Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Migration
Legislation Amendment Bill (No. 1) 1998
No.
, 1998
(Immigration and Multicultural
Affairs)
A Bill for an Act to amend the
Migration Act 1958, and for other purposes
ISBN: 0642
377618
Contents
Part
1—Amendments 3
Migration Act
1958 3
Part 2—Transitional
provisions 21
Part
1—Amendments 25
Migration Act
1958 25
Part 2—Transitional
provision 33
Part
1—Amendments 34
Migration Act
1958 34
Part 2—Application
provisions 46
Migration Act
1958 47
Part
1—Amendment 48
Migration Act
1958 48
Part 2—Application of
amendment 49
Migration Act
1958 50
Part
1—Amendments 53
Australian Citizenship Act
1948 53
Part 2—Application of
amendments 54
Immigration (Education) Act
1971 55
Migration Reform Act
1992 55
Migration Legislation Amendment Act (No. 5)
1995 55
A Bill for an Act to amend the Migration Act 1958,
and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment Act (No.
1) 1998.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Subject to subsection (3), Schedules 1, 2, 3, 4, 5, 6 and 7 commence
on a day or days to be fixed by Proclamation.
(3) If Schedule 1, 2, 3, 4, 5, 6 or 7 does not commence under subsection
(2) within the period of 6 months beginning on the day on which this Act
receives the Royal Assent, it commences on the first day after the end of that
period.
(4) Item 1 of Schedule 8 is taken to have commenced immediately after the
commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1)
1997.
(5) Item 2 of Schedule 8 is taken to have commenced on 7 December 1992
immediately after the Migration Reform Act 1992 received the Royal
Assent.
(6) Item 3 of Schedule 8 is taken to have commenced on 15 September
1995, immediately after the commencement of subsection 2(3) of the Migration
Legislation Amendment Act (No. 5) 1995.
(7) Item 4 of Schedule 8 is taken to have commenced on 15 September
1995, immediately after the commencement of subsection 2(4) of the Migration
Legislation Amendment Act (No. 5) 1995.
(8) Item 5 of Schedule 8 is taken to have commenced on 15 September
1995, immediately after the commencement of subsection 2(5) of the Migration
Legislation Amendment Act (No. 5) 1995.
Subject to section 2, 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.
1 Subsection 5(1) (definition of
internally-reviewable decision)
Repeal the definition.
2 Subsection 5(1) (definition of
IRT-reviewable decision)
Repeal the definition.
3 Subsection 114(1)
Omit “, or a review officer within the meaning of Part
5,”.
4 Paragraph 178(2)(b)
Omit “345,”.
5 Section 275 (paragraph (b) of the definition
of review authority)
Omit “or”.
6 Section 275 (paragraph (c) of the definition
of review authority)
Repeal the paragraph.
7 Section 337
Insert:
MRT-reviewable decision has the meaning given in Division
2.
8 Section 337 (definition of Part 5
reviewable decision)
Repeal the definition.
9 Section 337 (definition of review
officer)
Repeal the definition.
10 Division 2 of Part 5
Repeal the Division, substitute:
(1) A decision is an MRT-reviewable decision if this section
so provides, unless:
(a) the Minister has issued a conclusive certificate under section 339 in
relation to the decision; or
(b) the decision is an RRT-reviewable decision.
(2) A decision (other than a decision covered by subsection (4) or made
under section 501) to refuse to grant a non-citizen a visa is an
MRT-reviewable decision if:
(a) the visa could be granted while the non-citizen is in the migration
zone; and
(b) the non-citizen made the application for the visa while in the
migration zone; and
(c) the decision was not made when the non-citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been
immigration cleared.
(3) A decision to cancel a visa held by a non-citizen who is in the
migration zone at the time of the cancellation is an MRT-reviewable
decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non-citizen was in immigration clearance;
or
(c) was made under subsection 134(1), (3A) or (4) or section
501.
(4) The following decisions are MRT-reviewable
decisions:
(a) a decision to refuse to grant a bridging visa to a non-citizen who is
in immigration detention because of that refusal;
(b) a decision to cancel a bridging visa held by a non-citizen who is in
immigration detention because of that cancellation.
(5) A decision to refuse to grant a non-citizen a visa is an
MRT-reviewable decision if:
(a) the visa is a visa that could not be granted while the non-citizen is
in the migration zone; and
(b) the non-citizen, as required by a criterion for the grant of
the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa.
(6) A decision to refuse to grant a non-citizen a visa is an
MRT-reviewable decision if:
(a) the visa is a visa that could not be granted while the non-citizen is
in the migration zone; and
(b) a criterion for the grant of the visa is that the non-citizen has been
an Australian permanent resident; and
(c) a parent, spouse, child, brother or sister of the non-citizen is an
Australian citizen or an Australian permanent resident.
(7) A decision to refuse to grant a non-citizen a visa is an
MRT-reviewable decision if:
(a) the visa is a visa that could not be granted while the non-citizen is
in the migration zone; and
(b) a criterion for the grant of the visa is that the non-citizen intends
to visit an Australian citizen, or an Australian permanent resident, who is a
parent, spouse, child, brother or sister of the non-citizen; and
(c) particulars of the relative concerned are included in the
application.
(8) A decision, under section 93, as to the assessed score of an applicant
for a visa is an MRT-reviewable decision if:
(a) the visa is a visa that could not be granted while the applicant is in
the migration zone; and
(b) the applicant, as required by a criterion for the grant of the
visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) a New Zealand citizen who holds a special category visa;
and
(c) the Minister has not refused to grant the visa.
(9) A decision that is prescribed for the purposes of this subsection is
an MRT-reviewable decision.
The Minister may issue a conclusive certificate in relation to the
decision if the Minister thinks that:
(a) it would be contrary to the public interest to change the decision,
because any change in the decision would prejudice the security, defence or
international relations of Australia; or
(b) it would be contrary to the public interest for the decision to be
reviewed because such review would require consideration by the Tribunal of
deliberations or decisions of the Cabinet or of a committee of the
Cabinet.
11 Division 3 of Part 5
(heading)
Repeal the heading, substitute:
12 Section 346
Repeal the section.
