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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (GIVING DOCUMENTS AND OTHER
MEASURES) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural
Affairs, the Honourable Andrew Giles MP)
MIGRATION AMENDMENT (GIVING DOCUMENTS AND OTHER MEASURES)
BILL 2023
GENERAL OUTLINE
The Migration Amendment (Giving Documents and Other Measures) Bill 2023 (the Bill)
amends the Migration Act 1958 (the Migration Act) to improve and clarify the intended
operation of the legislative framework for the giving of notices and other documents, and to
remove restrictions on certain non-citizens from lodging a valid application for a protection
visa.
The purpose of the Bill is to:
• improve certainty and consistency in the giving of cancellation-related documents,
including by requiring all cancellation-related documents to be given in writing, and
confirming that the regulations can prescribe methods for giving such documents;
• ensure that where the Minister gives a document to a person under the Migration Act
or Migration Regulations 1994 (Regulations) and makes an error in doing so, the
giving of the document is valid where the person actually receives the document; and
the document is taken to have complied with requirements as to the content of the
document where the Minister has substantially complied with those content
requirements and the error does not cause substantial prejudice to the relevant
person's rights (including, but not limited to, rights to seek review in connection with
the matter to which the document relates);
• repeal Subdivision AK of Division 3 of Part 2 (Subdivision AK) of the Migration Act
to remove the prohibition on non-citizens who are nationals of two or more countries
and certain other cohorts making a valid application for a protection visa.
Giving documents for character-related cancellation decisions and actions
The amendments made to the Migration Act by the Bill create a more transparent and
coherent framework for notifications of cancellation-related decisions and actions. Together,
they:
• require all cancellation-related notifications to be given in writing; and
• enable the regulations to specify the method of giving documents.
In particular, subsection 494A(1) of the Migration Act provides that if a provision of the
Migration Act or the Regulations requires or permits the Minister to give a document to a
person, and the provision does not state that the document must be given by a method
specified in section 494B or by a method prescribed for the purposes of giving a document to
a person in immigration detention, the Minister may give the document by any method that
they consider appropriate. The amendments in the Bill clarify that subsection 494A(1) does
not apply to cancellation-related documents, which are intended to be covered by the
method(s) prescribed by the Regulations.
The current provisions relating to visa cancellation have a range of varying requirements for
the giving of notices and other documents. Certain provisions allow the Minister to notify
visa holders of certain decisions or proposed decisions orally rather than in writing, however,
in practice, such notifications are all given in writing. Some provisions require the Minister
to give a document by the prescribed method, some grant the Minister a discretion, and some
are silent as to the necessary method.
The Bill amends the provisions that deal with the giving of cancellation-related notices,
where appropriate, to ensure that all such provisions require that the notice must be in writing
and must be given in the prescribed way. This facilitates the fair and efficient administration
of the visa cancellation framework with a greater degree of transparency, certainty and
consistency.
Validity of documents
The Bill makes amendments to establish a substantial compliance framework in the
Migration Act. The substantial compliance framework is intended to address instances where
the Minister is permitted or required to give a document to a person, and the document does
not strictly comply with the relevant requirements under the Migration Act or the
Regulations. This Bill amends the Migration Act to provide that where the Minister has
substantially complied with the relevant content-related requirements and the requirements
for the giving of a document, and the recipient of that document suffers no substantial
prejudice to their legal rights from that breach, or those breaches, the document will be taken
to have complied with the content-related requirements.
The Bill introduces a substantial compliance framework to the Migration Act to make clear
that strict adherence to the relevant statutory requirements is not required in all situations.
This adopts a common sense approach to the administration of the complex migration
framework, and provides certainty to the Minister and to the recipient in relation to the giving
of documents. This change is also intended to reduce the administrative burden on the
Administrative Appeals Tribunal and the courts arising from litigation founded on technical
or inconsequential disputes over the giving of a document.
Complementing this substantial compliance measure are amendments to ensure that where
the Minister gives a document to a person under the Migration Act or regulations and makes
an error in doing so, the giving of the document is valid where the person actually receives
the document. Presently, there are only provisions dealing with the deemed receipt of notices
in certain circumstances. The giving of a document is now expressly addressed.
The Bill also amends section 109 of the Migration Act, relating to the cancellation of a visa
where the holder has provided incorrect information, to make clear that a defect in the notice
of decision does not affect the validity of the decision itself. This mirrors similar existing
provisions in most other cancellation provisions.
Repeal of the application bar for certain protection visa applicants
This Bill also amends the Migration Act to enable non-citizens who are nationals of two or
more countries, or those who have a right of residence in a third country and have previously
continuously resided there and where the Minister has made a declaration in relation to such
countries, to make a valid application for a protection visa, or in some cases, any other visa.
It does this by repealing Subdivision AK (sections 91M to 91Q) of Division 3 of Part 2 of the
Migration Act.
This will assist Australia in meeting its international and non-refoulement obligations, by
allowing for considered assessments of protection claims for certain non-citizens who are
nationals of two or more countries. Rather than preventing a valid application for a
protection visa to be made, it allows for the making of a protection finding in relation to
individuals seeking to engage Australia's protection obligations. This provides a greater
assurance in giving effect to Australia's international obligations.
The repeal of Subdivision AK also removes an administrative burden on the individual, the
Department and the Minister. The current Subdivision requires prospective protection visa
applicants who are nationals of two or more countries to seek a bar lift, which generally
requires providing further information to support consideration of lifting the visa application
bar. This then needs to be assessed and considered by the Department and Minister. The
proposed repeal of Subdivision AK will create administrative efficiencies in protection visa
processing.
In relation to section 91N, the Minister has not made a declaration regarding a country that
can meet relevant human rights standards for persons seeking protection, and therefore this
provision is currently not administered.
Importantly, the repeal of Subdivision AK affects the validity of visa applications only.
Protection visa applicants would still be required to meet the criteria for visa grant, including
criteria prescribed in section 36 of the Migration Act. This includes subsection 36(3), which
provides that Australia does not have protection obligations in relation to a person who has a
current right to enter and reside in another country, including countries of which the person is
a national. Subsections 36(4), 36(5) and 36(5A) require that the third country is 'safe' for the
person to go to in accordance with Australia's protection obligations. Persons seeking
protection will have their rights to reside in another safe country assessed under this
provision. This upholds the principle that a non-citizen who can avail himself or herself of
protection from a third country, because of nationality or some other right to re-enter and
reside in the third country, should seek protection from the third country instead of applying
in Australia for a protection visa, or in some cases, any other visa. This ensures that
Australia's Refugee and Humanitarian visa framework facilitates the granting of protection
visas to those in genuine need of Australia's protection.
Notifications and the giving of documents are an integral part of the migration framework.
The amendments made by the Bill are necessary to ensure the Minister can continue to notify
non-citizens of decisions affecting their visa status without interruption, and will reduce the
inefficiency associated with disputes over whether the Minister has strictly complied with
requirements relating to the giving of documents. Additionally, repealing Subdivision AK
allows for increased administrative efficiency in relation to the processing of protection
claims made by non-citizens who are nationals of two or more countries.
FINANCIAL IMPACT STATEMENT
The amendments in the Bill have nil financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011. To the extent the Bill may limit some human rights, those limitations are
reasonable, necessary and proportionate.
A statement of compatibility with human rights has been prepared in accordance with Part 3 of
the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment A.
