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2004-2005 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Migration Amendment (Act of Compassion) Bill 2005 No. , 2005 (Senators Brown and Nettle) A Bill for an Act to provide for compassion for long-term detainees and others, and for related purposesIndex] [Search] [Download] [Bill] [Help]Contents 1 Short title ......................................................................................1 2 Commencement .............................................................................1 3 Schedule(s)....................................................................................2 Schedule 1--Amendment of the Migration Act 1958 3 i Migration Amendment (Act of Compassion) Bill 2005 No. , 2005
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 A Bill for an Act to provide for compassion for 21 long-term detainees and others, and for related 22 purposes 23 24 25 The Parliament of Australia enacts: 26 1 Short title 27 This Act may be cited as the Migration Amendment (Act of 28 Compassion) Act 2005. 29 2 Commencement 30 This Act commences on the day on which it receives the Royal 31 Assent. Migration Amendment (Act of Compassion) Bill 2005 No. , 2005 1
1 3 Schedule(s) 2 Each Act that is specified in a Schedule to this Act is amended or 3 repealed as set out in the applicable items in the Schedule 4 concerned, and any other item in a Schedule to this Act has effect 5 according to its terms. 2 Migration Amendment (Act of Compassion) Bill 2005 No. , 2005
Amendment of the Migration Act 1958 Schedule 1 1 2 Schedule 1--Amendment of the Migration Act 3 1958 4 5 1 At the end of subsection 196(1) 6 Add: 7 ; or (d) released from detention in accordance with section 196A or 8 196B. 9 2 Subsection 196(3) 10 After "doubt", insert "and subject to sections 196A and 196B". 11 3 Subsection 196(4) 12 Omit "and (c)", substitute ", (c) and (d)". 13 4 Subsection 196(4A) 14 Omit "and (c)", substitute ", (c) and (d)". 15 5 Subsection 196(5) 16 After "doubt", insert "and subject to sections 196A and 196B". 17 6 After section 196 18 Insert: 19 196A Act of compassion for long-term detainees 20 (1) This section applies to a person who is an unlawful non-citizen: 21 (a) who has been in immigration detention for a continuous period 22 of, or whose sum of immigration detention is, at least 365 23 days; and 24 (b) who has made a valid application (whether or not it has been 25 finally determined) under section 36 for a visa. 26 (2) As soon as practicable after the commencement of the Migration 27 Amendment (Act of Compassion) Act 2005, the Minister must 28 appoint a person as the Judicial Assessor for the purposes of this 29 section. Migration Amendment (Act of Compassion) Bill 2005 No. , 2005 3
Schedule 1 Amendment of the Migration Act 1958 1 (3) A person appointed as the Judicial Assessor must either: 2 (a) be a judge of the Federal Court of Australia; or 3 (b) have been: 4 (i) a judge of the Federal Court of Australia; or 5 (ii) a judge of the Supreme Court of a State or Territory. 6 (4) The Secretary must make arrangements for the Judicial Assessor to 7 consider all information available to the Secretary in respect of each 8 person to whom this section applies. 9 (5) The Judicial Assessor must, in respect of each person to whom this 10 section applies, consider whether, if the person were allowed to 11 leave immigration detention, there would be a significant risk that: 12 (a) the person would represent a danger to the safety or welfare of 13 the Australian community or to a segment of that community; 14 or 15 (b) the person would not be available for the assessment of the 16 application for a visa; or 17 (c) if the application for a visa has been or may be unsuccessful, 18 the person would not be available for removal from Australia. 19 (6) In considering whether there is a significant risk in accordance with 20 paragraph (5)(b) or (c), the Judicial Assessor must take into account 21 the effectiveness and appropriateness of imposing conditions of 22 release which would ensure that, should the person be released from 23 detention, the person would be available for the assessment of the 24 application for a visa or for removal from Australia. 25 (7) The Judicial Assessor must: 26 (a) if satisfied that it is necessary that a person to whom this 27 section applies should remain in immigration detention-- 28 advise the Minister accordingly; or 29 (b) if satisfied that it is not necessary that a person to whom this 30 section applies should remain in immigration detention-- 31 advise the Minister that a bridging visa should be granted to 32 the person. 33 (8) If the Judicial Assessor advises the Minister that a bridging visa 34 should be granted to a person, the person must be: 4 Migration Amendment (Act of Compassion) Bill 2005 No. , 2005