13 Subparagraphs 347(1)(b)(i) and
(ii)
Repeal the subparagraphs, substitute:
(i) if the MRT-reviewable decision is covered by subsection 338(2), (3) or
(4)—28 days after the notification of the decision; or
(ii) if the MRT-reviewable decision is covered by subsection 338(5), (6),
(7) or (8)—70 days after the notification of the decision; or
(iii) if the MRT-reviewable decision is covered by subsection
338(9)—the number of days prescribed, in respect of the kind of decision
in question prescribed for the purposes of that subsection, after the
notification of the decision; and
14 Subsection 347(2)
Repeal the subsection, substitute:
(2) An application for review may only be made by:
(a) if the MRT-reviewable decision is covered by subsection 338(2), (3) or
(4)—the non-citizen who is the subject of that decision; or
(b) if the MRT-reviewable decision is covered by subsection 338(5) or
(8)—the sponsor or nominator referred to in the subsection concerned;
or
(c) if the MRT-reviewable decision is covered by subsection 338(6) or
(7)—the relative referred to in the subsection concerned; or
(d) if the MRT-reviewable decision is covered by subsection
338(9)—the person prescribed in respect of the kind of decision in
question prescribed for the purposes of that subsection.
15 Subsection 347(3)
Omit “the primary decision was covered by paragraph (a), (b), (c) or
(d) of the definition of Part 5 reviewable decision”, substitute
“the MRT-reviewable decision was covered by subsection 338(2), (3) or
(4)”.
16 Subsection 347(4)
Omit “the decision was covered by paragraph (c) or (d) of the
definition of Part 5 reviewable decision”, substitute “the
MRT-reviewable decision was covered by subsection 338(4)”.
17 Subsection 347(5)
Omit “IRT-reviewable decisions”, substitute
“MRT-reviewable decisions”.
18 Subsection 348(2)
Omit “subsection 338(3) or 346(4)”, substitute “section
339”.
19 Subsection 352(3)
Omit “a decision covered by paragraph (c) or (d) of the definition of
Part 5 reviewable decision”, substitute “an MRT-reviewable decision
covered by subsection 338(4)”.
20 At the end of section
353A
Add:
(2) In particular, the directions may relate to the application of
efficient processing practices to the conduct of reviews by the
Tribunal.
(3) The Tribunal should, as far as practicable, comply with the
directions. However, non-compliance by the Tribunal with any direction does not
mean that the Tribunal’s decision on a review is an invalid
decision.
(4) If the Tribunal deals with a review of a decision in a way that
complies with the directions, the Tribunal is not required to take any other
action in dealing with the review.
21 After section 355
Insert:
(1) The Principal Member may direct that the Tribunal constituted for the
purpose of a particular review be reconstituted by either or both of the
following:
(a) adding one or more members to the Tribunal as previously constituted
for the purpose of the review;
(b) removing one or more members from the Tribunal as so
constituted;
if the Principal Member thinks the reconstitution is in the interests of
achieving the efficient conduct of the review in accordance with the objective
set out in subsection 353(1).
(2) However, the Principal Member must not give such a direction
unless:
(a) the Tribunal’s decision on the review has not been recorded in
writing or given orally; and
(b) the Principal Member has consulted:
(i) the member, or each member, who constitutes the Tribunal;
and
(ii) a Senior Member who is not the member, or one of the members, who
constitutes the Tribunal; and
(c) either:
(i) the Principal Member is satisfied that there is insufficient material
before the Tribunal for the Tribunal to reach a decision on the review;
or
(ii) a period equal to or longer than the period prescribed for the
purposes of this subparagraph has elapsed since the Tribunal was
constituted.
(3) If a direction under this section is given, the Tribunal as
constituted in accordance with the direction is to continue and finish the
review and may, for that purpose, have regard to any record of the proceedings
of the review made by the Tribunal as previously constituted.
Note: The heading to section 355 is altered by adding at the
end “—unavailability of member”.
22 Sections 359 and 360
Repeal the sections, substitute:
(1) In conducting the review, the Tribunal may get any information that it
considers relevant. However, if the Tribunal gets such information, the Tribunal
must have regard to that information in making the decision on the
review.
(2) Without limiting subsection (1), the Tribunal may invite a person to
give additional information.
(3) Subject to subsection (4), an invitation to an applicant must be given
to the applicant by one of the methods specified in section 379A.
(4) Subsection (3) does not apply if the applicant is in immigration
detention because of:
(a) a decision to refuse to grant him or her a bridging visa; or
(b) a decision to cancel his or her bridging visa.
(1) Subject to subsection (2), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers
appropriate in the circumstances, particulars of any information that the
Tribunal considers would be the reason, or a part of the reason, for affirming
the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant
understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) Subject to subsection (3), the invitation must be given to the
applicant by one of the methods specified in section 379A.
(3) Subsection (2) does not apply if the applicant is in immigration
detention because of:
(a) a decision to refuse to grant him or her a bridging visa; or
(b) a decision to cancel his or her bridging visa.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is
just about a class of persons of which the applicant or other person is a
member; or
(b) that the applicant gave for the purpose of the application;
or
(c) that is non-disclosable information.
(1) If a person is:
(a) invited under section 359 to give additional information; or
(b) invited under section 359A to comment on information;
the invitation is to specify the way in which the additional information or
the comments may be given, being the way the Tribunal considers is appropriate
in the circumstances.
(2) If the invitation is to give additional information or comments
otherwise than at an interview, the information or comments are to be given
within a period specified in the invitation, being a prescribed period or, if no
period is prescribed, a reasonable period.
(3) If the invitation is to give information or comments at an interview,
the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a
prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period,
the Tribunal may extend that period for a prescribed further period, and then
the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time
within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed
further period;
and then the response is to be made at an interview at the new
time.
(1) If a person:
(a) is invited under section 359 to give additional information;
and
(b) does not give the information before the time for giving it has
passed;
the Tribunal may make a decision on the review without taking any further
action to obtain the additional information.
(2) If the applicant:
(a) is invited under section 359A to comment on information; and
(b) does not give the comments before the time for giving them has
passed;
the Tribunal may make a decision on the review without taking any further
action to obtain the applicant’s views on the information.
(1) The Tribunal must invite the applicant to appear before the Tribunal
to give evidence and present arguments relating to the issues arising in
relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the
applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the
applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the
applicant is not entitled to appear before the Tribunal.
(1) If the applicant is invited to appear before the Tribunal, the
Tribunal must give the applicant notice of the day on which, and the time and
place at which, the applicant is scheduled to appear.
(2) Subject to subsection (3), the notice must be given to the applicant
by one of the methods specified in section 379A.
