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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 Legislation Amendment Bill
(No. 1) 2014
No. , 2014
(Immigration and Border Protection)
A Bill for an Act to amend the Migration Act 1958,
and for other purposes
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 2
Schedule 1--Applications for visas
3
Migration Act 1958
3
Schedule 2--Removal of unlawful non-citizens
7
Migration Act 1958
7
Schedule 3--Recovery of costs from certain persons
8
Migration Act 1958
8
Schedule 4--Authorised recipients
10
Migration Act 1958
10
Schedule 5--Crimes Act warrants etc.
14
Australian Citizenship Act 2007
14
Migration Act 1958
15
Schedule 6--Miscellaneous
17
Part 1--Procedural fairness requirements
17
Migration Act 1958
17
Part 2--Removing redundant references
18
Migration Act 1958
18
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
1
A Bill for an Act to amend the Migration Act 1958,
1
and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Migration Legislation Amendment Act
5
(No. 1) 2014.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Migration Legislation Amendment Bill (No. 1) 2014
No. , 2014
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1 to
5
The day after this Act receives the Royal
Assent.
3. Schedule 6,
Part 1
A single day to be fixed by Proclamation.
However, if the provision(s) 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.
4. Schedule 6,
Part 2
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 Schedule(s)
7
Each Act 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
Applications for visas Schedule 1
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
3
Schedule 1
--Applications for visas
1
2
Migration Act 1958
3
1 Subsection 48(1)
4
Repeal the subsection, substitute:
5
(1) A non-citizen in the migration zone who:
6
(a) does not hold a substantive visa; and
7
(b) after last entering Australia:
8
(i) was refused a visa, other than a refusal of a bridging
9
visa or a refusal under section 501, 501A or 501B, for
10
which the non-citizen had applied (whether or not the
11
application has been finally determined); or
12
(ii) held a visa that was cancelled under section 109
13
(incorrect information), 116 (general power to cancel),
14
134 (business visas), 137J (student visas) or 137Q
15
(regional sponsored employment visas);
16
may, subject to the regulations, apply for a visa of a class
17
prescribed for the purposes of this section or have an application
18
for such a visa made on his or her behalf, but not for a visa of any
19
other class.
20
(1A) A non-citizen in the migration zone who:
21
(a) does not hold a substantive visa; and
22
(b) after last entering Australia, was refused a visa (other than a
23
refusal of a bridging visa or a refusal under section 501,
24
501A or 501B) for which an application had been made on
25
the non-citizen's behalf, whether or not:
26
(i) the application has been finally determined; or
27
(ii) the non-citizen knew about, or understood the nature of,
28
the application due to any mental impairment; or
29
(iii) the non-citizen knew about, or understood the nature of,
30
the application due to the fact that the non-citizen was,
31
at the time the application was made, a minor;
32
may, subject to the regulations, apply for a visa of a class
33
prescribed for the purposes of this section or have an application
34
for such a visa made on his or her behalf, but not for a visa of any
35
other class.
36
Schedule 1 Applications for visas
4
Migration Legislation Amendment Bill (No. 1) 2014
No. , 2014
2 Subsection 48A(1)
1
Omit all the words after paragraph (b), substitute:
2
may not make a further application for a protection visa, or have a
3
further application for a protection visa made on his or her behalf,
4
while the non-citizen is in the migration zone.
5
3 After subsection 48A(1)
6
Insert:
7
(1AA) Subject to section 48B, if:
8
(a) an application for a protection visa is made on a non-citizen's
9
behalf while the non-citizen is in the migration zone; and
10
(b) the grant of the visa has been refused, whether or not:
11
(i) the application has been finally determined; or
12
(ii) the non-citizen knew about, or understood the nature of,
13
the application due to any mental impairment; or
14
(iii) the non-citizen knew about, or understood the nature of,
15
the application due to the fact that the non-citizen was,
16
at the time the application was made, a minor;
17
the non-citizen may not make a further application for a protection
18
visa, or have a further application for a protection visa made on his
19
or her behalf, while the non-citizen is in the migration zone.
20
4 Subsection 501E(1)
21
After "for a visa", insert ", or have an application for a visa made on the
22
person's behalf,".
