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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
Migration Amendment (Special Protection Scheme for Afghan Coalition Employees)
Bill 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Hanson-Young)
MIGRATION AMENDMENT (SPECIAL PROTECTION SCHEME FOR AFGHAN
COALITION EMPLOYEES) BILL 2012
Outline
The bill seeks to create Special Protection Visas, which will be a new class of visas for non-
citizens.
A person who is a refugee within the meaning of the Refugees Convention as amended and is
fleeing persecution in their home country as a result of assisting either the International
Security Assistance Force (ISAF), the Australian Embassy or a subcontractor for a
Commonwealth defence agency operating in Afghanistan will be able to apply for a Special
Protection Visa. These Visas will also extend to family members of the Special Protection
Visa holder.
The bill provides for the same administrative processes, requirements and appeal rights as
currently exist for Protection Visas.
NOTES ON CLAUSES
Clause 1 - Short Title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The bill's provisions are to commence the day the Act receives Royal Assent
Clause 3 - Schedules
3. This clause provides that an Act that is specified in a Schedule in amended or repealed as
set out in that Schedule, and any other item in a Schedule operates according to its terms.
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Schedule 1 - Amendments to the Migration Act 1958
Item 1
4. Item 1 clarifies that in addition to the definition of member of a family unit, which under
the regulations currently includes immediate family members, brothers and sisters of the
holder of the Special Protection Visa will be eligible to apply.
Items 2 and 3
5. Items 2 and 3 create a new Special Protection Visa in section 36A in Division 3 for Visas
for Non-Citizens. Where the Minister is satisfied that a person meets the definition of a
refugee under Article 1A of the Refugees Convention as amended; and that person is
subject to persecution in their home country because they worked assisting either the
International Security Assistance Force (ISAF), the Australian Embassy or a
subcontractor for a Commonwealth defence agency in Afghanistan for at least 12 months
- they shall be eligible for a Special Protection Visa.
6. Subsection (2)(c) extends the eligibility to family unit members of a person who already
holds a Special Protection Visa. Subsections (4) to (7) replicate the current provisions for
protection visas.
Item 4
7. Item 4 provides that Special Protection Visas cannot have criterion set that would allow a
refusal of an application on the basis that the number of visas granted in a year set by the
Minister through a legislative instrument has been reached. This replicates the current
provision for protection visas.
Item 5
8. Item 5 provides that an officer may require applicants for Special Protection Visas to
comply with requests to provide personal identifiers in relation to their application. This
replicates the current requirement for protection visa applicants.
Items 6
9. Item 6 provides that conditions may be placed on a visa that the holder of the visa is not
entitled to be granted a substantive visa, other than a protection visa, a Special Protection
Visa or temporary visa while they reside in Australia.
Item 7
10. Item 7 provides that an application for a special protection visa will be invalid if the
applicant refuses to comply with requests by an officer to provide personal identifiers in
relation to their application. This replicates the current requirement for protection visa
applicants.
Items 8 and 9
11. Item 8 changes the heading to include special protection visas and item 9 provides that
the Minister must make a decision to grant or refuse to grant a visa within 90 days of a
valid application being submitted by the applicant or remitted by a court or tribunal to the
Minister for reconsideration. This replicates the current procedures for those applying for
protection visas.
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Item 10
12. Item 10 provides the Minister may make a determination that a person is eligible for a
bridging visa if the person made a valid application for a Special Protection Visa after
they arrived in Australia. This replicates the current treatment for those applying for
protection visas.
Items 11, 12 and 13
13. Item 11 changes the subdivision heading. Item 12 provides that applicants in a proceeding
before a court must not have their names published. Item 13 is a consequential
amendment as a result of Item 12.
Item 14
14. Item 14 provides that a holder of a criminal justice visa may apply for a Special
Protection Visa unless the criminal justice visa was cancelled and they are applying
within Australia. This replicates the current provision for protection visas.
Item 15
15. Item 15 provides that a holder of an enforcement visa may apply for a Special Protection
Visa unless the enforcement visa was cancelled and they are applying while they remain
in Australia. This replicates the current provision for protection visas.
Item 16
16. Item 16 provides that a person held in immigration detention may apply for a Special
Protection Visa at any time after being informed of their right to apply for a visa. This
replicates the current procedures for protection visas.
Item 17
17. Item 17 amends the note to clarify that section 198A(2A) only applies to protection visas,
special protection visas or visas specified in the regulations under section 501E.
Items 18 and 19
18. Item 18 prohibits the Secretary or delegate from disclosing identifying information to the
home country or institution of the person seeking a Special Protection Visa or a country
or body that might disclose that information to the home country or institution.
19. Item 19 allows for the disclosure of identifying information to a home country or
institution where their application for a Special Protection Visa has been refused and
finally determined or where the applicant has requested to be returned to their home
country. Both these provisions replicate the current requirements for those applying for
protection visas.
Items 20 and 21
20. Item 20 amends the heading of Part 7. Item 21 allows the Refugee Review Tribunal to
review decisions by the Minister or delegate to cancel or refuse to grant a Special
Protection Visa.
Item 22
21. Item 22 removes the reference to protection visas in the heading of section 414A so that
the time reviews specified in the section also apply to Special Protection Visas.
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Items 23 and 24
22. Items 23 and 24 grant jurisdiction to the Administrative Appeals Tribunal to review
decisions to cancel or to refuse to grant a visa based on specific articles of the Refugees
Convention.
Item 25
23. Item 25 clarifies the definition of visa for the purposes of the character grounds criteria.
Item 26
24. Item 26 allows a person to apply for a Special Protection Visa after they have
unsuccessfully applied for another visa. This replicates the current provision for
protection visas.
Item 27
25. Item 27 clarifies that a person who has had their visa cancelled or has been refused a visa
can still apply for a Special Protection Visa. This replicates the current provision for
protection visas.
Items 28 and 29
26. Item 28 changes the heading while Item 29 allows the Minister to set aside and substitute
a decision of the Administrative Appeals Tribunal in relation to a decision on a Special
Protection Visa, provided it is in the public interest. This replicates the current provision
for protection visas.
Items 30, 31 and 32
27. Item 30 changes the heading and Item 31 provides that in proceedings before the
Administrative Appeals Tribunal, any identifying information of an applicant for a
Special Protection Visa or their relative cannot be published. This replicates the current
provision for protection visas.
28. Item 32 makes consequential amendments based upon Item 31.
Items 33 and 34
29. Item 33 gives the Minister the power to declare, in the public interest, that an applicant
for a Special Protection Visa, or the holder of a Special Protection Visa is an excluded
person.
30. Item 34 provides that a person who has been refused a Special Protection Visa, or who
has had their Special Protection Visa cancelled, can be prohibited from entering Australia
or allows for their forcible deportation from Australia.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Migration Amendment (Special Protection Scheme for Afghan Coalition Employees)
Bill 2012
While the framework of the Migration Act 1958 which the Migration Amendment
(Special Protection Scheme for Afghan Coalition Employees) Bill 2012 replicates is not
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, the bill enhances the Act's current relationship with those rights and
freedoms.
Overview
1.1 The purpose of the bill is to create Special Protection Visas, a new class of
visas available to those who have assisted Coalition forces in Afghanistan and are likely
to be subject to persecution as a result.
1.2 The bill replicates existing administrative processes, requirements and appeal
rights as currently exist for protection visas.
Human rights implications
2.1 This bill positively engages human rights within the framework of an Act that
has the potential to negatively impact on human rights.
2.2 The bill seeks to enhance the rights of a class of persons who are likely to be
subject to persecution in their home country as a result of assisting Coalition forces in
Afghanistan. This bill will assist a small class of refugees to enjoy non-citizen status in
Australia and all the positive human rights and freedoms available to its residents. These
ICCPR articles include freedom of thought, conscience and religion in Article 18 and
freedom of expression in Article 19.
2.3 The bill also extends the Special Protection Visa to family members of a holder
of a Special Protection Visa. This proposed section recognises Article 23 of the ICCPR,
which states that the family is entitled to protection by society and the State.
2.4 Because the bill replicates the current legal processes for applicants or holders
of protection visas, applicants or holders of special protection visas may have their rights
as defined by Article 9 of the International Covenant on Civil and Political Rights
(ICCPR) infringed.
2.5 Some of these Article 9 rights that can be negatively impacted include the right:
· to be brought promptly before a court and tried within a reasonable
period, or to be released from detention
· to liberty and not to be subjected to arbitrary arrest or detention
· to security; and
· to be informed of the reason for arrest and any charges.
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2.6 The bill also allows for the Minister to forcibly deport the applicant or visa
holder on the basis of a character assessment on arbitrary criteria of the national interest.
Conclusion
2.7 The bill enhances the human rights and freedoms of those who would flee
persecution as a result of assisting Coalition forces in Afghanistan. Where it does
negatively engage and limit human rights and freedoms, it does through the existing
mechanisms of the Migration Act 1958 which this bill does not alter.
Senator Hanson-Young
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