(3) Subsection (2) does not apply if the applicant is in immigration
detention because of:
(a) a decision to refuse to grant him or her a bridging visa; or
(b) a decision to cancel his or her bridging visa.
(4) The period of notice given must be at least the prescribed period or,
if no period is prescribed, a reasonable period.
(5) The notice must contain a statement of the effect of section
362B.
23 Subsection 361(1)
Omit “Where section 359 does not apply”, substitute “In
the notice under section 360A”.
24 Paragraph 361(1)(a)
Omit “entitled”, substitute “invited”.
25 Subsection 361(4)
Omit “paragraph (c) or (d) of the definition of Part 5 reviewable
decision”, substitute “subsection 338(4)”.
26 Subsection 362(1)
Omit “paragraph (c) or (d) of the definition of Part 5 reviewable
decision”, substitute “subsection 338(4)”.
27 Paragraph 362(1)(b)
Repeal the paragraph, substitute:
(b) the applicant has been invited to appear before the Tribunal in
relation to the decision under review.
28 Section 362A
Repeal the section, substitute:
(1) Subject to subsections (2) and (3) of this section and sections 375A
and 376, the applicant, and any assistant under section 366A, are entitled to
have access to any written material, or a copy of any written material, given or
produced to the Tribunal for the purposes of the review.
(2) This section does not override any requirements of the Privacy Act
1988. In particular, this section is not to be taken, for the purposes of
that Act, to require or authorise the disclosure of information.
(3) This section does not apply if the Tribunal has given the applicant a
copy of the statement required by subsection 368(1).
(1) If the applicant:
(a) is invited under section 360 to appear before the Tribunal;
and
(b) does not appear before the Tribunal on the day on which, or at the
time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further
action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the
applicant’s appearance before it, or from delaying its decision on the
review in order to enable the applicant’s appearance before it as
rescheduled.
29 Subsection 365(1)
Repeal the subsection, substitute:
(1) Subject to this section, any oral evidence that the Tribunal takes
while a person is appearing before it must be taken in public.
30 Subsection 366(1)
Omit “a person to appear before the Tribunal, or to give
evidence,”, substitute “an appearance by the applicant before the
Tribunal, or the giving of evidence by the applicant or any other person, to
be”.
31 Subsection 367(1)
Omit “a decision covered by paragraph (c) or (d) of the definition of
Part 5 reviewable decision”, substitute “an MRT-reviewable decision
covered by subsection 338(4)”.
32 Subsection 368(1)
Omit “paragraph 375A(2)(b)”, substitute “paragraphs
375A(2)(b) and 376(3)(b)”.
33 Subsection 368(2)
Repeal the subsection.
Note: The heading to section 368 is altered by omitting
“and to notify parties”.
34 After section 368
Insert:
(1) This section applies to any decision on a review by the Tribunal other
than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a person who is in immigration
detention because of:
(i) a decision to refuse to grant him or her a bridging visa; or
(ii) a decision to cancel his or her bridging visa.
(2) The Tribunal must invite the applicant and the Secretary to be present
when the decision is handed down.
(3) The Tribunal must give the applicant and the Secretary written notice
of the day on which, and the time and place at which, the decision is to be
handed down. The period of notice given must be at least the prescribed period
or, if no period is prescribed, a reasonable period.
(4) The notice to the applicant must:
(a) contain a statement of the effect of subsection 368B(6); and
(b) be given to the applicant by one of the methods specified in section
379A.
(1) This section applies to any decision on a review by the Tribunal other
than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a person who is in immigration
detention because of:
(i) a decision to refuse to grant him or her a bridging visa; or
(ii) a decision to cancel his or her bridging visa.
(2) On the day, and at the time and place, specified in the notice
referred to in section 368A, the decision on the review is to be handed down (on
behalf of the Tribunal) by:
(a) the Principal Member; or
(b) a person authorised in writing by the Principal Member to hand down
decisions.
An authorisation may set out the circumstances in which a person is
authorised to hand down decisions.
(3) The Tribunal’s decision may be handed down:
(a) by reading the outcome of the decision; and
(b) whether or not either or both the applicant and the Secretary are
present.
(4) The date of the decision is the date on which the decision is handed
down.
(5) If the applicant and the Secretary are present at the handing down of
the decision, the Tribunal must give each of them a copy of the statement
prepared under subsection 368(1).
(6) If the applicant is not present at the handing down of the decision,
the Tribunal must notify the applicant of the decision by giving the applicant a
copy of the statement prepared under subsection 368(1). The copy must be given
to the applicant:
(a) within 14 days after the day on which the decision is handed down;
and
(b) by one of the methods specified in section 379A.
(7) If the Secretary is not present at the handing down of the decision,
the Tribunal must give to the Secretary a copy of the statement prepared under
subsection 368(1) within 14 days after the day on which the decision is handed
down.
(8) Without limiting the generality of subsections (6) and (7), an
applicant or the Secretary is taken not to be present at the handing down of a
decision if:
(a) he or she is not at the same location as that of the person who is
handing down the decision when the decision is handed down; and
(b) the decision is being handed down by:
(i) telephone; or
(ii) closed-circuit television; or
(iii) any other means of communication.
(9) A reference to the applicant or the Secretary being present at the
handing down of the decision includes a reference to a representative of the
applicant or Secretary being present.
(1) If a representative of the applicant is present at the handing down of
a decision under section 368B, the applicant is taken to be notified of the
decision on the day on which the decision is handed down.
(2) If a representative of the applicant is notified of a decision under
subsection 368B(6), the applicant is taken to be notified of the decision on the
day on which the representative is so notified.
(1) If the Tribunal gives an oral decision on an application for review,
the Tribunal must give the applicant and the Secretary a copy of the statement
prepared under subsection 368(1) within 14 days after the decision concerned is
made. The applicant is taken to be notified of the decision on the day on which
the decision is made.
(2) If the applicant is in immigration detention because of:
(a) a decision to refuse to grant him or her a bridging visa; or
(b) a decision to cancel his or her bridging visa;
the Tribunal must give the applicant and the Secretary a copy of the
statement prepared under subsection 368(1) within 14 days after the decision
concerned is made.
35 Section 369
Repeal the section, substitute:
Subject to any direction under section 378, the Registrar must ensure the
publication of any statements prepared under subsection 368(1) that the
Principal Member thinks are of particular interest.