23
5 After subsection 501E(1)
24
Insert:
25
(1A) In relation to the Minister's decision to refuse to grant a visa to the
26
person, as mentioned in paragraph (1)(a), it does not matter
27
whether:
28
(a) the application for the visa was made on the person's behalf;
29
or
30
(b) the person knew about, or understood the nature of, the
31
application for the visa due to:
32
(i) any mental impairment; or
33
Applications for visas Schedule 1
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
5
(ii) the fact that the person was, at the time the application
1
was made, a minor.
2
6 Application
3
(1)
The amendment made by item 1 of this Schedule applies to an
4
application for a visa that is made by or on behalf of a non-citizen on or
5
after the day this item commences, even if:
6
(a) the refusal of a visa, as mentioned in
7
subparagraph 48(1)(b)(i) of the Migration Act 1958, occurs
8
before that day; or
9
(b) the cancellation of a visa, as mentioned in
10
subparagraph 48(1)(b)(ii) of the Migration Act 1958, occurs
11
before that day; or
12
(c) the refusal of a visa, as mentioned in paragraph 48(1A)(b) of
13
the Migration Act 1958, occurs before that day.
14
(2)
The amendment made by item 2 of this Schedule applies in relation to:
15
(a) a decision to refuse to grant a protection visa to a non-citizen
16
that is made before the day this item commences, if the
17
further application for a protection visa mentioned in
18
subsection 48A(1) of the Migration Act 1958 is made by or
19
on behalf of the non-citizen on or after that day; or
20
(b) a decision to refuse to grant a protection visa to a non-citizen
21
that is made on or after the day this item commences,
22
regardless of when the application for the visa to which the
23
decision relates was made.
24
(3)
The amendment made by item 3 of this Schedule applies in relation to:
25
(a) a decision to refuse to grant a protection visa to a non-citizen
26
that is made before the day this item commences, if the
27
further application for a protection visa mentioned in
28
subsection 48A(1AA) of the Migration Act 1958 (as inserted
29
by that item) is made by or on behalf of the non-citizen on or
30
after that day; or
31
(b) a decision to refuse to grant a protection visa to a non-citizen
32
that is made on or after the day this item commences,
33
regardless of when the application for the visa to which the
34
decision relates was made.
35
(4)
The amendments made by items 4 and 5 of this Schedule apply in
36
relation to:
37
Schedule 1 Applications for visas
6
Migration Legislation Amendment Bill (No. 1) 2014
No. , 2014
(a) a decision to refuse to grant a visa to a person that is made
1
before the day this item commences, if an application for a
2
visa mentioned in subsection 501E(1) of the Migration Act
3
1958 is made by or on behalf of the person on or after that
4
day; or
5
(b) a decision to refuse to grant a visa to a person that is made on
6
or after the day this item commences, regardless of when the
7
application for the visa to which the decision relates was
8
made.
9
7 Saving of regulations
10
The amendment made by item 1 of this Schedule does not affect the
11
validity of regulations in force for the purposes of section 48 of the
12
Migration Act 1958 immediately before the commencement of that
13
item.
14
Removal of unlawful non-citizens Schedule 2
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
7
Schedule 2
--Removal of unlawful non-citizens
1
2
Migration Act 1958
3
1 Paragraph 198(5)(b)
4
Repeal the paragraph, substitute:
5
(b) neither applied for a substantive visa in accordance with
6
subsection 195(1) nor applied under section 137K for
7
revocation of the cancellation of a substantive visa;
8
regardless of whether the non-citizen has made a valid application
9
for a bridging visa.
10
2 After subsection 198(5)
11
Insert:
12
(5A) Despite subsection (5), an officer must not remove an unlawful
13
non-citizen if:
14
(a) the non-citizen has made a valid application for a protection
15
visa (even if the application was made outside the time
16
allowed by subsection 195(1)); and
17
(b) either:
18
(i) the grant of the visa has not been refused; or
19
(ii) the application has not been finally determined.
20
3 Application
21
The amendments made by this Schedule apply to the removal of a
22
detainee on or after the day this item commences, even if the detainee
23
was detained before that day.