COMMON ABBREVIATIONS AND ACRONYMS
Abbreviation or acronym Meaning
AAT Administrative Appeals Tribunal
AAT Act Administrative Appeals Tribunal Act 1975
Acts Interpretation Act Acts Interpretation Act 1901
Bill Migration Amendment (Giving Documents and Other Measures)
Bill 2023
Department Department of Home Affairs
Federal Circuit Court Federal Circuit and Family Court of Australia
Legislation Act Legislation Act 2003
Migration Act Migration Act 1958
Non-citizen A person who is not an Australian citizen: as defined in section 5 of
the Migration Act
Regulations Migration Regulations 1994
Subdivision AK Subdivision AK of Division 3 of Part 2 of the Migration Act
MIGRATION AMENDMENT (GIVING DOCUMENTS AND OTHER MEASURES)
BILL 2023
NOTES ON INDIVIDUAL CLAUSES
Section 1 Short title
1. Section 1 provides that the short title of this Bill, once enacted, will be the Migration
Amendment (Giving Documents and Other Measures) Act 2023 (the Act).
Section 2 Commencement
2. This section provides for the commencement of the provisions in the Act.
3. Subsection 2(1) provides that each provision of the Act specified in column 1 of the
table commences, or is taken to have commenced, in accordance with column 2 of the table.
Any other statement in column 2 has effect according to its terms.
4. Subsection 2(1) provides that each provision of the Act specified in column 1 of the
table under subsection 2(1) commences, or is taken to have commenced, in accordance with
column 2 of the table. Any other statement in column 2 has effect according to its terms.
5. The effect of this provision is that sections 1 to 3 of the Act and Schedule 2 to the Act
will commence the day after the Act receives the Royal Assent. Schedule 1 to the Act will
commence on a single day to be fixed by Proclamation, to be within the 6 months of the Act
receiving Royal Assent.
6. A note at the foot of the table under subsection 2(1) explains that the table relates only
to the provisions of the Act as originally enacted. The table will not be amended to deal with
any later amendments of the Act.
7. Subsection 2(2) provides that any information in column 3 of the table is not part of the
Act. Information may be inserted in column 3, or information in it may be edited, in any
published version of the Act.
Section 3 Schedules
8. This section provides that legislation specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned. This section also provides
that any other item in a Schedule to the Act has effect according to its terms.
SCHEDULE 1 - DOCUMENTS
Migration Act 1958
Item 1 Subsection 107(1)
9. This item amends subsection 107(1) to provide that a notice given under this subsection
must be a written notice. This requirement is currently prescribed by the Regulations.
Item 2 After subsection 107(1B)
10. This item inserts new subsection 107(1C), which provides that a notice given under
subsection 107(1) must be given in the prescribed way. Current section 107 does not specify
how the notice must be given.
Item 3 At the end of section 109
11. This item inserts new subsections 109(3) and (4). Current section 109 does not provide
that a notice must be given to the visa holder or the method by which any notice should be
given.
12. New subsection 109(3) provides that if the Minister cancels a visa under
subsection 109(1), the Minister must give the former holder of the visa a written notice which:
• sets out the decision (paragraph 109(3)(a));
• specifies the ground for the cancellation (paragraph 109(3)(b));
• states whether the decision is reviewable under Part 5 or 7 (paragraph 109(3)(c));
• if the former visa holder has a right to have the decision reviewed under Part 5 or
7, state:
i. the decision can be reviewed (subparagraph 109(3)(i)); and
ii. the time in which the application for review may be made
(subparagraph 109(3)(ii)); and
iii. who can apply for the review (subparagraph 109(3)(iii)); and
iv. where the application for review can be made (subparagraph 109(3)(iv)).
13. The intention of this subsection is to standardise clear requirements the Minister must
follow when giving a notice under section 109, by aligning section 109 with current
section 127 of the Migration Act.
14. New subsection 109(4) provides that the notice under subsection 109(3) must be given
in the prescribed way.
15. New subsection 109(5) provides that failure to give notice of a decision does not affect
the validity of the decision. It also standardises the cancellation-notification provisions to
reduce inconsistency by aligning section 109 with other sections within the Migration Act
which cover visa-decision related notifications, including section 64, 127, 129 and 137S of the
Migration Act. Sections 501G and 133E of the Migration Act also contain provisions,
differently worded, that make it clear that an error in the notification does not affect the validity
of the decision.
16. For clarity, the no-invalidity clause does not affect a person's ability to exercise their
review rights. This is because the time within which a person can seek merits review of a
cancellation-related decision commences upon receipt of notification of the decision, rather
than from the date the decision was made. Accordingly, a person's merits review rights will
not be compromised if the decision itself remains valid. These provisions are in the same terms
as those already in the Act in relation to certain cancellation-related provisions and will operate
no differently.
Item 4 Subsection 119(1)
17. This item amends subsection 119(1) to provide that if the Minister is considering
cancelling a visa under section 116, the Minister must notify the holder of the specified matters
in writing. Current subsection 119(1) does not specify that the notice must be in writing.
Item 5 Subsection 119(2) and (3)
18. This item repeals subsections 119(2) and (3) and substitutes them with new
subsection 119(2).
19. New subsection 119(2) provides that the notification under subsection 119(1) must be
given in the prescribed way. Current subsection 119(2) provides that the visa holder is to be
notified in the prescribed way or, if there is no prescribed way, in a way that the Minister
considers to be appropriate.
20. The intention of this substitution is to ensure that the Minister must notify the holder
using the method prescribed by the regulations.
21. Current subsection 119(3) provides that the way of notifying the holder may be orally.
As oral notifications are no longer used, this item repeals subsection 119(3) to remove the
option of oral notification, as amended subsection 119(1) provides that the notice must be in
writing.
Item 6 Subsection 120(2)
22. This item amends current subsection 120(2), to provide that the notice sent under the
section must be in writing.
23. Current subsection 120(2) provides that the Minister must give particulars of the
relevant information (see subsection 120(1)) to the holder; ensure, as far as reasonably
practicable, that the holder understands why it is relevant to the cancellation; and invite the
holder to comment on it. The Minister may do so in a way the Minister considers appropriate
in the circumstances.
24. New subsection 120(2) provides that the Minister must by written notice give
particulars of the relevant information to the holder and invite the holder to comment on it.
Item 7 Paragraph 120(2)(b)
25. This item amends current paragraph 120(2)(b) to omit the reference to the requirement
for the Minister to 'ensure that as far as reasonably practicable the holder understands' why the
information is relevant to the cancellation in the notice, and substitutes it with 'set out.'
26. The requirement in current paragraph 120(2)(b) was relevant when the information was
provided to the visa holder orally. It is not possible, through written notice, to gauge the level
of understanding of the recipient. The amendment instead places the onus on the Minister to
set out the reasons why the information is relevant to the visa cancellation.
27. By giving a written notice to the visa holder which sets out the reasons why the
information is relevant to the visa cancellation, the visa holder is better able to seek independent
help or advice if they do not fully understand its contents.
Item 8 Subsection 120(3)
28. This item repeals current subsection 120(3) and substitutes new subsection 120(3), to
provide the notice under amended subsection 120(2) must be given in the prescribed way.
Item 9 Subsection 127(1)
29. This item amends subsection 127(1) to provide that when the Minister decides to cancel
a visa under section 116, the Minister must notify the visa holder of the decision in writing.
Current subsection 127(1) provides that the Minister must notify the holder in the prescribed
way.
Item 10 After subsection 127(2)
30. This item inserts new subsection 127(2A) to provide that the notice under
subsection 127(1) must be given in the prescribed way.
Item 11 Subsection 129(1)
31. This item amends subsection 129(1) to provide that if the Minister cancels a visa under
section 128, the Minister must give the former holder of the visa a written notice.