36 At the end of section
370
Add:
(2) To avoid doubt, an invitation under section 360 to appear before the
Tribunal is not a summons to appear before the Tribunal to give
evidence.
37 At the end of Division 8 of Part
5
Add:
(1) A document specified in subsection (3) is taken to be duly given to an
applicant for review if:
(a) the document is sent (physically, electronically or otherwise)
to:
(i) the last address for service provided by the applicant in connection
with his or her application for review; or
(ii) the last residential address provided by the applicant in connection
with his or her application for review; and
(b) the Tribunal has a receipt or other evidence indicating the date of
dispatch.
(2) A document specified in subsection (3) is taken to be duly given to an
applicant for review if the document is given:
(a) by giving it to the applicant or to a person authorised by the
applicant to receive documents of that kind on behalf of the applicant;
or
(b) by leaving it at the applicant’s place of residence with a
person who appears to live there and appears to have turned 16.
(3) The documents specified for the purposes of subsections (1) and (2)
are:
(a) an invitation to an applicant under section 359 (other than an
invitation to the immigration detainees mentioned in subsection 359(4));
and
(b) an invitation under section 359A (other than an invitation to the
immigration detainees mentioned in subsection 359A(3)); and
(c) a notice under section 360A (other than a notice to the immigration
detainees mentioned in subsection 360A(3)); and
(d) a notice under section 368A; and
(e) a statement given under subsection 368B(6).
(4) It is sufficient compliance with the requirement to give a document
referred to in subsection (3) if a facsimile, or a certified copy, of the
document is so given.
(5) A document posted in accordance with paragraph (1)(a) must bear
correct prepaid postage and, if the document is posted to an overseas address,
the postage must be at the full airmail rate.
38 Section 385
Omit “IRT-reviewable decisions”, substitute
“MRT-reviewable decisions”.
Note: The heading to section 385 is altered by omitting
“IRT-reviewable decisions” and substituting
“MRT-reviewable decisions”.
39 Subsections 347(1), 348(1), 349(1), 381(1),
382(3) and sections 383, 384, 386, 387, 388, 389, 390 and
391
Omit “IRT-reviewable decision” (wherever occurring), substitute
“MRT-reviewable decision”.
Part
2—Transitional
provisions
40 Internally-reviewable
decisions
(1) For the purposes of Part 5 of the Migration Act 1958 as amended
by this Act, if:
(a) before the commencement of this Schedule, an application had been
properly made under section 339 of that Act for review of a decision;
and
(b) the applicant had not been notified of the decision as provided in
section 343 of that Act before that commencement;
the application is taken to be an application properly made, on the day of
that commencement, under section 347 of that Act as amended by this
Act.
(2) If:
(a) before the commencement of this Schedule, an application could have
been properly made under section 339 of the Migration Act 1958 for review
of a decision; and
(b) the period under paragraph 339(1)(b) of that Act for making the
application had not expired before that commencement;
an application may be made under section 347 of that Act as amended by this
Act for review of the decision under section 348 of that Act as so amended.
However, the period for making the application is to be worked out from the day,
before that commencement, on which the decision was notified.
(3) Despite the repeal of Division 2 of Part 5 of the Migration Act
1958 by this Act, the Minister may, after the commencement of this Schedule,
exercise his or her power under subsection 345(1) of the Migration Act
1958, in relation to a decision under section 341 of that Act, as if the
repeal had not occurred.
(4) If, after the commencement of this Schedule, the Minister exercises his
or her power under subsection 345(1) of the Migration Act 1958, section
178 of that Act applies as if the amendment made to that section by item 4 of
this Schedule had not been made.
41 IRT-reviewable decisions
(1) For the purposes of Part 5 of the Migration Act 1958 as amended
by this Act, if:
(a) before the commencement of this Schedule, an application had been
properly made under section 347 of that Act for review of a decision;
and
(b) the applicant had not been given a statement relating to the review
under section 368 of that Act before that commencement;
the application is taken to be an application properly made, on the day of
that commencement, under section 347 of that Act as amended by this
Act.
(2) If:
(a) before the commencement of this Schedule, an application could have
been properly made under section 347 of the Migration Act 1958 for review
of a decision; and
(b) the period under paragraph 347(1)(b) of that Act for making the
application had not expired before that commencement;
an application may be made under section 347 of that Act as amended by this
Act for review of the decision under section 348 of that Act as so amended.
However, the period for making the application is to be worked out from the day,
before that commencement, on which the decision was notified.
(3) To avoid doubt, the Minister may, after the commencement of this
Schedule, exercise his or her power under subsection 351(1) of the Migration
Act 1958 in relation to a decision under section 349 of that Act that was
made before that commencement.
(4) Subsection 368(2) of the Migration Act 1958 as in force
immediately before the commencement of this item continues to apply in relation
to statements prepared under subsection 368(1) of that Act before that
commencement.
42 Decisions referred for further consideration
after judicial review
(1) For the purposes of Part 5 of the Migration Act 1958 as amended
by this Act, if:
(a) before the commencement of this Schedule, a decision under section 349
of the Migration Act 1958 has been quashed or set aside by a court;
and
(b) the matter to which the decision under that section relates was
referred by the court for further consideration; and
(c) no decision on that further consideration was made before that
commencement;
the decision under that section is taken, on and after that commencement,
to be an MRT-reviewable decision in respect of which an application under
section 347 of the Migration Act 1958 as amended by this Act was made on
the day of that commencement.
(2) For the purposes of Part 5 of the Migration Act 1958 as amended
by this Act, if:
(a) after the commencement of this Schedule, a decision made before that
commencement under section 349 of the Migration Act 1958 is quashed or
set aside by a court; and
(b) the matter to which the decision under that section relates was
referred by the court for further consideration;
the decision under that section is taken, on and after the day of the
referral, to be an MRT-reviewable decision in respect of which an application
under section 347 of the Migration Act 1958 as amended by this Act was
made on that day.
43 Decisions that the Minister has agreed to
reconsider
(1) For the purposes of Part 5 of the Migration Act 1958 as amended
by this Act, if:
(a) before the commencement of this Schedule, an application has been made
to a court for judicial review of a decision under section 349 of the
Migration Act 1958; and
(b) before the judicial review application was determined by the court,
and before that commencement, the Minister agreed, in writing, to reconsider the
decision; and
(c) no decision on that reconsideration was made before that
commencement;
the decision under that section is taken, on and after that commencement,
to be an MRT-reviewable decision in respect of which an application under
section 347 of the Migration Act 1958 as amended by this Act was made on
the day of that commencement.
