalid:
10
(a) because of a failure to consider Australia's international
11
obligations, or the international obligations or domestic law
12
of any other country; or
13
(b) because of a defective consideration of Australia's
14
international obligations, or the international obligations or
15
domestic law of any other country; or
16
(c) because the exercise of the power is inconsistent with
17
Australia's international obligations.
18
(2) Subsection (1) is not to be taken to imply that the exercise of a
19
power under any other provision of this Act is invalid for a reason
20
of a kind specified in paragraph (1)(a), (b) or (c).
21
22B Rules of natural justice do not apply to authorisations
22
(1) The rules of natural justice do not apply to the exercise of a power
23
to give an authorisation under a provision of this Division.
24
(2) Subsection (1) is not to be taken to imply that the rules of natural
25
justice do apply in relation to the exercise of powers under any
26
other provision of this Act.
27
7 Paragraph 31(a)
28
After "investigate", insert "or prevent".
29
8 Subsection 41(1) (note)
30
Omit "Note:", substitute "Note 1:".
31
Amendments relating to maritime powers Schedule 1
Main amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
7
9 At the end of subsection 41(1)
1
Add:
2
Note 2:
This section does not apply to the exercise of powers under
3
Divisions 7 and 8 of Part 3 in some circumstances: see section 75D.
4
10 At the end of subsection 69(1)
5
Add:
6
Note:
For other provisions affecting powers under this section, see
7
section 69A and Division 8A.
8
11 Subsections 69(2) and (3)
9
Repeal the subsections, substitute:
10
(2) The officer may:
11
(a) take the vessel or aircraft, or cause the vessel or aircraft to be
12
taken, to a place (the destination); and
13
(b) remain in control of the vessel or aircraft, or require the
14
person in charge of the vessel or aircraft to remain in control
15
of the vessel or aircraft, at the destination, until whichever of
16
the following occurs first:
17
(i) the vessel or aircraft is returned to a person referred to
18
in subsection 87(1);
19
(ii) action is taken as mentioned in subsection 87(3) in
20
relation to the vessel or aircraft.
21
(3) The destination may be:
22
(a) in the migration zone; or
23
(b) outside the migration zone (including outside Australia).
24
Note:
Section 75C contains additional provisions about the place that may
25
be the destination.
26
(3A) A maritime officer may change the destination to a different place
27
at any time (including a time after arrival at the place that was
28
previously the destination). If the destination is changed to a
29
different place:
30
(a) that different place is then the destination; but
31
(b) this does not affect the exercise of powers under this Act
32
before the change.
33
Schedule 1 Amendments relating to maritime powers
Part 1 Main amendments
8
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Note:
It is possible that the destination may change more than once.
1
12 After section 69
2
Insert:
3
69A Additional provisions relating to taking a vessel or aircraft to a
4
destination under section 69
5
(1) For the purpose of taking a vessel or aircraft (or causing a vessel or
6
aircraft to be taken) to a destination under paragraph 69(2)(a), the
7
vessel or aircraft may be detained under subsection 69(1):
8
(a) for any period reasonably required:
9
(i) to decide which place should be the destination; or
10
(ii) to consider whether the destination should be changed
11
to a different place under subsection 69(3A), and (if it
12
should be changed) to decide what that different place
13
is; and
14
(b) for any period reasonably required for the Minister to
15
consider whether to make or give a determination or direction
16
under section 75D, 75F or 75H in relation to:
17
(i) a matter referred to in subparagraph (a)(i) or (ii); or
18
(ii) any other matter relating to the exercise of powers in
19
relation to the vessel or aircraft, or in relation to persons
20
on (or suspected as having been on) the vessel or
21
aircraft; and
22
(c) for the period it actually takes to travel to the destination.
23
Note:
The total period for which the vessel or aircraft is detained may be
24
longer than the periods covered by this subsection: see subsection (3)
25
and section 87.
26
(2) For the purpose of paragraph (1)(c):
27
(a) the period it actually takes to travel to the destination may
28
include stopovers at other places on the way to the
29
destination, and time for other logistical, operational or other
30
contingencies relating to travelling to the destination; and
31
(b) there is no requirement that the most direct route to the
32
destination must be taken.
33
(3) Days in periods covered by subsection (1) do not count towards the
34
28 day limit specified in paragraph 87(2)(a).
35
Amendments relating to maritime powers Schedule 1
Main amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
9
13 Subsection 72(1) (note)
1
Omit "Note:", substitute "Note 1:".
2
14 At the end of subsection 72(1)
3
Add:
4
Note 2:
For other provisions affecting powers under this section, see
5
section 72A and Division 8A.
6
15 Subsections 72(3) and (4)
7
Repeal the subsections, substitute:
8
(3) A maritime officer may require the person to remain on the vessel
9
or aircraft until whichever of the following occurs first:
10
(a) the vessel or aircraft is returned to a person referred to in
11
subsection 87(1);
12
(b) action is taken as mentioned in subsection 87(3) in relation to
13
the vessel or aircraft.
14
Note:
It is an offence to fail to comply with a requirement under this
15
subsection: see section 103.
16
(4) A maritime officer may detain the person and take the person, or
17
cause the person to be taken, to a place (the destination).
18
(4A) The destination may be:
19
(a) in the migration zone; or
20
(b) outside the migration zone (including outside Australia).
21
Note:
Section 75C contains additional provisions about the place that may
22
be the destination.
23
(4B) A maritime officer may change the destination to a different place
24
at any time (including a time after arrival at the place that was
25
previously the destination). If the destination is changed to a
26
different place:
27
(a) that different place is then the destination; but
28
(b) this does not affect the exercise of powers under this Act
29
before the change.
30
Note:
It is possible that the destination may change more than once.
31
Schedule 1 Amendments relating to maritime powers
Part 1 Main amendments
10
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
16 Subsection 72(5)
1
Omit "another place", substitute "the destination".
2
17 Paragraphs 72(5)(a) and (b)
3
After "or aircraft", insert ", or in a particular place on a vessel or
4
aircraft".
5
18 After section 72
6
Insert:
7
72A Additional provisions relating to taking a person to a
8
destination under subsection 72(4)
9
(1) A person may be detained under subsection 72(4):
10
(a) for any period reasonably required:
11
(i) to decide which place should be the destination; or
12
(ii) to consider whether the destination should be changed
13
to a different place under subsection 72(4B), and (if it
14
should be changed) to decide what that different place
15
is; and
16
(b) for any period reasonably required for the Minister to
17
consider whether to make or give a determination or direction
18
under section 75D, 75F or 75H in relation to:
19
(i) a matter referred to in subparagraph (a)(i) or (ii); or
20
(ii) any other matter relating to the exercise of powers in
21
relation to the person; and
22
(c) for the period it actually takes to travel to the destination; and
23
(d) for any period reasonably required to make and effect
24
arrangements relating to the release of the person.
25
(2) For the purpose of paragraph (1)(c):
26
(a) the period it actually takes to travel to the destination may
27
include stopovers at other places on the way to the
28
destination, and time for other logistical, operational or other
29
contingencies relating to travelling to the destination; and
30
(b) there is no requirement that the most direct route to the
31
destination must be taken.
32
Amendments relating to maritime powers Schedule 1
Main amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
11
(3) The person must not be detained under subsection 72(4) for any
1
longer than is permitted by subsection (1) of this section.
2
(4) Powers may be exercised in accordance with subsection 72(5) in
3
relation to the person at any time while the person continues to be
4
detained under subsection 72(4).
5
(5) Subsection (3) does not prevent:
6
(a) the arrest of the person; or
7
(b) the detention of the person under another Australian law; or
8
(c) the exercise of any other power in relation to the person.
9
19 After Division 8 of Part 3
10
Insert:
11
Division 8A--General provisions relating to powers under
12
Divisions 7 and 8
13
75A Failure to consider international obligations etc. does not
14
invalidate exercise of powers
15
(1) The exercise of a power under section 69, 69A, 71, 72, 72A, 74,
16
75D, 75F, 75G or 75H is not invalid:
17
(a) because of a failure to consider Australia's international
18
obligations, or the international obligations or domestic law
19
of any other country; or
20
(b) because of a defective consideration of Australia's
21
international obligations, or the international obligations or
22
domestic law of any other country; or
23
(c) because the exercise of the power is inconsistent with
24
Australia's international obligations.
25
(2) Subsection (1) is not to be taken to imply that the exercise of a
26
power under any other provision of this Act is invalid for a reason
27
of a kind specified in paragraph (1)(a), (b) or (c).
28
75B Rules of natural justice do not apply to exercise of powers
29
(1) The rules of natural justice do not apply to the exercise of powers
30
under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H.
31
Schedule 1 Amendments relating to maritime powers
Part 1 Main amendments
12
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
(2) Subsection (1) is not to be taken to imply that the rules of natural
1
justice do apply in relation to the exercise of powers under any
2
other provision of this Act.
3
75C Additional provisions about destination to which a vessel,
4
aircraft or person may be taken
5
(1) To avoid doubt:
6
(a) the destination to which a vessel, aircraft or person is taken
7
(or caused to be taken) under section 69 or 72:
8
(i) does not have to be in a country; and
9
(ii) without limiting subparagraph (i)--may be just outside
10
a country; and
11
(iii) may be a vessel; and
12
(b) a vessel, aircraft or person may be taken (or caused to be
13
taken) to a destination under section 69 or 72:
14
(i) whether or not Australia has an agreement or
15
arrangement with any other country relating to the
16
vessel or aircraft (or the persons on it), or the person;
17
and
18
(ii) irrespective of the international obligations or domestic
19
law of any other country.
20
Note:
The definition of country in section 8 includes the territorial sea and
21
archipelagic waters of the country, as well as various other areas.
22
(2) However, if the destination is in another country, section 40
23
(exercising powers in other countries) must be complied with.
24
75D Exercising powers between countries
25
(1) Section 41 (foreign vessels between countries) does not apply to an
26
exercise of power under section 69, 69A, 71, 72, 72A or 74 if:
27
(a) the exercise of power is:
28
(i) covered by a determination in force under
29
subsection (2); or
30
(ii) required by a direction in force under
31
paragraph 75F(2)(a); and
32
Amendments relating to maritime powers Schedule 1
Main amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
13
(b) the exercise of power is part of a continuous exercise of
1
powers that commenced in accordance with any applicable
2
requirements of Division 5 of Part 2.
3
(2) For the purpose of subparagraph (1)(a)(i), the Minister may make a
4
written determination that is expressed to cover the exercise, in a
5
specified circumstance, of powers under one or more of the
6
sections referred to in subsection (1).
7
(3) The Minister may, in writing, vary or revoke a determination made
8
under subsection (2).
9
(4) The only condition for the exercise of the power to make a
10
determination under subsection (2), or to vary a determination, is
11
that the Minister thinks that it is in the national interest to make or
12
vary the determination.
13
Note:
There are no conditions for the exercise of the power to revoke a
14
determination.
15
(5) A determination under subsection (2), or an instrument varying or
16
revoking a determination, comes into force:
17
(a) unless paragraph (b) applies--when it is made; or
18
(b) if the determination or instrument specifies a later time as the
19
time when it is to come into force--at that later time.
20
(6) A determination under subsection (2) remains in force until
21
whichever of the following occurs first:
22
(a) an instrument revoking the determination comes into force;
23
(b) if the determination is expressed to cease to be in force at a
24
specified time--the time so specified.
25
(7) A determination under subsection (2), or a variation or revocation
26
of a determination, is not a legislative instrument.
27
75E Powers are not limited by the Migration Act 1958
28
(1) Powers under sections 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or
29
75H are not in any respect subject to, or limited by, the Migration
30
Act 1958 (including regulations and other instruments made under
31
that Act).
32
Schedule 1 Amendments relating to maritime powers
Part 1 Main amendments
14
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
(2) Subsection (1) of this section is not to be taken to imply that other
1
powers under this Act are subject to, or limited by, the Migration
2
Act 1958 (including regulations and other instruments made under
3
that Act).
4
75F Minister may give directions about exercise of powers
5
(1) This section applies in relation to the powers in sections 69, 69A,
6
71, 72 and 72A.
7
(2) The Minister may, in writing, give directions:
8
(a) requiring the exercise of a power or powers in a specified
9
circumstance, or in circumstances in a specified class, in a
10
specified manner; or
11
(b) relating to the exercise of a power or powers in a specified
12
circumstance, in a specified class of circumstances or more
13
generally.
14
(3) Without limiting subsection (2), the Minister may give a direction
15
under that subsection:
16
(a) specifying a place that is to be, or is not to be, the destination
17
to which a vessel, aircraft or person is taken under
18
paragraph 69(2)(a) or subsection 72(4); or
19
(b) specifying matters to be taken into account in deciding the
20
destination to which a vessel, aircraft or person is to be so
21
taken.
22
(4) The Minister may, in writing, vary or revoke a direction given
23
under subsection (2).
24
(5) The only condition for the exercise of the power to give a direction
25
under subsection (2), or to vary a direction, is that the Minister
26
thinks that it is in the national interest to give or vary the direction.
27
Note:
There are no conditions for the exercise of the power to revoke a
28
direction.
29
(6) A direction under subsection (2) may specify circumstances in
30
which the direction need not be complied with.
31
(7) A direction under subsection (2), or an instrument varying or
32
revoking a direction, comes into force:
33
Amendments relating to maritime powers Schedule 1
Main amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
15
(a) unless paragraph (b) applies--when it is made; or
1
(b) if the direction or instrument specifies a later time as the time
2
when it is to come into force--at that later time.
3
(8) A direction under subsection (2) remains in force until whichever
4
of the following occurs first:
5
(a) an instrument revoking the direction comes into force;
6
(b) if the direction is expressed to cease to be in force at a
7
specified time--the time so specified.
8
(9) If the Minister gives a direction as mentioned in paragraph (2)(a):
9
(a) the direction is taken to constitute an authorisation of the
10
exercise of the power or powers in accordance with the
11
direction; and
12
(b) that authorisation is taken (despite section 23) to remain in
13
force while the direction is in force.
14
(10) A direction under subsection (2), or an instrument varying or
15
revoking a direction, is not a legislative instrument.
16
75G Compliance with directions
17
(1) Subject to subsections (2) and (3) of this section, and
18
subsection 75F(6), a maritime officer must comply with any
19
applicable directions in force under section 75F. However, a failure
20
to comply does not invalidate any exercise of power by a maritime
21
officer.
22
(2) A maritime officer who is a member of the Australian Defence
23
Force is not required to comply with a direction under section 75F
24
to the extent that the direction is inconsistent with an order or other
25
exercise of command under sections 8 and 9 of the Defence Act
26
1903.
27
(3) A maritime officer is not required to comply with a direction under
28
section 75F to the extent that he or she reasonably believes that it
29
would be unsafe to do so.
30
Schedule 1 Amendments relating to maritime powers
Part 1 Main amendments
16
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
75H Certain maritime laws do not apply to certain vessels detained
1
or used in exercise of powers
2
Vessels detained under section 69
3
(1) The laws specified in subsection (3) (including regulations and
4
other instruments made under those laws) do not apply in relation
5
to a vessel at any time when the vessel is detained in exercise (or
6
purported exercise) of powers under section 69.
7
Vessels used in exercise of powers under subsections 72(4) or (5)
8
(2) The laws specified in subsection (3) (including regulations and
9
other instruments made under those laws) do not apply in relation
10
to a vessel at any time when the following paragraphs are satisfied:
11
(a) the vessel is being used in the exercise (or purported
12
exercise) of powers under subsection 72(4) or (5), or the
13
Commonwealth intends that the vessel is for use in the
14
exercise of such powers;
15
(b) the vessel is specified in, or is included in a class of vessels
16
specified in, a determination under subsection (4) that is in
17
force;
18
(c) if the determination states that it has effect, in relation to the
19
vessel or class of vessels, only in specified circumstances--
20
those circumstances exist;
21
(d) if the determination states that it has effect, in relation to the
22
vessel or the class of vessels, only in one or more specified
23
periods--the time is in that period, or one of those periods.
24
Note:
Paragraph (c) and (d) do not have to be satisfied unless the
25
determination states as mentioned in those paragraphs.
26
The laws that are disapplied
27
(3) The laws that, because of subsection (1) or (2), do not apply in
28
relation to a vessel are:
29
(a) the Navigation Act 2012; and
30
(b) the Shipping Registration Act 1981; and
31
(c) the Marine Safety (Domestic Commercial Vessel) National
32
Law.
33
Amendments relating to maritime powers Schedule 1
Main amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
17
Determinations of vessels and classes of vessels
1
(4) For the purpose of paragraph (2)(b), the Minister may make a
2
written determination specifying a vessel, or a class of vessels. The
3
determination may also state either or both of the following:
4
(a) that it has effect, in relation to the vessel or class of vessels,
5
only in specified circumstances;
6
(b) that it has effect, in relation to the vessel or the class of
7
vessels, only in one or more specified periods.
8
(5) The Minister may, in writing, vary or revoke a determination made
9
under subsection (4).
10
(6) The only condition for the exercise of the power to make a
11
determination under subsection (4), or to vary a determination, is
12
that the Minister thinks that it is in the national interest to make or
13
vary the determination.
14
Note:
There are no conditions for the exercise of the power to revoke a
15
determination.
16
(7) A determination under subsection (4), or an instrument varying or
17
revoking a determination, comes into force:
18
(a) unless paragraph (b) applies--when it is made; or
19
(b) if the determination or instrument specifies a later time as the
20
time when it is to come into force--at that later time.
21
(8) A determination under subsection (4) remains in force until
22
whichever of the following occurs first:
23
(a) an instrument revoking the determination comes into force;
24
(b) if the determination is expressed to cease to be in force at a
25
specified time--the time so specified.
26
(9) A determination under subsection (4), or a variation or revocation
27
of a determination, is not a legislative instrument.
28
20 Section 79
29
Omit:
30
Written notice must be given to the owner or person who was in
31
possession or control of a seized, retained or detained thing.
32
Schedule 1 Amendments relating to maritime powers
Part 1 Main amendments
18
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
substitute:
1
Written notice must be given to the owner of a seized, retained or
2
detained thing, or to a person who had possession or control of the
3
thing.
4
21 Paragraph 80(1)(b)
5
Omit "the person", substitute "a person".