Item 12 Section 132
32. This item renumbers section 132 so that it becomes subsection 132(1). This is
consequential to the insertion of new subsection 132(2) at item 14.
Item 13 Section 132
33. This item amends section 132 (which is new subsection 132(1) per item 12 to provide
that when the Minister revokes or does not revoke the cancellation of a visa under section 131,
the Minister must notify the visa holder of the decision in writing. Current section 132 provides
that the Minister must notify the holder in the prescribed way.
Item 14 At the end of section 132
34. This item inserts new subsection 132(2), which provides that the notice given under
subsection 132(1) must be given in the prescribed way.
Item 15 Subsection 133E(2)
35. This item amends subsection 133E(2) to provide that a notice under subsection 133E(1)
must be given in the prescribed way. Current subsection 133E(2) states that the notice must be
given in the prescribed manner. The amendment makes the wording consistent with the
requirements in other provisions relating to the giving of notices in connection with the
proposed cancellation or cancellation of, or revocation of a decision to cancel, a visa.
Item 16 Paragraph 133F(3)(a)
36. This item amends paragraph 133F(3)(a) to provide that the Minister, as soon as
practicable after making a decision under subsections 133A(3) or 133C(3) to cancel a visa,
must give the former holder a notice in the prescribed way. Current paragraph 133F(3)(a)
provides that the notice may be given in the way that the Minister considers appropriate in the
circumstances.
37. The intention of this amendment is to ensure that the Minister must notify the former
holder using the method prescribed by the regulations.
Item 17 Subsection 134E(1)
38. This item amends subsection 134E(1) to provide that if the Minister decides to cancel
a visa under section 134B, and then decides under subsection 134C(3) not to revoke the
cancellation, the Minister must give the former holder of the visa notice of the cancellation in
writing. Current subsection 134E(1) does not specify that the notice must be in writing.
Item 18 After subsection 134(7)
39. This item inserts new subsection 134(7A), which provides that the notice given under
subsection 134(7) must be given in the prescribed way.
Item 19 At the end of section 135
40. This item inserts new subsection 135(6), which provides that a notice given under
subsection 135(1) or (5) must be given in the prescribed way.
Item 20 At the end of section 137R
41. This item inserts new subsection 137R(4), which provides that a notice given under
subsection 137R(1) or (3) must be given in the prescribed way.
Item 21 After subsection 137S(1)
42. This item inserts new subsection 137S(1A), which provides that the notice given under
subsection 137S(1) must be given in the prescribed way.
Item 22 At the end of section 494A
43. This item inserts new subsection 494A(5), which provides that section 494A does not
apply to the giving of:
• a document relating to the proposed cancellation of a visa (paragraph 494(5)(a));
• a document relating to the cancellation of a visa (paragraph 494(5)(b));
• a document relating to the revocation of the cancellation of a visa
(paragraph 494(5)(c)); or
• a document relating to a decision not to revoke the cancellation of a visa
(paragraph 494(5)(d)).
44. Current subsection 494A(1) provides that if a provision of the Migration Act or the
regulations requires or permits the Minister to give a document to a person, and the provision
does not state that the document must be given by a method in section 494B or by a method
prescribed for the purposes of giving documents to a person in immigration detention, then the
Minister may give the document to a person by any method that the Minister considers
appropriate (including by one of those mentioned methods).
45. The effect of subsection 494A(1) is to give the Minister a discretion to choose the
method by which a document should be given to a person, provided that the giving of the
document is covered by that provision.
46. New subsection 494A(5) makes clear that the discretion in subsection 494A(1) does not
extend to the giving of a document relating to the proposed cancellation, cancellation or
revocation of the cancellation of a visa. The provision recognises the significance of
cancellation-related decisions by denying the Minister the discretion to select a method of
notification. Instead, the Minister must use the method prescribed by the regulations.
47. New note 1 under new subsection 494A(5) makes clear that these kinds of documents
must be given by the method prescribed by the regulations instead. There are specific
provisions throughout the Migration Act which confer power to make regulations prescribing
the giving of notices relating to visa cancellation, and in addition the general regulation-making
power in s 504(1)(e) can be relied upon in this regard and is mentioned in the Note.
48. New note 2 under subsection 494A(5) refers to section 494D, which relates to the giving
of a document to a person's authorised recipient. While section 494D may determine who the
recipient of a visa cancellation-related document is, the method by which the document must
be given is that prescribed by the regulations.
Item 23 Subsection 494C(7)
49. This item repeals current subsection 494C(7) and substitutes new subsection 494C(7).
50. Current subsection 494C(7) deals with receipt of a document. It provides that if the
Minister purports to give a document to a person in accordance with a method specified in
section 494B but makes an error in doing so, and the person nonetheless receives the document
or a copy of it, then the person is taken to have received the document at the time mentioned
in section 494C as if the Minister had given the document to the person without making an
error in doing so, unless the person can show that they received it at a later time (in which case
the person is taken to have received it at that later time).
51. New subsection 494C(7) deals with both the giving and receipt of a document. It
provides that where the Minister purports to give a document in accordance with a section 494B
method, but makes an error in the method by which the document is given, but the person
nonetheless receives the document or a copy of it, the document is taken to have been given in
accordance with the relevant method and the person is taken to have received it at the time
mentioned in section 494C for the relevant method or, if the person can show that they received
the document at a later time, at that later time.
52. New paragraphs 494C(7)(a) and (b) provide the conditions under which the deeming
provisions in paragraphs 494C(7)(c) and (d) will apply. The deeming provisions will apply if:
• the Minister purports to give a document to a person in accordance with a
section 494B method, but makes an error in doing so; (paragraph 494C(7)(a)) and
• the person still receives the document or copy of it (paragraph 494C(7)(b)).
53. An error relating to the method of giving a document is a failure to comply with a
method of giving documents under current section 494B. For example, if the recipient is
handed the document by someone who is not the Minister or an authorised officer, as required
in subsections 494B(2) and (3), and they nonetheless receive the document, then despite the
Minister's failure to comply with those legislative requirements the Minister is taken to have
validly given the document and the recipient is taken to have received it. New
paragraphs 494C(7)(c) and (d) provide for deemed receipt and confirm the 'giving' has
occurred, if the conditions in paragraphs 494C(7)(a) and (b) are met. That is, regardless of the
Minister's error in giving the document:
• the document is taken to have been validly given in accordance with the relevant
method the Minister purported to use in paragraph 494C(7)(a)
(paragraph 494C(7)(c)); and
• the person is taken to have received the document, even if they did not actually
receive it, at:
i. the times mentioned in section 494C, determined according to the relevant
method the Minister purported to use under section 494B
(paragraph 494C(7)(d)(i)); or
ii. a later time, if the person can show they received the document at that later
time (paragraph 494C(7)(d)(ii)).
54. The following example demonstrates how new subsection 494C(7) applies:
• The Minister sent a document inviting an applicant for a visa to comment on relevant
information (under section 57 of the Migration Act) to a person who is in a correctional
facility via that facility's email address. The Minister arranges for an employee in that
correctional facility, who is not an authorised officer, to hand the document to that
person, because the person in the correctional facility does not have direct access to
emails or a letterbox. When the document is emailed, the employee of that facility
immediately prints off the document and hands it to the person.
• In this instance, the Minister purported to use the method in subsection 494B(2) by
arranging for the handing the document to the recipient. However, neither the Minister
nor an authorised officer in fact handed the document to the person as required by the
method in subsection 494B(2). Therefore, though the Minister made an error in
purporting to give the document to the person in accordance with subsection 494B(2),
the person nonetheless received the document. The effect of new subsection 494C(7)
is that the Minister is taken to have given the document to the person in accordance
with subsection 494B(2) and the person is taken to have received that document at the
time the employee of that facility handed them that document, per subsection 494C(2).