(2) For the purposes of Part 5 of the Migration Act 1958 as amended
by this Act, if:
(a) before or after the commencement of this Schedule, an application has
been or is made to a court for judicial review of a decision, made before that
commencement, under section 349 of the Migration Act 1958; and
(b) before the judicial review application was or is determined by the
court, but after that commencement, the Minister agrees, in writing, to
reconsider the decision;
the decision under that section is taken, on and after the day of the
Minister’s agreement, to be an MRT-reviewable decision in respect of which
an application under section 347 of the Migration Act 1958 as amended by
this Act was made on that day.
44 Conclusive certificates
For the purposes of Part 5 of the Migration Act 1958 as amended by
this Act, a conclusive certificate that:
(a) was issued under subsection 338(3) or 346(4) of that Act before the
commencement of this Schedule; and
(b) immediately before that commencement was still in force;
is taken to have been issued, on the day of that commencement, under
section 339 of that Act as amended by this Act.
1 Subsection 5(1) (definition of Immigration
Review Tribunal)
Repeal the definition.
2 Subsection 5(1)
Insert:
Migration Review Tribunal means the Migration Review Tribunal
established by section 394.
3 Paragraph 91G(2)(a) and subsection
114(1)
Omit “Immigration Review Tribunal”, substitute “Migration
Review Tribunal”.
4 Subsection 271(4) (paragraph (a) of the
definition of migration proceedings)
Omit “Immigration Review Tribunal”, substitute “Migration
Review Tribunal”.
5 Section 275 (paragraph (a) of the definition
of review authority)
Repeal the paragraph, substitute:
(a) the Migration Review Tribunal; or
6 Paragraph 318(1)(b) and subsection
320(1)
Omit “Immigration Review Tribunal”, substitute “Migration
Review Tribunal”.
Note: The heading to section 320 is altered by omitting
“Immigration Review Tribunal” and substituting
“Migration Review Tribunal”.
7 Section 337 (definition of
Tribunal)
Repeal the definition, substitute:
Tribunal means the Migration Review Tribunal.
8 Subsections 352(1) and 381(1), paragraph
381(2)(a), subsections 381(5) and (6), paragraph 382(3)(a) and sections 383,
384, 388, 389, 392 and 393
Omit “Immigration Review Tribunal” (wherever occurring),
substitute “Migration Review Tribunal”.
Note: The headings to sections 347, 348, 349 and 352 are
altered by omitting “Immigration Review Tribunal” and
substituting “Migration Review Tribunal”.
9 Part 6
Repeal the Part, substitute:
A Migration Review Tribunal is established.
The Migration Review Tribunal consists of:
(a) a Principal Member; and
(b) such number (not exceeding the prescribed number) of Senior Members as
are appointed in accordance with this Act; and
(c) such number (not exceeding the prescribed number) of other members as
are appointed in accordance with this Act.
(1) The members of the Tribunal are to be appointed by the
Governor-General.
(2) The Principal Member and the Senior Members are to be appointed as
full-time members.
(3) Any other member may be appointed either as a full-time member or as a
part-time member.
(1) The Principal Member is the executive officer of the Tribunal and is
responsible for its overall operation and administration.
(2) The Principal Member is responsible for:
(a) monitoring the operations of the Tribunal to ensure that those
operations are as fair, just, economical, informal and quick as practicable;
and
(b) allocating the work of the Tribunal among the members (including
himself or herself) in accordance with guidelines under subsection
(3).
(3) The Principal Member may determine, in writing, guidelines for the
allocation of the work of the Tribunal.
(4) Without limiting the scope of subsection (3), guidelines determined
under that subsection must provide that cases where a person affected by the
decision under review is being held in immigration detention must be given
priority over other cases.
Subject to this Part, a member holds office for such period, not
exceeding 5 years, as is specified in the instrument of appointment, but is
eligible for reappointment.
(1) A member is to be paid such remuneration as is determined by the
Remuneration Tribunal but, if no determination of that remuneration is in
operation, the member is to be paid such remuneration as is
prescribed.
(2) A member is to be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
A member holds office on such terms and conditions in respect of matters
not provided for by this Act as are determined by the Minister in
writing.
A member may resign by writing signed by him or her and sent to the
Governor-General.
(1) A member who has a conflict of interest in relation to a review by the
Tribunal:
(a) must disclose the matters giving rise to that conflict to the
applicant and:
(i) if the member is the Principal Member—to the Minister; or
(ii) in any other case—to the Principal Member; and
(b) the member must not take part in the review or exercise any powers in
relation to the review unless:
(i) if the member is the Principal Member—the applicant and the
Minister consent; or
(ii) in any other case—the applicant and the Principal Member
consent.
(2) For the purposes of this section, a member has a conflict of interest
in relation to a review by the Tribunal if the member has any interest,
pecuniary or otherwise, that could conflict with the proper performance of the
member’s functions in relation to that review.
(1) The Governor-General may remove a member from office on the ground of
proved misbehaviour or physical or mental incapacity.
(2) The Governor-General may remove a member from office if:
(a) the member becomes bankrupt; or
(b) the member applies to take the benefit of any law for the relief of
bankrupt or insolvent debtors; or
(c) the member compounds with his or her creditors; or
(d) the member makes an assignment of remuneration for the benefit of his
or her creditors; or
(e) the member has a direct or indirect pecuniary interest in an
immigration advisory service; or
(f) the member, being a full-time member, is absent from duty, except on
leave of absence granted in accordance with the terms and conditions determined
under section 400, for 14 consecutive days or 28 days in any 12 months;
or
(g) the member, being a full-time member, engages in paid employment
outside the duties of the office of member without the Minister’s written
consent; or
(h) the member fails, without reasonable excuse, to comply with his or her
obligations under section 402.
(3) In this section:
immigration advisory service means a body that provides
services in relation to the seeking by non-citizens of permission to enter or
remain in Australia.
(1) The Minister may appoint a person to act in a senior office:
(a) during a vacancy in the office, whether or not an appointment has
previously been made to the office; or
(b) during any period, or during all periods, when the holder of the
office is absent from duty or from Australia or is, for any reason, unable to
perform the duties of the office.
(2) Subject to this section, a person appointed to act during a vacancy in
a senior office must not continue to act for more than 12 months.