Amendment of the Migration Act 1958 Schedule 1 1 (a) granted a bridging visa permitting the person to remain in 2 Australia pending the determination of the application for a 3 visa or removal from Australia; and 4 (b) released from immigration detention as soon as practicable. 5 (9) A bridging visa granted under paragraph (8)(a) must provide that 6 the holder is entitled to the same entitlements as are provided under 7 a Bridging R (Class WR) visa. 8 (10) A bridging visa granted under paragraph (8)(a) must provide that 9 the holder must comply with the reasonable conditions, if any, that 10 were recommended by the Judicial Assessor to ensure that the 11 person is available for the assessment of the application for a visa 12 or for removal from Australia. 13 196B Act of compassion for children and their families in detention 14 (1) This section applies to: 15 (a) a child aged less than eighteen who is in immigration detention 16 and who has made a valid application under section 36 for a 17 visa or on whose behalf a valid application under section 36 18 for a visa has been made; and 19 (b) the parent or parents and sibling or siblings, if any, of a child 20 in immigration detention, who is or are also in immigration 21 detention, and who has or have made a valid application under 22 section 36 for a visa. 23 (2) The Judicial Assessor must, in respect of each person to whom this 24 section applies, consider whether, if the person were allowed to 25 leave immigration detention, there would be a significant risk that: 26 (a) the person would represent a danger to the safety or welfare of 27 the Australian community or to a segment of that community; 28 or 29 (b) the person would not be available for the assessment of the 30 application for a visa; or 31 (c) if the application for a visa has been or may be unsuccessful, 32 the person would not be available for removal from Australia. 33 (3) In considering whether there is a significant risk in accordance with 34 paragraph (2)(b) or (c), the Judicial Assessor must take into account 35 the effectiveness and appropriateness of imposing conditions of Migration Amendment (Act of Compassion) Bill 2005 No. , 2005 5
Schedule 1 Amendment of the Migration Act 1958 1 release which would ensure that, should the person be released from 2 detention, the person would be available for the assessment of the 3 application for a visa or for removal from Australia. 4 (4) The Judicial Assessor must: 5 (a) if satisfied that it is necessary that a person to whom this 6 section applies should remain in immigration detention-- 7 advise the Minister accordingly; or 8 (b) if satisfied that it is not necessary that a person to whom this 9 section applies should remain in immigration detention-- 10 advise the Minister that a bridging visa should be granted to 11 the person. 12 (5) If the Judicial Assessor advises the Minister that a bridging visa 13 should be granted to a person, the person must be: 14 (a) granted a bridging visa permitting the person to remain in 15 Australia pending the determination of the application for a 16 visa or removal from Australia; and 17 (b) released from immigration detention as soon as practicable. 18 (6) A bridging visa granted under paragraph (5)(a) must provide that 19 the holder is entitled to the same entitlements as are provided under 20 a Bridging R (Class WR) visa. 21 (7) A bridging visa granted under paragraph (5)(a) must provide that 22 the holder must comply with the reasonable conditions, if any, that 23 were recommended by the Judicial Assessor to ensure that the 24 person is available for the assessment of the application for a visa 25 or for removal from Australia. 26 196C Act of compassion for temporary protection visa holders 27 (1) If a person is the holder of a temporary protection visa on the date 28 of commencement of the Migration Amendment (Act of 29 Compassion) Act 2005, the Minister must grant the person a visa 30 permitting the person to remain in Australia permanently. 31 (2) Subsection (1) is to be taken as sufficient authority for the grant of 32 a visa permitting a person to remain in Australia permanently 33 notwithstanding any inconsistency with any other provisions of this 34 Act. 6 Migration Amendment (Act of Compassion) Bill 2005 No. , 2005
Amendment of the Migration Act 1958 Schedule 1 1 196D Permanent residence for people who cannot be removed from 2 Australia 3 (1) This section applies to a person who: 4 (a) has been subject to an order for removal for a period of 1095 5 days following the final determination of a valid application 6 for a visa under section 36; and 7 (b) has been granted a bridging visa pursuant to a 8 recommendation of the Judicial Assessor or otherwise. 9 (2) For the purposes of subsection (1) and to avoid doubt, an 10 application for a visa under section 36 does not include a request to 11 the Minister for a determination under section 48B or for the 12 exercise of the Minister's power under section 417, 454 or 501J. 13 (3) A person to whom this section applies must be given a visa to 14 remain permanently in Australia unless the Minister reasonably 15 believes that: 16 (a) the person does not pass the character test, as provided for by 17 section 501; or 18 (b) the person unreasonably failed to cooperate with the processes 19 for determining the visa application or for arranging removal 20 from Australia. 21 (4) If the Minister decides to refuse to grant a visa to a person under 22 this section, the Minister must, as soon as practicable after making 23 the decision, give the person a written notice that sets out the 24 decision and the reasons for making it. 25 (5) A person who has been refused a visa under this section may appeal 26 the decision to the Administrative Appeals Tribunal. 27 (6) A visa granted under this section must provide that the holder is 28 entitled to the same entitlements as are provided under a Bridging R 29 (Class WR) visa. Migration Amendment (Act of Compassion) Bill 2005 No. , 2005 7