55. The key difference between current subsection 494C(7) and new subsection 494C(7) is
that the provision now deals with 'giving'. That is, in circumstances where the person receives
the document in spite of the Minister's error in purporting to send it by a method in section
494B, the Minister is taken to have validly given the notice for the purposes of provisions of
the Migration Act which require the Minister to give a notice to a person.
Item 24 After section 494D
56. This item inserts new section 494E after current section 494D in Division 2 of Part 9 of
the Migration Act.
57. New section 494E introduces a substantial compliance framework in relation to the
content of documents. The provision seeks to address instances where the Minister is permitted
or required to give a document to a person, and the document does not strictly comply with the
relevant content requirements under the Migration Act or the Regulations. Where the Minister
has substantially complied with the relevant content related requirements for the document
given, and the recipient of that document suffers no substantial prejudice related to their rights
(including, but not limited to, rights to seek review in connection with the matter to which the
document relates), arising from the Minister's failure to strictly comply with those
requirements, that document is taken to have complied with the content-related requirements.
58. Subsection 494E(1) provides for the kind of document the section applies to, which is
a document that:
• the Minister is required or permitted to give to a person under the Migration Act or
Regulations (paragraph 494E(1)(a)), and
• is to include particular information, as required by the Migration Act or Regulations
(paragraph 494E(1)(b)).
59. Paragraph 494E(1)(b) provides an in-text definition for 'content requirements', which
are the relevant statutory requirements for including particular information in the document.
This makes clear that substantial compliance under section 494E is intended to apply where
particular information is required to be included in the document.
60. In practice, this includes documents that relate to cancellation of a person's visa,
informs a person of a decision affecting their visa status or sponsor approval status, and
requests or invitations for additional information or comment to inform a decision affecting a
person's visa status or approval status.
61. Subsection 494E(2) provides a two limb test for when a document of the kind in
subsection 494E(1) is taken to comply with the content requirements. This test is:
• the document substantially complies with the content requirements
(paragraph 494E(2)(a)); and
• the Minister's failure to strictly comply with the content requirements does not, or
is unlikely to, cause substantial prejudice to the person's rights (including, but not
limited to the person's right to seek review in connection with the matter to which
the document relates (paragraph 494E(2)(b)).
62. An error relating to content is an error which is contained in the document itself. For
example, the error could be a misspelling of a name, a typographical error, or information
placed under the wrong heading.
63. Even where a document substantially complies with the content requirements,
paragraph 494E(2)(b) prevents the document from being taken to have complied with the
content requirements where the person's rights (including, but not limited to, rights to seek
review in connection with the matter to which the document relates) are substantially
prejudiced. Use of the term 'substantial prejudice to the person's rights' is intended to be
distinguishable from general disadvantage that may be suffered by the person. The term
purposefully distinguishes what is intended to be captured by the provision from disadvantage
caused by a given document in a general sense: for example, it would not cover a situation
where a person incurs legal costs and spends time seeking legal advice in trying to understand
an unclear notice. However, if the failure to strictly comply with content requirements impacts
upon a person's rights to seek review, that would likely be considered to cause substantial
prejudice--although it must be taken in context with the facts of the matter.
64. Subsection 494E(3) provides that subsection 494E(2) applies despite the operation of
other provisions in the Migration Act or Regulations.
65. Subsection 494E(4) provides that even if the Minister makes different kinds of errors
in the document, it is still possible for the document to substantially comply with the content
requirements. The phrase 'error, omission, misstatement or misdescription in the document' is
intended to be very broad, and to capture a range of defects which might arise within a notice.
It could cover the way in which information is set out within a notice, as well as what is actually
said or not said.
66. For clarity, a document may contain more than one error, omission, misstatement or
misdescription (a breach) and may nevertheless substantially comply with the relevant
requirements. However, under certain circumstances, there may be either a significant breach
or a collection of breaches in a document, that make it so unclear that there would be significant
misinterpretation of the facts and legal consequences to the person (that is, substantial prejudice
to the person's legal rights, per paragraph 494E(2)(b)). In these instances, the document would
not be considered validly given.
67. Noting that the terms used in subsection 494E(4) are intended to be broad, and capture
a spectrum of defects within a notice, they are for example intended to convey the following:
• 'error' is intended to capture a broad range of content related defects that could be
made in the document;
• 'omission' is intended to capture information not contained in the document,
including grammatical omissions, omissions of particular sections or subsections
parts of names, numbers, titles, subheadings, or certain sentences or meanings;
• 'misstatement' is intended to capture incorrect, inaccurate or incomplete statements
made in the document, including those made about the person, addressee,
legislation, or statements that are correct and relevant to the person or matter but
placed under incorrect headings;
• 'misdescription' is intended to capture incorrect, inaccurate or incomplete
descriptions in the document, including those made about the person, addressee,
actions, facts, legislation or rights.
68. The term 'error' is also intended to capture defects within a notice which might arise
from the way in which a notice is expressed, for example because of the use of headings or
other matters of form.
69. Subsection 494E(5) provides for non-exhaustive situations that on their own, will not
be taken to have caused substantial prejudice to the person's rights per paragraph 494E(2)(b).
The provision makes it impermissible for a person to draw inferences from a failure, in and of
itself, to:
• exercise their rights, such as their rights to seek review (paragraph 494(5)(a)); or
• take any other action, such as making representations and responding
(paragraph 494(5)(b)).
70. Where the Minister has not strictly complied with the content requirements,
subsection 494E(5) makes it clear that a failure by a person to do something does not of itself
mean that the Minister's failure to comply with strict notification requirements has led to
substantial prejudice to that person's rights. For example, it is not permissible to infer from a
failure by a person to seek review that there has necessarily been a failure to strictly comply
with a notification requirement leading to substantial prejudice in respect of that person
exercising their review rights. There may be many other reasons why a person failed to
exercise their review rights.
71. The provision makes clear that it is not permissible to infer that a person's rights
(including, but not limited to, rights to seek review in connection with the matter to which the
document relates) are substantially prejudiced by virtue only of the fact that the person has not
responded to a document that does not strictly comply with content requirements, for example
by not providing further information or not seeking review upon receiving the document.
72. New note 1 under new section 494E provides a practical example to demonstrate the
operation of the provision. The example contains three different scenarios in which a notice
of refusal to grant a visa substantially complied with the content requirements. The three
scenarios illustrate how the substantial prejudice test would operate differently depending on
when the applicant made an application for review of the decision, depending on whether there
was substantial prejudice to the visa applicant's rights.
73. New note 2 under new subsection 494E provides another practical example to
demonstrate operation of the provision. It uses a detailed scenario in which a notice of refusal
to grant a visa would be taken to have substantially complied with the content requirements,
without substantial prejudice to the visa applicant's rights.
74. The following examples further demonstrate how new section 494E operates:
• The Minister cancels Angela's visa and gives notice of the cancellation decision.
The notice advises her that she has review rights 'under Part 5 or Part 7 of the
Migration Act'. Angela exercises her review rights by seeking merits review
pursuant to provisions in Part 5, understanding Part 7 is irrelevant. The failure to
specify only Part 5 in the notice, and the inclusion of the more general reference to
'Part 5 or Part 7', does not cause substantial prejudice to Angela's right to seek
review under Part 5. It intended that subsection (2) would apply in relation to the
notice given to Angela.