(3) If a person is acting in an office, the Minister may direct that, for
the purposes specified in the direction, the person is to be taken to continue
to act in the office after the normal terminating event occurs.
(4) A direction under subsection (3) must specify the period during which
the person is to be taken to continue to act in the office.
(5) The period specified under subsection (4) may be specified by
reference to the happening of a particular event or the existence of particular
circumstances.
(6) A direction under subsection (3):
(a) is to be given only if there is a pending review or other special
circumstance justifying the giving of the direction; and
(b) may only be given before the normal terminating event occurs;
and
(c) has effect according to its terms even if the holder of the office is
also performing the duties of the office; and
(d) ceases to have effect 12 months after the normal terminating event
occurs.
(7) If the Tribunal as constituted for the purposes of a review includes a
person acting or purporting to act under this section, any decision of, or any
direction given or other act done by, the Tribunal as so constituted is not
invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(8) Anything done by or in relation to a person acting or purporting to
act under an appointment under this section is not invalid merely
because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(9) In this section:
normal terminating event, in relation to an appointment to
act in an office, means:
(a) if the appointment is made under paragraph (1)(a)—the filling of
the vacancy in the office; or
(b) if the appointment is made under paragraph (1)(b)—the holder of
the office ceasing to be absent or ceasing to be unable to perform the duties of
the office.
senior office means the office of Principal Member or an
office of Senior Member.
The Principal Member may, by writing, signed by him or her, delegate to a
Senior Member all or any of the Principal Member’s powers under this Act
other than the power under section 381 to refer decisions to the Administrative
Appeals Tribunal.
(1) The Minister is to establish such registries of the Tribunal as the
Minister thinks fit.
(2) The Minister must designate one of the registries as the Principal
Registry.
(1) There is to be a Registrar of the Tribunal and such Deputy Registrars
and other officers of the Tribunal as are required.
(2) The Registrar, the Deputy Registrars and the other officers of the
Tribunal are to be appointed by the Minister.
(3) The officers of the Tribunal have:
(a) such duties, powers and functions as are provided by this Act and the
regulations; and
(b) such other duties and functions as the Principal Member
directs.
(4) The Registrar, the Deputy Registrar and the other officers of the
Tribunal are to be persons appointed or employed under the Public Service Act
1922.
(1) The Minister may appoint a person appointed or employed under the
Public Service Act 1922 to act in a Tribunal office:
(a) during a vacancy in the office; or
(b) during a period when the holder of the office is absent from
duty.
(2) In this section:
Tribunal office means the office of Registrar of the
Tribunal, an office of Deputy Registrar of the Tribunal or the office of any
other officer of the Tribunal appointed under section 407.
10 Appointments relating to the Migration Review
Tribunal
(1) If, before the commencement of this Schedule, an appointment as
provided for by subsection 4(1) of the Acts Interpretation Act 1901 is
made under Part 6 of the Migration Act 1958 as amended by this Schedule,
the amendments made to that Act by this Schedule apply to the appointment as if
those amendments had commenced immediately before the appointment was
made.
(2) This item does not affect the operation of Part 5 of the Migration
Act 1958.
1 After section 420
Insert:
(1) The Principal Member may, in writing, give directions, not
inconsistent with this Act or the regulations as to:
(a) the operations of the Tribunal; and
(b) the conduct of reviews by the Tribunal.
(2) In particular, the directions may relate to the application of
efficient processing practices to the conduct of reviews by the
Tribunal.
(3) The Tribunal should, as far as practicable, comply with the
directions. However, non-compliance by the Tribunal with any direction does not
mean that the Tribunal’s decision on a review is an invalid
decision.
(4) If the Tribunal deals with a review of a decision in a way that
complies with the directions, the Tribunal is not required to take any other
action in dealing with the review.
2 After section 422
Insert:
(1) The Principal Member may direct that:
(a) the member constituting the Tribunal for a particular review be
removed; and
(b) another member constitute the Tribunal for the purposes of that
review;
if the Principal Member thinks the reconstitution is in the interests of
achieving the efficient conduct of the review in accordance with the objective
set out in subsection 420(1).
(2) However, the Principal Member must not give such a direction
unless:
(a) the Tribunal’s decision on the review has not been recorded in
writing or given orally; and
(b) the Principal Member has consulted:
(i) the member constituting the Tribunal; and
(ii) a Senior Member who is not the member constituting the Tribunal;
and
(c) either:
(i) the Principal Member is satisfied that there is insufficient material
before the Tribunal for the Tribunal to reach a decision on the review;
or
(ii) a period equal to or longer than the period prescribed for the
purposes of this subparagraph has elapsed since the Tribunal was
constituted.
(3) If a direction under this section is given, the member constituting
the Tribunal in accordance with the direction is to continue and finish the
review and may, for that purpose, have regard to any record of the proceedings
of the review made by the member who previously constituted the
Tribunal.
Note: The heading to section 422 is altered by adding at the
end “—unavailability of member”.
3 Sections 424 and 425
Repeal the sections, substitute:
(1) In conducting the review, the Tribunal may get any information that it
considers relevant. However, if the Tribunal gets such information, the Tribunal
must have regard to that information in making the decision on the
review.
(2) Without limiting subsection (1), the Tribunal may invite a person to
give additional information.
(3) An invitation to an applicant must be given to the applicant by one of
the methods specified in section 441A. However, this subsection does not apply
if the applicant is in immigration detention.
(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers
appropriate in the circumstances, particulars of any information that the
Tribunal considers would be the reason, or a part of the reason, for affirming
the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant
understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The invitation must be given to the applicant by one of the methods
specified in section 441A. However, this subsection does not apply if the
applicant is in immigration detention.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is
just about a class of persons of which the applicant or other person is a
member; or
(b) that the applicant gave for the purpose of the application;
or
(c) that is non-disclosable information.
(1) If a person is:
(a) invited under section 424 to give additional information; or
(b) invited under section 424A to comment on information;
the invitation is to specify the way in which the additional information or
the comments may be given, being the way the Tribunal considers is appropriate
in the circumstances.
(2) If the invitation is to give additional information or comments
otherwise than at an interview, the information or comments are to be given
within a period specified in the invitation, being a prescribed period or, if no
period is prescribed, a reasonable period.
(3) If the invitation is to give information or comments at an interview,
the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a
prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period,
the Tribunal may extend that period for a prescribed further period, and then
the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time
within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed
further period;
and then the response is to be made at an interview at the new
time.
(1) If a person:
(a) is invited under section 424 to give additional information;
and
(b) does not give the information before the time for giving it has
passed;
the Tribunal may make a decision on the review without taking any further
action to obtain the additional information.
(2) If the applicant:
(a) is invited under section 424A to comment on information; and
(b) does not give the comments before the time for giving them has
passed;
the Tribunal may make a decision on the review without taking any further
action to obtain the applicant’s views on the information.
(1) The Tribunal must invite the applicant to appear before the Tribunal
to give evidence and present arguments relating to the issues arising in
relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the
applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the
applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the
applicant is not entitled to appear before the Tribunal.
(1) If the applicant is invited to appear before the Tribunal, the
Tribunal must give the applicant notice of the day on which, and the time and
place at which, the applicant is scheduled to appear.
(2) The notice must be given to the applicant by one of the methods
specified in section 441A. However, this subsection does not apply if the
applicant is in immigration detention.
(3) The period of notice given must be at least the prescribed period or,
if no period is prescribed, a reasonable period.
(4) The notice must contain a statement of the effect of section
426A.
4 Subsection 426(1)
Omit “Where section 424 does not apply”, substitute “In
the notice under section 425A”.
5 Paragraph 426(1)(a)
Omit “entitled”, substitute “invited”.
6 After section 426
Insert:
(1) If the applicant:
(a) is invited under section 425 to appear before the Tribunal;
and
(b) does not appear before the Tribunal on the day on which, or at the
time and place at which, the applicant is scheduled to appear;
the Tribunal may make a decision on the review without taking any further
action to allow or enable the applicant to appear before it.
(2) This section does not prevent the Tribunal from rescheduling the
applicant’s appearance before it, or from delaying its decision on the
review in order to enable the applicant’s appearance before it as
rescheduled.
7 After section 429
Insert:
For the purposes of the review of a decision, the Tribunal may allow the
appearance by the applicant before the Tribunal, or the giving of evidence by
the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
8 Subsection 430(2)
Repeal the subsection.
Note: The heading to section 430 is altered by omitting
“and to notify parties”.
9 After section 430
Insert:
(1) This section applies to any decision on a review by the Tribunal other
than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a person who is in immigration
detention.
(2) The Tribunal must invite the applicant and the Secretary to be present
when the decision is handed down.
(3) The Tribunal must give the applicant and the Secretary written notice
of the day on which, and the time and place at which, the decision is to be
handed down. The period of notice given must be at least the prescribed period
or, if no period is prescribed, a reasonable period.
(4) The notice to the applicant must:
(a) contain a statement of the effect of subsection 430B(6); and
(b) be given to the applicant by one of the methods specified in section
441A.
(1) This section applies to any decision on a review by the Tribunal other
than the following decisions:
(a) a decision that is given orally;
(b) a decision on the application of a person who is in immigration
detention.
(2) On the day, and at the time and place, specified in the notice
referred to in section 430A, the decision on the review is to be handed down (on
behalf of the Tribunal) by:
(a) the Principal Member; or
(b) a person authorised in writing by the Principal Member to hand down
decisions.
An authorisation may set out the circumstances in which a person is
authorised to hand down decisions.
(3) The Tribunal’s decision may be handed down:
(a) by reading the outcome of the decision; and
(b) whether or not either or both the applicant and the Secretary are
present.
(4) The date of the decision is the date on which the decision is handed
down.
(5) If the applicant and the Secretary are present at the handing down of
the decision, the Tribunal must give each of them a copy of the statement
prepared under subsection 430(1).
(6) If the applicant is not present at the handing down of the decision,
the Tribunal must notify the applicant of the decision by giving the applicant a
copy of the statement prepared under subsection 430(1). The copy must be given
to the applicant:
(a) within 14 days after the day on which the decision is handed down;
and
(b) by one of the methods specified in section 441A.
(7) If the Secretary is not present at the handing down of the decision,
the Tribunal must give to the Secretary a copy of the statement prepared under
subsection 430(1) within 14 days after the day on which the decision is handed
down.
(8) Without limiting the generality of subsections (6) and (7), an
applicant or the Secretary is taken not to be present at the handing down of a
decision if:
(a) he or she is not at the same location as that of the person who is
handing down the decision when the decision is handed down; and
(b) the decision is being handed down by:
(i) telephone; or
(ii) closed-circuit television; or
(iii) any other means of communication.
(9) A reference to the applicant or the Secretary being present at the
handing down of the decision includes a reference to a representative of the
applicant or Secretary being present.
(1) If a representative of the applicant is present at the handing down of
a decision under section 430B, the applicant is taken to be notified of the
decision on the day on which the decision is handed down.
(2) If a representative of the applicant is notified of a decision under
subsection 430B(6), the applicant is taken to be notified of the decision on the
day on which the representative is so notified.
(1) If the Tribunal gives an oral decision on an application for review,
the Tribunal must give the applicant and the Secretary a copy of the statement
prepared under subsection 430(1) within 14 days after the decision concerned is
made. The applicant is taken to be notified of the decision on the day on which
the decision is made.
(2) If the applicant is in immigration detention, the Tribunal must give
the applicant and the Secretary a copy of the statement prepared under
subsection 430(1) within 14 days after the decision concerned is made.
10 Subsection 431(1)
Repeal the subsection, substitute:
(1) Subject to subsection (2), and to any direction under section 440, the
Registrar must ensure the publication of any statements prepared under
subsection 430(1) that the Principal Member thinks are of particular
interest.
Note: The heading to section 431 is replaced by the heading
“Certain Tribunal decisions to be
published”.
11 At the end of section
432
Add:
(2) To avoid doubt, an invitation under section 425 to appear before the
Tribunal is not a summons to appear before the Tribunal to give
evidence.
12 At the end of Division 7 of Part
6
Add:
(1) A document specified in subsection (3) is taken to be duly given to an
applicant for review if:
(a) the document is sent (physically, electronically or otherwise)
to:
(i) the last address for service provided by the applicant in connection
with his or her application for review; or
(ii) the last residential address provided by the applicant in connection
with his or her application for review; and
(b) the Tribunal has a receipt or other evidence indicating the date of
dispatch.
(2) A document specified in subsection (3) is taken to be duly given to an
applicant for review if the document is given:
(a) by giving it to the applicant or to a person authorised by the
applicant to receive documents of that kind on behalf of the applicant;
or
(b) by leaving it at the applicant’s place of residence with a
person who appears to live there and appears to have turned 16.
