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1998
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
MIGRATION
LEGISLATION AMENDMENT BILL (No. 1) 1998
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural Affairs,
the Hon.
Philip Ruddock MP)
ISBN: 0642 377065
MIGRATION LEGISLATION AMENDMENT BILL (No. 1)
1998
OUTLINE
Overview
1. The
Migration Legislation Amendment Bill (No. 1) 1998 (the Bill) implements a number
of Government initiatives in the Immigration and Multicultural Affairs
portfolio.
2. The Bill amends the Migration Act 1958, the
Australian Citizenship Act 1948, the Immigration (Education) Act
1971, the Migration Reform Act 1992, and the Migration Legislation
Amendment Act (No. 5) 1995.
3. The amendments to the Migration Act
1958 in relation to the system of merits review of immigration
decision-making:
• merge the Migration Internal Review Office
(MIRO) and the Immigration Review Tribunal (IRT) into a new body to be called
the Migration Review Tribunal (MRT);
• provide the Principal
Members of the MRT and the Refugee Review Tribunal (RRT) with clear authority to
apply efficient processing practices, including giving the Principal Member of
the RRT clear authority to give directions on the operation of the RRT and the
conduct of reviews;
• specify the circumstances when the Principal
Member of the MRT or the RRT may reconstitute a Tribunal for the more efficient
conduct of the review;
• allow the Minister to appoint a person to
act as a Senior Member of the RRT for a period of no more than 12
months;
• prevent MRT and RRT hearings
from being unnecessarily delayed where:
− prescribed notice of a
personal hearing has been provided and no change has been sought;
or
− an applicant fails to respond to an invitation to give additional
information within the prescribed period (or a further prescribed
period);
• provide that the MRT and RRT must invite an applicant to
appear before the Tribunal, unless specified circumstances
exist;
• give the MRT and RRT clear authority to use telephone or
other media to conduct personal hearings or for people to appear before
them;
• provide for the publication of tribunal decisions of
interest at the discretion of Principal Members;
• provide for the
formal handing down of decisions and certainty of dispatch;
and
• apply a code of procedure to the MRT and the RRT in relation
to decisions on entry and stay of non-citizens.
4. The other amendments
to the Migration Act 1958 provide for the "no further stay" condition on
temporary visas to be waived in prescribed circumstances and for more effective
cancellation of visas which were granted on the basis of incorrect information
(including where a previous visa was granted on the basis of incorrect
information). There are also a number of other minor items which clarify
existing provisions or make amendments of a technical nature.
5. The Bill
also amends the Australian Citizenship Act 1948 to bring the penalty
provision in section 50 (in respect of false representations) into line with
similar offences under Commonwealth law.
6. The Bill also makes minor
technical amendments to the Immigration (Education) Act 1971, the
Migration Reform Act 1992, and the Migration Legislation Amendment Act
(No. 5) 1995.
FINANCIAL IMPACT
STATEMENT
7. Considerable savings are expected over time as a result
of amendments to the Migration Act 1958 in relation to ceasing internal
merits review, closing the IRT and establishing an independent Migration Review
Tribunal.
8. The primary aim of the changes being introduced to the RRT
is to produce faster decision making.
9. The other amendments to the
Migration Act 1958, and those to the Australian Citizenship Act
1948, the Immigration (Education) Act 1971, the Migration Reform
Act 1992 and the Migration Legislation Amendment Act (No. 5) 1995
will not have significant financial impact. The exception to this is the
proposal at Schedule 5 of the Bill to amend section 41 of the Migration Act
1958 which could have significant costs, depending on the numbers seeking to
avail themselves of the Minister's power to waive the "no further stay"
condition.
MIGRATION LEGISLATION AMENDMENT BILL (No. 1) 1998
NOTES
ON INDIVIDUAL CLAUSES
Clause 1 Short
Title
1. The short title by which this Act will be known is the
Migration Legislation Amendment Act (No. 1) 1998.
Clause
2 Commencement
2. Subclause 2(1) provides that, subject to
this section, this Act commences on the Royal Assent.
3. Subclause 2(2)
provides that, subject to subsection (3), Schedules 1, 2, 3, 4, 5, 6 and 7 of
the Act commence on a day or days to be fixed by Proclamation.
4. Subclause 2(3) provides that Schedules 1, 2, 3, 4, 5, 6, or 7
commence 6 months after the Royal Assent unless Proclamation occurs
first.
5. Subclause 2(4) provides that item 1 of Schedule 8 is taken to
commence immediately after commencement of Schedule 1 to the Migration
Legislation Amendment Act (No. 1) 1997. The latter Schedule commenced on 1
May 1997.
6. Subclause 2(5) provides that item 2 of Schedule 8 is taken
to have commenced on 7 December 1992, which is the day the Migration
Reform Act 1992 received the Royal Assent.
7. Subclauses 2(6), (7)
and (8) provide that items 3, 4 and 5 of Schedule 8 are taken to have commenced
on 15 September 1995, immediately after the commencement of subsections 2(3),
(4) and (5) consecutively of the Migration Legislation Amendment Act (No. 5)
1995.
Clause 3 Schedule(s)
8. Clause 3 provides that
the provisions of the various Acts that are set out in the items of the
Schedule(s) are amended or repealed as indicated.
SCHEDULE 1 - MRT-reviewable decisions
Part 1 -
Amendments
Migration Act 1958
Item
1 Subsection 5(1) (definition of internally-reviewable
decision)
9. This definition is repealed as a consequence of the
removal of internal merits review.