• The Minister sends a request for further information to Ted, via email to his
migration agent, who is validly appointed as an authorised recipient under
section 494D. The document states that the information must be provided in a
certain timeframe, but is addressed to Ted's migration agent instead of Ted. The
migration agent forwards the document on to Ted explaining it is for him, as it is
clear from the document it is intended for Ted. Ted receives the document, but does
not make representations in time because he has difficulties accessing his internet
and could not readily contact his migration agent who was overseas. As these were
the only reasons Ted did not respond to the notice, on the facts, his rights are
unlikely to be substantially prejudiced, per paragraph 494E(2)(b).
75. Other examples where a document might be taken to substantially comply with content
requirements, subject to whether a person's rights (including, but not limited to, rights to seek
review in connection with the matter to which the document relates) are substantially
prejudiced, include a document:
• that fails to refer to the exact provision or Part of the Migration Act which confers
the relevant right of review, yet still contains sufficient information to enable the
person to exercise review rights;
• in which information on review rights was placed under the incorrect heading in the
document;
• sent to a person's authorised recipient who was validly appointed under
section 494D of the Migration Act, but the document is addressed to the person only
and uses language that does not differentiate between the person and their
authorised recipient;
• incorrectly describes the time period for representations to be made to the Minister
(such as under paragraph 2.52(2)(b) of the Regulations), by misdescribing the
representations are to be sent to the Minister rather than to be received by the
Minister.
Item 25 Subsection 500A(10)
76. This item amends subsection 500A(10) to provide that if the Minister decides under
subsections 500A(1) or (3) to refuse to grant a person a temporary safe haven visa, or to cancel
a person's temporary safe haven visa, the Minister must notify the person of the decision in
writing. Current subsection 500A(10) does not require that the notice must be in writing.
Item 26 After subsection 500A(10)
77. This item inserts new subsection 500A(10A), to provide that if the notification under
subsection 500A(10) relates to a decision to cancel a person's temporary safe haven visa, the
notification must be given in the prescribed way.
Item 27 Paragraph 501C(3)(a)
78. This item amends paragraph 501C(3)(a) to provide that as soon as practicable after the
Minister makes a decision under subsections 501(3) or 501A(3) to refuse to grant a visa to a
person or to cancel a visa held by a person, the Minister must give the person a written notice
which includes the information specified by the provision and paragraph 501C(3)(b).
79. Current paragraph 501C(3)(a) provides that the Minister must give the notice to the
person in the way that the Minister considers appropriate in the circumstances. The amended
paragraph 501C(3)(a) removes this specific discretion.
80. This amendment has no practical effect for cases involving a decision to refuse to grant
a visa, as subsection 494A(1) provides that the Minister may in any case give the notice to the
person in the way that the Minister considers appropriate in the circumstances, which may be
a method mentioned in section 494B.
81. In the case of a decision to cancel a visa, the effect of items 22 and 30 is that the Minister
must give the notice to the person in the prescribed way.
Item 28 After subsection 501C(3)
82. This item inserts new subsection 501C(3A), which provides that if the notice under
subsection 501C(3) relates to an original decision to cancel a visa, the notice must be given in
the prescribed way.
Item 29 Paragraph 501CA(3)(a)
83. This item amends paragraph 501CA(3)(a) to provide that as soon as practicable after
the Minister makes a decision under subsection 501(3A) to cancel a visa held by a person, the
Minister must give the person a written notice which includes the information specified by the
provision and paragraph 501CA(3)(b).
84. Current paragraph 501CA(3)(a) provides that the Minister must give the notice to the
person in the way that the Minister considers appropriate in the circumstances. The amended
paragraph 501CA(3)(a) removes this discretion.
Item 30 After subsection 501CA(3)
85. This item inserts new subsection 501CA(3A), which provides that the notice under
subsection 501CA(3) must be given in the prescribed way.
Item 31 Subsection 501G(3)
86. This item amends subsection 501G(3) to provide that a notice under subsection 501G(1)
must be given in the prescribed way. Current subsection 501G(3) provides that the notice must
be given in the prescribed manner. The intention of this amendment is to ensure that provisions
relating to the giving of cancellation-related documents use consistent language, and that
cancellation-related documents are given in the way prescribed by the regulations.
Item 32 After subsection 504(2)
87. This item inserts new subsection 504(2A), which provides that the regulations that may
be made under paragraph 504(1)(e) include, but are not limited to, regulations specifying
circumstances in which a document is taken to have been given in a specified way.
88. Current paragraph 504(1)(e) provides that the Governor-General may make regulations
making provision for and in relation to the giving of documents to; the lodging of documents
with; or the service of documents on the Minister, Secretary, or any other person or body for
the purposes of the Migration Act.
89. The purpose of new subsection 504(2A) is to make clear that regulations made under
paragraph 504(1)(e) may provide that a person is taken to have received a document at a
specified time under certain circumstances, such as where a document is sent by a particular
method prescribed by the regulations. This clarifies the existing regulation-making power.
Item 33 Application provision
90. This item provides that the amendments made by Schedule 1 apply in relation to a
notice, notification or document given on or after the commencement of Schedule 1, and not
to a notice, notification or document given before the commencement date.
SCHEDULE 2 - VISA APPLICATIONS BY DUAL NATIONALS ETC.
Migration Act 1958
Item 1 Subsection 5(1) (subparagraph (a)(i) of the definition of excluded fast track
review applicant)
91. This item amends subparagraph (a)(i) of the definition of excluded fast track review
applicant in subsection 5(1) to omit the words "or 91N". Amended subparagraph (a)(i) refers
only to a person who, in the opinion of the Minister, is covered by section 91C. Current
subparagraph (a)(i) also refers to a person who is covered by section 91N, which is repealed
by item 3.
92. The omission of the words "or 91N" is consequential to the repeal of Subdivision AK.
The effect of this amendment upon commencement is that a fast track applicant will no longer
be an excluded fast track review applicant in relation to a fast track decision made after
commencement only by reason of being a non-citizen who is a national of two or more
countries.
Item 2 Subparagraphs 46(1)(e)(v) and (vi)
93. This item repeals subparagraphs 46(1)(e)(v) and (vi) and substitutes new
subparagraph 46(1)(e)(v), which is substantially identical to the repealed provision.
94. The repeal of subparagraph 46(1)(e)(vi) is consequential to the repeal of Subdivision
AK (see item 3), including section 91P. The effect of these repeals is that an application for a
protection visa will not be invalid only on the basis that the application is made by a non-citizen
who is a national of two or more countries.
Item 3 Subdivision AK of Division 3 of Part 2
95. This item repeals Subdivision AK of Division 3 of Part 2 of the Migration Act in its
entirety. The effect of this repeal is that a non-citizen who is a national of two or more
countries, or those who have a right of residence in a third country and have previously
continuously resided there and where the Minister has made a declaration in relation to such
countries, will no longer be prevented from making a valid application for a protection visa.
96. However, an applicant for a protection visa will continue to be required to meet the
criterion in subsection 36(3), which provides that Australia is taken not to have protection
obligations in respect of a non-citizen who has not taken all possible steps to avail themselves
of a right to enter and reside in any country apart from Australia, including countries of which
the non-citizen is a national.
97. Subsection 36(4) provides that subsection 36(3) does not apply in relation to a country
in respect of which the non-citizen has a well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or political group; or a
country in respect of which the Minister has substantial grounds for believing that, as a
necessary and foreseeable consequence of the non-citizen availing themselves of a right to
enter and reside in that country, there would be a real risk that the non-citizen will suffer
significant harm in relation to the country. The provision plays an important role in ensuring
Australia complies with its non-refoulement obligations.