6
22 At the end of section 81
7
Add:
8
(3) If a detained vessel or aircraft is to be taken to a destination under
9
paragraph 69(2)(a), the information must also explain the effect of
10
subsection 69A(3).
11
23 Paragraphs 86(1)(b) and 87(1)(b)
12
Omit "the person", substitute "a person".
13
24 At the end of subsection 87(2)
14
Add:
15
Note:
In the case of a detained vessel or aircraft that is taken to a destination
16
under paragraph 69(2)(a), days in periods covered by
17
subsection 69A(1) (such as the period it takes to travel to the
18
destination) do not count towards the 28 day limit: see
19
subsection 69A(3).
20
25 Subsection 93(1)
21
Repeal the subsection, substitute:
22
(1) If the thing is disposed of under paragraph 91(1)(a), (b) or (c)
23
(reasons for disposal), the Minister must give written notice, as
24
soon as practicable after the disposal, to:
25
(a) the person who owned the thing; or
26
(b) a person who had possession or control of the thing
27
immediately before it was seized, retained or detained.
28
Amendments relating to maritime powers Schedule 1
Main amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
19
26 Subsection 93(3)
1
Omit "the person", substitute "any person to whom the notice may be
2
given under that subsection".
3
27 Section 94
4
Omit:
5
Persons from detained vessels and aircraft may be required to
6
remain on the vessel or aircraft, or may be taken to another place.
7
28 Section 97
8
Repeal the section.
9
29 Section 107
10
After "proceeding", insert ", whether civil or criminal,".
11
30 Subsection 121(1)
12
After "this Act", insert ", other than the powers under section 75D, 75F
13
or 75H,".
14
Schedule 1 Amendments relating to maritime powers
Part 2 Other amendments
20
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Part 2
--Other amendments
1
Administrative Decisions (Judicial Review) Act 1977
2
31 After paragraph (p) of Schedule 1
3
Insert:
4
(pa) decisions under section 75D, 75F or 75H of the Maritime
5
Powers Act 2013;
6
Immigration (Guardianship of Children) Act 1946
7
32 At the end of paragraph 6(2)(d)
8
Add ", or under Division 7 or 8 of Part 3 of the Maritime Powers Act
9
2013".
10
33 Paragraph 8(2)(b)
11
After "migration law", insert "or the Maritime Powers Act 2013".
12
34 Paragraph 8(2)(c)
13
Repeal the paragraph, substitute:
14
(c) imposes any obligation on the Minister or another Minister to
15
exercise, or to consider exercising, any power conferred by or
16
under the migration law or the Maritime Powers Act 2013.
17
35 At the end of paragraph 8(3)(d)
18
Add ", or under Division 7 or 8 of Part 3 of the Maritime Powers Act
19
2013".
20
Migration Act 1958
21
36 Subsection 5(1) (paragraph (b) of the definition of
22
transitory person)
23
Omit "or paragraph 72(4)(b) of the Maritime Powers Act 2013",
24
substitute "or under Division 7 or 8 of Part 3 of the Maritime Powers
25
Act 2013".
26
Amendments relating to maritime powers Schedule 1
Other amendments Part 2
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
21
37 Paragraph 5AA(2)(ba)
1
Repeal the paragraph, substitute:
2
(ba) the person entered the migration zone as a result of the
3
exercise of powers under Division 7 or 8 of Part 3 of the
4
Maritime Powers Act 2013; or
5
38 Subparagraph 42(2A)(c)(i)
6
Omit "or 72(4) of the Maritime Powers Act 2013", substitute "or under
7
Division 7 or 8 of Part 3 of the Maritime Powers Act 2013".
8
Schedule 1 Amendments relating to maritime powers
Part 3 Application
22
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Part 3
--Application
1
39 Application of amendments of the Maritime Powers Act
2
2013
3
(1)
Subject to this item, the amendments of the Maritime Powers Act 2013
4
made by Part 1 of this Schedule (the amending Part) apply in relation
5
to the exercise (or continued exercise) of powers under that Act after the
6
commencement of the amending Part, even if:
7
(a) an authorisation for the exercise of the powers was given
8
under Division 2 of Part 2 of that Act before the
9
commencement of the amending Part; or
10
(b) the powers are exercised:
11
(i) in the course of a continuous exercise of powers that
12
started before the commencement of the amending Part;
13
or
14
(ii) without limiting subparagraph (i)--in relation to a
15
person, vessel or aircraft who or that started to be
16
detained, or otherwise held, under Division 7 or 8 of
17
Part 3 of the Maritime Powers Act 2013 before that
18
commencement; or
19
(iii) in any other situation in relation to which powers were
20
(or could have been) exercised under that Act before
21
that commencement.
22
(2)
The amendments of the Maritime Powers Act 2013 made by item 3 (so
23
far as it affects the giving of authorisations), and item 6, of the
24
amending Part apply in relation to authorisations given under Division 2
25
of Part 2 of that Act after the commencement of the amending Part.
26
(3)
Section 75H of the Maritime Powers Act 2013, as inserted by item 19 of
27
the amending Part, applies to:
28
(a) vessels that, after the commencement of the amending Part,
29
are detained as mentioned in subsection 75H(1), even if the
30
vessels started to be so detained before that commencement;
31
and
32
(b) vessels that, after the commencement of the amending Part,
33
are being used, or that are intended for use, as mentioned in
34
Amendments relating to maritime powers Schedule 1
Application Part 3
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
23
paragraph 75H(2)(a), even if the vessels started to be so used,
1
or intended for use, before that commencement.
2
(4)
The amendments of the Maritime Powers Act 2013 made by items 21,
3
23, 25 and 26 of the amending Part apply after the commencement of
4
the amending Part in relation to a seized, retained or detained thing
5
(including a vessel or aircraft), even if the exercise of power by which
6
the thing was first seized, retained or detained occurred before that
7
commencement.
8
(5)
The amendments of the Maritime Powers Act 2013 made by the
9
amending Part do not, by implication, affect the interpretation of that
10
Act, as in force before the commencement of the amending Part, in
11
relation to the exercise of powers, or the giving of authorisations, under
12
that Act before that commencement.
13
Schedule 2 Protection visas and other measures
Part 1 Protection visas
24
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Schedule 2
--Protection visas and other
1
measures
2
Part 1
--Protection visas
3
Division 1
--Protection visas generally
4
Migration Act 1958
5
1 Subsection 5(1)
6
Insert:
7
protection visa has the meaning given by section 35A.
8
Note:
Section 35A covers the following:
9
(a) permanent protection visas (classified by the Migration
10
Regulations 1994 as Protection (Class XA) visas when this
11
definition commenced);
12
(b) other protection visas formerly provided for by subsection 36(1);
13
(c) temporary protection visas (classified by the Migration
14
Regulations 1994 as Temporary Protection (Class XD) visas
15
when this definition commenced);
16
(d) any additional classes of permanent or temporary visas that are
17
prescribed as protection visas by the regulations.
18
See also section 36 and Subdivision AL of Division 3 of Part 2.
19
2 At the end of subsection 31(1)
20
Add:
21
Note:
See also subsection 35A(4), which allows additional classes of
22
permanent and temporary visas to be prescribed as protection visas by
23
regulations made for the purposes of this subsection.
24
3 Subsection 31(2)
25
Omit "sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B",
26
substitute:
27
the following provisions:
28
(a) section 32 (special category visas);
29
(b) section 33 (special purpose visas);
30
(c) section 34 (absorbed person visas);
31
Protection visas and other measures Schedule 2
Protection visas Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
25
(d) section 35 (ex-citizen visas);
1
(e) subsection 35A(2) (permanent protection visas);
2
(f) subsection 35A(3) (temporary protection visas);
3
(g) section 37 (bridging visas);
4
(h) section 37A (temporary safe haven visas);
5
(i) section 38 (criminal justice visas);
6
(j) section 38A (enforcement visas);
7
(k) section 38B (maritime crew visas).
8
4 Subsection 31(3)
9
Omit "36", substitute "35A".
10
5 After section 35
11
Insert:
12
35A Protection visas--classes of visas
13
(1) A protection visa is a visa of a class provided for by this section.
14
(2) There is a class of permanent visas to be known as permanent
15
protection visas.
16
Note:
These visas were classified by the Migration Regulations 1994 as
17
Protection (Class XA) visas when this section commenced.
18
(3) There is a class of temporary visas to be known as temporary
19
protection visas.
20
Note:
These visas were classified by the Migration Regulations 1994 as
21
Temporary Protection (Class XD) visas when this section commenced.
22
(4) Regulations made for the purposes of subsection 31(1) may
23
prescribe additional classes of permanent and temporary visas as
24
protection visas.
25
(5) A class of visas that was formerly provided for by
26
subsection 36(1), as that subsection was in force before the
27
commencement of this section, is also a class of protection visas
28
for the purposes of this Act and the regulations.
29
Example: An example of a class of visas for subsection (5) is the class of visas
30
formerly classified by the Migration Regulations 1994 as Protection
31
(Class AZ) visas. These visas can no longer be granted.
32
Schedule 2 Protection visas and other measures
Part 1 Protection visas
26
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Note:
This section commenced, and subsection 36(1) was repealed, on the
1
commencement of Part 1 of Schedule 2 to the Migration and Maritime
2
Powers Legislation Amendment (Resolving the Asylum Legacy
3
Caseload) Act 2014.
4
(6) The criteria for a class of protection visas are:
5
(a) the criteria set out in section 36; and
6
(b) any other relevant criteria prescribed by regulation for the
7
purposes of section 31.
8
Note:
See also Subdivision AL.
9
6 Section 36 (heading)
10
Repeal the heading, substitute:
11
36 Protection visas--criteria provided for by this Act
12
7 Subsection 36(1)
13
Repeal the subsection.
14
8 Subparagraph 36(2)(b)(ii)
15
After "protection visa", insert "of the same class as that applied for by
16
the applicant".
17
9 At the end of subparagraph 36(2)(c)(ii)
18
Add "of the same class as that applied for by the applicant".
19
10 Subsection 48A(2) (definition of application for a
20
protection visa)
21
Omit "includes", substitute "means".
22
11 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 of a class provided for by
26
section 35A (protection visas--classes of visas), including
27
(without limitation) an application for a visa of a class
28
formerly provided for by subsection 36(1) that was made
29
before the commencement of this paragraph; or
30
Protection visas and other measures Schedule 2
Protection visas Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
27
Note:
Visas formerly provided for by subsection 36(1) are provided for
1
by subsection 35A(5). Subsection 36(1) was repealed by the
2
Migration and Maritime Powers Legislation Amendment
3
(Resolving the Asylum Legacy Caseload) Act 2014, which also
4
inserted section 35A and this paragraph.
5
12 Subsection 48A(2) (paragraphs (a) and (b) of the definition
6
of application for a protection visa)
7
Omit "; and", substitute "; or".
8
Division 2
--Safe haven enterprise visas
9
Migration Act 1958
10
13 Subsection 5(1) (after paragraph (b) of the note at the end
11
of the definition of protection visa)
12
Insert:
13
(ba) safe haven enterprise visas;
14
14 After paragraph 31(2)(f)
15
Insert:
16
(fa) subsection 35A(3A) (safe haven enterprise visas);
17
15 After paragraph 31(3A)(c)
18
Insert:
19
(ca) safe haven enterprise visas (see subsection 35A(3A));
20
16 After subsection 35A(3)
21
Insert:
22
(3A) There is a class of temporary visas to be known as safe haven
23
enterprise visas.
24
17 After paragraph 46(5)(c)
25
Insert:
26
(ca) safe haven enterprise visas (see subsection 35A(3A));
27
18 After paragraph 46AA(1)(c)
28
Insert:
29
Schedule 2 Protection visas and other measures
Part 1 Protection visas
28
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
(ca) safe haven enterprise visas (see subsection 35A(3A));
1
Division 3
--Application
2
19 Application of amendments
3
(1)
The amendments of the Migration Act 1958 made by Division 1 of this
4
Part:
5
(a) apply in relation to an application for a visa that had not been
6
finally determined immediately before the commencement of
7
that Division; and
8
(b) apply in relation to an application for a visa made on or after
9
the commencement of that Division; and
10
(c) in the case of the amendments of section 48A of that Act
11
made by that Division--apply in relation to an application for
12
a protection visa mentioned in paragraph 48A(1)(a) or (b), or
13
paragraph 48A(1AA)(a) or (b), of that Act that was made, or
14
taken to have been made:
15
(i) on or after the commencement of that Division; or
16
(ii) at any time before the commencement of that Division
17
(whether or not the application had been finally
18
determined at that time).
19
(2)
The amendments of the Migration Act 1958 made by Division 2 of this
20
Part apply in relation to an application for a visa made on or after the
21
commencement of that Division.
22
Protection visas and other measures Schedule 2
Visa applications taken to be applications for a different visa Part 2
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
29
Part 2
--Visa applications taken to be applications for
1
a different visa
2
Division 1
--Amendments
3
Migration Act 1958
4
20 After section 45
5
Insert:
6
45AA Application for one visa taken to be an application for a
7
different visa
8
Situation in which conversion regulation can be made
9
(1) This section applies if:
10
(a) a person has made a valid application (a pre-conversion
11
application) for a visa (a pre-conversion visa) of a particular
12
class; and
13
(b) the pre-conversion visa has not been granted to the person,
14
whether or not a migration decision has been made in relation
15
to the pre-conversion application; and
16
(c) since the application was made, one or more of the following
17
events has occurred:
18
(i) the requirements for making a valid application for that
19
class of visa change;
20
(ii) the criteria for the grant of that class of visa change;
21
(iii) that class of visa ceases to exist; and
22
(d) had the application been made after the event (or events)
23
occurred, because of that event (or those events):
24
(i) the application would not have been valid; or
25
(ii) that class of visa could not have been granted to the
26
person.
27
(2) To avoid doubt, under subsection (1) this section may apply in
28
relation to:
29
Schedule 2 Protection visas and other measures
Part 2 Visa applications taken to be applications for a different visa
30
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
(a) classes of visas, including protection visas and any other
1
classes of visas provided for by this Act or the regulations;
2
and
3
(b) classes of applicants, including applicants having a particular
4
status; and
5
(c) applicants for a visa who are taken to have applied for the
6
visa by the operation of this Act or the regulations.
7
Example: If a non-citizen applies for a visa, and then, before the application
8
is decided, gives birth to a child, in some circumstances the child
9
is taken, by the operation of the regulations, to have applied for a
10
visa of the same class at the time the child is born (see
11
regulation 2.08).
12
Conversion regulation
13
(3) For the purposes of this Act, a regulation (a conversion regulation)
14
may provide that, despite anything else in this Act, the
15
pre-conversion application for the pre-conversion visa:
16
(a) is taken not to be, and never to have been, a valid application
17
for the pre-conversion visa; and
18
(b) is taken to be, and always to have been, a valid application (a
19
converted application) for a visa of a different class
20
(specified by the conversion regulation) made by the
21
applicant for the pre-conversion visa.
22
Note:
This section may apply in relation to a pre-conversion application
23
made before the commencement of the section (see the Migration and
24
Maritime Powers Legislation Amendment (Resolving the Asylum
25
Legacy Caseload) Act 2014).
26
For example, a conversion regulation (made after the commencement
27
of this section) could have the effect that a pre-conversion application
28
for a particular type of visa made on 1 August 2014 (before that
29
commencement):
30
(a) is taken not to have been made on 1 August 2014 (or ever); and
31
(b) is taken to be, and always to have been, a converted application
32
for another type of visa made on 1 August 2014.
33
(4) Without limiting subsection (3), a conversion regulation may:
34
(a) prescribe a class or classes of pre-conversion visas; and
35
(b) prescribe a class of applicants for pre-conversion visas; and
36
(c) prescribe a time (the conversion time) when the regulation is
37
to start to apply in relation to a pre-conversion application,
38
Protection visas and other measures Schedule 2
Visa applications taken to be applications for a different visa Part 2
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
31
including different conversion times depending on the
1
occurrence of different events.
2
Visa application charge
3
(5) If an amount has been paid as the first instalment of the visa
4
application charge for a pre-conversion application, then, at and
5
after the conversion time in relation to the application:
6
(a) that payment is taken not to have been paid as the first
7
instalment of the visa application charge for the
8
pre-conversion application; and
9
(b) that payment is taken to be payment of the first instalment of
10
the visa application charge for the converted application,
11
even if the first instalment of the visa application charge that
12
would otherwise be payable for the converted application is
13
greater than the actual amount paid for the first instalment of
14
the visa application charge for the pre-conversion
15
application; and
16
(c) in a case in which the first instalment of the visa application
17
charge payable for the converted application is less than the
18
actual amount paid for the first instalment of the visa
19
application charge for the pre-conversion application, no
20
refund is payable in respect of the difference only for that
21
reason.
22
Note:
For the visa application charge, see sections 45A, 45B and 45C.
23
Effect on bridging visas
24
(6) For the purposes of this Act, if, immediately before the conversion
25
time for a pre-conversion application, a person held a bridging visa
26
because the pre-conversion application had not been finally
27
determined, then, at and after the conversion time, the bridging
28
visa has effect as if it had been granted because of the converted
29
application.
30
(7) For the purposes of this Act, if, immediately before the conversion
31
time for a pre-conversion application, a person had made an
32
application for a bridging visa because of the pre-conversion
33
application, but the bridging visa application had not been finally
34
determined, then, at and after the conversion time:
35
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Migration and Maritime Powers Legislation Amendment (Resolving
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(a) the bridging visa application is taken to have been applied for
1
because of the converted application; and
2
(b) the bridging visa (if granted) has effect as if it were granted
3
because of the converted application.
4
Note:
This Act and the regulations would apply to a bridging visa to which
5
subsection (6) or (7) applies, and to when the bridging visa would
6
cease to have effect, in the same way as this Act and the regulations
7
would apply in relation to any bridging visa.
8
For example, such a bridging visa would generally cease to be in
9
effect under section 82 if and when the substantive visa is granted
10
because of the converted application.
11
Conversion regulation may affect accrued rights etc.
12
(8) To avoid doubt:
13
(a) subsection 12(2) of the Legislative Instruments Act 2003 does
14
not apply in relation to the effect of a conversion regulation
15
(including a conversion regulation enacted by the
16
Parliament); and
17
(b) subsection 7(2) of the Acts Interpretation Act 1901, including
18
that subsection as applied by section 13 of the Legislative
19
Instruments Act 2003, does not apply in relation to the
20
enactment of this section or the making of a conversion
21
regulation (including a conversion regulation enacted by the
22
Parliament).
23
Division 2
--Application
24
21 Application of amendments
25
The amendment of the Migration Act 1958 made by Division 1 of this
26
Part, to insert section 45AA of that Act, applies in relation to an
27
application for a pre-conversion visa made before, on or after the
28
commencement of this Part.
29
Protection visas and other measures Schedule 2
Deemed visa applications Part 3
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
33
Part 3
--Deemed visa applications
1
Division 1
--Amendments
2
Migration Act 1958
3
22 At the end of section 48
4
Add:
5
(4) In paragraphs (1)(b) and (1A)(b):
6
(a) a reference to an application for a visa made by or on behalf
7
of a non-citizen includes a reference to an application for a
8
visa that is taken to have been made by the non-citizen by the
9
operation of this Act or a regulation; and
10
(b) a reference to the cancellation of a visa includes a reference
11
to the cancellation of a visa for which an application is taken
12
to have been made by the operation of this Act or a
13
regulation.
14
23 After subsection 48A(1C)
15
Insert:
16
(1D) In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an
17
application for a protection visa made by or on behalf of a
18
non-citizen includes a reference to an application for a protection
19
visa that is taken to have been made by the non-citizen by the
20
operation of this Act or a regulation.
21
(1E) In subsection (1B), a reference to the cancellation of a protection
22
visa includes a reference to the cancellation of a protection visa in
23
relation to which an application for a protection visa is taken to
24
have been made by the operation of this Act or a regulation.
25
24 After subsection 501E(1A)
26
Insert:
27
(1B) In paragraph (1)(a) and subsection (1A), a reference to a refusal to
28
grant a visa, or to the cancellation of a visa, includes a reference to
29
such a refusal or cancellation in relation to a visa for which an
30
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Part 3 Deemed visa applications
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Migration and Maritime Powers Legislation Amendment (Resolving
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application is taken to have been made by the operation of this Act
1
or a regulation.
2
Division 2
--Application
3
25 Application of amendments
4
The amendments of the Migration Act 1958 made by Division 1 of this
5
Part apply in relation to an application for a visa that is taken to have
6
been made before, on or after the commencement of this Part.
7
Protection visas and other measures Schedule 2
Permanent protection visas and temporary protection visas Part 4
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
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35
Part 4
--Permanent protection visas and temporary
1
protection visas
2
Division 1
--Main amendments
3
Migration Regulations 1994
4
26 Regulation 1.03
5
Insert:
6
protection visa has the meaning given by section 35A of the Act.
7
Note:
Section 35A of the Act covers the following:
8
(a) permanent protection visas (classified by these Regulations as
9
Protection (Class XA) visas when this definition commenced);
10
(b) other protection visas formerly provided for by subsection 36(1)
11
of the Act;
12
(c) temporary protection visas (classified by these Regulations as
13
Temporary Protection (Class XD) visas when this definition
14
commenced);
15
(d) any additional classes of permanent or temporary visas that are
16
prescribed as protection visas by the regulations.
17
See also section 36 and Subdivision AL of Division 3 of Part 2 of the
18
Act.
19
27 Subparagraph 1401(2)(a)(i) of Schedule 1
20
Repeal the subparagraph.
21
28 Subparagraph 1401(2)(a)(ii) of Schedule 1
22
Omit "(ii) for any other applicant:".
23
29 At the end of subitem 1401(3) of Schedule 1
24
Add:
25
(d) An application by a person for a Protection (Class XA) visa
26
is valid only if the person:
27
(i) does not hold, and has not ever held, a Subclass 785
28
(Temporary Protection) visa, including such a visa
29
granted before 2 December 2013; and
30
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(ii) does not hold, and has not ever held, a Temporary Safe
1
Haven (Class UJ) visa; and
2
(iii) does not hold, and has not ever held, a Temporary
3
(Humanitarian Concern) (Class UO) visa; and
4
(iv) held a visa that was in effect on the person's last entry
5
into Australia; and
6
(v) is not an unauthorised maritime arrival; and
7
(vi) was immigration cleared on the person's last entry into
8
Australia.
9
30 At the end of Schedule 1
10
Add:
11
1403. Temporary Protection (Class XD)
12
(1) Form: 866.
13
(2) Visa application charge:
14
(a) first instalment (payable at the time the application is made):
15
(i) for an applicant who is in immigration detention and has
16
not been immigration cleared:
17
18
First instalment
Item
Component
Amount
1
Base application charge
Nil
2
Additional applicant charge for an applicant who is at least 18
Nil
3
Additional applicant charge for an applicant who is less than 18
Nil
19
(ii) for any other applicant:
20
21
First instalment
Item
Component
Amount
1
Base application charge
$35
2
Additional applicant charge for an applicant who is at least 18
Nil
3
Additional applicant charge for an applicant who is less than 18
Nil
Protection visas and other measures Schedule 2
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No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
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37
Note:
Regulation 2.12C explains the components of the first instalment of visa application
1
charge and specifies the amounts of subsequent temporary application charge and
2
non-internet application charge. Not all of the components may apply to a particular
3
application.
4
Additional applicant charge is paid by an applicant who claims to be a member of the
5
family unit of another applicant and seeks to combine the application with that
6
applicant's application.
7
(b) the second instalment (payable before grant of visa) is nil.
8
(3) Other:
9
(a) Application must be made in Australia.
10
(b) Applicant must be in Australia.
11
(c) Application by a person claiming to be a member of the
12
family unit of a person who is an applicant for a Temporary
13
Protection (Class XD) visa may be made at the same time
14
and place as, and combined with, the application by that
15
person.
16
(d) An application by a person for a Temporary Protection (Class
17
XD) visa is valid only if the person:
18
(i) holds, or has ever held, a Temporary Protection (Class
19
XD) visa or a Subclass 785 (Temporary Protection)
20
visa, including such a visa granted before 2 December
21
2013; or
22
(ii) holds, or has ever held, a Temporary Safe Haven (Class
23
UJ) visa; or
24
(iii) holds, or has ever held, a Temporary (Humanitarian
25
Concern) (Class UO) visa; or
26
(iv) did not hold a visa that was in effect on the person's last
27
entry into Australia; or
28
(v) is an unauthorised maritime arrival; or
29
(vi) was not immigration cleared on the person's last entry
30
into Australia.
31
(4) Subclasses:
32
785 (Temporary Protection)
33
31 After Part 773 of Schedule 2
34
Insert:
35
Schedule 2 Protection visas and other measures
Part 4 Permanent protection visas and temporary protection visas
38
Migration and Maritime Powers Legislation Amendment (Resolving
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No. , 2014
Subclass 785--Temporary Protection
1
2
785.1--Interpretation
3
785.111
4
For the purposes of this Part, a person (A) is a member of the same
5
family unit as another person (B) if:
6
(a) A is a member of B's family unit; or
7
(b) B is a member of A's family unit; or
8
(c) A and B are members of the family unit of a third person.
9
785.2--Primary criteria
10
Note:
All applicants must satisfy the primary criteria.
11
785.21--Criteria to be satisfied at time of application
12
785.211
13
(1) Subclause (2) or (3) is satisfied.
14
(2) The applicant:
15
(a) claims that a criterion mentioned in paragraph 36(2)(a) or
16
(aa) of the Act is satisfied in relation to the applicant; and
17
(b) makes specific claims as to why that criterion is satisfied.
18
Note:
Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of
19
protection visas to non-citizens in respect of whom Australia has
20
protection obligations.
21
(3) The applicant claims to be a member of the same family unit as a
22
person:
23
(a) to whom subclause (2) applies; and
24
(b) who is an applicant for a Subclass 785 (Temporary
25
Protection) visa.
26
Note:
See paragraphs 36(2)(b) and (c) of the Act.
27
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39
785.22--Criteria to be satisfied at time of decision
1
785.221
2
(1) Subclause (2) or (3) is satisfied.
3
(2) The Minister is satisfied that a criterion mentioned in
4
paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the
5
applicant.
6
Note:
Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of
7
protection visas to non-citizens in respect of whom Australia has
8
protection obligations.
9
(3) The Minister is satisfied that:
10
(a) the applicant is a member of the same family unit as an
11
applicant mentioned in subclause (2); and
12
(b) the applicant mentioned in subclause (2) has been granted a
13
Subclass 785 (Temporary Protection) visa.
14
Note:
See paragraphs 36(2)(b) and (c) of the Act.
15
785.222
16
The applicant has undergone a medical examination carried out by
17
any of the following (a relevant medical practitioner):
18
(a) a Medical Officer of the Commonwealth;
19
(b) a medical practitioner approved by the Minister for the
20
purposes of this paragraph;
21
(c) a medical practitioner employed by an organisation approved
22
by the Minister for the purposes of this paragraph.
23
785.223
24
(1) One of subclauses (2) to (4) is satisfied.
25
(2) The applicant has undergone a chest x-ray examination conducted
26
by a medical practitioner who is qualified as a radiologist in
27
Australia.
28
(3) The applicant is under 11 years of age and is not a person in
29
respect of whom a relevant medical practitioner has requested the
30
examination mentioned in subclause (2).
31
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(4) The applicant is a person:
1
(a) who is confirmed by a relevant medical practitioner to be
2
pregnant; and
3
(b) who has been examined for tuberculosis by a chest clinic
4
officer employed by a health authority of a State or Territory;
5
and
6
(c) who has signed an undertaking to place herself under the
7
professional supervision of a health authority in a State or
8
Territory and to undergo any necessary treatment; and
9
(d) who the Minister is satisfied should not be required to
10
undergo a chest x-ray examination at this time.
11
785.224
12
(1) A relevant medical practitioner has considered:
13
(a) the results of any tests carried out for the purposes of the
14
medical examination required under clause 785.222; and
15
(b) the radiological report (if any) required under clause 785.223
16
in respect of the applicant.
17
(2) If the relevant medical practitioner:
18
(a) is not a Medical Officer of the Commonwealth; and
19
(b) considers that the applicant has a disease or condition that is,
20
or may result in the applicant being, a threat to public health
21
in Australia or a danger to the Australian community;
22
the relevant medical practitioner has referred any relevant results
23
and reports to a Medical Officer of the Commonwealth.
24
785.225
25
If a Medical Officer of the Commonwealth considers that the
26
applicant has a disease or condition that is, or may result in the
27
applicant being, a threat to public health in Australia or a danger to
28
the Australian community, arrangements have been made, on the
29
advice of the Medical Officer of the Commonwealth, to place the
30
applicant under the professional supervision of a health authority in
31
a State or Territory to undergo any necessary treatment.
32
Protection visas and other measures Schedule 2
Permanent protection visas and temporary protection visas Part 4
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
41
785.226
1
The applicant:
2
(a) satisfies public interest criteria 4001 and 4003A; and
3
(b) if the applicant had turned 18 at the time of application--
4
satisfies public interest criterion 4019.
5
785.227
6
The Minister is satisfied that the grant of the visa is in the national
7
interest.
8
785.228
9
(1) If the applicant is a child to whom subregulation 2.08(2) applies,
10
subclause (2) is satisfied.
11
(2) The Minister is satisfied that:
12
(a) the applicant is a member of the same family unit as an
13
applicant to whom subclause 785.221(2) applies; and
14
(b) the applicant to whom subclause 785.221(2) applies has been
15
granted a Subclass 785 (Temporary Protection) visa.
16
Note 1:
Subregulation 2.08(2) applies, generally, to a child born to a
17
non-citizen after the non-citizen has applied for a visa but before the
18
application is decided.
19
Note 2:
Subclause 785.221(2) applies if the Minister is satisfied that Australia
20
has protection obligations in respect of the applicant as mentioned in
21
paragraph 36(2)(a) or (aa) of the Act.
22
785.3--Secondary criteria
23
Note:
All applicants must satisfy the primary criteria.
24
785.4--Circumstances applicable to grant
25
785.411
26
The applicant must be in Australia when the visa is granted.
27
Schedule 2 Protection visas and other measures
Part 4 Permanent protection visas and temporary protection visas
42
Migration and Maritime Powers Legislation Amendment (Resolving
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No. , 2014
785.5--When visa is in effect
1
785.511
2
Temporary visa permitting the holder to remain in Australia until:
3
(a) if the holder of the temporary visa (the first visa) makes a
4
valid application for another Subclass 785 (Temporary
5
Protection) visa within 3 years after the grant of the first
6
visa--the day when the application is finally determined or
7
withdrawn; or
8
(b) in any other case--the earlier of:
9
(i) the end of 3 years from the date of grant of the first visa;
10
and
11
(ii) the end of any shorter period, specified by the Minister,
12
from the date of grant of the first visa.
13
785.6--Conditions
14
785.611
15
Conditions 8503 and 8565.
16
32 Clause 866.211 of Schedule 2
17
Repeal the clause, substitute:
18
866.211
19
(1) Subclause (2) or (3) is satisfied.
20
(2) The applicant:
21
(a) claims that a criterion mentioned in paragraph 36(2)(a) or
22
(aa) of the Act is satisfied in relation to the applicant; and
23
(b) makes specific claims as to why that criterion is satisfied.
24
Note:
Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of
25
protection visas to non-citizens in respect of whom Australia has
26
protection obligations.
27
(3) The applicant claims to be a member of the same family unit as a
28
person:
29
(a) to whom subclause (2) applies; and
30
Protection visas and other measures Schedule 2
Permanent protection visas and temporary protection visas Part 4
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
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43
(b) who is an applicant for a Subclass 866 (Protection) visa.
1
Note:
See paragraphs 36(2)(b) and (c) of the Act.
2
33 Clause 866.221 of Schedule 2
3
Repeal the clause, substitute:
4
866.221
5
(1) Subclause (2) or (3) is satisfied.
6
(2) The Minister is satisfied that a criterion mentioned in
7
paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the
8
applicant.
9
Note:
Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of
10
protection visas to non-citizens in respect of whom Australia has
11
protection obligations.
12
(3) The Minister is satisfied that:
13
(a) the applicant is a member of the same family unit as an
14
applicant mentioned in subclause (2); and
15
(b) the applicant mentioned in subclause (2) has been granted a
16
Subclass 866 (Protection) visa.
17
Note:
See paragraphs 36(2)(b) and (c) of the Act.
18
34 Clause 866.223 of Schedule 2
19
Omit "relevant medical practitioner", substitute "relevant medical
20
practitioner".
21
35 Paragraph 866.225(a)
22
Omit ", 4002".
23
36 Clause 866.230 of Schedule 2
24
Repeal the clause, substitute:
25
866.230
26
(1) If the applicant is a child to whom subregulation 2.08(2) applies,
27
subclause (2) is satisfied.
28
(2) The Minister is satisfied that:
29
Schedule 2 Protection visas and other measures
Part 4 Permanent protection visas and temporary protection visas
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Migration and Maritime Powers Legislation Amendment (Resolving
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No. , 2014
(a) the applicant is a member of the same family unit as an
1
applicant to whom subclause 866.221(2) applies; and
2
(b) the applicant to whom subclause 866.221(2) applies has been
3
granted a Subclass 866 (Protection) visa.
4
Note 1:
Subregulation 2.08(2) applies, generally, to a child born to a
5
non-citizen after the non-citizen has applied for a visa but before the
6
application is decided.
7
Note 2:
Subclause 866.221(2) applies if the Minister is satisfied that Australia
8
has protection obligations in respect of the applicant as mentioned in
9
paragraph 36(2)(a) or (aa) of the Act.
10
37 After clause 8564 of Schedule 8
11
Insert:
12
8565
The holder must notify Immigration of any change in the holder's
13
residential address within 28 days after the change occurs.
14
Division 2
--Main amendments commencing immediately
15
after Division 1
16
Migration Regulations 1994
17
38 After regulation 2.08E
18
Insert:
19
2.08F Certain applications for Protection (Class XA) visas taken to
20
be applications for Temporary Protection (Class XD)
21
visas
22
Conversion regulation
23
(1) For section 45AA of the Act, despite anything else in the Act, a
24
valid application (a pre-conversion application) for a Protection
25
(Class XA) visa made before the commencement of this regulation
26
by an applicant prescribed by subregulation (2) is, immediately
27
after this regulation starts to apply in relation to the application
28
under subregulation (3):
29
(a) taken not to be, and never to have been, a valid application
30
for a Protection (Class XA) visa; and
31
Protection visas and other measures Schedule 2
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Migration and Maritime Powers Legislation Amendment (Resolving
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45
(b) taken to be, and always to have been, a valid application for a
1
Temporary Protection (Class XD) visa, made by the
2
prescribed applicant.
3
Note 1:
As a result, the Minister is required to make a decision on the
4
pre-conversion application as if it were a valid application for a
5
Temporary Protection (Class XD) visa.
6
Note 2:
If the first instalment of visa application charge for the pre-conversion
7
application had been paid before this regulation starts to apply, the
8
first instalment of visa application charge for an application for a
9
Temporary Protection (Class XD) visa (if any) is taken to have been
10
paid. See section 45AA of the Act.
11
Prescribed applicants
12
(2) The following are prescribed applicants:
13
(a) an applicant who holds, or has ever held, any of the following
14
visas:
15
(i) a Subclass 785 (Temporary Protection) visa granted
16
before 2 December 2013;
17
(ii) a Temporary Safe Haven (Class UJ) visa;
18
(iii) a Temporary (Humanitarian Concern) (Class UO) visa;
19
(b) an applicant who did not hold a visa that was in effect on the
20
applicant's last entry into Australia;
21
(c) an applicant who is an unauthorised maritime arrival;
22
(d) an applicant who was not immigration cleared on the
23
applicant's last entry into Australia.
24
When this regulation starts to apply
25
(3) This regulation starts to apply in relation to a pre-conversion
26
application immediately after the occurrence of whichever of the
27
following events is applicable to the application:
28
(a) if, before the commencement of this regulation, the Minister
29
had not made a decision in relation to the pre-conversion
30
application under section 65 of the Act--the commencement
31
of this regulation;
32
(b) in a case in which the Minister had made such a decision
33
before the commencement of this regulation--one of the
34
following events, if the event occurs on or after the
35
commencement of this regulation:
36
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(i) the Refugee Review Tribunal remits a matter in relation
1
to the pre-conversion application in accordance with
2
paragraph 415(2)(c) of the Act;
3
(ii) the Administrative Appeals Tribunal remits a matter in
4
relation to the pre-conversion application in accordance
5
with paragraph 43(1A)(c) of the Administrative Appeals
6
Tribunal Act 1975 (as substituted in relation to an
7
RRT-reviewable decision by section 452 of the Act);
8
(iii) a court quashes a decision of the Minister in relation to
9
the pre-conversion application and orders the Minister
10
to reconsider the application in accordance with the law.
11
Division 3
--Consequential amendments
12
Migration Regulations 1994
13
39 Regulation 2.06AA
14
Repeal the regulation.
15
40 Subregulation 2.07AQ(3) (table item 1, column headed
16
"Criterion 2", paragraph (c))
17
Omit "; or".
18
41 Subregulation 2.07AQ(3) (table item 1, column headed
19
"Criterion 2", paragraph (d))
20
Repeal the paragraph.
21
42 Subregulation 2.07AQ(3) (table item 2, column headed
22
"Criterion 1")
23
Omit "Protection (Class XA)", substitute "protection".
24
43 Subregulation 2.07AQ(3) (table item 2, column headed
25
"Criterion 2")
26
After "item 1,", insert "or a Subclass 785 (Temporary Protection) visa
27
granted before 9 August 2008,".
28
Protection visas and other measures Schedule 2
Permanent protection visas and temporary protection visas Part 4
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
47
44 Subregulation 2.07AQ(5)
1
Omit "Protection (Class XA)" (wherever occurring), substitute
2
"protection".
3
45 Subregulation 2.07AQ(7)
4
After "Subclass 785 (Temporary Protection) visa", insert "granted
5
before 9 August 2008".
6
46 Subregulation 2.43(3) (paragraph (i) of the definition of
7
relevant visa)
8
Repeal the paragraph, substitute:
9
(i) Subclass 785, including a Subclass 785 visa granted before
10
2 December 2013;
11
47 Subitem 1127AA(3) of Schedule 1 (table item 1, column
12
headed "Criterion 1", paragraph (c))
13
Omit "; or".
14
48 Subitem 1127AA(3) of Schedule 1 (table item 1, column
15
headed "Criterion 1", paragraph (d))
16
Repeal the paragraph.
17
49 Subitem 1127AA(3) of Schedule 1 (table item 2, column
18
headed "Criterion 1")
19
After "item 1,", insert "or a Subclass 785 (Temporary Protection) visa
20
granted before 9 August 2008,".
21
50 Subparagraphs 1302(3)(bb)(i) and (ii) of Schedule 1
22
After "visa", insert ", including a Subclass 785 (Temporary Protection)
23
visa granted before 2 December 2013".
24
51 Paragraphs 773.213(2)(zf) and (zfa) of Schedule 2
25
Repeal the paragraphs, substitute:
26
(zf) protection visas (including Protection (Class AZ) visas, see
27
subsection 35A(5) of the Act);
28
Schedule 2 Protection visas and other measures
Part 4 Permanent protection visas and temporary protection visas
48
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
52 Amendments of listed provisions
--protection visas
1
The provisions listed in the following table are amended as set out in
2
the table.
3
4
Amendments relating to protection visas
Item
Provision
Omit
Substitute
1
Regulation 1.03
(paragraph (a) of the
definition of relative)
Protection (Class XA)
protection
2
Paragraph 1.05A(2)(d)
Protection (Class XA)
protection
3
Paragraph 2.04(2)(a)
Protection (Class XA)
protection
4
Paragraph 2.12(1)(c)
Protection (Class XA)
protection visas
5
Regulation 2.20
Protection (Class XA)
(wherever occurring)
protection
6
Regulation 4.31A
Protection (Class XA)
(wherever occurring)
protection
7
Subregulation 4.33(1)
Protection (Class XA)
protection
8
Paragraph 010.211(4)(b) of
Schedule 2
Protection (Class XA)
protection
9
Clause 010.611 of
Schedule 2
Protection (Class XA)
(wherever occurring)
protection
10
Clause 020.611 of
Schedule 2
Protection (Class XA)
(wherever occurring)
protection
11
Paragraph 030.612(a) of
Schedule 2
Protection (Class XA)
protection
12
Paragraph 050.212(8)(c) of
Schedule 2
Protection (Class XA)
protection
13
Paragraph 050.613A(1)(a)
of Schedule 2
Protection (Class XA)
protection
14
Paragraph 050.614(1)(a) of
Schedule 2
Protection (Class XA)
protection
15
Paragraph 051.611A(1)(a)
of Schedule 2
Protection (Class XA)
protection
Protection visas and other measures Schedule 2
Permanent protection visas and temporary protection visas Part 4
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
49
Division 4
--Amendments relating to application
1
Migration Regulations 1994
2
53 At the end of Schedule 13
3
Add:
4
Part 50--Amendments made by the Migration and
5
Maritime Powers Legislation Amendment
6
(Resolving the Asylum Legacy Caseload)
7
Act 2014
8
9
5000 Operation of Divisions 1 and 3 of Part 4 of Schedule 2
10
The amendments of these Regulations made by Divisions 1 and 3
11
of Part 4 of Schedule 2 to the Migration Legislation Amendment
12
(Resolving the Asylum Legacy Caseload) Act 2014 apply in
13
relation to:
14
(a) a visa application made on or after the commencement of
15
Division 1 of that Part; and
16
(b) a visa application that is taken to be, and always to have
17
been, a valid application for a Temporary Protection (Class
18
XD) visa by the operation of paragraph 2.08F(1)(b) of these
19
Regulations (as inserted by Division 2 of that Part).
20
Note:
Regulation 2.08F applies, by its own terms, in relation to some
21
protection visa applications made before the commencement of that
22
Part.
23
Schedule 3 Act-based visas
Part 1 Amendment of the Migration Act 1958
50
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Schedule 3
--Act-based visas
1
Part 1
--Amendment of the Migration Act 1958
2
Division 1
--Amendments
3
Migration Act 1958
4
1 After subsection 31(3)
5
Insert:
6
(3A) To avoid doubt, subsection (3) does not require criteria to be
7
prescribed for a visa or visas including, without limitation, visas of
8
the following classes:
9
(a) special category visas (see section 32);
10
(b) permanent protection visas (see subsection 35A(2));
11
(c) temporary protection visas (see subsection 35A(3));
12
(d) bridging visas (see section 37);
13
(e) temporary safe haven visas (see section 37A);
14
(f) maritime crew visas (see section 38B).
15
Note 1:
An application for any of these visas is invalid if criteria relating to
16
both the application and the grant of the visa have not been prescribed
17
(see subsection 46AA(2)).
18
Note 2:
If criteria are prescribed by the regulations for any of these visas, the
19
visa cannot be granted unless any criteria prescribed by this Act, as
20
well as any prescribed by regulation, are satisfied (see
21
subsection 46AA(4)).
22
2 Before subsection 46(1)
23
Insert:
24
Validity--general
25
3 Paragraph 46(1)(d)
26
Repeal the paragraph, substitute:
27
(d) it is not prevented by any provision of this Act, or of any
28
other law of the Commonwealth, including, without
29
limitation, the following provisions of this Act:
30
Act-based visas Schedule 3
Amendment of the Migration Act 1958 Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
51
(i) section 48 (visa refused or cancelled earlier);
1
(ii) section 48A (protection visa refused or cancelled
2
earlier);
3
(iii) section 161 (criminal justice visa holders);
4
(iv) section 164D (enforcement visa holders);
5
(v) section 195 (detainee applying out of time);
6
(vi) section 501E (earlier refusal or cancellation on character
7
grounds); and
8
(e) it is not invalid under any provision of this Act, or of any
9
other law of the Commonwealth, including, without
10
limitation, the following provisions of this Act:
11
(i) section 46AA (visa applications, and the grant of visas,
12
for some Act-based visas);
13
(ii) section 46A (visa applications by unauthorised maritime
14
arrivals);
15
(iii) section 46B (visa applications by transitory persons);
16
(iv) section 91E or 91G (CPA and safe third countries);
17
(v) section 91K (temporary safe haven visas);
18
(vi) section 91P (non-citizens with access to protection from
19
third countries).
20
4 Before subsection 46(2A)
21
Insert:
22
Provision of personal identifiers
23
5 Before subsection 46(3)
24
Insert:
25
Prescribed criteria for validity
26
6 At the end of section 46
27
Add:
28
(5) To avoid doubt, subsections (3) and (4) do not require criteria to be
29
prescribed in relation to the validity of visa applications, including,
30
without limitation, applications for visas of the following classes:
31
(a) special category visas (see section 32);
32
Schedule 3 Act-based visas
Part 1 Amendment of the Migration Act 1958
52
Migration and Maritime Powers Legislation Amendment (Resolving
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No. , 2014
(b) permanent protection visas (see subsection 35A(2));
1
(c) temporary protection visas (see subsection 35A(3));
2
(d) bridging visas (see section 37);
3
(e) temporary safe haven visas (see section 37A);
4
(f) maritime crew visas (see section 38B).
5
7 After section 46
6
Insert:
7
46AA Visa applications, and the grant of visas, for some Act-based
8
visas
9
Visa classes covered by this section
10
(1) The following classes of visas are covered by this section:
11
(a) special category visas (see section 32);
12
(b) permanent protection visas (see subsection 35A(2));
13
(c) temporary protection visas (see subsection 35A(3));
14
(d) bridging visas (see section 37);
15
(e) temporary safe haven visas (see section 37A);
16
(f) maritime crew visas (see section 38B).
17
Applications invalid if no prescribed criteria
18
(2) An application for a visa of any of the classes covered by this
19
section is invalid if, when the application is made, both of the
20
following conditions are satisfied:
21
(a) there are no regulations in effect prescribing criteria that must
22
be satisfied for a visa of that particular class to be a valid
23
application;
24
(b) there are no regulations in effect prescribing criteria that must
25
be satisfied for a visa of that particular class to be granted.
26
Note:
This subsection does not apply if regulations are in effect prescribing
27
criteria mentioned in paragraph (a) or (b) (or both) for a visa.
28
(3) The criteria mentioned in subsection (2) do not include prescribed
29
criteria that apply generally to visa applications or the granting of
30
visas.
31
Act-based visas Schedule 3
Amendment of the Migration Act 1958 Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
53
Example: The criteria mentioned in subsection (2) do not include the criteria set
1
out in regulation 2.07 of the Migration Regulations 1994 (application
2
for visa--general).
3
Criteria in the Act and the regulations
4
(4) If regulations are in effect prescribing criteria mentioned in
5
paragraph (2)(a) or (b) (or both) for a visa of a class covered by
6
this section:
7
(a) an application for the visa is invalid unless the application
8
satisfies both:
9
(i) any applicable criteria under this Act that relate to
10
applications for visas of that class; and
11
(ii) any applicable criteria prescribed by regulation that
12
relate to applications for visas of that class; and
13
(b) the visa must not be granted unless the application satisfies
14
both:
15
(i) any applicable criteria under this Act that relate to the
16
grant of visas of that class; and
17
(ii) any applicable criteria prescribed by regulation that
18
relate to the grant of visas of that class.
19
Note:
For visa applications generally, see section 46. For the grant of a visa
20
generally, see section 65.
21
Division 2
--Application
22
8 Application of amendments
23
The amendments of the Migration Act 1958 made by Division 1 apply
24
in relation to an application for a visa made on or after the
25
commencement of the amendments.
26
Schedule 3 Act-based visas
Part 2 Amendment of the Migration Regulations 1994
54
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Part 2
--Amendment of the Migration
1
Regulations 1994
2
Migration Regulations 1994
3
9 Regulation 2.01 (heading)
4
Repeal the heading, substitute:
5
2.01 Classes of visas
6
Classes of visas prescribed by section 31 of the Act
7
10 Regulation 2.01
8
Before "For", insert "(1)".
9
11 Paragraph 2.01(a)
10
Omit "created by the Act", substitute "identified by an item in the table
11
in subregulation (2)".
12
12 Regulation 2.01 (note)
13
Repeal the note, substitute:
14
Classes of visas provided for by the Act
15
(2) A class of visas provided for by the Act that is identified by an
16
item in the following table is classified under these Regulations, by
17
Class and Subclass, as indicated in the item.
18
19
Classes of visas provided for by the Act
Item
Provision of the
Act
Class of visa
provided
for by the
Act
Classification
by Class under
these
Regulations
Classification by
Subclass under
these
Regulations
1
section 32
special
category
visas
Special
Category
(Temporary)
(Class TY)
Subclass 444
(Special
Category)
Act-based visas Schedule 3
Amendment of the Migration Regulations 1994 Part 2
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
55
Classes of visas provided for by the Act
Item
Provision of the
Act
Class of visa
provided
for by the
Act
Classification
by Class under
these
Regulations
Classification by
Subclass under
these
Regulations
2
subsection 35A(2)
permanent
protection
visas
Protection
(Class XA)
Subclass 866
(Protection)
3
subsection 35A(3)
temporary
protection
visas
Temporary
Protection
(Class XD)
Subclass 785
(Temporary
Protection)
4
section 37
bridging
visas
Bridging A
(Class WA)
Subclass 010
(Bridging A)
5
section 37
bridging
visas
Bridging B
(Class WB)
Subclass 020
(Bridging B)
6
section 37
bridging
visas
Bridging C
(Class WC)
Subclass 030
(Bridging C)
7
section 37
bridging
visas
Bridging D
(Class WD)
Subclass 040
(Bridging
(Prospective
Applicant))
8
section 37
bridging
visas
Bridging D
(Class WD)
Subclass 041
(Bridging
(Non-applicant))
9
section 37
bridging
visas
Bridging E
(Class WE)
Subclass 050
(Bridging
(General))
10
section 37
bridging
visas
Bridging E
(Class WE)
Subclass 051
(Bridging
(Protection Visa
Applicant))
11
section 37
bridging
visas
Bridging F
(Class WF)
Subclass 060
(Bridging F)
12
section 37
bridging
visas
Bridging R
(Class WR)
Subclass 070
(Bridging
(Removal
Pending))
13
section 37A
temporary
Temporary Safe
Subclass 449
Schedule 3 Act-based visas
Part 2 Amendment of the Migration Regulations 1994
56
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Classes of visas provided for by the Act
Item
Provision of the
Act
Class of visa
provided
for by the
Act
Classification
by Class under
these
Regulations
Classification by
Subclass under
these
Regulations
safe haven
visas
Haven (Class
UJ)
(Humanitarian
Stay
(Temporary))
14
section 38B
maritime
crew visas
Maritime Crew
(Temporary)
(Class ZM)
Subclass 988
(Maritime Crew)
Note 1:
Subsection 35A(4) of the Act provides that additional classes of
1
permanent and temporary visas may be prescribed as protection visas
2
for the purposes of section 31.
3
Note 2:
For table items 4-12, section 37 provides that there are classes of
4
temporary visas, to be known as bridging visas.
5
Amendments relating to fast track assessment process Schedule 4
Fast track assessment process Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
57
Schedule 4
--Amendments relating to fast
1
track assessment process
2
Part 1
--Fast track assessment process
3
Migration Act 1958
4
1 Subsection 5(1)
5
Insert:
6
excluded fast track review applicant means a fast track applicant:
7
(a) who, in the opinion of the Minister:
8
(i) is covered by section 91C or 91N; or
9
(ii) has previously entered Australia and who, while in
10
Australia, made a claim for protection relying on a
11
criterion mentioned in subsection 36(2) in an
12
application that was refused or withdrawn; or
13
(iii) has made a claim for protection in a country other than
14
Australia that was refused by that country; or
15
(iv) has made a claim for protection in a country other than
16
Australia that was refused by the Office of the United
17
Nations High Commissioner for Refugees in that
18
country; or
19
(v) makes a manifestly unfounded claim for protection
20
relying on a criterion mentioned in subsection 36(2) in,
21
or in connection with, his or her application; or
22
(vi) without reasonable explanation provides, gives or
23
presents a bogus document to an officer of the
24
Department or to the Minister (or causes such a
25
document to be so provided, given or presented) in
26
support of his or her application; or
27
(b) who is, or who is included in a class of persons who are,
28
specified by legislative instrument made under
29
paragraph (1AA)(a).
30
fast track applicant means:
31
(a) a person:
32
Schedule 4 Amendments relating to fast track assessment process
Part 1 Fast track assessment process
58
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
(i) who is an unauthorised maritime arrival and who
1
entered Australia on or after 13 August 2012; and
2
(ii) to whom the Minister has given a written notice under
3
subsection 46A(2) determining that subsection 46A(1)
4
does not apply to an application by the person for a
5
protection visa; and
6
(iii) who has made a valid application for a protection visa in
7
accordance with the determination; or
8
(b) a person who is, or who is included in a class of persons who
9
are, specified by legislative instrument made under
10
paragraph (1AA)(b).
11
Note:
Some unauthorised maritime arrivals born in Australia on or after
12
13 August 2012 may not be fast track applicants even if paragraph (a)
13
applies: see subsection (1AC)
14
fast track decision means a decision to refuse to grant a protection
15
visa to a fast track applicant, other than a decision to refuse to grant
16
such a visa:
17
(a) because the Minister or a delegate of the Minister is not
18
satisfied that the applicant passes the character test under
19
section 501; or
20
(b) relying on:
21
(i) subsection 5H(2); or
22
(ii) subsection 36(1B) or (1C); or
23
(iii) paragraph 36(2C)(a) or (b).
24
Note:
Some decisions made in the circumstances mentioned in
25
paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast
26
track decision are reviewable by the Administrative Appeals Tribunal
27
in accordance with section 500.
28
fast track reviewable decision has the meaning given by
29
section 473BB.
30
fast track review applicant means a fast track applicant who is not
31
an excluded fast track review applicant.
32
Immigration Assessment Authority means the Authority
33
established by section 473JA.
34
referred applicant has the meaning given by section 473BB.
35
Amendments relating to fast track assessment process Schedule 4
Fast track assessment process Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
59
2 After subsection 5(1)
1
Insert:
2
(1AA) The Minister may make a legislative instrument for the purposes of
3
the following provisions:
4
(a) paragraph (b) of the definition of excluded fast track review
5
applicant in subsection (1);
6
(b) paragraph (b) of the definition of fast track applicant in
7
subsection (1).
8
(1AB) A legislative instrument made under subsection (1AA) may apply,
9
adopt or incorporate, with or without modification, the provisions
10
of any other legislative instrument, whether or not the other
11
legislative instrument is disallowable, as in force at a particular
12
time or as in force from time to time.