24
Schedule 3 Recovery of costs from certain persons
8
Migration Legislation Amendment Bill (No. 1) 2014
No. , 2014
Schedule 3
--Recovery of costs from certain
1
persons
2
3
Migration Act 1958
4
1 Section 262 (heading)
5
Repeal the heading, substitute:
6
262 Liability to the Commonwealth for the cost of keeping,
7
maintaining and removing certain persons
8
2 Paragraphs 262(1)(a) and (b)
9
Repeal the paragraphs, substitute:
10
(a) is, or has been, detained under section 189; and
11
(b) was on board a vessel (not being an aircraft) when it was
12
used in connection with the commission of an offence against
13
this Act or against a prescribed law in force in the
14
Commonwealth or in a State or Territory, being a law
15
relating to the control of fishing; and
16
(ba) is convicted of the offence;
17
3 At the end of section 262
18
Add:
19
(4) To avoid doubt, the liability to pay the Commonwealth an amount
20
under subsection (1) may be enforced:
21
(a) at the time the person is convicted of an offence mentioned in
22
paragraph (1)(b); or
23
(b) after the person has served the whole or a part of any
24
sentence imposed upon the person because of his or her
25
conviction of an offence mentioned in paragraph (1)(b).
26
4 Application
27
(1)
The amendments made by this Schedule apply to a conviction for an
28
offence against paragraph 262(1)(b) of the Migration Act 1958, as
29
amended by this Schedule, that occurs on or after the day this item
30
commences.
31
Recovery of costs from certain persons Schedule 3
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
9
(2)
The amendments made by this Schedule also apply to costs incurred
1
before the day this item commences in relation to a conviction
2
mentioned in subitem (1).
3
5 Saving of regulations
4
The amendment made by item 2 of this Schedule does not affect the
5
validity of regulations in force for the purposes of paragraph 262(1)(b)
6
of the Migration Act 1958 immediately before the commencement of
7
that item.
8
Schedule 4 Authorised recipients
10
Migration Legislation Amendment Bill (No. 1) 2014
No. , 2014
Schedule 4
--Authorised recipients
1
2
Migration Act 1958
3
1 Paragraph 379G(1)(b)
4
Omit "authorised by the applicant to do things on behalf of the applicant
5
that consist of, or include, receiving documents", substitute "authorised
6
by the applicant to receive documents".
7
2 After subsection 379G(1)
8
Insert:
9
(1A) For the purposes of subsection (1):
10
(a) paragraph (1)(a) is taken to also apply to an application for
11
review of an MRT-reviewable decision where the application
12
is not properly made under section 347; and
13
(b) in connection with such an application, paragraph (1)(b) is
14
taken to apply to a notice of a kind referred to in that
15
paragraph as if the notice authorised the authorised recipient
16
to receive documents in connection with the application
17
(including a document notifying that recipient that the
18
application is not properly made under that section).
19
3 Subsection 379G(3)
20
Omit "The applicant", substitute "Subject to subsection (3A), the
21
applicant (but not the authorised recipient)".
22
4 After subsection 379G(3)
23
Insert:
24
(3A) In addition to the applicant being able to vary the notice under
25
paragraph (1)(b) by varying the address of the authorised recipient,
26
that recipient may also vary that notice by varying that address.
27
5 Subsection 379G(4)
28
Repeal the subsection.
29
Authorised recipients Schedule 4
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
11
6 Paragraph 441G(1)(b)
1
Omit "authorised by the applicant to do things on behalf of the applicant
2
that consist of, or include, receiving documents", substitute "authorised
3
by the applicant to receive documents".
4
7 After subsection 441G(1)
5
Insert:
6
(1A) For the purposes of subsection (1):
7
(a) paragraph (1)(a) is taken to also apply to an application for
8
review of an RRT-reviewable decision where the application
9
is not a valid application under section 412; and
10
(b) in connection with such an application, paragraph (1)(b) is
11
taken to apply to a notice of a kind referred to in that
12
paragraph as if the notice authorised the authorised recipient
13
to receive documents in connection with the application
14
(including a document notifying that recipient that the
15
application is not a valid application under that section).
16
8 Subsection 441G(3)
17
Omit "The applicant", substitute "Subject to subsection (3A), the
18
applicant (but not the authorised recipient)".