98. The effect of this amendment will be that a non-citizen who is a national of two or more
countries will not be prevented from making a valid application for a protection visa, but may
continue to be unable to meet the criteria for a protection visa. Even if the person's application
for a protection visa is unsuccessful, the Minister is required by section 36A to consider and
make a record of whether the non-citizen meets the criteria in paragraphs 36(2)(a) and (aa) and
subsection 36(1C). These relate to whether the non-citizen is a refugee or, as a necessary and
foreseeable consequences of being removed from Australia, there is a real risk that the non-
citizen would suffer significant harm.
Item 4 Subsection 198(9)
99. This item repeals subsection 198(9). Current subsection 198(9) requires an officer to
remove as soon as reasonably practicable an unlawful non-citizen if, among other things,
Subdivision AK applies to the non-citizen. The repeal of Subdivision AK by item 3 means that
subsection 198(9) is no longer required.
Item 5 At the end of subsection 474(7)
100. This item adds a note at the end of subsection 474(7) which states that section 91Q was
repealed by the Migration Amendment (Giving Documents and Other Measures) Act 2023. The
intention of this note is to explain that while subsection 474(7) retains a reference to
section 91Q, the provision has been repealed.
101. The retention of the reference to section 91Q in subsection 474(7) is intended to make
clear that a decision of the Minister not to exercise, or consider the exercise of, the Minister's
power under section 91Q is a privative clause decision within the meaning of
subsection 474(2). This retention is necessary because there are decisions made to date which
need to retain the status of being privative clause decisions.
Item 6 Application provision--validity of visa applications
102. This item provides that the amendment of paragraph 46(1)(e) made by item 2 and the
repeal of Subdivision AK by item 3 applies in relation to an application for a visa made on or
after the commencement of this item, and also to an application for a visa made before the
commencement of this item if, immediately before that commencement, a decision had not
been made that the application is not a valid application.
103. This item also provides that, for an application made before commencement where,
immediately before commencement, no decision had been made that the application is not a
valid application, subparagraph 46(1)(e)(vi) and Subdivision AK is taken to have been repealed
immediately before the application was made.
104. The effect of this application provision is that on-hand applications made before the
commencement of Schedule 2 to the Bill will not be invalid applications by reason of the
application of section 91P, provided that no decision has been made as to whether the
application is invalid.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Giving Documents and Other Measures) Bill 2023
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Migration Amendment (Giving Documents and Other Measures) Bill 2023 amends the
Migration Act 1958 (the Migration Act) to improve and clarify the intended operation of the
legislative framework for the giving of notices and other documents, and to remove
restrictions on certain non-citizens from lodging a valid application for a protection visa.
The purpose of the Bill is to:
• improve certainty and consistency in the giving of cancellation-related documents,
including by confirming that the regulations can prescribe methods for giving such
documents;
• ensure that where the Minister gives a document to a person under the Migration Act
or regulations and makes an error in doing so, the giving of the document is valid
where the person actually receives the document; and the document is taken to have
complied with requirements as to the content of the document where the Minister has
substantially complied with those content requirements and the error does not cause
substantial prejudice to the relevant person's legal rights (including, but not limited to,
rights to seek review in connection with the matter to which the document relates);
• repeal Subdivision AK of Division 3 of Part 2 (Subdivision AK) of the Migration Act
to remove the prohibition on non-citizens who are nationals of two or more countries
and certain other cohorts making a valid application for a protection visa.
Schedule 1 to the Bill contains measures that relate to the giving of documents. It seeks to
ensure that the available methods for the giving of documents is able to be prescribed by
regulations, on either a mandatory or discretionary basis, and standardises the legislative
requirements for the giving of documents relating to the proposed cancellation, cancellation
or revocation of the cancellation of a visa (cancellation-related documents). It also contains
amendments to the Migration Act that introduce a substantial compliance framework in
relation to visa-related notifications.
Giving documents for character-related cancellation decisions and actions
The amendments made to the Act by this Bill clarify what methods must or may be used by
the Minister when giving documents relating to a decision to cancel a person's visa, and
thereby provide transparency and predictability on the operation of the legislation. Subsection
494A(1) of the Migration Act provides that if a provision of the Migration Act or the
Migration Regulations 1994 (Regulations) requires or permits the Minister to give a
document to a person, and the provision does not state that the document must be given by a
method specified in section 494B or by a method prescribed for the purposes of giving a
document to a person in immigration detention, the Minister may give the document by any
method that they consider appropriate. The amendments in the Bill clarify that
subsection 494A(1) does not apply to cancellation-related documents, which are intended to
be covered by the method(s) prescribed by the Regulations.
The amendments operate to confirm regulations can be made to prescribe methods relating to
the giving of cancellation-related documents, and that the Minister must give cancellation-
related documents in the prescribed way. In practice, this confirms regulation 2.55 of the
Regulations is not inconsistent with section 494A of the Migration Act. Consequential
amendments ensure this approach is adopted consistently throughout the Migration Act in
relation to the giving of cancellation-related documents.
Regulation 2.55 of the Regulations requires the Minister to give a cancellation-related
document to a visa holder or former visa holder through one of a number of ways.
Importantly, the methods specified in regulation 2.55 of the Regulations differ from the
methods specified in section 494B of the Migration Act in that they allow for a document to
be sent (via postal methods) or transmitted (via electronic methods) to the 'person's last
residential or business address known to the Minister' or to 'the last fax number, email
address or other electronic address known to the Minister'. By contrast, section 494B of the
Migration Act requires a document to be sent to 'the last address for service ... . residential or
business address provided to the minister by the recipient for the purposes of receiving
documents.'
The effect of these amendments is to confirm that cancellation-related documents can be
given to a person at their last address known to the Minister (per regulation 2.55 of the
Regulations), rather than to the last address the person provided to the Minister (per
section 494B of Migration Act).
The current provisions relating to visa cancellation have a range of varying requirements for
the giving of notices and other documents. Certain provisions allow the Minister to notify
visa holders of certain decisions or proposed decisions orally rather than in writing, which in
practice is rarely done. Some provisions require the Minister to give a document by the
prescribed method, some grant the Minister a discretion, and some are silent as to the
necessary method.
Each provision dealing with the giving of cancellation-related notices has been amended,
where appropriate, to ensure that all such provisions require that the notice must be in writing
and must be given in the prescribed way. Additional amendments have been made to section
109 of the Migration Act to clarify that when there is a failure to notify, the validity of the
decision is unaffected; and to section 120 of the Migration Act requiring the Minister to set
out in writing the reason that relevant information may be relevant to a proposed decision to
cancel a visa.
Validity of documents
The Bill amends subsection 494C(7) of the Migration Act to clarify that where the Minister
gives a document to a person by a method in section 494B but makes an error in doing so, but
the person nonetheless receives the document, the Minister is taken to have validly given the
document to the person. Current subsection 494C(7) provides that the person is taken to have
received the document at the relevant time for the method (or a later time if that can be
shown), but does not make clear that the Minister's giving of the document is valid.
The Bill also introduces a substantial compliance framework in the Migration Act. New
section 494E is intended to address instances where the Minister is permitted or required to
give a document to a person, and the document does not strictly comply with the relevant
content requirements under the Migration Act or the Regulations. Where the Minister has
substantially complied with the relevant content-related requirements, and the recipient of
that document suffers no substantial prejudice to their legal rights from the Minister's failure
to strictly comply with those requirements, the document will be taken to have complied with
the content-related requirements.
Introducing a substantial compliance framework allows the Migration Act to make clear that
strict technical adherence to the relevant statutory requirements is not required in all
situations. This adopts a common sense approach to the administration of the complex
migration framework and provides certainty to both the Minister and to the recipient in
relation to the giving of documents.