13
(1AC) A person is not a fast track applicant only because of paragraph (a)
14
of the definition of fast track applicant in subsection (1) if:
15
(a) the person is born in Australia on or after 13 August 2012;
16
and
17
(b) the person is the child of an unauthorised maritime arrival
18
who entered Australia before 13 August 2012.
19
3 Subsection 5(9)
20
Omit "either".
21
4 At the end of subsection 5(9)
22
Add:
23
; or (c) in relation to an application for a protection visa by an
24
excluded fast track review applicant--a decision has been
25
made in respect of the application.
26
5 Subsection 5(9A)
27
Omit "Part 5 or 7", substitute "Part 5, 7 or 7AA".
28
6 At the end of subsection 5(9A)
29
Add:
30
; (e) subsection 473EA(2) (Immigration Assessment Authority
31
decisions).
32
Schedule 4 Amendments relating to fast track assessment process
Part 1 Fast track assessment process
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No. , 2014
7 At the end of subsection 5(9B)
1
Add:
2
; (c) a decision of the Immigration Assessment Authority under
3
paragraph 473CC(2)(b).
4
8 Subsection 5(9B) (note)
5
Omit "Tribunal", substitute "review body".
6
9 Paragraph 57(1)(a)
7
Repeal the paragraph, substitute:
8
(a) would be the reason, or part of the reason:
9
(i) for refusing to grant a visa; or
10
(ii) for deciding that the applicant is an excluded fast track
11
review applicant; and
12
10 At the end of subsection 57(1)
13
Add:
14
Note:
Excluded fast track review applicant is defined in subsection 5(1).
15
11 Paragraph 57(3)(b)
16
Repeal the paragraph, substitute:
17
(b) either:
18
(i) this Act provides, under Part 5 or 7, for an application
19
for review of a decision to refuse to grant the visa; or
20
(ii) the applicant is a fast track applicant.
21
Note:
Some applicants for protection visas are fast track applicants. The
22
term is defined in subsection 5(1).
23
12 Subsection 65(1) (note)
24
Omit "Note", substitute "Note 1".
25
13 At the end of subsection 65(1)
26
Add:
27
Note 2:
Decisions to refuse to grant protection visas to fast track review
28
applicants must generally be referred to the Immigration Assessment
29
Authority: see Part 7AA.
30
Amendments relating to fast track assessment process Schedule 4
Fast track assessment process Part 1
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Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
61
14 At the end of subsection 66(2)
1
Add:
2
; and (e) in the case of a fast track reviewable decision--state that the
3
decision has been referred for review under Part 7AA and
4
that it is not subject to review under Part 5 or Part 7; and
5
(f) in the case of a fast track decision that is not a fast track
6
reviewable decision--state that the decision is not subject to
7
review under Part 5, 7 or 7AA.
8
15 Section 275 (at the end of the definition of review
9
authority)
10
Add:
11
; or (c) the Immigration Assessment Authority.
12
16 At the end of subsection 338(1)
13
Add:
14
; or (d) the decision is a fast track decision.
15
17 At the end of subsection 411(2)
16
Add:
17
; (c) fast track decisions.
18
18 At the end of subsection 460(2)
19
Add:
20
Note:
The Principal Member is also responsible for the overall operation and
21
administration of the Immigration Assessment Authority under
22
Part 7AA.
23
19 At the end of section 470
24
Add "and the Principal Member's powers under Part 7AA".
25
20 Paragraph 473A(a)
26
Repeal the paragraph, substitute:
27
(a) the following persons constitute a Statutory Agency:
28
(i) the Principal Member of the Refugee Review Tribunal;
29
(ii) the persons mentioned in subsection 407(4) (officers of
30
the Migration Review Tribunal);
31
Schedule 4 Amendments relating to fast track assessment process
Part 1 Fast track assessment process
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No. , 2014
(iii) the persons mentioned in subsection 472(4), including
1
the persons who are made available to the Immigration
2
Assessment Authority under subsection 473JE(2)
3
(officers of the Refugee Review Tribunal);
4
(iv) the persons mentioned in subsection 473JE(1)
5
(Reviewers of the Immigration Assessment Authority);
6
and
7
21 After Part 7A
8
Insert:
9
Part 7AA--Fast track review process in relation to
10
certain protection visa decisions
11
Division 1--Introduction
12
473BA Simplified outline of this Part
13
This Part provides a limited form of review of certain decisions
14
(fast track decisions) to refuse protection visas to some applicants,
15
including unauthorised maritime arrivals who entered Australia on
16
or after 13 August 2012. These applicants are known as fast track
17
review applicants and decisions to refuse to grant them protection
18
visas are known as fast track reviewable decisions.
19
Fast track decisions made in relation to some applicants are
20
excluded from the fast track review process. These applicants are
21
known as excluded fast track review applicants.
22
Fast track review applicants and excluded fast track review
23
applicants are collectively known as fast track applicants.
24
Fast track reviewable decisions must be referred by the Minister to
25
the Immigration Assessment Authority as soon as reasonably
26
practicable after a decision is made. A person cannot make an
27
application for review directly to the Immigration Assessment
28
Authority.
29
Amendments relating to fast track assessment process Schedule 4
Fast track assessment process Part 1
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Migration and Maritime Powers Legislation Amendment (Resolving
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63
Decisions to refuse to grant protection visas to fast track applicants
1
are generally not reviewable by any other Tribunal under this Act,
2
although some decisions are reviewable by the Administrative
3
Appeals Tribunal.
4
The Immigration Assessment Authority consists of the Principal
5
Member of the Refugee Review Tribunal, the Senior Reviewer and
6
other Reviewers. The Principal Member is responsible for the
7
overall administration and operation of the Immigration
8
Assessment Authority. The Reviewers are appointed by the
9
Minister.
10
In reviewing fast track reviewable decisions, the Immigration
11
Assessment Authority is required to pursue the objective of
12
providing a mechanism of limited review that is efficient and
13
quick.
14
The Immigration Assessment Authority does not hold hearings and
15
is required to review decisions on the papers that are provided to it
16
when decisions are referred to it. However, in exceptional
17
circumstances the Immigration Assessment Authority may
18
consider new material and may invite referred applicants to
19
provide, or comment on, new information at an interview or in
20
writing.
21
The Immigration Assessment Authority may affirm a referred
22
decision or may remit the decision for reconsideration in
23
accordance with directions.
24
The Immigration Assessment Authority may give directions
25
restricting the disclosure of information. There are also specific
26
requirements for the giving and receiving of documents.
27
473BB Definitions
28
In this Part:
29
fast track reviewable decision means:
30
(a) a fast track decision in relation to a fast track review
31
applicant; or
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(b) a fast track decision determined under section 473BC;
1
but does not include a fast track decision in relation to which the
2
Minister has issued a conclusive certificate under section 473BD.
3
Note:
Fast track decisions are decisions (subject to some exceptions) to
4
refuse to grant protection visas to certain applicants, known as fast
5
track applicants. Some specified fast track applicants are known as
6
excluded fast track review applicants; all others are known as fast
7
track review applicants. The highlighted terms are defined in
8
subsection 5(1).
9
new information has the meaning given by subsection 473DC(1).
10
Principal Member means the Principal Member of the Refugee
11
Review Tribunal.
12
referred applicant means an applicant for a protection visa in
13
respect of whom a fast track reviewable decision is referred under
14
section 473CA.
15
Reviewer means a Reviewer engaged in accordance with
16
Division 8, and includes the Senior Reviewer.
17
review material has the meaning given by section 473CB.
18
Senior Reviewer means the Senior Reviewer appointed under
19
section 473JC.
20
473BC Minister may determine that certain decisions are to be
21
reviewed under this Part
22
The Minister may, by legislative instrument, determine that a
23
specified fast track decision, or a specified class of fast track
24
decisions, in relation to an excluded fast track review applicant
25
should be reviewed under this Part.
26
Note 1:
Excluded fast track review applicant and fast track decision are
27
defined in subsection 5(1).
28
Note 2:
If the Minister makes a determination, the fast track decision is a fast
29
track reviewable decision (see paragraph (b) of the definition of fast
30
track reviewable decision in section 473BB).
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473BD Minister may issue conclusive certificate in relation to
1
certain decisions
2
The Minister may issue a conclusive certificate in relation to a fast
3
track decision if the Minister believes that:
4
(a) it would be contrary to the national interest to change the
5
decision; or
6
(b) it would be contrary to the national interest for the decision to
7
be reviewed.
8
Note:
If the Minister issues a conclusive certificate, the fast track decision is
9
not a fast track reviewable decision (see definition of fast track
10
reviewable decision in section 473BB).
11
Division 2--Referral of fast track reviewable decisions to
12
Immigration Assessment Authority
13
473CA Referral of fast track reviewable decisions
14
The Minister must refer a fast track reviewable decision to the
15
Immigration Assessment Authority as soon as reasonably
16
practicable after the decision is made.
17
473CB Material to be provided to Immigration Assessment
18
Authority
19
(1) The Secretary must give to the Immigration Assessment Authority
20
the following material (review material) in respect of each fast
21
track reviewable decision referred to the Authority under
22
section 473CA:
23
(a) a statement that:
24
(i) sets out the findings of fact made by the person who
25
made the decision; and
26
(ii) refers to the evidence on which those findings were
27
based; and
28
(iii) gives the reasons for the decision;
29
(b) material provided by the referred applicant to the person
30
making the decision before the decision was made;
31
(c) any other material that is in the Secretary's possession or
32
control and is considered by the Secretary (at the time the
33
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decision is referred to the Authority) to be relevant to the
1
review;
2
(d) the following details:
3
(i) the last address for service provided to the Minister by
4
the referred applicant for the purposes of receiving
5
documents;
6
(ii) the last residential or business address provided to the
7
Minister by the referred applicant for the purposes of
8
receiving documents;
9
(iii) the last fax number, email address or other electronic
10
address provided to the Minister by the referred
11
applicant for the purposes of receiving documents;
12
(iv) if an address or fax number mentioned in
13
subparagraph (i), (ii) or (iii) has not been provided to
14
the Minister by the referred applicant, or if the Minister
15
reasonably believes that the last such address or number
16
provided to the Minister is no longer correct--such an
17
address or number (if any) that the Minister reasonably
18
believes to be correct at the time the decision is referred
19
to the Authority;
20
(v) if the referred applicant is a minor--the last address or
21
fax number of a kind mentioned in subparagraph (i),
22
(ii), (iii) or (iv) (if any) for a carer of the minor.
23
(2) The Secretary must give the review material to the Immigration
24
Assessment Authority at the same time as, or as soon as reasonably
25
practicable after, the decision is referred to the Authority.
26
473CC Review of decision
27
(1) The Immigration Assessment Authority must review a fast track
28
reviewable decision referred to the Authority under section 473CA.
29
(2) The Immigration Assessment Authority may:
30
(a) affirm the fast track reviewable decision; or
31
(b) remit the decision for reconsideration in accordance with
32
such directions or recommendations of the Authority as are
33
permitted by regulation.
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Division 3--Conduct of review
1
Subdivision A--Natural justice requirements
2
473DA Exhaustive statement of natural justice hearing rule
3
(1) This Division, together with sections 473GA and 473GB, is taken
4
to be an exhaustive statement of the requirements of the natural
5
justice hearing rule in relation to reviews conducted by the
6
Immigration Assessment Authority.
7
(2) To avoid doubt, nothing in this Part requires the Immigration
8
Assessment Authority to give to a referred applicant any material
9
that was before the Minister when the Minister made the decision
10
under section 65.
11
Subdivision B--Review on the papers
12
473DB Immigration Assessment Authority to review decisions on
13
the papers
14
(1) Subject to this Part, the Immigration Assessment Authority must
15
review a fast track reviewable decision referred to it under
16
section 473CA by considering the review material provided to the
17
Authority under section 473CB:
18
(a) without accepting or requesting new information; and
19
(b) without interviewing the referred applicant.
20
(2) Subject to this Part, the Immigration Assessment Authority may
21
make a decision on a fast track reviewable decision at any time
22
after the decision has been referred to the Authority.
23
Note:
Some decisions to refuse to grant a protection visa to fast track
24
applicants are not reviewable by the Immigration Assessment
25
Authority (see paragraphs (a) and (b) of the definition of fast track
26
decision in subsection 5(1)).
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Subdivision C--Additional information
1
473DC Getting new information
2
(1) Subject to this Part, the Immigration Assessment Authority may, in
3
relation to a fast track decision, get any documents or information
4
(new information) that:
5
(a) were not before the Minister when the Minister made the
6
decision under section 65; and
7
(b) the Authority considers may be relevant.
8
(2) The Immigration Assessment Authority does not have a duty to
9
get, request or accept, any new information whether the Authority
10
is requested to do so by a referred applicant or by any other person,
11
or in any other circumstances.
12
(3) Without limiting subsection (1), the Immigration Assessment
13
Authority may invite a person, orally or in writing, to give new
14
information:
15
(a) in writing; or
16
(b) at an interview, whether conducted in person, by telephone or
17
in any other way.
18
473DD Considering new information in exceptional circumstances
19
For the purposes of making a decision in relation to a fast track
20
reviewable decision, the Immigration Assessment Authority must
21
not consider any new information unless:
22
(a) the Authority is satisfied that there are exceptional
23
circumstances to justify considering the new information; and
24
(b) the referred applicant satisfies the Authority that, in relation
25
to any new information given, or proposed to be given, to the
26
Authority by the referred applicant, the new information was
27
not, and could not have been, provided to the Minister before
28
the Minister made the decision under section 65.
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473DE Certain new information must be given to referred applicant
1
(1) The Immigration Assessment Authority must, in relation to a fast
2
track reviewable decision:
3
(a) give to the referred applicant particulars of any new
4
information, but only if the new information:
5
(i) has been, or is to be, considered by the Authority under
6
section 473DD; and
7
(ii) would be the reason, or a part of the reason, for
8
affirming the fast track reviewable decision; and
9
(b) explain to the referred applicant why the new information is
10
relevant to the review; and
11
(c) invite the referred applicant, orally or in writing, to give
12
comments on the new information:
13
(i) in writing; or
14
(ii) at an interview, whether conducted in person, by
15
telephone or in any other way.
16
(2) The Immigration Assessment Authority may give the particulars
17
mentioned in paragraph (1)(a) in the way that the Authority thinks
18
appropriate in the circumstances.
19
(3) Subsection (1) does not apply to new information that:
20
(a) is not specifically about the referred applicant and is just
21
about a class of persons of which the referred applicant is a
22
member; or
23
(b) is non-disclosable information; or
24
(c) is prescribed by regulation for the purposes of this paragraph.
25
Note:
Under subsection 473DA(2) the Immigration Assessment Authority is
26
not required to give to a referred applicant any material that was
27
before the Minister when the Minister made the decision under
28
section 65.
29
473DF Invitation to give new information or comments in writing or
30
at interview
31
(1) This section applies if a referred applicant is:
32
(a) invited under section 473DC to give new information in
33
writing or at an interview; or
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(b) invited under section 473DE to give comments on new
1
information in writing or at an interview.
2
(2) The information or comments are to be given within a period that
3
is prescribed by regulation and specified in the invitation.
4
(3) The Immigration Assessment Authority may determine the manner
5
in which, and the place and time at which, an interview is to be
6
conducted.
7
(4) If the referred applicant does not give the new information or
8
comments in accordance with the invitation, the Immigration
9
Assessment Authority may make a decision on the review:
10
(a) without taking any further action to get the information or the
11
referred applicant's comments on the information; or
12
(b) without taking any further action to allow or enable the
13
referred applicant to take part in a further interview.
14
Division 4--Decisions of Immigration Assessment
15
Authority
16
473EA Immigration Assessment Authority's decision and written
17
statement
18
Written statement of decision
19
(1) If the Immigration Assessment Authority makes a decision on a
20
review under this Part, the Authority must make a written
21
statement that:
22
(a) sets out the decision of the Authority on the review; and
23
(b) sets out the reasons for the decision; and
24
(c) records the day and time the statement is made.
25
How and when written decisions are taken to be made
26
(2) A decision on a review 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.
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(3) The Immigration Assessment Authority has no power to vary or
1
revoke a decision to which subsection (2) applies after the day and
2
time the written statement is made.
3
Return of documents etc.
4
(4) After the Immigration Assessment Authority makes the written
5
statement, the Authority must:
6
(a) return to the Secretary any document that the Secretary has
7
provided in relation to the review; and
8
(b) give the Secretary a copy of any other document that contains
9
evidence or material on which the findings of fact were
10
based.
11
Validity etc. not affected by procedural irregularities
12
(5) The validity of a decision on a review, and the operation of
13
subsection (3), are not affected by:
14
(a) a failure to record, under paragraph (1)(c), the day and time
15
when the written statement was made; or
16
(b) a failure to comply with subsection (4).
17
473EB Notification of Immigration Assessment Authority's decision
18
(1) The Immigration Assessment Authority must notify the referred
19
applicant of a decision on a review by giving the referred applicant
20
a copy of the written statement prepared under
21
subsection 473EA(1). The copy must be given to the applicant:
22
(a) within 14 days after the day on which the decision is taken to
23
have been made; and
24
(b) by one of the methods specified in section 473HB.
25
(2) A copy of that statement must also be given to the Secretary:
26
(a) within 14 days after the day on which the decision is taken to
27
have been made; and
28
(b) by one of the methods specified in section 473HC.
29
(3) A failure to comply with this section in relation to a decision on a
30
review does not affect the validity of the decision.
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473EC Certain decisions of the Immigration Assessment Authority
1
to be published
2
(1) Subject to subsection (2), and to any direction under
3
section 473GD, the Immigration Assessment Authority may
4
publish any statements prepared under subsection 473EA(1) that
5
the Principal Member thinks are of particular interest.
6
(2) The Immigration Assessment Authority must not publish any
7
statement which may identify a referred applicant or any relative or
8
other dependent of a referred applicant.
9
Note:
Section 5G may be relevant for determining relationships for the
10
purposes of subsection (2).
11
Division 5--Exercise of powers and functions by
12
Immigration Assessment Authority
13
473FA How Immigration Assessment Authority is to exercise its
14
functions
15
(1) The Immigration Assessment Authority, in carrying out its
16
functions under this Act, is to pursue the objective of providing a
17
mechanism of limited review that is efficient and quick.