19
9 After subsection 441G(3)
20
Insert:
21
(3A) In addition to the applicant being able to vary the notice under
22
paragraph (1)(b) by varying the address of the authorised recipient,
23
that recipient may also vary that notice by varying that address.
24
10 Subsection 441G(4)
25
Repeal the subsection.
26
11 Subsection 494D(1)
27
Omit "authorised by the first person to do things on behalf of the first
28
person that consist of, or include, receiving documents in connection
29
with matters arising under this Act or the regulations", substitute
30
"authorised by the first person to receive documents in connection with
31
specified matters arising under this Act or the regulations".
32
Schedule 4 Authorised recipients
12
Migration Legislation Amendment Bill (No. 1) 2014
No. , 2014
12 Subsection 494D(1)
1
After "any documents", insert "in connection with those matters".
2
13 Subsection 494D(3)
3
Omit "The first person", substitute "Subject to subsection (3A), the first
4
person (but not the authorised recipient)".
5
14 After subsection 494D(3)
6
Insert:
7
(3A) In addition to the first person being able to vary the notice under
8
subsection (1) by varying the address of the authorised recipient,
9
that recipient may also vary that notice by varying that address.
10
15 Subsection 494D(4)
11
Repeal the subsection.
12
16 Subsection 494D(5)
13
Omit ", or the requirement in subsection (4) to give a notice,".
14
17 Application
15
(1)
The amendment made by item 1 of this Schedule applies in relation to a
16
notice given under paragraph 379G(1)(b) of the Migration Act 1958 on
17
or after the commencement of that item.
18
(2)
The amendment made by item 2 of this Schedule applies in relation to:
19
(a)
an application purportedly made on or after the
20
commencement of that item; and
21
(b)
an application purportedly made before that
22
commencement, where the Migration Review Tribunal
23
had not decided before that commencement that the
24
application was not properly made.
25
(3)
The amendments made by items 3 and 4 of this Schedule apply in
26
relation to a notice given under paragraph 379G(1)(b) of the Migration
27
Act 1958 before, on or after the commencement of those items.
28
(4)
The amendments made by items 5, 10, 15 and 16 of this Schedule apply
29
in relation to communications that occur on or after the commencement
30
Authorised recipients Schedule 4
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
13
of those items (whether the authorisation of the authorised recipient
1
occurred before, on or after that commencement).
2
(5)
The amendment made by item 6 of this Schedule applies in relation to a
3
notice given under paragraph 441G(1)(b) of the Migration Act 1958 on
4
or after the commencement of that item.
5
(6)
The amendment made by item 7 of this Schedule applies in relation to:
6
(a)
an application purportedly made on or after the
7
commencement of that item; and
8
(b)
an application purportedly made before that
9
commencement, where the Refugee Review Tribunal had
10
not decided before that commencement that the
11
application was not a valid application.
12
(7)
The amendments made by items 8 and 9 of this Schedule apply in
13
relation to a notice given under paragraph 441G(1)(b) of the Migration
14
Act 1958 before, on or after the commencement of those items.
15
(8)
The amendments made by items 11 and 12 of this Schedule apply in
16
relation to a notice given under subsection 494D(1) of the Migration
17
Act 1958 on or after the commencement of those items.
18
(9)
The amendments made by items 13 and 14 of this Schedule apply in
19
relation to a notice given under subsection 494D(1) of the Migration
20
Act 1958 before, on or after the commencement of those items.
21
Schedule 5 Crimes Act warrants etc.
14
Migration Legislation Amendment Bill (No. 1) 2014
No. , 2014
Schedule 5
--Crimes Act warrants etc.
1
2
Australian Citizenship Act 2007
3
1 After section 51
4
Insert:
5
51A Things seized under Crimes Act search warrant and
6
information about such things
7
(1) This section applies to the following:
8
(a) a thing seized (warrant material) under a search warrant
9
issued under Division 2 of Part 1AA of the Crimes Act 1914;
10
(b) information (warrant information) that is about, or obtained
11
from, warrant material.
12
(2) A constable or Commonwealth officer who, under
13
subsection 3ZQU(1) of the Crimes Act 1914, may use or make
14
available warrant material, is authorised to make available warrant
15
material or warrant information:
16
(a) to a person covered by subsection (4); and
17
(b) for a purpose mentioned in subsection (3).
18
(3) A person covered by subsection (4) is authorised to receive and use
19
warrant material and warrant information, or make it available to
20
another person covered by subsection (4), for the following
21
purposes:
22
(a) making a decision, or assisting in making a decision, to
23
approve or refuse to approve a person becoming an
24
Australian citizen;
25
(b) making a decision, or assisting in making a decision, to
26
revoke a person's Australian citizenship;
27
(c) making a decision, or assisting in making a decision, to
28
cancel an approval given to a person under section 24.
29
Note:
Subsection 3ZQU(4) of the Crimes Act 1914 contemplates that
30
another law of the Commonwealth may require or authorise the use or
31
making available of a document or other thing to persons, or for
32
purposes, in addition to those listed in subsection 3ZQU(1) of that
33
Act.
34
Crimes Act warrants etc. Schedule 5
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
15
(4) The following persons are covered by this subsection:
1
(a) the Minister;
2
(b) the Secretary;
3
(c) an APS employee in the Department whose duties include
4
making decisions, or assisting in making decisions, in
5
relation to Australian citizenship.
6
Migration Act 1958
7
2 After section 488A
8
Insert:
9
488AA Things seized under Crimes Act search warrant and
10
information about such things
11
(1) This section applies to the following:
12
(a) a thing seized (warrant material) under a search warrant
13
issued under Division 2 of Part 1AA of the Crimes Act 1914;
14
(b) information (warrant information) that is about, or obtained
15
from, warrant material.
16
(2) A constable or Commonwealth officer who, under
17
subsection 3ZQU(1) of the Crimes Act 1914, may use or make
18
available warrant material, is authorised to make available warrant
19
material or warrant information:
20
(a) to a person covered by subsection (4); and
21
(b) for a purpose mentioned in subsection (3).
22
(3) A person covered by subsection (4) is authorised to receive and use
23
warrant material and warrant information, or make it available to
24
another person covered by subsection (4), for the following
25
purposes:
26
(a) making a decision, or assisting in making a decision, to grant
27
or refuse to grant a visa;
28
(b) making a decision, or assisting in making a decision, to
29
cancel a visa;
30
(c) making a decision, or assisting in making a decision, to
31
revoke a cancellation of a visa;
32
(d) making a decision in relation to the detention, removal or
33
deportation of a non-citizen from Australia.
34
Schedule 5 Crimes Act warrants etc.
16
Migration Legislation Amendment Bill (No. 1) 2014
No. , 2014
Note:
Subsection 3ZQU(4) of the Crimes Act 1914 contemplates that
1
another law of the Commonwealth may require or authorise the use or
2
making available of a document or other thing to persons, or for
3
purposes, in addition to those listed in subsection 3ZQU(1) of that
4
Act.
5
(4) The following persons are covered by this subsection:
6
(a) the Minister;
7
(b) an officer, including the Secretary.
8
3 Application
9
The amendments made by this Schedule apply in relation to search
10
warrants issued under Division 2 of Part 1AA of the Crimes Act 1914
11
on or after the commencement of this Schedule.
12
Miscellaneous Schedule 6
Procedural fairness requirements Part 1
No. , 2014
Migration Legislation Amendment Bill (No. 1) 2014
17
Schedule 6
--Miscellaneous
1
Part 1
--Procedural fairness requirements
2
Migration Act 1958
3
1 Subsection 57(2)
4
Omit "Subject to subsection (3), the", substitute "The".
5
2 Subsection 57(3)
6
Repeal the subsection.
7
3 Application
8
The amendments made by this Part apply in relation to applications for
9
visas that are made on or after the commencement of this Part.
10
Schedule 6 Miscellaneous
Part 2 Removing redundant references
18
Migration Legislation Amendment Bill (No. 1) 2014
No. , 2014
Part 2
--Removing redundant references
1
Migration Act 1958
2
4 Subsections 379C(6), 379D(5), 441C(6), 441D(5) and 494C(6)
3
Repeal the subsections.
4