Repeal of the application bar for certain protection visa applicants
This Bill amends the Migration Act to repeal Subdivision AK (sections 91M to 91Q) of
Division 3 of Part 2 of the Act, enabling non-citizens who are nationals of two or more
countries, or those who have a right of residence in a third country and have previously
continuously resided there and where the Minister has made a declaration in relation to such
countries, to make a valid application for a protection visa, or in some cases, any other visa.
Non-citizens who are nationals of two or more countries are prevented from making a valid
application for a protection visa, or in some cases, any other visa (ss 91N(1), 91P). Non-
citizens who have a right to enter and reside in a third country, and have resided in that
country for a continuous period of at least seven days, if that country has been specified in a
declaration made by the Minister, are also prevented from making a valid application for a
protection visa, or in some cases, any other visa. No declaration has been made specifying a
country to which this particular section applies and therefore it is currently not administered.
The repeal of Subdivision AK means these non-citizens will no longer face an application bar
when attempting to make a valid application for a protection visa. Such persons will be able
to make a valid application for a protection visa and have their protection claims considered
and assessed against the relevant criteria, including the making of a protection finding under
section 36A, without requiring the Minister to first consider lifting a bar.
Importantly, the removal of Subdivision AK affects the validity of visa applications only.
Protection visa applicants would still be required to meet the criteria for visa grant, including
criteria prescribed in section 36 of the Act. This includes subsection 36(3), which provides
that Australia does not have protection obligations in relation to a person who has a current
right to enter and reside in another country, including countries of which the person is a
national. Subsections 36(4), 36(5) and 36(5A) require that the third country is 'safe' for the
person to go to in accordance with Australia's protection obligations. Persons seeking
protection will have their rights to reside in another safe country assessed under this
provision. This upholds the principle that a non-citizen who can avail himself or herself of
protection from a third country, because of nationality or some other right to re-enter and
reside in the third country, should seek protection from the third country instead of applying
in Australia for a protection visa, or in some cases, any other visa. This ensures that
Australia's Refugee and Humanitarian visa framework facilitates the granting of protection
visas to those in genuine need of Australia's protection.
The repeal of Subdivision AK is expected to improve administrative efficiencies for those
persons affected by section 91P, enabling prospective visa applicants to lodge a valid
application for a protection visa without consideration of a bar lift under section 91Q.
Human rights implications
The amendments in this Bill that relate to notifications in relation to visa cancellation
decisions engage the following rights:
• Freedom from unlawful expulsion under Article 13 of the International Covenant on
Civil and Political Rights (ICCPR).
The amendments in this Bill that relate to the repeal of the application bar for certain
protection visa applicants engage the following rights and obligations:
• Non-refoulement obligations arsing under Article 3 of the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, and Articles 6
and 7 of the ICCPR.
• Rights in relation to equality and non-discrimination in Articles 2 and 26 of the
ICCPR.
Freedom from unlawful expulsion
Article 13 of the ICCPR provides that:
An alien living lawfully in the territory of a State Party to the present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with law and
shall, except where compelling reasons of national security otherwise require, be allowed
to submit the reasons against his expulsion and to have his case reviewed by, and be
represented for the purpose before, the competent authority or a person or persons
especially designated by the competent authority.
The delivery of relevant documents to a person is fundamental in order to give effect to the
right to submit reasons against expulsion, which may result from the refusal to grant a visa or
the cancellation of a visa. A person will be unable to submit reasons against or seek review
by a competent authority if the person is not notified of the action or where that notification
fails to provide certain essential information.
The amendments made to the Act by this Bill clarify what methods must or may be used by
the Minister when giving documents relating to a decision to cancel a person's visa, which
consequently may result in the person becoming an unlawful non-citizen, prohibited from
entering or remaining in Australia.
The amendments specifically require that cancellation-related documents be given in a
specific way, as prescribed by the Regulations, notably regulation 2.55.
This supports both the lawfulness of any cancellation-related decision was well as the right of
the non-citizen to access relevant natural justice processes and merits review of any such
decision by putting it beyond doubt that, in all instances, cancellation-related notifications are
required to be given in writing, and that the giving of such documents is required to be in a
way prescribed in regulation 2.55 of the Regulations.
By clarifying the operation of the regulations in prescribing the way in which cancellation-
related documents must be given, the effect is that the Minister is required to use the 'last
known address' when posting or electronically transmitting a cancellation-related document.
This address may be given to the Minister either by the intended recipient themselves or by a
third party. This ensures that the non-citizen subject of the cancellation-related documents
will be notified of the contents of those documents at their last address known to the Minister,
rather than the last address for service provided to the Minister for the purposes of receiving
documents, which may no longer be current.
For example, when a non-citizen is taken into criminal custody, the relevant authorities
advise the Department of Home Affairs, and it is the address of the prison or correctional
facility to where any cancellation-related documents are sent. If a document was required to
be sent by a method as set out under section 494B of the Migration Act, it would be required
to be sent to the latest address provided by the non-citizen for the purpose of receiving
documents, which may not be accessible to them.
The nature of the visa cancellation process is such that often the non-citizen whose visa is
being cancelled, particularly where this is done as a result of having been sentenced for a
criminal offence or having breached a visa condition, may not have had contact with the
Department of Home Affairs for a long period of time. Often, the last address given for the
purpose of receiving correspondence is the address at which they were living when they
lodged their visa application. This may be an overseas address or an address they have not
lived at for many years.
The use of a person's 'last known address', as opposed to the 'last address provided by them
for the purpose of receiving documents' for the purposes of notification of cancellation-
related documents maximises the likelihood the person will actually receive the cancellation-
related documents. This then enables them to know about any decisions or actions taken in
relation to their visa, changes to their immigration status, any natural justice and/or review
rights available to them and how to access such rights, including the relevant timeframes for
doing so.
The amendment introducing the no-invalidity clause in section 109(5) does not affect a
person's ability to exercise their review rights. This is because the time within which a person
can seek merits review of a cancellation-related decision commences upon receipt of
notification of the decision, rather than from the date the decision was made. Accordingly, a
person's merits review rights will not be compromised by the no-invalidity clause. These
provisions are in the same terms as those already in the Act in relation to certain cancellation-
related provisions and will operate no differently.
Amended paragraph 120(2)(b) now requires the Minister to set out the reasons why the
information is relevant to the cancellation in the notice, instead of requiring the Minister to
ensure that as far as reasonably practicable the holder understands that information. The
previous requirement was relevant when the information was provided to the visa holder
orally. As notices under section 120 are now required to be in writing, it is more difficult for
the Minister, through written notice, to ensure that the recipient understands the information
in the notice. By giving a written notice to the visa holder which sets out the reasons why the
information is relevant to the visa cancellation, the visa holder is better able to seek
independent help or advice if they do not fully understand its contents.
The amendments proposed by this Bill in relation to the manner and way in which
cancellation-related documents must be given to a non-citizen seek to ensure the most
effective way of notifying people whose visas may be subject to cancellation-related
decisions or actions and enabling them to access advice and seek available natural justice or
review opportunities.
The purpose of new section 494E is to alleviate the need to rely on strict technical adherence
to the relevant statutory requirements in situations where that technical breach does not go to
the substance of the notification. The provision will not validate documents which fail to
strictly adhere to statutory requirements where that failure substantially prejudices the
person's rights, including their rights to have the relevant decision reviewed.
The effect of new subparagraph 494E(2)(a) is that a document is taken to be valid where it
substantially (as opposed to strictly) complies with any statutory requirement that a
notification must or may include particular information (a 'content requirement'). An
example of a content requirement is found in current subsection 66(2) of the Act, which
requires notifications of decisions to refuse to grant a visa contain information including
whether the visa applicant has a right to have the decision reviewed. If the visa applicant has
a right to have the decision reviewed, current subparagraph 66(2)(d)(ii) requires the
document to state the time in which the application for review may be made.