18
Note:
Under section 473DB the Immigration Assessment Authority is
19
generally required to undertake a review on the papers.
20
(2) The Immigration Assessment Authority, in reviewing a decision, is
21
not bound by technicalities, legal forms or rules of evidence.
22
473FB Practice directions
23
(1) The Principal Member may, in writing, issue directions, not
24
inconsistent with this Act or the regulations as to:
25
(a) the operations of the Immigration Assessment Authority; and
26
(b) the conduct of reviews by the Authority.
27
(2) Without limiting subsection (1), the directions may:
28
(a) relate to the application of efficient processing practices in
29
the conduct of reviews by the Immigration Assessment
30
Authority; or
31
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(b) set out procedures to be followed by persons giving new
1
information to the Authority in writing or at interview.
2
(3) The Immigration Assessment Authority must, as far as practicable,
3
comply with the directions. However, non-compliance with any
4
direction does not mean that the Authority's decision on a review
5
is an invalid decision.
6
(4) If the Immigration Assessment Authority deals with a review of a
7
decision in a way that complies with the directions, the Authority is
8
not required to take any other action in dealing with the review.
9
(5) The Immigration Assessment Authority is not required to accept
10
new information or documents from a person, or to hear or
11
continue to hear a person at an interview, if the person fails to
12
comply with a relevant direction that applies to the person.
13
473FC Guidance decisions
14
(1) The Principal Member may, in writing, direct that a decision (the
15
guidance decision) of the Refugee Review Tribunal or the
16
Immigration Assessment Authority specified in the direction is to
17
be complied with by the Authority in reaching a decision on a
18
review of a fast track reviewable decision of a kind specified in the
19
direction.
20
(2) In reaching a decision on a review of a decision of that kind, the
21
Immigration Assessment Authority must comply with the guidance
22
decision unless the Authority is satisfied that the facts or
23
circumstances of the decision under review are clearly
24
distinguishable from the facts or circumstances of the guidance
25
decision.
26
(3) However, non-compliance by the Immigration Assessment
27
Authority with a guidance decision does not mean that the
28
Authority's decision on a review is an invalid decision.
29
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Division 6--Disclosure of information
1
473GA Restrictions on disclosure of certain information etc.
2
(1) Despite anything else in this Act, the Secretary must not give to the
3
Immigration Assessment Authority a document, or information, if
4
the Minister certifies, under subsection (2), that the disclosure of
5
any matter contained in the document, or the disclosure of the
6
information, would be contrary to the public interest:
7
(a) because it would prejudice the security, defence or
8
international relations of Australia; or
9
(b) because it would involve the disclosure of deliberations or
10
decisions of the Cabinet or of a committee of the Cabinet.
11
(2) The Minister may issue a written certificate for the purposes of
12
subsection (1).
13
473GB Immigration Assessment Authority's discretion in relation to
14
disclosure of certain information etc.
15
(1) This section applies to a document or information if:
16
(a) the Minister has certified, under subsection (5), that the
17
disclosure of any matter contained in the document, or the
18
disclosure of the information, would be contrary to the public
19
interest for any reason specified in the certificate (other than
20
a reason set out in paragraph 473GA(1)(a) or (b)) that could
21
form the basis for a claim by the Crown in right of the
22
Commonwealth in a judicial proceeding that the matter
23
contained in the document, or the information, should not be
24
disclosed; or
25
(b) the document, the matter contained in the document, or the
26
information was given to the Minister, or to an officer of the
27
Department, in confidence.
28
(2) If, in compliance with a requirement of or under this Act, the
29
Secretary gives to the Immigration Assessment Authority a
30
document or information to which this section applies, the
31
Secretary:
32
(a) must notify the Authority in writing that this section applies
33
in relation to the document or information; and
34
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(b) may give the Authority any written advice that the Secretary
1
thinks relevant about the significance of the document or
2
information.
3
(3) If the Immigration Assessment Authority is given a document or
4
information and is notified that this section applies in relation to it,
5
the Authority:
6
(a) may, for the purpose of the exercise of its powers in relation
7
to a fast track reviewable decision in respect of a referred
8
applicant, have regard to any matter contained in the
9
document, or to the information; and
10
(b) may, if the Authority thinks it appropriate to do so having
11
regard to any advice given by the Secretary under
12
subsection (2), disclose any matter contained in the
13
document, or the information, to the referred applicant.
14
(4) If the Immigration Assessment Authority discloses any matter to
15
the referred applicant under subsection (3), the Authority must give
16
a direction under section 473GD in relation to the information.
17
(5) The Minister may issue a written certificate for the purposes of
18
subsection (1).
19
473GC Disclosure of confidential information
20
(1) This section applies to a person who is or has been:
21
(a) a Reviewer; or
22
(b) a person acting as a Reviewer; or
23
(c) a person mentioned in subsection 473JE(2) who is assisting
24
the Immigration Assessment Authority; or
25
(d) a person providing interpreting services in connection with a
26
review by the Authority.
27
(2) This section applies to information or a document if the
28
information or document concerns a person and is obtained by a
29
person to whom this section applies in the course of performing
30
functions or duties or exercising powers under this Act.
31
(3) A person to whom this section applies must not:
32
(a) make a record of any information to which this section
33
applies; or
34
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(b) divulge or communicate to any person any information to
1
which this section applies;
2
unless the record is made or the information is divulged or
3
communicated:
4
(c) for the purposes of this Act; or
5
(d) for the purposes of, or in connection with, the performance of
6
a function or duty or the exercise of a power under this Act.
7
Penalty: Imprisonment for 2 years.
8
(4) Subsection (3) applies to the divulging or communication of
9
information whether directly or indirectly.
10
(5) A person to whom this section applies must not be required to
11
produce any document, or to divulge or communicate any
12
information, to which this section applies to or in:
13
(a) a court; or
14
(b) a tribunal; or
15
(c) a House of the Parliament of the Commonwealth, of a State
16
or of a Territory; or
17
(d) a committee of a House, or the Houses, of the Parliament of
18
the Commonwealth, of a State or of a Territory; or
19
(e) any other authority or person having power to require the
20
production of documents or the answering of questions;
21
except where it is necessary to do so for the purposes of carrying
22
into effect the provisions of this Act.
23
(6) Nothing in this section affects a right that a person has under the
24
Freedom of Information Act 1982.
25
(7) For the purposes of this section, a person who is providing
26
interpreting services in connection with a review by the
27
Immigration Assessment Authority is taken to be performing a
28
function under this Act.
29
(8) In this section:
30
produce includes permit access to.
31
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473GD Immigration Assessment Authority may restrict publication
1
or disclosure of certain matters
2
(1) If the Principal Member is satisfied, in relation to a review, that it
3
is in the public interest that:
4
(a) any information given to the Immigration Assessment
5
Authority; or
6
(b) the contents of any document produced to the Authority;
7
should not be published or otherwise disclosed, or should not be
8
published or otherwise disclosed except in a particular manner and
9
to particular persons, the Principal Member may give a written
10
direction accordingly.
11
(2) A direction under subsection (1):
12
(a) must be in writing; and
13
(b) must be notified in a way that the Principal Member
14
considers appropriate.
15
(3) If the Principal Member has given a direction under subsection (1)
16
in relation to the publication of any information or of the contents
17
of a document, the direction does not:
18
(a) excuse the Immigration Assessment Authority from its
19
obligations under section 473EA; or
20
(b) prevent a person from communicating to another person a
21
matter contained in the evidence, information or document, if
22
the first-mentioned person has knowledge of the matter
23
otherwise than because of the evidence or the information
24
having been given or the document having been produced to
25
the Authority.
26
(4) A person must not contravene a direction given by the Principal
27
Member under subsection (1) that is applicable to the person
28
Penalty: Imprisonment for 2 years.
29
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Division 7--Giving and receiving review documents etc.
1
473HA Giving documents by Immigration Assessment Authority
2
where no requirement to do so by section 473HB or
3
473HC method
4
(1) If:
5
(a) a provision of this Act or the regulations requires or permits
6
the Immigration Assessment Authority to give a document to
7
a person; and
8
(b) the provision does not state that the document must be given:
9
(i) by one of the methods specified in section 473HB or
10
473HC; or
11
(ii) by a method prescribed for the purposes of giving
12
documents to a person in immigration detention;
13
the Authority may give the document to the person by any method
14
that it considers appropriate (which may be one of the methods
15
mentioned in subparagraph (b)(i) or (ii) of this section).
16
Note:
Under section 473HG a referred applicant may give the Immigration
17
Assessment Authority the name of an authorised recipient who is to
18
receive documents on the referred applicant's behalf.
19
(2) If a person is a minor, the Immigration Assessment Authority may
20
give a document to an individual who is at least 18 years of age if
21
the Authority reasonably believes that:
22
(a) the individual has day-to-day care and responsibility for the
23
minor; or
24
(b) the individual works in or for an organisation that has
25
day-to-day care and responsibility for the minor and the
26
individual's duties, whether alone or jointly with another
27
person, involve care and responsibility for the minor.
28
(3) If the Immigration Assessment Authority gives a document to an
29
individual, as mentioned in subsection (2), the Authority is taken to
30
have given the document to the minor. However, this does not
31
prevent the Authority giving the minor a copy of the document.
32
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473HB Methods by which Immigration Assessment Authority gives
1
documents to a person other than the Secretary
2
Coverage of section
3
(1) For the purposes of provisions of this Part or the regulations that:
4
(a) require or permit the Immigration Assessment Authority to
5
give a document to a person (the recipient); and
6
(b) state that the Authority must do so by one of the methods
7
specified in this section;
8
the methods are as follows.
9
(2) If the recipient is a minor, the Immigration Assessment Authority
10
may use the methods mentioned in subsections (5) and (6) to
11
dispatch or transmit, as the case may be, a document to an
12
individual (a carer of the minor):
13
(a) who is at least 18 years of age; and
14
(b) who the Authority reasonably believes:
15
(i) has day-to-day care and responsibility for the minor; or
16
(ii) works in or for an organisation that has day-to-day care
17
and responsibility for the minor and whose duties,
18
whether alone or jointly with another person, involve
19
care and responsibility for the minor.
20
Note:
If the Immigration Assessment Authority gives an individual a
21
document by the method mentioned in subsection (5) or (6), the
22
individual is taken to have received the document at the time specified
23
in section 473HD in respect of that method.
24
Giving by hand
25
(3) One method consists of a Reviewer, a person authorised in writing
26
by the Senior Reviewer, or a person mentioned in
27
subsection 473JE(2), handing the document to the recipient.
28
Handing to a person at last residential or business address
29
(4) Another method consists of a Reviewer, a person authorised in
30
writing by the Senior Reviewer, or a person mentioned in
31
subsection 473JE(2), handing the document to another person who:
32
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(a) is at the last residential or business address of the recipient
1
provided to the Immigration Assessment Authority in
2
connection with the review; and
3
(b) appears to live there (in the case of a residential address) or
4
work there (in the case of a business address); and
5
(c) appears to be at least 16 years of age.
6
Dispatch by prepaid post or by other prepaid means
7
(5) Another method consists of a Reviewer or a person mentioned in
8
subsection 473JE(2) dating the document, and then dispatching it:
9
(a) within 3 working days (in the place of dispatch) of the date of
10
the document; and
11
(b) by prepaid post or by other prepaid means; and
12
(c) to:
13
(i) the last address for service of the recipient provided to
14
the Immigration Assessment Authority in connection
15
with the review; or
16
(ii) the last residential or business address of the recipient
17
provided to the Authority in connection with the review;
18
or
19
(iii) if the recipient is a minor--the last address for a carer of
20
the minor provided to the Authority.
21
Transmission by fax, email or other electronic means
22
(6) Another method consists of a Reviewer or a person mentioned in
23
subsection 473JE(2), transmitting the document by:
24
(a) fax; or
25
(b) email; or
26
(c) other electronic means;
27
to:
28
(d) the last fax number, email address or other electronic address,
29
as the case may be, of the recipient provided to the
30
Immigration Assessment Authority; or
31
(e) if the recipient is a minor--the last fax number, email address
32
or other electronic address, as the case may be, for a carer of
33
the minor that is provided to the Authority.
34
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Documents given to a carer
1
(7) If the Immigration Assessment Authority gives a document to a
2
carer of a minor, the Authority is taken to have given the document
3
to the minor. However, this does not prevent the Authority giving
4
the minor a copy of the document.
5
473HC Methods by which Immigration Assessment Authority gives
6
documents to the Secretary
7
Coverage of section
8
(1) For the purposes of provisions of this Part or the regulations that:
9
(a) require or permit the Immigration Assessment Authority to
10
give a document to the Secretary; and
11
(b) state that the Authority must do so by one of the methods
12
specified in this section;
13
the methods are as follows.
14
Giving by hand
15
(2) One method consists of a Reviewer, a person authorised in writing
16
by the Senior Reviewer or a person mentioned in
17
subsection 473JE(2), handing the document to the Secretary or to
18
an authorised officer.
19
Dispatch by post or by other means
20
(3) Another method consists of a Reviewer or a person mentioned in
21
subsection 473JE(2), dating the document, and then dispatching it:
22
(a) within 3 working days (in the place of dispatch) of the date of
23
the document; and
24
(b) by post or by other means; and
25
(c) to an address, notified to the Immigration Assessment
26
Authority in writing by the Secretary, to which such
27
documents can be dispatched.
28
Transmission by fax, e-mail or other electronic means
29
(4) Another method consists of a Reviewer or a person mentioned in
30
subsection 473JE(2), transmitting the document by:
31
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(a) fax; or
1
(b) email; or
2
(c) other electronic means;
3
to the last fax number, email address or other electronic address
4
notified to the Authority in writing by the Secretary for the
5
purpose.
6
473HD When a person other than the Secretary is taken to have
7
received a document from the Immigration Assessment
8
Authority
9
(1) This section applies if the Immigration Assessment Authority gives
10
a document to a person other than the Secretary by one of the
11
methods specified in section 473HB (including in a case covered
12
by section 473HA).
13
Giving by hand
14
(2) If the Immigration Assessment Authority gives a document to a
15
person by the method in subsection 473HB(3) (which involves
16
handing the document to the person), the person is taken to have
17
received the document when it is handed to the person.
18
Handing to a person at last residential or business address
19
(3) If the Immigration Assessment Authority gives a document to a
20
person by the method in subsection 473HB(4) (which involves
21
handing the document to another person at a residential or business
22
address), the person is taken to have received the document when it
23
is handed to the other person.
24
Dispatch by prepaid post or by other prepaid means
25
(4) If the Immigration Assessment Authority gives a document to a
26
person by the method in subsection 473HB(5) (which involves
27
dispatching the document by prepaid post or by other prepaid
28
means), the person is taken to have received the document 7
29
working days (in the place of that address) after the date of the
30
document.
31
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Transmission by fax, email or other electronic means
1
(5) If the Immigration Assessment Authority gives a document to a
2
person by the method in subsection 473HB(6) (which involves
3
transmitting the document by fax, email or other electronic means),
4
the person is taken to have received the document at the end of the
5
day on which the document is transmitted.
6
(6) Subsection (5) applies despite sections 14, 14A and 14B of the
7
Electronic Transactions Act 1999.
8
Document not given effectively
9
(7) If:
10
(a) the Immigration Assessment Authority purports to give a
11
document to a person in accordance with a method specified
12
in section 473HB (including in a case covered by
13
section 473HA) but makes an error in doing so; and
14
(b) the person nonetheless receives the document or a copy of it;
15
then the person is taken to have received the document at the times
16
mentioned in this section as if the Authority had given the
17
document to the person without making an error in doing so, unless
18
the person can show that he or she received it at a later time, in
19
which case, the person is taken to have received it at that time.
20
473HE When the Secretary is taken to have received a document
21
from the Immigration Assessment Authority
22
(1) This section applies if the Immigration Assessment Authority gives
23
a document to the Secretary by one of the methods specified in
24
section 473HC (including in a case covered by section 473HA).
25
Giving by hand
26
(2) If the Immigration Assessment Authority gives a document to the
27
Secretary by the method in subsection 473HC(2) (which involves
28
handing the document to the Secretary or to an authorised officer),
29
the Secretary is taken to have received the document when it is
30
handed to the Secretary or to the authorised officer.
31
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Dispatch by post or by other means
1
(3) If the Immigration Assessment Authority gives a document to the
2
Secretary by the method in subsection 473HC(3) (which involves
3
dispatching the document by post or by other means), the Secretary
4
is taken to have received the document 7 working days (in the
5
place of that address) after the date of the document.
6
Transmission by fax, email or other electronic means
7
(4) If the Immigration Assessment Authority gives a document to the
8
Secretary by the method in subsection 473HC(4) (which involves
9
transmitting the document by fax, email or other electronic means),
10
the Secretary is taken to have received the document at the end of
11
the day on which the document is transmitted.
12
(5) Subsection (4) applies despite sections 14, 14A and 14B of the
13
Electronic Transactions Act 1999.
14
473HF Giving documents etc. to the Immigration Assessment
15
Authority
16
(1) If, in relation to the review of fast track reviewable decision, a
17
person is required or permitted to give a document or thing to the
18
Immigration Assessment Authority, the person must do so:
19
(a) by a method set out in directions under section 473FB; or
20
(b) if the regulations set out a method for doing so--by that
21
method.
22
(2) Directions under section 473FB may make provision for a person
23
to give a copy of a document, rather than the document itself, to
24
the Immigration Assessment Authority.
25
473HG Authorised recipient
26
(1) If:
27
(a) a fast track reviewable decision in respect of a referred
28
applicant is referred for review; and
29
(b) the referred applicant gives the Immigration Assessment
30
Authority written notice of the name and address of another
31
person (the authorised recipient) authorised by the referred
32
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85
applicant to receive documents in connection with the
1
review;
2
the Authority must give the authorised recipient, instead of the
3
referred applicant, any document that it would otherwise have
4
given to the referred applicant.
5
Note:
If the Immigration Assessment Authority gives a person a document
6
by a method specified in section 473HB, the person is taken to have
7
received the document at the time specified in section 473HD in
8
respect of that method.
9
(2) If the Immigration Assessment Authority gives a document to the
10
authorised recipient, the Authority is taken to have given the
11
document to the referred applicant. However, this does not prevent
12
the Authority giving the referred applicant a copy of the document.
13
(3) Subject to subsection (4), the referred applicant may vary or
14
withdraw the notice under paragraph (1)(b) at any time, but must
15
not (unless the regulations provide otherwise) vary the notice so
16
that any more than one person becomes the referred applicant's
17
authorised recipient.
18
(4) In addition to the referred applicant being able to vary the notice
19
under paragraph (1)(b) by varying the address of the authorised
20
recipient, that recipient may also vary that notice by varying that
21
address.
22
(5) This section does not apply to the Immigration Assessment
23
Authority giving documents to, or communicating with, the
24
referred applicant when the referred applicant is appearing at an
25
interview with the Authority.
26
Division 8--The Immigration Assessment Authority
27
473JA The Immigration Assessment Authority
28
(1) The Immigration Assessment Authority is established within the
29
Refugee Review Tribunal.
30
(2) The Immigration Assessment Authority consists of the following
31
persons:
32
(a) the Principal Member;
33
(b) the Senior Reviewer and other Reviewers.
34
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(3) The Principal Member, the Senior Reviewer and the other
1
Reviewers are to exercise the powers, and perform the functions, of
2
the Immigration Assessment Authority under this Part.
3
473JB Administrative arrangements
4
(1) The Principal Member is responsible for the overall operation and
5
administration of the Immigration Assessment Authority and, for
6
that purpose, may issue directions and determine policies.
7
(2) The Senior Reviewer is to manage the Immigration Assessment
8
Authority subject to the directions of, and in accordance with
9
policies determined by, the Principal Member.
10
473JC Appointment of Senior Reviewer
11
(1) The Principal Member must, by written instrument, appoint an SES
12
employee to be the Senior Reviewer.
13
(2) Before appointing a person as the Senior Reviewer, the Principal
14
Member must consult the Minister.
15
473JD Acting Senior Reviewer
16
The Principal Member may appoint a person to act as the Senior
17
Reviewer:
18
(a) during a vacancy in the office of Senior Reviewer, whether or
19
not an appointment has previously been made to that office;
20
or
21
(b) during any period, or during all periods, when the Senior
22
Reviewer is absent from duty or from Australia or is, for any
23
other reason, unable to perform the duties of the office of
24
Senior Reviewer.
25
473JE Staff
26
(1) The Senior Reviewer and the other Reviewers are to be persons
27
engaged under the Public Service Act 1999.
28
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(2) The Principal Member must make available officers of the Refugee
1
Review Tribunal to assist the Immigration Assessment Authority in
2
the performance of its administrative functions.
3
473JF Delegation by Principal Member
4
(1) The Principal Member may delegate, in writing, all or any of the
5
Principal Member's powers or functions under this Part to the
6
Senior Reviewer.
7
(2) In exercising a power under a delegation, the Senior Reviewer
8
must comply with any written directions of the Principal Member.
9
22 Subsection 476(4) (at the end of the definition of primary
10
decision)
11
Add:
12
; or (c) that has been, or may be, referred for review under Part 7AA
13
(whether or not it has been reviewed).
14
23 Subsection 477(3) (after paragraph (c) of the definition of
15
date of the migration decision)
16
Insert:
17
(ca) in the case of a migration decision made by the Immigration
18
Assessment Authority--the date of the written statement
19
under subsection 473EA(1); or
20
24 Paragraphs 478(a) and 479(a)
21
After paragraph (a), insert:
22
(aa) if the migration decision concerned is made on review under
23
Part 7AA--the referred applicant in the review by the
24
Immigration Assessment Authority; or
25
25 Subsection 486D (5) (definition of tribunal decision)
26
Repeal the definition, substitute:
27
tribunal decision means a privative clause decision, or purported
28
privative clause decision, made on review:
29
(a) by a Tribunal under Part 5 or 7 or section 500; or
30
(b) by the Immigration Assessment Authority under Part 7AA.
31
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26 At the end of subsection 500(1)
1
Add:
2
Note:
Decisions to refuse to grant a protection visa to fast track applicants
3
are generally not reviewable by the Administrative Appeals Tribunal.
4
However, some decisions of this kind are reviewable by that Tribunal,
5
in the circumstances mentioned in paragraph (a), or
6
subparagraph (b)(i) or (iii), of the definition of fast track decision in
7
subsection 5(1).
8
Amendments relating to fast track assessment process Schedule 4
Application Part 2
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89
Part 2
--Application
1
27 Application of amendments
2
The amendments made by Part 1 of this Schedule apply in relation to an
3
application for a protection visa made by a fast track applicant on or
4
after the commencement of this Schedule.
5
28 Application of fast track review process in relation to
6
decisions based on complementary protection
7
(1)
A decision made, before the day Part 1 of this Schedule commences, to
8
refuse to grant a protection visa is not a fast track reviewable decision to
9
the extent that:
10
(a) the decision was made relying on paragraph 36(2)(aa) or (c)
11
of the Migration Act 1958; and
12
(b) the application for the visa is not finally determined before
13
the day that Part commences; and
14
(c) those paragraphs are repealed before the application is finally
15
determined.
16
Note:
For when an application is finally determined, see subsections 5(9) and (9A) of the
17
Migration Act 1958.
18
(2)
Subitem (1) does not prevent a decision to refuse to grant a protection
19
visa from being a fast track reviewable decision to the extent that the
20
decision was made relying on another provision in the Migration Act
21
1958.
22
Schedule 5 Clarifying Australia's international law obligations
Part 1 Removal of unlawful non-citizens
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Schedule 5
--Clarifying Australia's
1
international law obligations
2
Part 1
--Removal of unlawful non-citizens
3
Division 1
--Amendments commencing on the day after
4
Royal Assent
5
Migration Act 1958
6
1 Subsection 5(1)
7
Insert:
8
Convention Against Torture means the Convention Against
9
Torture and Other Cruel, Inhuman or Degrading Treatment or
10
Punishment done at New York on 10 December 1984.
11
Note:
The Convention Against Torture and Other Cruel, Inhuman or
12
Degrading Treatment or Punishment is in Australian Treaty Series
13
1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the
14
Australian Treaties Library on the AustLII website
15
(http://www.austlii.edu.au).
16
non-refoulement obligations includes, but is not limited to:
17
(a) non-refoulement obligations that may arise because Australia
18
is a party to:
19
(i) the Refugees Convention; or
20
(ii) the Covenant; or
21
(iii) the Convention Against Torture; and
22
(b) any obligations accorded by customary international law that
23
are of a similar kind to those mentioned in paragraph (a).
24
2 Before section 198
25
Insert:
26
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197C Australia's non-refoulement obligations irrelevant to removal
1
of unlawful non-citizens under section 198
2
(1) For the purposes of section 198, it is irrelevant whether Australia
3
has non-refoulement obligations in respect of an unlawful
4
non-citizen.
5
(2) An officer's duty to remove as soon as reasonably practicable an
6
unlawful non-citizen under section 198 arises irrespective of
7
whether there has been an assessment, according to law, of
8
Australia's non-refoulement obligations in respect of the
9
non-citizen.
10
Division 2
--Amendments if this Act commences after the
11
Migration Amendment (Protection and Other
12
Measures) Act 2014
13
3 Subsection 6A(4)
14
Repeal the subsection, substitute:
15
(4) In this section:
16
protection obligations means any obligations that may arise
17
because Australia is a party to:
18
(a) the Covenant; or
19
(b) the Convention Against Torture.
20
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Part 2
--Amendments commencing on Proclamation
1
Migration Act 1958
2
4 Subsection 5(1)
3
Insert:
4
refugee has the meaning given by section 5H.
5
well-founded fear of persecution has the meaning given by
6
section 5J.
7
5 Paragraph 5A(3)(f)
8
Repeal the paragraph, substitute:
9
(f) to improve the procedures for determining claims from
10
people seeking protection as refugees; and
11
6 Subparagraph 5A(3)(j)(ii)
12
Repeal the subparagraph, substitute:
13
(ii) an unauthorised maritime arrival who makes a claim for
14
protection as a refugee; or
15
7 After section 5G
16
Insert:
17
5H Meaning of refugee
18
(1) For the purposes of the application of this Act and the regulations
19
to a particular person in Australia, the person is a refugee if the
20
person:
21
(a) in a case where the person has a nationality--is outside the
22
country of his or her nationality and, owing to a well-founded
23
fear of persecution, is unable or unwilling to avail himself or
24
herself of the protection of that country; or
25
(b) in a case where the person does not have a nationality--is
26
outside the country of his or her former habitual residence
27
and owing to a well-founded fear of persecution, is unable or
28
unwilling to return to it.
29
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93
Note:
For the meaning of well-founded fear of persecution, see section 5J.
1
(2) Subsection (1) does not apply if the Minister has serious reasons
2
for considering that:
3
(a) the person has committed a crime against peace, a war crime
4
or a crime against humanity, as defined by international
5
instruments prescribed by the regulations; or
6
(b) the person committed a serious non-political crime before
7
entering Australia; or
8
(c) the person has been guilty of acts contrary to the purposes
9
and principles of the United Nations.
10
5J Meaning of well-founded fear of persecution
11
(1) For the purposes of the application of this Act and the regulations
12
to a particular person, the person has a well-founded fear of
13
persecution if:
14
(a) the person fears being persecuted for reasons of race,
15
religion, nationality, membership of a particular social group
16
or political opinion; and
17
(b) there is a real chance that, if the person returned to the
18
receiving country, the person would be persecuted for one or
19
more of the reasons mentioned in paragraph (a); and
20
(c) the real chance of persecution relates to all areas of a
21
receiving country.
22
Note:
For membership of a particular social group, see sections 5K and 5L.
23
(2) A person does not have a well-founded fear of persecution if
24
either or both of the following are available to the person in a
25
receiving country:
26
(a) an appropriate criminal law, a reasonably effective police
27
force and an impartial judicial system provided by the
28
relevant State;
29
(b) adequate and effective protection measures provided by a
30
source other than the relevant State.
31
(3) A person does not have a well-founded fear of persecution if the
32
person could take reasonable steps to modify his or her behaviour
33
so as to avoid a real chance of persecution in a receiving country,
34
other than a modification that would:
35
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(a) conflict with a characteristic that is fundamental to the
1
person's identity or conscience; or
2
(b) conceal an innate or immutable characteristic of the person.
3
(4) If a person fears persecution for one or more of the reasons
4
mentioned in paragraph (1)(a):
5
(a) that reason must be the essential and significant reason, or
6
those reasons must be the essential and significant reasons,
7
for the persecution; and
8
(b) the persecution must involve serious harm to the person; and
9
(c) the persecution must involve systematic and discriminatory
10
conduct.
11
(5) Without limiting what is serious harm for the purposes of
12
paragraph (4)(b), the following are instances of serious harm for
13
the purposes of that paragraph:
14
(a) a threat to the person's life or liberty;
15
(b) significant physical harassment of the person;
16
(c) significant physical ill-treatment of the person;
17
(d) significant economic hardship that threatens the person's
18
capacity to subsist;
19
(e) denial of access to basic services, where the denial threatens
20
the person's capacity to subsist;
21
(f) denial of capacity to earn a livelihood of any kind, where the
22
denial threatens the person's capacity to subsist.
23
(6) In determining whether the person has a well-founded fear of
24
persecution for one or more of the reasons mentioned in
25
paragraph (1)(a), any conduct engaged in by the person in
26
Australia is to be disregarded unless the person satisfies the
27
Minister that the person engaged in the conduct otherwise than for
28
the purpose of strengthening the person's claim to be a refugee.
29
5K Membership of a particular social group consisting of family
30
For the purposes of the application of this Act and the regulations
31
to a particular person (the first person), in determining whether the
32
first person has a well-founded fear of persecution for the reason of
33
membership of a particular social group that consists of the first
34
person's family:
35
Clarifying Australia's international law obligations Schedule 5
Amendments commencing on Proclamation Part 2
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95
(a) disregard any fear of persecution, or any persecution, that any
1
other member or former member (whether alive or dead) of
2
the family has ever experienced, where the reason for the fear
3
or persecution is not a reason mentioned in
4
paragraph 5J(1)(a); and
5
(b) disregard any fear of persecution, or any persecution, that:
6
(i) the first person has ever experienced; or
7
(ii) any other member or former member (whether alive or
8
dead) of the family has ever experienced;
9
where it is reasonable to conclude that the fear or persecution
10
would not exist if it were assumed that the fear or persecution
11
mentioned in paragraph (a) had never existed.
12
Note:
Section 5G may be relevant for determining family relationships for
13
the purposes of this section.
14
5L Membership of a particular social group other than family
15
(1) For the purposes of the application of this Act and the regulations
16
to a particular person, the person is to be treated as a member of a
17
particular social group (other than the person's family) if:
18
(a) a characteristic is shared by each member of the group; and
19
(b) either:
20
(i) the characteristic is an innate or immutable
21
characteristic; or
22
(ii) the characteristic is so fundamental to a member's
23
identity or conscience, the member should not be forced
24
to renounce it; and
25
(c) the person shares, or is perceived as sharing, the
26
characteristic; and
27
(d) the characteristic distinguishes the group from society.
28
(2) For the purpose of subparagraph (1)(b)(i), a well-founded fear of
29
persecution is taken not to be an innate or immutable characteristic.
30
Note:
For the meaning of well-founded fear of persecution, see section 5J.
31
5M Particularly serious crime
32
For the purposes of the application of this Act and the regulations
33
to a particular person, paragraph 36(1C)(b) has effect as if a
34
Schedule 5 Clarifying Australia's international law obligations
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No. , 2014
reference in that paragraph to a particularly serious crime included
1
a reference to a crime that consists of the commission of:
2
(a) a serious Australian offence; or
3
(b) a serious foreign offence.
4
8 Paragraph 36(1A)(a)
5
Repeal the paragraph, substitute:
6
(a) both of the criteria in subsections (1B) and (1C); and
7
9 After subsection 36(1B)
8
Insert:
9
(1C) A criterion for a protection visa is that the applicant is not a person
10
whom the Minister considers, on reasonable grounds:
11
(a) is a danger to Australia's security; or
12
(b) having been convicted by a final judgment of a particularly
13
serious crime, is a danger to the Australian community.
14
Note:
For paragraph (b), see section 5M.
15
10 Paragraph 36(2)(a)
16
Omit "under the Refugees Convention as amended by the Refugees
17
Protocol", substitute "because the person is a refugee".
18
11 Subsection 48A(2) (after paragraph (aa) of the definition of
19
application for a protection visa)
20
Insert:
21
(aaa) an application for a visa, a criterion for which is that the
22
applicant is a non-citizen who is a refugee; or
23
12 Sections 91R to 91U
24
Repeal the sections.
25
13 Subsection 228B(2)
26
Omit all the words after "the non-citizen", substitute "because the
27
non-citizen is or may be a refugee, or for any other reason".
28
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Amendments commencing on Proclamation Part 2
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
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97
14 Subparagraphs 336F(3)(a)(ii), (4)(a)(ii) and (5)(c)(i)
1
Omit "under the Refugees Convention as amended by the Refugees
2
Protocol", substitute "as a refugee".
3
15 Subparagraph 336F(5)(c)(ii)
4
Omit "under the Refugees Convention as amended by the Refugees
5
Protocol".
6
16 Subparagraph 502(1)(a)(iii)
7
Repeal the subparagraph, substitute:
8
(ii) to refuse under section 65 to grant a protection visa
9
relying on subsection 5H(2) or 36(1C);
10
17 Paragraph 503(1)(c)
11
Repeal the paragraph, substitute:
12
(c) to refuse under section 65 to grant a protection visa relying
13
on subsection 5H(2) or 36(1C);
14
Schedule 5 Clarifying Australia's international law obligations
Part 3 Contingent amendments
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No. , 2014
Part 3
--Contingent amendments
1
Division 1
--Amendments if this Act commences before
2
the Migration Amendment (Protection and Other
3
Measures) Act 2014
4
Migration Act 1958
5
18 Subsection 5(1) (definition of receiving country)
6
Repeal the definition, substitute:
7
receiving country, in relation to a non-citizen, means:
8
(a) a country of which the non-citizen is a national, to be
9
determined solely by reference to the law of the relevant
10
country; or
11
(b) if the non-citizen has no country of nationality--a country of
12
his or her former habitual residence, regardless of whether it
13
would be possible to return the non-citizen to the country.
14
Division 2
--Amendments if this Act commences before
15
the Migration Amendment (Regaining Control
16
Over Australia's Protection Obligations) Act
17
2014
18
Migration Act 1958
19
19 Subparagraphs 411(1)(c)(i) and (ii)
20
Repeal the subparagraphs, substitute:
21
(i) subsection 5H(2), or 36(1B) or (1C); or
22
20 Subparagraph 411(1)(d)(i)
23
Repeal the subparagraph, substitute:
24
(i) subsection 5H(2) or 36(1C); or
25
21 Subparagraph 500(1)(c)(i)
26
Repeal the subparagraph, substitute:
27
Clarifying Australia's international law obligations Schedule 5
Contingent amendments Part 3
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
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(i) subsection 5H(2) or 36(1C); or
1
22 Subparagraph 500(4)(c)(i)
2
Repeal the subparagraph, substitute:
3
(i) subsection 5H(2) or 36(1C); or
4
Division 3
--Amendments if this Act commences after the
5
Migration Amendment (Regaining Control Over
6
Australia's Protection Obligations) Act 2014
7
Migration Act 1958
8
23 Subsection 5(1) (definition of receiving country)
9
Insert:
10
receiving country, in relation to a non-citizen, means:
11
(a) a country of which the non-citizen is a national, to be
12
determined solely by reference to the law of the relevant
13
country; or
14
(b) if the non-citizen has no country of nationality--a country of
15
his or her former habitual residence, regardless of whether it
16
would be possible to return the non-citizen to the country.
17
24 Paragraph 411(1)(c)
18
Omit all the words after "made", substitute "relying on
19
subsection 5H(2), or 36(1B) or (1C);".
20
25 Subparagraph 411(1)(d)(i)
21
Repeal the subparagraph, substitute:
22
(i) subsection 5H(2) or 36(1C); or
23
26 Paragraphs 500(1)(c) and (4)(c)
24
Repeal the paragraphs, substitute:
25
(c) a decision to refuse to grant a protection visa, or to cancel a
26
protection visa, that was made relying on subsection 5H(2) or
27
36(1C);
28
Schedule 5 Clarifying Australia's international law obligations
Part 4 Application and transitional provisions
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the Asylum Legacy Caseload) Bill 2014
No. , 2014
Part 4
--Application and transitional provisions
1
27 Application
--Part 1
2
The amendments made by Part 1 of this Schedule apply in relation to
3
the removal of an unlawful non-citizen on or after the day this item
4
commences.
5
28 Application
--Parts 2 and 3
6
The amendments made by Parts 2 and 3 of this Schedule apply in
7
relation to an application for a protection visa that is made on or after
8
the day this item commences.
9
29 References to amended provisions
10
If a regulation or other instrument made under the Migration Act 1958
11
contains a reference to a provision of the Migration Act 1958 listed in
12
column 2 of the following table in relation to an item, the reference in
13
the regulation or other instrument is to be construed as a reference to the
14
provision of the Migration Act 1958 listed in column 3 of the item:
15
16
References to amended provisions of the Migration Act 1958
Column 1
Column 2
Column 3
Item
Old reference
New reference
1
section 91R
subsections 5J(4), (5) and (6)
2
section 91S
section 5K
3
section 91U
section 5M
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No. , 2014
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101
Schedule 6
--Unauthorised maritime arrivals
1
and transitory persons: newborn
2
children
3
Part 1
--Amendments
4
Migration Act 1958
5
1 Subsection 5(1) (at the end of the definition of transitory
6
person)
7
Add:
8
; or (d) the child of a transitory person mentioned in paragraph (aa)
9
or (b), if:
10
(i) the child was born in a regional processing country to
11
which the parent was taken as mentioned in the relevant
12
paragraph; and
13
(ii) the child was not an Australian citizen at the time of
14
birth; or
15
(e) the child of a transitory person mentioned in paragraph (aa)
16
or (b), if:
17
(i) the child was born in the migration zone; and
18
(ii) the child was not an Australian citizen at the time of
19
birth.
20
Note 1:
For who is a child, see section 5CA.
21
Note 2:
A transitory person who entered Australia by sea before being taken to
22
a place outside Australia may also be an unauthorised maritime
23
arrival: see section 5AA.
24
Note 3:
Paragraphs (d) and (e) apply no matter when the child was born,
25
whether before, on or after the commencement of those paragraphs.
26
See the Migration and Maritime Powers Legislation Amendment
27
(Resolving the Asylum Legacy Caseload) Act 2014.
28
2 After subsection 5AA(1)
29
Insert:
30
(1A) For the purposes of this Act, a person is also an unauthorised
31
maritime arrival if:
32
Schedule 6 Unauthorised maritime arrivals and transitory persons: newborn children
Part 1 Amendments
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the Asylum Legacy Caseload) Bill 2014
No. , 2014
(a) the person is born in the migration zone; and
1
(b) a parent of the person is, at the time of the person's birth, an
2
unauthorised maritime arrival because of subsection (1) (no
3
matter where that parent is at the time of the birth); and
4
(c) the person is not an Australian citizen at the time of birth.
5
Note 1:
For who is a parent of a person, see the definition in subsection 5(1)
6
and section 5CA.
7
Note 2:
A parent of the person may be an unauthorised maritime arrival even
8
if the parent holds, or has held, a visa.
9
Note 3:
A person to whom this subsection applies is an unauthorised
10
maritime arrival even if the person is taken to have been granted a
11
visa because of section 78 (which deals with the birth in Australia of
12
non-citizens).
13
Note 4:
For when a person is an Australian citizen at the time of his or her
14
birth, see section 12 of the Australian Citizenship Act 2007.
15
Note 5:
This subsection applies even if the person was born before the
16
commencement of the subsection. See the Migration and Maritime
17
Powers Legislation Amendment (Resolving the Asylum Legacy
18
Caseload) Act 2014.
19
(1AA) For the purposes of this Act, a person is also an unauthorised
20
maritime arrival if:
21
(a) the person is born in a regional processing country; and
22
(b) a parent of the person is, at the time of the person's birth, an
23
unauthorised maritime arrival because of subsection (1) (no
24
matter where that parent is at the time of the birth); and
25
(c) the person is not an Australian citizen at the time of his or her
26
birth.
27
Note 1:
A parent of the person may be an unauthorised maritime arrival even
28
if the parent holds, or has held, a visa.
29
Note 2:
This Act may apply as mentioned in subsection (1AA) even if either
30
or both parents of the person holds a visa, or is an Australian citizen or
31
a citizen of the regional processing country, at the time of the person's
32
birth.
33
Note 3:
This subsection applies even if the person was born before the
34
commencement of the subsection. See the Migration and Maritime
35
Powers Legislation Amendment (Resolving the Asylum Legacy
36
Caseload) Act 2014.
37
Unauthorised maritime arrivals and transitory persons: newborn children Schedule 6
Amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
103
3 At the end of section 5AA
1
Add:
2
Note:
An unauthorised maritime arrival who has been taken to a place
3
outside Australia may also be a transitory person: see the definition of
4
transitory person in subsection 5(1).
5
4 Before subsection 198(1)
6
Insert:
7
Removal on request
8
5 Before subsection 198(1A)
9
Insert:
10
Removal of transitory persons brought to Australia for a
11
temporary purpose
12
6 At the end of subsection 198(1A)
13
Add:
14
Note:
Some unlawful non-citizens are transitory persons. Section 198B
15
provides for transitory persons to be brought to Australia for a
16
temporary purpose. See the definition of transitory person in
17
subsection 5(1).
18
7 After subsection 198(1A)
19
Insert:
20
(1B) Subsection (1C) applies if:
21
(a) an unlawful non-citizen who is not an unauthorised maritime
22
arrival has been brought to Australia under section 198B for
23
a temporary purpose; and
24
(b) the non-citizen gives birth to a child while the non-citizen is
25
in Australia; and
26
(c) the child is a transitory person within the meaning of
27
paragraph (e) of the definition of transitory person in
28
subsection 5(1).
29
(1C) An officer must remove the non-citizen and the child as soon as
30
reasonably practicable after the non-citizen no longer needs to be
31
Schedule 6 Unauthorised maritime arrivals and transitory persons: newborn children
Part 1 Amendments
104
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the Asylum Legacy Caseload) Bill 2014
No. , 2014
in Australia for that purpose (whether or not that purpose has been
1
achieved).
2
Removal of unlawful non-citizens in other circumstances
3
8 After subsection 198AD(2)
4
Insert:
5
(2A) However, subsection (2) does not apply in relation to a person who
6
is an unauthorised maritime arrival only because of
7
subsection 5AA(1A) or (1AA) if the person's parent mentioned in
8
the relevant subsection entered Australia before 13 August 2012.
9
Note 1:
Under subsection 5AA(1A) or (1AA) a person born in Australia or in
10
a regional processing country may be an unauthorised maritime arrival
11
in some circumstances.
12
Note 2:
This section does not apply in relation to a person who entered
13
Australia by sea before 13 August 2012: see the Migration Legislation
14
Amendment (Regional Processing and Other Measures) Act 2012.
15
9 Subsection 198AH(1)
16
Repeal the subsection, substitute:
17
(1) Section 198AD applies, subject to sections 198AE, 198AF and
18
198AG, to a transitory person if, and only if, the person is covered
19
by subsection (1A) or (1B).
20
(1A) A transitory person is covered by this subsection if:
21
(a) the person is an unauthorised maritime arrival who is brought
22
to Australia from a regional processing country under
23
section 198B for a temporary purpose; and
24
(b) the person is detained under section 189; and
25
(c) the person no longer needs to be in Australia for the
26
temporary purpose (whether or not the purpose has been
27
achieved).
28
(1B) A transitory person (a transitory child) is covered by this
29
subsection if:
30
(a) a transitory person covered by subsection (1A) gives birth to
31
the transitory child while in Australia; and
32
(b) the transitory child is detained under section 189; and
33
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Amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
105
(c) the transitory child is a transitory person because of
1
paragraph (e) of the definition of transitory person in
2
subsection 5(1).
3
Schedule 6 Unauthorised maritime arrivals and transitory persons: newborn children
Part 2 Application of amendments
106
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Part 2
--Application of amendments
1
10 Definitions
2
In this Part:
3
applicable matter has the meaning given by item 11 (retrospective
4
application of Part 1 amendments).
5
commencement day means the day this Schedule commences.
6
Part 1 amendments means the amendments of the Migration Act 1958
7
made by Part 1 of this Schedule.
8
11 Retrospective application of Part 1 amendments
9
The Part 1 amendments apply on and after the commencement day, and
10
are taken to have applied before that day, subject to this Part, in relation
11
to each of the following matters (an applicable matter):
12
(a) the entry of a person into Australia at any time, whether
13
before, on or after the commencement day (or that entry as it
14
is taken to have occurred on birth under section 10 of the
15
Migration Act 1958);
16
(b) the status of a person as an unauthorised maritime arrival or a
17
transitory person at any time:
18
(i) whether before, on or after the commencement day; and
19
(ii) whether the person is born before, on or after the
20
commencement day;
21
(c) the status of a person as an unlawful non-citizen at any time,
22
whether before, on or after the commencement day;
23
(d) the detention of a person at any time, whether before, on or
24
after the commencement day, and the performance or
25
exercise of a function, duty or power in relation to such
26
detention;
27
(e) the performance or exercise of a function, duty or power in
28
relation to a person under Division 8 of Part 2 of that Act at
29
any time, whether before, on or after the commencement day;
30
(f) an application for a visa by a person made at any time,
31
whether before, on or after the commencement day, including
32
the performance or exercise of a function, duty or power in
33
relation to such an application.
34
Unauthorised maritime arrivals and transitory persons: newborn children Schedule 6
Application of amendments Part 2
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
107
Note 1: The Part 1 amendments provide for a person to be an unauthorised maritime arrival or a
1
transitory person, in some circumstances, if a parent of the person is an unauthorised
2
maritime arrival or a transitory person for the purposes of the Migration Act 1958.
3
Note 2: Division 8 of Part 2 of the Migration Act 1958 provides for:
4
(a) the removal of unlawful non-citizens from Australia to a place
5
outside Australia (Subdivision A); and
6
(b) the taking of unauthorised maritime arrivals from Australia to a
7
regional processing country (Subdivision B); and
8
(c) transitory persons to be brought to Australia from a place outside
9
Australia (Subdivision C).
10
12 Applications under the Migration Act 1958 that are finally
11
determined
12
The Part 1 amendments do not apply, and are not taken to have applied,
13
in relation to an application under the Migration Act 1958 concerning
14
(or consisting of) an applicable matter if the application was finally
15
determined, within the meaning of that Act, before the commencement
16
day.
17
13 Retrospective application of section 46A (visa
18
applications by unauthorised maritime arrivals)
19
Scope
20
(1)
This item applies if the operation of item 11 (retrospective application
21
of Part 1 amendments) results in a person being taken to have been an
22
unauthorised maritime arrival at a particular time.
23
Subsection 46A(1) taken to apply despite the holding of certain
24
visas
25
(2)
Subsection 46A(1) of the Migration Act 1958 is taken to have applied in
26
relation to the person at that time despite the fact that the person was a
27
lawful non-citizen at the time, if the person was a lawful non-citizen
28
only because he or she held one or more of the following visas:
29
(a) a bridging visa;
30
(b) a temporary safe haven visa;
31
(c) a temporary (humanitarian concern) visa;
32
(d) a temporary protection visa granted before 2 December 2013.
33
Schedule 6 Unauthorised maritime arrivals and transitory persons: newborn children
Part 2 Application of amendments
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the Asylum Legacy Caseload) Bill 2014
No. , 2014
Note:
Subsection 46A(1) of that Act prevents visa applications by unauthorised maritime
1
arrivals in Australia who are unlawful non-citizens, unless the Minister makes a
2
determination under subsection 46A(2).
3
Determinations under section 46A made for parent
4
(3)
Subsection 46A(1) of the Migration Act 1958 does not apply in relation
5
to an application for a visa by the person (the child) if:
6
(a) the application is made at any time, whether before, on or
7
after the commencement day; and
8
(b) the Minister has made a determination under
9
subsection 46A(2) of that Act in relation to an application by
10
a parent of the child, made before the commencement day,
11
for the same kind of visa.
12
14 Retrospective application of section 46B (visa
13
applications by transitory persons)
14
Scope
15
(1)
This item applies if the operation of item 11 (retrospective application
16
of Part 1 amendments) results in a person being taken to have been a
17
transitory person at a particular time.
18
Subsection 46B(1) taken to apply despite the holding of certain
19
visas
20
(2)
Subsection 46B(1) of the Migration Act 1958 is taken to have applied in
21
relation to the person at that time despite the fact that the person was a
22
lawful non-citizen at the time, if the person was a lawful non-citizen
23
only because he or she held one or more of the following visas:
24
(a) a bridging visa;
25
(b) a temporary safe haven visa;
26
(c) a temporary (humanitarian concern) visa;
27
(d) a temporary protection visa granted before 2 December 2013.
28
Note:
Subsection 46B(1) of the Migration Act 1958 prevents visa applications by transitory
29
persons in Australia who are unlawful non-citizens, unless the Minister makes a
30
determination under subsection 46B(2).
31
Unauthorised maritime arrivals and transitory persons: newborn children Schedule 6
Application of amendments Part 2
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
109
Determinations under section 46B made for parent
1
(3)
Subsection 46B(1) of the Migration Act 1958 does not apply in relation
2
to an application for a visa by the person (the child) if:
3
(a) the application is made at any time, whether before, on or
4
after the commencement day; and
5
(b) the Minister has made a determination under
6
subsection 46B(2) of that Act in relation to an application by
7
a parent of the child, made before the commencement day,
8
for the same kind of visa.
9
15 Prospective application for some matters
10
(1)
The Part 1 amendments apply on and after the commencement day in
11
relation to any matter apart from an applicable matter (for applicable
12
matters, see item 11).
13
(2)
For the purposes of the application of the Part 1 amendments on and
14
after the commencement day under subitem (1):
15
(a) a person may be an unauthorised maritime arrival because of
16
subsection 5AA(1A) or (1AA) of the Migration Act 1958 no
17
matter when the person was born, whether before, on or after
18
the commencement day; and
19
(b) a person may be a transitory person because of paragraph (d)
20
or (e) of the definition of transitory person in subsection 5(1)
21
of that Act no matter when the person was born, whether
22
before, on or after the commencement day.
23
(3)
The Part 1 amendments apply on and after the commencement day in
24
relation to the status of a person as an unauthorised maritime arrival for
25
the purposes of section 336F of the Migration Act 1958.
26
Note:
Section 336F of the Migration Act 1958 deals with the disclosure of information to
27
some foreign countries and to some bodies.
28
Schedule 7 Caseload management
Part 1 Amendments
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the Asylum Legacy Caseload) Bill 2014
No. , 2014
Schedule 7
--Caseload management
1
Part 1
--Amendments
2
Migration Act 1958
3
1 Subsection 65(1)
4
Omit "After considering", substitute "Subject to sections 84 and 86,
5
after considering".
6
2 Subsection 65(1) (before the note)
7
Insert:
8
Note 1:
Section 84 allows the Minister to suspend the processing of
9
applications for visas of a kind specified in a determination made
10
under that section. Section 86 prevents the Minister from granting a
11
visa of a kind specified in a determination under section 85 if the
12
number of such visas granted in a specified financial year has reached
13
a specified maximum number.
14
3 Subsection 65(1) (note)
15
Omit "Note", substitute "Note 2".
16
4 Section 65A
17
Repeal the section.
18
5 Subsection 84(1)
19
Omit "notice in the Gazette", substitute "legislative instrument".
20
6 Subsection 84(1)
21
After "visas", insert "(including protection visas)".
22
7 Subsection 84(1)
23
Omit "the notice", substitute "the determination".
24
8 Subsection 84(2)
25
Omit "Where a notice under subsection (1) is published in the Gazette",
26
substitute "On and after the commencement of an instrument made
27
under subsection (1)".
28
Caseload management Schedule 7
Amendments Part 1
No. , 2014
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
111
9 Subsection 84(3)
1
Omit "A notice", substitute "A determination".
2
10 Subsection 84(4)
3
Omit "notice", substitute "determination".
4
11 Section 85
5
Omit "notice in the Gazette", substitute "legislative instrument".
6
12 Paragraphs 85(a) and (b)
7
After "visas", insert "(including protection visas)".
8
13 Section 91Y
9
Repeal the section.
10
14 Section 414A
11
Repeal the section.
12
15 Section 440A
13
Repeal the section.
14
Schedule 7 Caseload management
Part 2 Application and savings
112
Migration and Maritime Powers Legislation Amendment (Resolving
the Asylum Legacy Caseload) Bill 2014
No. , 2014
Part 2
--Application and savings
1
16 Application of amendments
2
(1)
The amendments of sections 65, 84 and 85 of the Migration Act 1958
3
made by Part 1 of this Schedule apply in relation to an application for a
4
visa:
5
(a) made on or after the commencement of that Part; or
6
(b) made before the commencement of that Part but not finally
7
determined as at the commencement of that Part.
8
(2)
The repeal of section 65A of the Migration Act 1958 made by Part 1 of
9
this Schedule applies in relation to an application for a protection visa:
10
(a) made on or after the commencement of that Part; or
11
(b) made before the commencement of that Part but not finally
12
determined as at the commencement of that Part.
13
(3)
The repeals of sections 91Y and 440A of the Migration Act 1958 made
14
by Part 1 of this Schedule apply in relation to reporting periods
15
commencing on or after the commencement of that Part.
16
(4)
The repeal of section 414A of the Migration Act 1958 made by Part 1 of
17
this Schedule applies in relation to an application for a review:
18
(a) made on or after the commencement of that Part; or
19
(b) made before the commencement of that Part but not finally
20
determined as at the commencement of that Part.
21
17 Saving provision
--notices in Gazette
22
(1)
A notice in force under subsection 84(1) of the Migration Act 1958
23
immediately before the commencement of Part 1 of this Schedule
24
continues in force after that commencement as if the amendments of
25
section 84 of that Act made by that Part had not been made.
26
(2)
A notice in force under section 85 of the Migration Act 1958
27
immediately before the commencement of Part 1 of this Schedule
28
continues in force after that commencement as if the amendments of
29
section 85 of that Act made by that Part had not been made.
30