Item 2 Subsection 5(1) (definition
of IRT-reviewable decision)
10. This definition is repealed as
a consequence of the replacement of the IRT with the MRT.
Item
3 Subsection 114(1)
11. This item omits reference to "a review
officer within the meaning of Part 5" as a consequence of the removal of
internal merits review.
Item 4 Paragraph 178(2)(b)
12. This
is a technical amendment linked to the repeal of Division 2 of Part 5 of the
Migration Act.
Item 5 Section 275 (paragraph (b) of the definition of
review authority)
13. This is a technical amendment directly
linked to the removal of paragraph (c) of the definition of review
authority (see item 6).
Item 6 Section 275 (paragraph (c) of the
definition of review authority)
14. This amendment repeals
reference to "a review officer for the purposes of Part 5" as a consequence of
the removal of internal merits review.
Item 7 Section 337
15. This amendment inserts the term "MRT-reviewable decision"
and defines it by reference to Division 2 of Part 5 of the Migration Act.
Proposed section 338 in Division 2 contains a definition of "MRT-reviewable
decision".
Item 8 Section 337 (definition of Part 5 reviewable
decision)
16. The definition of "Part 5 reviewable
decision" is repealed as a consequence of the removal of internal merits
review and the defining of "MRT-reviewable decision".
Item
9 Section 337 (definition of review officer)
17. The
definition of "review officer" is repealed as a consequence of the
removal of internal merits review.
Item 10 Division 2 of Part
5
18. The existing Division (which provides for internal review of
decisions to refuse to grant, or to cancel, visas) is repealed because there
will no longer be internal review.
19. This item inserts a new Division
2 into Part 5 of the Migration Act.
Section 338 Decisions reviewable
by Migration Review Tribunal
20. New section 338 defines those
decisions that are MRT-reviewable and closely follows the definition of "Part 5
reviewable decision" in section 337 as it presently exists. It provides
continuity by ensuring that all decisions currently reviewable by the IRT will
be reviewable by the MRT.
Section 339 Conclusive
Certificates
21. New section 339 preserves the Minister's powers -
currently contained in subsections 338(3) and 346(4) of the Migration Act - to
issue a conclusive certificate, with effect that the decision ceases to be an
MRT-reviewable decision. A certificate may be issued where the Minister thinks
it is in the public interest to do so. This can occur because of prejudice to
Australia's security, defence or international relations or because the review
would involve the deliberations of decisions of Cabinet or a Cabinet committee.
Item 11 Division 3 of Part 5 (heading)
22. The heading of
the Division is amended to reflect the name of the new Tribunal.
Item
12 Section 346
23. This section is repealed as a consequence of the
merging of internal review and external merits review, which will now be
conducted by the MRT. The new section 338 defines those decisions which are to
be reviewable by the MRT.
Item 13 Subparagraphs 347(1)(b)(i) and
(ii)
24. These amendments are consequential to insertion of the
definition of MRT-reviewable decisions in new section 338. These changes put in
place a framework for periods substantially the same as those currently applying
to the IRT:
− the existing section 347 currently provides for the
making of an application for review to the IRT. Subsection 347(1) provides for
prescribed periods in which to make an application.
Item
14 Subsection 347(2)
25. This item ensures that persons currently
entitled to apply to the IRT will be able to apply to the MRT for review (the
existing subsection 347(2) currently defines who may make an application for
review to the IRT). These amendments specify who may make an application for
review to the MRT and are consequential to the defining of MRT-reviewable
decisions in section 338.
Item 15 Subsection
347(3)
26. This item preserves an existing requirement - found in
subsection 347(3) of the Migration Act - that in certain circumstances an
applicant for review of a decision by the IRT must be physically present in the
migration zone when the application is made. This amendment is consequential to
the defining of MRT-reviewable decisions in section 338.
Item
16 Subsection 347(4)
27. This amendment preserves certain
requirements relating to applicants for review of bridging visa decisions and is
consequential to the defining of MRT-reviewable decisions in section 338. The
existing subsection 347(4) provides for relevant applicants for review to be
advised of their right(s) to request the opportunity to appear before the
Tribunal or to request the Tribunal to obtain oral evidence from a specified
person or persons. Such requests must be in the approved form and accompany the
application for review.
Item 17 Subsection 347(5)
28. This
is a consequential amendment replacing reference to IRT-reviewable decision as
review will now be undertaken by the MRT.
Item 18 Subsection
348(2)
29. This is a consequential amendment as the power to issue a
conclusive certificate by the Minister will be moved to section 339 of the
Migration Act.
Item 19 Subsection 352(3)
30. This amendment
is consequential to defining MRT-reviewable decisions in section 338. The
existing requirements of subsection 352(3) will apply in relation to the same
type of decisions reviewable by the MRT.
Item 20 At the end of section
353A
31. Section 353A provides for the Principal Member to give
directions as to the operation of the Tribunal and the conduct of reviews by the
Tribunal.
32. This item adds three new subsections to Section
353A:
− new subsection (2) will provide the Principal Member with
clear authority to apply efficient processing practices to the conduct of a
review. Such practices may include the implementation of a case management
system where much of the preliminary research and investigative work is
undertaken by administrative staff of the Tribunal. The Tribunal member, or
members, are responsible for directing that further investigation be undertaken
and for the final decision;
− new subsection (3) provides that
the Tribunal should, so far as practicable, comply with the directions of the
Principal Member. Whilst non-compliance with any such direction by a member
does not make the decision invalid, it is expected that members will comply with
lawful directions. Non-compliance may lead to consideration for removal from
office in accordance with the provisions of the Migration Act;
and
− new subsection (4) provides that, if the Tribunal complies
with the directions, no other action is required for the conduct of the review
(assuming other legislative requirements are met).