Viewed in isolation, new paragraph 494E(2)(a) potentially limits the human right in Article
13, in that it could operate to validate a notification which does not state particular
information required to be given to the subject of the notification. However, the provision
will only be engaged where there is 'substantial' compliance with any relevant content
requirements. This means a document which omits crucial information, such as the
availability of review rights or the timeframe for making an application for review, will not
comply with content requirements despite the operation of the new provision.
Using current subparagraph 66(2)(d)(ii) of the Act as an example, a document would
substantially comply with the requirement where the document does not contain a specific
date by which an application for review must be made, but it contains all of the information
required in order for the recipient to calculate that date. A document would also substantially
comply with current subparagraph 66(2)(d)(ii) where the relevant information required to
calculate the relevant date for review is contained throughout the document under different
headings, such that the recipient has to put that information together in order to calculate the
date.
Further, any potential limitation of human rights caused by new paragraph 494(2)(a) will be
mitigated by the effect of new paragraph 494E(2)(b). Even where a document substantially
complies with the content requirements, paragraph 494E(2)(b) prevents the document from
being taken to have complied with the content requirements where the person's legal rights
(including, but not limited to, rights to seek review in connection with the matter to which the
document relates) are substantially prejudiced. This means that the new section will not
operate to validate an otherwise invalid document, in circumstances where a person's legal
rights would be substantially prejudiced by the failure of the document to strictly comply
with the relevant content requirement.
New subsection 494E(5) provides that where the Minister has not strictly complied with the
content requirements, a failure by a person to exercise any legal rights is not, on its own, to
be taken to imply that the failure to strictly comply with the content requirements has caused
substantial prejudice to the person.
A consequence of the inclusion of the word 'substantial' in new paragraph 494E(2)(b) is that
the provision may operate to validate a document which does not strictly comply with content
requirements where that failure causes prejudice to a person which does not meet the
threshold of 'substantial prejudice to the person's legal rights (including, but not limited to,
rights to seek review in connection with the matter to which the document relates). An
example of where the threshold of substantial prejudice would not be met is where a
document may give rise to some level confusion on the part of the recipient, where that
confusion does not have any material consequences. For example, a document which
provides the applicant has review rights at the AAT, but is unclear about whether a decision
may be reviewed by the AAT under Part 5 or Part 7 of the Migration Act would not cause
substantial prejudice to the recipient in circumstances where the AAT's application processes
direct the recipient to make an application only under either Part 5 or Part 7.
Limiting the effect of new section 494E to circumstances where there is no substantial
prejudice to the person's legal rights, as described in paragraph 494E(2)(b), ensures that the
substantial compliance framework will be implemented consistently with human rights.
The Bill also contains an amendment to current subsection 494C(7), which provides that
where the Minister purports to give a document to a person in accordance with a method
specified in section 494B but makes an error in doing so; and the person nonetheless receives
the document or a copy of it, then the person is taken to have received the document at the
times mentioned in section 494C as if the Minister had given the document to the person
without making an error in doing so, unless the person can show that he or she received it at a
later time, in which case, the person is taken to have received it at that time.
The amendment to subsection 494C(7) is intended to clarify that, in circumstances where the
person receives the document in spite of the Minister's error in purporting to send it by a
method in section 494B, the Minister is taken to have validly given the notice for the
purposes of provisions of the Migration Act which require the Minister to give a notice to a
person. Thus, the key difference between current subsection 494C(7) and new subsection
494C(7) is that the provision now validates the giving of the document in addition to the
receipt of the document.
The amendments that relate to the notifications in relation to visa cancellation decisions
therefore directly promote the freedom from unlawful expulsion and, to the extent that they
may limit that right, that limitations are reasonable, necessary and proportionate to achieve
the objective of facilitating a fair and efficient visa cancellation framework with a greater
degree of transparency, certainty and consistency.
Non-refoulement
Article 3 of the CAT states:
No State Party shall expel, return ("refouler") or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of being
subjected to torture.
Non- refoulement obligations also arise, by implication, in relation to Articles 6 and 7 of the
ICCPR. Article 6 of the ICCPR states:
Every human being has the inherent right to life. This right shall be protected by law.
No one shall be arbitrarily deprived of his life.
Article 7 of the ICCPR states:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.
Subdivision AK prevents certain persons from making a valid application for a protection
visa. Currently, such persons are not subject to an assessment of any protection claims they
may wish to advance under section 36 of the Act, and may subsequently become unlawful
non-citizens and subject to removal from Australia unless the Minister intervenes to lift the
bar and allow them to make a valid application.
For the purposes of removal of unlawful non-citizens from Australia, subsection 197C(3) of
the Act sets out the relevance of Australia's non-refoulement obligations. It does not
authorise removal of an unlawful non-citizen to a country if the unlawful non-citizen has
made a valid application for a protection visa and, in relation to that application, has had a
protection finding made with respect to that country. For this reason subsection 197C(3) does
not operate to prevent the removal of a non-citizen to a country in relation to which they may
engage Australia's non-refoulement obligations but who is subject to the section 91P
application bar (that is, a person who cannot make a valid protection visa application).
The repeal of Subdivision AK would allow all non-citizens who are national of two or more
countries, subject to meeting other validity criteria, to make a valid application for a
protection visa. Upon such an application being made, their protection claims can then be
assessed in accordance with the visa criteria and for the purposes of subsection 197C(3).
For persons found to engage Australia's protection obligations, but who may later be subject
to involuntary removal, the resulting protection finding would prevent any removal from
Australia inconsistent with Australia's non-refoulement obligations.
The repeal of Subdivision AK assists Australia in meeting its non-refoulement obligations by
allowing for considered assessments of protection claims for certain non-citizens who are
nationals of two or more countries. Rather than preventing a valid application for a protection
visa to be made, it allows for the making of a protection finding in relation to individuals
seeking to engage Australia's protection obligations. This provides a greater assurance in
giving effect to Australia's international obligations.
Equality and non-discrimination
Article 2(1) of the ICCPR states:
Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognised in
the present Covenant, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property,
birth or other status.
Article 26 of the ICCPR states:
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status.
This Bill positively engages the rights of equality and non-discrimination contained in
Article 2(1) and Article 26 of the ICCPR. This is because the Bill will remove the current
barriers for persons who are nationals of two or more countries from making a valid
application for a protection visa.
Under Subdivision AK, nationals of two or more countries are barred from making a valid
application for a protection visa, and will only be able to do so should the Minister consider
that it is in the public interest to lift the bar. The Minister's power to lift the bar under section
91Q of the Act is non-compellable and non-delegable, and if the Minister does not lift the
bar, dual nationals are unable to have their protection claims considered comprehensively
under the statutory process outlined in the Act and which may result in a protection finding
for the purposes of section 197C.
Repeal of Subdivision AK will ensure that application validity criteria for persons with two
or more nationalities is consistent with those with single nationality, allowing them to have
their protection claims assessed in full and a protection finding made where they are found to
engage Australia's non-refoulement obligations. It also removes the additional administrative
barrier that certain dual nationals face, should they be required to provide additional
information to support their claims as part of an initial assessment of whether to lift the visa
application bar under section 91Q.
Conclusion
This Bill is compatible with human rights because it promotes the protection of human rights
and, to the extent that it may limit human rights, those limitations are reasonable, necessary
and proportionate to achieving a legitimate objective.
The Hon Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs