MIGRATION AMENDMENT (ACT OF COMPASSION) BILL 2005

2004-2005

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Migration Amendment (Act of Compassion) Bill 2005

No. , 2005

(Senators Brown and Nettle)

A Bill for an Act to provide for compassion for long-term detainees and others, and for related purposes

Contents

A Bill for an Act to provide for compassion for long-term detainees and others, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration Amendment (Act of Compassion) Act 2005.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1--Amendment of the Migration Act 1958

1 At the end of subsection 196(1)

Add:

; or (d) released from detention in accordance with section 196A or 196B.

2 Subsection 196(3)

After "doubt", insert "and subject to sections 196A and 196B".

3 Subsection 196(4)

Omit "and (c)", substitute ", (c) and (d)".

4 Subsection 196(4A)

Omit "and (c)", substitute ", (c) and (d)".

5 Subsection 196(5)

After "doubt", insert "and subject to sections 196A and 196B".

6 After section 196

Insert:

196A Act of compassion for long-term detainees

(1) This section applies to a person who is an unlawful non-citizen:

(a) who has been in immigration detention for a continuous period of, or whose sum of immigration detention is, at least 365 days; and

(b) who has made a valid application (whether or not it has been finally determined) under section 36 for a visa.

(2) As soon as practicable after the commencement of the Migration Amendment (Act of Compassion) Act 2005, the Minister must appoint a person as the Judicial Assessor for the purposes of this section.

(3) A person appointed as the Judicial Assessor must either:

(a) be a judge of the Federal Court of Australia; or

(b) have been:

(i) a judge of the Federal Court of Australia; or

(ii) a judge of the Supreme Court of a State or Territory.

(4) The Secretary must make arrangements for the Judicial Assessor to consider all information available to the Secretary in respect of each person to whom this section applies.

(5) The Judicial Assessor must, in respect of each person to whom this section applies, consider whether, if the person were allowed to leave immigration detention, there would be a significant risk that:

(a) the person would represent a danger to the safety or welfare of the Australian community or to a segment of that community; or

(b) the person would not be available for the assessment of the application for a visa; or

(c) if the application for a visa has been or may be unsuccessful, the person would not be available for removal from Australia.

(6) In considering whether there is a significant risk in accordance with paragraph (5)(b) or (c), the Judicial Assessor must take into account the effectiveness and appropriateness of imposing conditions of release which would ensure that, should the person be released from detention, the person would be available for the assessment of the application for a visa or for removal from Australia.

(7) The Judicial Assessor must:

(a) if satisfied that it is necessary that a person to whom this section applies should remain in immigration detention--advise the Minister accordingly; or

(b) if satisfied that it is not necessary that a person to whom this section applies should remain in immigration detention--advise the Minister that a bridging visa should be granted to the person.

(8) If the Judicial Assessor advises the Minister that a bridging visa should be granted to a person, the person must be:

(a) granted a bridging visa permitting the person to remain in Australia pending the determination of the application for a visa or removal from Australia; and

(b) released from immigration detention as soon as practicable.

(9) A bridging visa granted under paragraph (8)(a) must provide that the holder is entitled to the same entitlements as are provided under a Bridging R (Class WR) visa.

(10) A bridging visa granted under paragraph (8)(a) must provide that the holder must comply with the reasonable conditions, if any, that were recommended by the Judicial Assessor to ensure that the person is available for the assessment of the application for a visa or for removal from Australia.

196B Act of compassion for children and their families in detention

(1) This section applies to:

(a) a child aged less than eighteen who is in immigration detention and who has made a valid application under section 36 for a visa or on whose behalf a valid application under section 36 for a visa has been made; and

(b) the parent or parents and sibling or siblings, if any, of a child in immigration detention, who is or are also in immigration detention, and who has or have made a valid application under section 36 for a visa.

(2) The Judicial Assessor must, in respect of each person to whom this section applies, consider whether, if the person were allowed to leave immigration detention, there would be a significant risk that:

(a) the person would represent a danger to the safety or welfare of the Australian community or to a segment of that community; or

(b) the person would not be available for the assessment of the application for a visa; or

(c) if the application for a visa has been or may be unsuccessful, the person would not be available for removal from Australia.

(3) In considering whether there is a significant risk in accordance with paragraph (2)(b) or (c), the Judicial Assessor must take into account the effectiveness and appropriateness of imposing conditions of release which would ensure that, should the person be released from detention, the person would be available for the assessment of the application for a visa or for removal from Australia.

(4) The Judicial Assessor must:

(a) if satisfied that it is necessary that a person to whom this section applies should remain in immigration detention--advise the Minister accordingly; or

(b) if satisfied that it is not necessary that a person to whom this section applies should remain in immigration detention--advise the Minister that a bridging visa should be granted to the person.

(5) If the Judicial Assessor advises the Minister that a bridging visa should be granted to a person, the person must be:

(a) granted a bridging visa permitting the person to remain in Australia pending the determination of the application for a visa or removal from Australia; and

(b) released from immigration detention as soon as practicable.

(6) A bridging visa granted under paragraph (5)(a) must provide that the holder is entitled to the same entitlements as are provided under a Bridging R (Class WR) visa.

(7) A bridging visa granted under paragraph (5)(a) must provide that the holder must comply with the reasonable conditions, if any, that were recommended by the Judicial Assessor to ensure that the person is available for the assessment of the application for a visa or for removal from Australia.

196C Act of compassion for temporary protection visa holders

(1) If a person is the holder of a temporary protection visa on the date of commencement of the Migration Amendment (Act of Compassion) Act 2005, the Minister must grant the person a visa permitting the person to remain in Australia permanently.

(2) Subsection (1) is to be taken as sufficient authority for the grant of a visa permitting a person to remain in Australia permanently notwithstanding any inconsistency with any other provisions of this Act.

196D Permanent residence for people who cannot be removed from Australia

(1) This section applies to a person who:

(a) has been subject to an order for removal for a period of 1095 days following the final determination of a valid application for a visa under section 36; and

(b) has been granted a bridging visa pursuant to a recommendation of the Judicial Assessor or otherwise.

(2) For the purposes of subsection (1) and to avoid doubt, an application for a visa under section 36 does not include a request to the Minister for a determination under section 48B or for the exercise of the Minister's power under section 417, 454 or 501J.

(3) A person to whom this section applies must be given a visa to remain permanently in Australia unless the Minister reasonably believes that:

(a) the person does not pass the character test, as provided for by section 501; or

(b) the person unreasonably failed to cooperate with the processes for determining the visa application or for arranging removal from Australia.

(4) If the Minister decides to refuse to grant a visa to a person under this section, the Minister must, as soon as practicable after making the decision, give the person a written notice that sets out the decision and the reasons for making it.

(5) A person who has been refused a visa under this section may appeal the decision to the Administrative Appeals Tribunal.

(6) A visa granted under this section must provide that the holder is entitled to the same entitlements as are provided under a Bridging R (Class WR) visa.

Schedule 1 Amendment of the Migration Act 1958

Amendment of the Migration Act 1958 Schedule 1

Migration Amendment (Act of Compassion) Bill 2005 No. , 2005

T:\Senate\Bills\FIRST\0509620.doc 16/6/2005 9:20 PM

Migration Amendment (Act of Compassion) Bill 2005 No. , 2005

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