(3) The documents specified for the purposes of subsections (1) and (2)
are:
(a) an invitation to an applicant under section 424 (other than an
invitation to an applicant who is in immigration detention); and
(b) an invitation under section 424A (other than an invitation to an
applicant who is in immigration detention); and
(c) a notice under section 425A (other than a notice to an applicant who
is in immigration detention); and
(d) a notice under section 430A; and
(e) a statement given under subsection 430B(6).
(4) It is sufficient compliance with the requirement to give a document
referred to in subsection (3) if a facsimile, or a certified copy, of the
document is so given.
(5) A document posted in accordance with paragraph (1)(a) must bear
correct prepaid postage and, if the document is posted to an overseas address,
the postage must be at the full airmail rate.
13 Subsection 469(1)
Omit “the office of Principal Member”, substitute “a
senior office”.
14 Paragraph 469(1)(b)
Omit “the Principal Member”, substitute “the holder of
the office”.
15 Subsection 469(1A)
Repeal the subsection.
16 Subsection 469(2)
Omit “an office”, substitute “a senior
office”.
17 Subsection 469(9) (paragraph (a) of the
definition of normal terminating event)
Omit “or (1A)(a)”.
18 Subsection 469(9) (paragraph (b) of the
definition of normal terminating event)
Omit “or (1A)(b)”.
19 Subsection 469(9)
Insert:
senior office means the office of Principal Member, the
office of Deputy Principal Member or an office of Senior Member.
20 Existing applications for review
(1) The amendments made by this Schedule apply to an application made under
section 412 of the Migration Act 1958 for review of an RRT-reviewable
decision if:
(a) the application was made before the commencement of this Schedule; and
(b) the review was not completed under section 414 of that Act before that
commencement.
(2) Subsection 430(2) of the Migration Act 1958 as in force
immediately before the commencement of this item continues to apply in relation
to statements prepared under subsection 430(1) of that Act before that
commencement.
21 Applications for review of existing
RRT-reviewable decisions
The amendments made by this Schedule apply to an application made, on or
after the commencement of this Schedule, under section 412 of the Migration
Act 1958 for review of an RRT-reviewable decision made before that
commencement.
1 After subsection 41(2)
Insert:
(2A) The Minister may, in prescribed circumstances, by writing, waive a
condition of a kind described in paragraph (2)(a) to which a particular
visa is subject under regulations made for the purposes of that paragraph or
under subsection (3).
2 Paragraph 46(1)(e)
Repeal the paragraph, substitute:
(e) where the applicant is in the migration zone and the application is
not for a protection visa or a bridging visa:
(i) the applicant has not, since last entering Australia, held a visa
subject to a condition described in paragraph 41(2)(a); or
(ii) if the applicant has, since last entering Australia, held a visa
subject to such a condition—the Minister has waived the condition under
subsection 41(2A).
1 At the end of section 129
Add:
(3) Failure to give notification of a decision does not affect the
validity of the decision.
Part
2—Application of
amendment
2 Application
The amendment made by this Schedule applies to any cancellation of a visa
under section 128 of the Migration Act 1958 after the commencement of
this Schedule (whether or not the circumstances, acts or omissions to which the
cancellation relates occurred after that commencement).
1 Subsection 104(1)
After “must”, insert “, as soon as
practicable,”.
2 Subsection 105(1)
After “must”, insert “, as soon as
practicable,”.
3 Paragraph 107(1)(b)
Omit “14 days”, substitute “a period stated in the notice
as mentioned in subsection (1A)”.
4 Subparagraphs 107(1)(c)(i), (ii) and
(iii)
Repeal the subparagraphs, substitute:
(i) if the holder gives the Minister oral or written notice, within the
period stated as mentioned in subsection (1A), that he or she will not give
a written response—when that notice is given; or
(ii) if the holder gives the Minister a written response within that
period—when the response is given; or
(iii) otherwise—at the end of that period; and
5 At the end of subsection
107(1)
Add:
; and (f) requiring the holder:
(i) to tell the Minister the address at which the holder is living;
and
(ii) if the holder changes that address before the Minister notifies the
holder of the Minister’s decision on whether there was non-compliance by
the holder—to tell the Minister the changed address.
6 After subsection 107(1)
Insert:
(1A) The period to be stated in the notice under subsection (1) must
be:
(a) in respect of the holder of a temporary visa—the period
prescribed by the regulations or, if no period is prescribed, a reasonable
period; or
(b) otherwise—14 days.
(1B) Regulations prescribing a period for the purposes of
paragraph (1A)(a) may prescribe different periods and state when a
particular period is to apply, which, without limiting the generality of the
power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a
particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a
particular place) in stated circumstances.
7 After section 107
Insert:
The possible non-compliances that:
(a) may be specified in a notice by the Minister under section 107 to a
person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that
visa under section 109;
include non-compliances that occurred at any time, including
non-compliances in respect of any previous visa held by the person.
8 Paragraph 127(2)(b)
Omit “if”, substitute “state whether”.
9 Paragraph 128(b)
Omit “has not entered”, substitute “is
outside”.
10 Subsection 160(2)
After “justice”, insert “entry”.
11 After subsection 235(4)
Insert:
(4A) Subsection (4) does not apply to a non-citizen who holds a
criminal justice stay visa, but this subsection does not affect the operation of
subsection (1).
Note: The heading to section 253 is replaced by the heading
“Detention of deportee”.
Australian
Citizenship Act 1948
1 Subsection 50(1)
(penalty)
Repeal the penalty, substitute:
Penalty: 12 months imprisonment.
2 Subsections 50(2) and (3)
Repeal the subsections.
Part
2—Application of
amendments
3 Application
The amendments made by this Schedule apply to acts or omissions after the
commencement of this Schedule.
Immigration
(Education) Act 1971
1 Paragraph 4B(b)
Omit “stay visa”, substitute “permanent
visa”.
2 Part 1 of the Schedule (amendment of
subsection 4(1) (definition of applicable priority
mark))
Repeal the amendment.
Migration
Legislation Amendment Act (No. 5) 1995
3 Subsection 2(3)
Omit “17”, substitute “18”.
4 Subsection 2(4)
Omit “Subject to subsection (5), item 19”, substitute
“Item 20”.
5 Subsection 2(5)
Repeal the subsection.