Item 21 After
section 355
33. This item inserts new section 355A into the Migration
Act to deal with reconstitution of the MRT for reasons of achieving the
efficient conduct of the review. As it currently exists, section 355
allows for reconstitution of the Tribunal only where a member becomes
unavailable or ceases to be a member.
34. In the new section
355A:
− subsection (1) provides for the reconstitution of a
Tribunal by adding or removing one or more members in circumstances where the
Principal Member thinks the reconstitution is in the interests of achieving the
efficient conduct of the review in accordance with the objective set out in
subsection 353(1). The objective is that review of decisions be fair, just,
informal, economical and quick. The power cannot be used to influence the
outcome of a particular review. Reconstitution could occur where the Tribunal
has not decided a case after a lengthy period;
− subsection (2)
provides that the Principal Member must not make a direction under subsection
355A(1) unless:
.. the Tribunal has not recorded a decision on the review
in writing or given a decision on the review orally; and
.. the Principal
Member has consulted the member, or members constituting the Tribunal, and a
Senior Member (who is not the member or a member constituting the Tribunal);
and
.. either:
the Principal Member is satisfied that
there is insufficient material before the Tribunal for the Tribunal to reach a
decision on the review; or
a period equal to or longer than the
period prescribed has elapsed since the Tribunal was constituted;
and
− subsection (3) provides for the Tribunal to then continue and
finish the review and may have regard to any record of the proceedings of the
review made by the Tribunal as previously constituted.
Item
22 Sections 359 and 360
35. This item repeals existing sections 359
and 360 of the Migration Act which provide for the right to a personal
appearance by the applicant unless the Tribunal is able to make a decision "on
the papers" that is most favourable to the applicant.
36. This item
also inserts six new sections in the Migration Act. Of these, sections 359,
359A, 359B and 359C provide a code of procedure which the Tribunal is to follow
in conducting its review:
− new section 359 will allow the Tribunal
to obtain any information it considers relevant, and, having obtained that
information, the Tribunal must have regard to it in making its
decision;
− new section 359A ensures that an applicant is given
particulars of any information that would be the reason, or part of the reason,
for affirming the decision under review, and is asked to comment on that
information. The information must be specifically about the applicant or
another person and not just about a class of persons of which the applicant or
the other person is a member. Paragraphs 359A(4)(b) and (c) provide
respectively that information given by the applicant and non-disclosable
information are not included in this section;
− new sections 359
and 359A also ensure that invitations to an applicant
to:
provide further information;
or
comment on information which the MRT
considers would be reason for affirming the decision under review;
are
sent to the last address for service, or residential address given by the
applicant, in a way that provides evidence of the date of dispatch. This does
not apply to an applicant who is in immigration detention because of a decision
to cancel or to refuse to grant a bridging visa;
− new subsection
359B(1) enables the Tribunal to specify the way in which additional information
is given. Additional information may be given in any way appropriate to the
circumstances - for example, by telephone or by facsimile
machine;
− new subsection 359B(2) provides for additional
information, or comments on information provided by the Tribunal, otherwise than
at interview, to be given within a prescribed period, or if there is no
prescribed period, within a reasonable period;
− new subsection
359B(3) allows the Tribunal to specify, where an interview has been offered, the
place of interview and the time of interview;
− new subsection
359B(4) allows the Tribunal to extend the prescribed period for giving
additional information, or commenting on information, for a further prescribed
period. The further period will be prescribed by the
Regulations;
− new subsection 359B(5) allows the Tribunal to extend
the period for a response at interview to some other time within the prescribed
period or to a time within a further prescribed period. The further prescribed
period will be prescribed by the
Regulations:
in this section "interview" does not mean
appearance before the Tribunal. At interview the applicant may be invited to
give additional information or to comment on information provided by the
Tribunal. The applicant does not have the right to give evidence and present
arguments relating to issues arising in relation to the decision under review at
an interview conducted pursuant to section 359.
37. New section 359C
provides that when a person fails to provide additional information under
section 359, or an applicant fails to comment on information under section 359A,
the Tribunal may make a decision without taking any further action. The purpose
of the new section is to allow the Tribunal to make a decision without any delay
if the applicant fails to respond to a request for further information or
comment within the prescribed period.
38. New section 360 provides an
entitlement for an applicant to have the opportunity to appear before the
Migration Review Tribunal, by requiring the Tribunal to invite the applicant to
appear before it, unless new subsection 360(2) applies. When that subsection
applies, an applicant is not entitled to appear before the Tribunal.
39. Subsection 360(2) applies
when:
− the
Tribunal can decide the review in the applicant's favour on the basis of the
material before it; or
− the applicant
consents to the review proceeding without an appearance;
or
− the applicant fails to respond,
within the prescribed period or a reasonable period, to an invitation to provide
information or comments to the Tribunal.
40. At an appearance, the
applicant would be entitled to give evidence and present arguments relating to
the issues arising in relation to the decision under review.
41. New
section 360A provides for a minimum prescribed period of notice to be given of
an invitation to appear before the Tribunal. Such a period will be prescribed
by the Regulations.
42. Section 360A also ensures that invitations to an
applicant to appear before the MRT are sent to the last address for service, or
residential address given by the applicant, in a way that provides evidence of
the date of dispatch. This provision does not apply to an applicant who is in
immigration detention because of a decision to cancel or to refuse to grant a
bridging visa.
43. The invitation to appear:
− is to specify
the day on which, and the time and place at which the applicant is invited to
appear. If no minimum period of notice is prescribed then a reasonable period
of notice is to be given; and
− should also contain a statement of
the effect of section 362B, that is, if the applicant fails to appear, the
Tribunal may make a decision on the review without taking any further action.
However, if the Tribunal so wishes, it may reschedule an appearance, or delay
making a decision to allow for a rescheduled appearance.
Item
23 Subsection 361(1)
44. This amendment is consequential to the
repeal of section 359 and the insertion of section 360A. Notice of an
invitation to appear before the Tribunal is provided for by section
360A.
Item 24 Paragraph 361(1)(a)
45. This amendment
reflects the change from an applicant being entitled to appear when a favourable
decision "on the papers" cannot be made, to an applicant being invited to appear
before the Tribunal.
Item 25 Subsection 361(4)
Item
26 Subsection 362(1)
46. These amendments are consequential to the
defining of MRT-reviewable decisions in section 338.
Item 27 Paragraph
362(1)(b)
47. This amendment reflects the change to an applicant's
personal appearance before the Tribunal being at the invitation of the
Tribunal.
Item 28 Section 362A
48. This item repeals the
existing section 362A and adds two new sections (sections 362A and 362B) to the
Migration Act.
49. The new section 362A entitles an applicant, and any
assistant, to have access to any written material or a copy of any written
material given or produced to the Tribunal for the purposes of the review,
excluding non-disclosable information under section 375A and subject to any
restriction under section 376. This section does not override the requirements
of the Privacy Act 1988. Such information can only be given to an
applicant, and any assistant, if a statement under subsection 368(1) has not
already been provided to the applicant.
50. New section 362B provides
that when an applicant fails to appear before the Tribunal after an invitation
to appear made pursuant to section 360, the Tribunal may make a decision on the
review without taking any further action. However, if the Tribunal so wishes,
it may reschedule an appearance, or delay making a decision, to allow for a
rescheduled appearance.
Item 29 Subsection 365(1)
51. This
subsection has been replaced with a subsection that provides that when a person
is providing oral evidence to the Tribunal during a formal hearing, it must be
in public.
Item 30 Subsection 366(1)
52. This amendment
clarifies that an appearance by an applicant before the Tribunal, or by another
person, to give evidence may be by telephone, closed circuit television or any
other means of communication. The intention is to broaden the range of methods
the Tribunal may use to facilitate an appearance before it.
Item
31 Subsection 367(1)
53. This amendment is consequential to the
defining of MRT-reviewable decisions in section 338.
Item
32 Subsection 368(1)
54. Section 368 deals with recording decisions
in a written statement. The amendment has been made to provide that the
Tribunal must also have regard to paragraph 376(3)(b) when preparing written
statements. Paragraph 376(3)(b) gives the Tribunal discretion regarding the
provision of certain information to the applicant.
Item 33 Subsection
368(2)
55. This item repeals subsection 368(2) as a consequence of
new provisions in sections 368B and 368D which require the applicant and the
Secretary to be given a copy of the Tribunal’s decision.
56. The
Note alters the heading of section 368 to reflect the new procedures for
notifying applicants and the Secretary of the Tribunal’s
decisions.
Item 34 After section 368
Section
368A Tribunal must invite parties to handing down of decision
57. New
section 368A requires the MRT to invite the relevant parties to the handing down
of decisions by the Tribunal, and sets out the way in which notice of the
invitation must be given and the content of the notice.
58. This
requirement does not apply to oral decisions or decisions relating to an
applicant who is in immigration detention because of a decision to cancel or to
refuse to grant a bridging visa.
Section 368B Tribunal decision to be
handed down
59. The purpose of new section 368B is to provide for MRT
decisions to be handed down except where:
− the decision is given
orally by the Tribunal; or
− the applicant is in immigration
detention because of a decision to cancel or to refuse to grant a bridging
visa.
60. Subsection 368B(2) provides that a decision by the MRT may be
handed down by the Principal Member or by persons authorised in writing by the
Principal Member.
61. Subsection 368B(3) enables the decision to be
handed down by reading the outcome of the decision, whether or not the applicant
or the Secretary are present.
62. Subsection 368B(4) provides that the
date of the decision is the date it is handed down.
63. Subsections
368B(5), (6) and (7) require that the applicant and the Secretary be given a
copy of the decision prepared under section 369(1), and specifies when that copy
must be given.
64. Subsection 368B(8) provides that the applicant or the
Secretary will only be taken to be present at the handing down of the decision
if physically present at the handing down.
65. Subsection 368B(9)
permits a representative of the applicant or the Secretary to attend the handing
down and receive a copy of the decision.
Section 368C Applicant taken
to be notified when representative notified
66. New section 368C
ensures that an applicant is taken to be notified of a decision when the
applicant’s representative has been notified.
Section 368D Tribunal must notify parties
(parties not invited to handing down of decision)
67. New
section 368D provides that if:
− the Tribunal gives an oral
decision; or
− an applicant is in immigration detention because of
a decision to cancel or to refuse to grant a bridging visa;
the Tribunal
must give a copy of the written statement about the decision to the applicant
and the Secretary within 14 days after the decision has been made.
68. Where an oral decision is given the applicant is taken to be
notified of the decision on the day on which the decision is
made.
Item 35 Section 369
69. New section 369 removes the
current requirement to publish all Tribunal decisions and provides for the
general publication of only those decisions which the Principal Member thinks
are of particular interest. This amendment does not affect the requirement
under section 368B to provide a copy of the Tribunal's decision to the applicant
and the Secretary.
Item 36 At end of section 370
70. This
subsection is included to make it clear that an invitation to appear before the
Tribunal, under section 360, is not a summons and failure to appear is not an
offence and such failure will not incur the penalty of imprisonment for 6
months.
Item 37 At the end of Division 8 of Part
5
Section 379A Methods of dispatch of certain
documents
71. The purpose of section 379A is to provide that certain
documents must be given to an applicant (other than an applicant who is in
immigration detention) by either being:
− sent to the last address
for service, or residential address given by the applicant, in a way in which a
receipt or some other evidence of the date of dispatch is given;
or
− given to the applicant or a person authorised by the
applicant; or
− left at the applicant’s place of residence
with a person who appears to live there and appears to have turned 16 years old.
72. The documents covered by the section are:
− invitations
to applicants (but not to other people) to give additional information that the
Tribunal considers relevant to the review – except where the applicant is
in immigration detention;
− invitations to applicants to comment on
additional information – except where the applicant is in immigration
detention;
− notices of invitations for applicants to appear
before the Tribunal – except where the applicant is in immigration
detention;
− notices of invitations for applicants to be present at
a handing down; and
− statements of the decision given to
applicants by the Tribunal.
Item 38 Section 385
Item
39 Subsections 347(1), 348(1), 349(1), 381(1), 382(3) and sections 383, 384,
386, 387, 388, 389, 390 and 391
73. These amendments are
consequential to the merging of internal review and external merits review,
which reviews are to be undertaken by the MRT.
Part 2 - Transitional
provisions
Item 40 Internally-reviewable
decisions
74. Sub-item (1) provides transitional arrangements which
allow for the transfer of all undecided valid applications made under the
current section 339 (for review of an internally-reviewable decision), to become
valid applications for review of an MRT-reviewable decision.
75. Sub-item (2) provides transitional arrangements to allow a valid
application to be made under section 347 where an application has been decided
by the primary decision maker and the period for application for internal review
of an internally-reviewable decision under the current section 339 has not
elapsed. An application that would have been a valid application for internal
review must be accepted as a valid application to the MRT. It provides that the
period for making a valid application should be calculated from the date of
notification of the relevant primary decision.
76. Sub-item (3) makes
it clear that, in spite of the repeal of Division 2 of Part 5, if the Minister
thinks that it is in the public interest to do so, the Minister is still able to
exercise his or her non-compellable powers under subsection 345(1). The
Minister is able to substitute for a decision of a review officer a decision
that the applicant sought or another decision that the applicant agrees to, even
though that decision is not one the review officer could make.
Item
41 IRT-reviewable decisions
77. Sub-item (1) provides transitional
arrangements to allow for the transfer of all undecided valid applications made
under section 347 for review of an IRT-reviewable decision to become valid
applications for review of an MRT-reviewable decision.
78. Sub-item (2)
provides transitional arrangements to allow a valid application to be made under
section 347 in the following instances where:
− an application has
been decided by a review officer and the period for application for review of an
IRT-reviewable decision has not elapsed. An application that would have been a
valid application for IRT review must be accepted as a valid application to the
MRT; and
− an application has been decided by the Minister, or a
primary decision maker, and the period for application for review of an
IRT-reviewable decision has not elapsed. An application that would have been a
valid application for review by the IRT must be accepted as a valid application
to the MRT.
79. Sub-item (2) also provides that the period for making a
valid application should be calculated from the date of
notification.
80. Sub-item (3) makes it clear that, if the Minister
thinks that it is in the public interest to do so, the Minister is still able to
exercise his or her non-compellable powers under subsection 351(1). The
Minister is able to substitute for a decision of the IRT a decision that is more
favourable to the applicant, even though that decision is not one the Tribunal
had power to make.
81. Sub-item (4) ensures that statements setting out
the decision of the IRT, written pursuant to subsection 368(1) of the
Migration Act 1958, prior to the commencement of Schedule 1 must continue
to be given to the applicant and the Secretary pursuant to subsection 368(2) of
that Act (as it was prior to amendment).
Item 42 Decisions referred
for further consideration after judicial review
82. Sub-item (1)
provides transitional arrangements to allow a decision to be an MRT-reviewable
decision if an IRT decision has been quashed or set aside by a Court before the
commencement of this Schedule and the matter has been referred for further
consideration and no decision has been made on that
consideration.
83. Sub-item (2) provides transitional arrangements to
allow a decision to be an MRT-reviewable decision if an IRT decision has been
quashed or set aside by a Court after the commencement of this Schedule and the
matter has been referred for further consideration.
Item 43 Decisions
that the Minister has agreed to reconsider
84. Sub-item (1) provides
transitional arrangements to allow a decision to be an MRT-reviewable decision
if an application for judicial review of an IRT decision has been made before
the commencement of this Schedule and the Minister withdrew from the action and
agreed to reconsider the decision and no decision on that reconsideration has
been made.
85. Sub-item (2) provides transitional arrangements to allow a
decision to be an MRT-reviewable decision if an application for judicial review
of an IRT decision is made before or after the commencement of this Schedule and
the Minister withdraws from the action and agrees to reconsider the decision.
Item 44 Conclusive certificates
86. This item provides for
all conclusive certificates issued by the Minister under subsections 338(3) or
346(4) that are still in force immediately before the commencement of this
Schedule to remain in force. The intention is that, if a conclusive certificate
was previously issued with respect to a decision, the decision does not become
an MRT-reviewable decision upon commencement of this Schedule.
1. SCHEDULE 2 - Migration Review Tribunal
Part 1 -
Amendments
Migration Act 1958
Item
1 Subsection 5(1) (definition of Immigration Review
Tribunal)
Item 2 Subsection 5(1)
87. These definitions
are amended as a consequence of the creation of the MRT.
Item
3 Paragraph 91G(2)(a) and subsection 114(1)
Item 4 Subsection 271(4)
(paragraph (a) of the definition of migration proceedings)
Item
5 Section 275 (paragraph (a) of the definition of review
authority)
Item 6 Paragraph 318(1)(b) and subsection
320(1)
Item 7 Section 337 (definition of
Tribunal)
Item 8 Subsections 352(1) and 381(1), paragraph
381(2)(a), subsections 381(5) and (6), paragraph 382(3)(a) and sections 383,
384, 388, 389, 392 and 393
88. These consequential amendments are
necessary as a result of the creation of the MRT, which will undertake review of
decisions instead of the IRT.
Item 9 Part 6
89. This item
repeals Part 6, which provides for the establishment of the IRT, and substitutes
a new Part 6. It provides for the establishment of the Migration Review Tribunal
in place of both internal review and the IRT. The MRT has been established as
one of a range of measures intended to streamline merits review undertaken
within the Immigration and Multicultural Affairs portfolio.
Division 1
- Establishment and membership of the Migration Review
Tribunal
Section 394 Establishment of the Migration Review
Tribunal
90. New section 394 provides for the establishment of the
Migration Review Tribunal
Section 395 Membership of Migration Review
Tribunal
91. New section 395 provides for the MRT to consist of a
Principal Member, and such Senior Members and other members as are appointed in
accordance with the Act. The number of Senior members and members are not to
exceed the prescribed number. The numbers will be prescribed in the
Regulations.
Section 396 Appointment of members
92. New section
396 provides for the Governor-General to appoint the Principal Member and Senior
Members as full-time members and any other member to be appointed as either
full-time or part-time members. The appointment of full or part-time members
will depend on such matters as the case load and the availability of suitable
members.
Section 397 Principal Member
93. New section 397
defines the responsibilities of the Principal Member. As the executive officer
of the Tribunal, the Principal Member is responsible for the overall operation
and administration of the Tribunal. The Principal Member is responsible for the
allocation of the work of the Tribunal and may determine written guidelines for
the allocation of the work of the Tribunal.
94. Any written guidelines
must provide that cases in which a person affected by the review is being held
in immigration detention must be given priority over other
cases.
Section 398 Period of appointment of members
95. New
section 398 provides that a member holds office for the period specified in the
instrument of appointment. That period is not to exceed 5 years. This section
does not preclude reappointment under a new instrument, as long as that new
period does not exceed 5 years.
Section 399 Remuneration and
allowances of members
96. New section 399 provides for the
remuneration of members to be determined by the Remuneration Tribunal, in the
first instance, and if no such determination exists, that members should be paid
such remuneration as is prescribed. Such remuneration will be prescribed in the
Regulations.
97. This section also provides for allowances to be
prescribed. Such allowances will be prescribed in the Regulations.
Section 400 Other terms and conditions
98. New section 400
provides for the Minister to determine in writing all other terms and conditions
of appointment. That is, if something is not provided for by this Act, the
Minister has the power to determine the term and/or condition. Other terms and
conditions could include a member's leave entitlements and access to
vehicles.
Section 401 Resignation
99. New section 401
allows a member to resign by sending written notice to the
Governor-General.
Section 402 Disclosure of interests
100. New
section 402 requires a member to disclose any conflict of interest to the
applicant and, in the case of the Principal Member, to the Minister or, in any
other case, to the Principal Member.
101. The member must not continue to
participate in the review unless the applicant and the Minister (where it is the
Principal Member who has a conflict of interest) or Principal Member (where it
is a Senior Member or any other member who has a conflict of interest) both give
their consent.
102. The conflict of interest could be pecuniary or
otherwise. Such conflicts may arise where a review applicant, or a principal or
family member in a visa application, is known to the member, or to a relative or
associate of the member.
Section 403 Removal from
office
103. New section 403 provides for the Governor-General, if he
or she so chooses, to remove any member from office on the grounds of proven
misbehaviour or physical or mental incapacity.
104. This section also
allows the Governor-General, if he or she so chooses, to remove any member from
office in certain other circumstances.
Section 404 Acting
appointments
105. New section 404 provides for the Minister to
appoint a person to act in the position of Principal Member or Senior Member in
certain circumstances.
Section 405 Delegation
106. New
section 405 provides for the Principal Member to delegate to a Senior Member all
or any of the Principal Member's powers except those powers under section 381
that allow the Principal Member to refer decisions to the Administrative Appeals
Tribunal.
Division 2 - Registries and officers
Section
406 Registries
107. New section 406 provides for the Minister to
cause to be established such registries as the Minister thinks are necessary and
provides that the Minister must designate one of those registries as the
Principal Registry.
Section 407 Officers of
Tribunal
108. New section 407 provides for a Registrar and such
Deputy Registrars and other officers of the Tribunal as are required to be
appointed by the Minister. Any such officers have the duties, powers and
functions as are provided by the Migration Act and any other duties and
functions directed by the Principal Member.
109. All such officers are to
be appointed or employed under the Public Service Act
1922.
Section 408 Acting appointments
110. Section 408
allows the Minister to appoint a person appointed or employed under the Public
Service Act to act in a position during a vacancy in an office or when the
holder of an office is absent from duty. This section applies to any office of
an officer appointed under section 407.
Part 2 - Transitional
provision
Item 10 Appointments relating to the Migration Review
Tribunal
111. Sub-item (1) provides for the appointment of any member
or officer to the MRT before the commencement of this Schedule. This is
necessary to allow those members and officers to be appointed before the
commencement of this Schedule and for carrying out functions and exercising
powers necessary for the establishment of the MRT. This will avoid any delay in
reviewing MRT-reviewable decisions after commencement of this
Schedule.
112. Sub-item (2) provides that, although members and officers
have been appointed to the Tribunal, no review of MRT-reviewable decisions can
commence before the commencement of Schedule 1. The current scheme of internal
review and the IRT will continue to operate until that commencement.
SCHEDULE 3 - Refugee Review Tribunal
Part 1 -
Amendments
Migration Act 1958
Item 1 After
section 420
113. This item inserts a new section 420A into the
Migration Act:
− new subsection (1) will provide the Principal
Member of the RRT with clear authority to give directions on the operation of
the RRT and the conduct of reviews;
− new subsection (2) will
provide the Principal Member with clear authority to apply efficient processing
practices to the conduct of a review. Such practices may include the
implementation of a case-management system where much of the preliminary
research and investigative work is undertaken by administrative staff of the
Tribunal. The Tribunal member or members are responsible for directing that
further investigation be undertaken and for the final decision;
− new subsection (3) provides that the Tribunal should, so far as
practicable, comply with the directions of the Principal Member. Whilst
non-compliance with any such direction by a member does not make the decision
invalid, it is expected that members will comply with lawful directions.
Non-compliance may lead to consideration for removal from office in accordance
with the provisions of the Migration Act; and
− new subsection (4)
provides that, if the Tribunal complies with the directions, no other action is
required for the conduct of the review (assuming other legislative requirements
are met).
Item 2 After section 422
114. This item inserts
new section 422A into the Migration Act.
115. Section 422 currently
allows for reconstitution of the Tribunal only where a member becomes
unavailable or ceases to be a member. However, in new section
422A:
− subsection (1) provides for the reconstitution of the
Tribunal by removing the member and constituting the review to another member in
circumstances where the Principal Member thinks that reconstitution is in the
interests of achieving the efficient conduct of the review, consistent with the
objectives of subsection 420(1). The objective is that review of decisions be
fair, just, informal, economical and quick. The power cannot be used to
influence the outcome of a particular review. Reconstitution could occur where
the Tribunal has not decided the case after a lengthy
period;
− subsection (2) provides that the Principal Member must
not make a direction under subsection 422A(1) unless:
.. the Tribunal has
not recorded a decision on the review in writing or given a decision on the
review orally; and
.. the Principal Member has consulted the member, and
a Senior Member (who is not the member);
and
.. either:
the Principal Member is satisfied that
there is insufficient material before the Tribunal for the Tribunal to reach a
decision on the review; or
a period equal to or longer than the
period prescribed has elapsed since the Tribunal was constituted;
and
− subsection (3) provides for the Tribunal to then continue and
finish the review and may have regard to any record of the proceedings of the
review made by the Tribunal as previously constituted.
Item 3 Sections
424 and 425
116. This item repeals existing sections 424 and 425 of
the Migration Act which provide for the right of a personal appearance by the
applicant unless the Tribunal is able to make a decision 'on the papers' that is
most favourable to the applicant.
117. It also inserts six new sections
into the Migration Act. Of these sections 424, 424A, 424B and 424C provide a
code of procedure which the Tribunal is to follow in conducting its
review:
− new section 424 will allow the Tribunal to obtain any
information it considers relevant, and, having obtained that information, the
Tribunal must have regard to it in making its decision;
− new
section 424A ensures that an applicant is given particulars of any information
that would be the reason or part of the reason for affirming the decision under
review, and is asked to comment on that information. The information must be
specifically about the applicant or another person and not just about a class of
persons of which the applicant or the other person is a member. Paragraphs
424A(3)(b) and (c) provide respectively that information given by the applicant
and non-disclosable information are not included in this
section;
− new sections 424 and 424A also ensure that invitations
to an applicant to:
provide further information;
or
comment on information which the MRT
considers would be reason for
affirming the decision under review;
are sent to the last address for service, or residential address given
by the applicant in a way that provides evidence of the date of dispatch. These
provisions do not apply to an applicant who is in immigration
detention;
− new subsection 424B(1) enables the Tribunal to specify
the way in which additional information is to be given. Additional information
may be given in any way appropriate to the circumstances - for example by
telephone or by facsimile machine;
− new subsection 424B(2)
provides for additional information or comments on information provided by the
Tribunal, otherwise than at interview, to be given within a prescribed period,
or if there is no prescribed period, within a reasonable period;
− new subsection 424B(3) allows the Tribunal to specify, where an
interview has been offered, the place of interview and the time of
interview;
− new subsection 424B(4) allows the Tribunal to extend
the prescribed period for giving additional information or comment on
information for a further prescribed period. The further period will be
prescribed by the Regulations;
− new subsection 424B(5) allows the
Tribunal to extend the period for a response at interview to some other time
within the prescribed period or to a time within a further prescribed period.
The further prescribed period will be prescribed by the
Regulations:
§ in this section "interview" does not mean
appearance before the Tribunal. At interview the applicant may be invited to
give additional information or comment on information provided by the Tribunal.
The applicant does not have the right to give evidence and present arguments
relating to issues arising in relation to the decision under review at an
interview conducted pursuant to section 424; and
− new section 424C
provides that where a person fails to provide additional information under
section 424 or an applicant fails to provide comment on information under
section 424A, the Tribunal may make a decision without taking any further
action. The purpose of the new section is to allow the Tribunal to make a
decision without any delay if the applicant fails to respond to a request for
further information or comment within the prescribed period.
118. New
section 425 entitles an applicant to have the opportunity to appear before the
Refugee Review Tribunal, by requiring the Tribunal to invite the applicant to
appear before it, unless new subsection 425(2) applies. When subsection 425(2)
applies, an applicant is not entitled to appear before the Tribunal.
119. Subsection 425(2) applies
when:
− the
Tribunal can decide the review in the applicant's favour on the basis of the
material before it; or
− the applicant
consents to the review proceeding without an appearance;
or
− the applicant fails to respond,
within the prescribed period or a reasonable period, to an invitation to provide
information or comments to the Tribunal.
120. At an appearance the
applicant would be entitled to give evidence and present arguments relating to
the issues arising in relation to the decision under review.
121. New
section 425A provides for a minimum prescribed period of notice to be given of
an invitation to appear before the Tribunal. Such a period will be prescribed
by the Regulations.
122. Section 425A also ensures that invitations to an
applicant to appear before the RRT are sent to the last address for service, or
residential address given by the applicant in a way that provides evidence of
the date of dispatch. This provision does not apply to an applicant who is in
immigration detention.
123. The invitation to appear:
− is
to specify the day on which, and the time and place at which the applicant is
invited to appear. If no minimum period of notice is prescribed then a
reasonable period of notice is to be given; and
− should also
contain a statement of the effect of proposed section 426A (that is, if the
applicant fails to appear, the Tribunal may make a decision on the review
without taking any further action). However, if the Tribunal so wishes, it may
reschedule an appearance, or delay making a decision to allow for a rescheduled
appearance.
Item 4 Subsection 426(1)
124. This amendment is
consequential to the repeal of section 424 and the insertion of new section
425A. Notice of an invitation to appear before the Tribunal is provided for by
section 425A.
Item 5 Paragraph 426(1)(a)
125. This
amendment reflects the change from an applicant being entitled to appear when a
favourable decision "on the papers" cannot be made, to an applicant being
invited to appear before the Tribunal.
Item 6 After section
426
126. Section 426A provides that where an applicant fails to
appear before the Tribunal, after an invitation to appear made pursuant to
section 425, the Tribunal may make a decision on the review without taking any
further action. However, if the Tribunal so wishes, it may reschedule an
appearance, or delay making a decision to allow for a rescheduled
appearance.
Item 7 After section 429
127. This item inserts
new section 429A into the Migration Act. This amendment allows the Tribunal to
direct that an appearance by the applicant before it, or the giving of evidence
by the applicant or any other person, can be by telephone, closed-circuit
television or any other means of communication. This will broaden the range of
methods the Tribunal may use to facilitate a personal appearance by an applicant
or another person at a formal hearing.
Item 8 Subsection
430(2)
128. This item repeals subsection 430(2) as a consequence of
new provisions in sections 430B and 430D which require the applicant and the
Secretary to be given a copy of the Tribunal’s decision.
129. The
Note alters the heading of section 430 to reflect the new procedures for
notifying applicants and the Secretary of the Tribunal’s
decision.
Item 9 After section 430
Section 430A
Tribunal must invite parties to handing down of decision
130. New
section 430A requires the RRT to invite the relevant parties to the handing down
of decisions by the Tribunal, and sets out the way in which notice of the
invitation must be given.
131. This requirement does not apply in
relation to oral decisions or decisions relating to an applicant who is in
immigration detention.
Section 430B Tribunal decision to be handed
down
132. The purpose of section 430B is to provide for RRT decisions
to be handed down except where:
− the decision is given orally by
the Tribunal; or
− the applicant is in immigration detention.
133. Subsection 430B(2) provides that a decision by the RRT may be
handed down by the Principal Member, or by persons authorised in writing by the
Principal Member.
134. Subsection 430B(3) enables the decision to be
handed down by reading the outcome of the decision, whether or not the applicant
or the Secretary are present.
135. Subsection 430B(4) provides that the
date of the decision is the date it is handed down.
136. Subsections
430B(5), (6) and (7) require that the applicant and the Secretary be given a
copy of the decision prepared under section 430(1), and specifies when that copy
must be given.
137. Subsection 430B(8) provides that an applicant or the
Secretary will only be taken to be present at the handing down if he or she is
physically present at the handing down.
138. Subsection 368B(9) permits a
representative of the applicant or the Secretary to attend the handing down and
receive a copy of the decision.
Section 430C Applicant taken to be
notified when representative notified
139. New section 430C ensures
that an applicant is taken to be notified of a decision when the
applicant’s representative has been notified of that decision.
Section 430D Tribunal must notify parties (parties not invited to
handing down of decision)
140. New section 430D provides that
if:
− the Tribunal gives an oral decision; or
− an
applicant is in immigration detention;
the Tribunal must give a copy of
the written statement about the decision to the applicant and the Secretary
within 14 days after the decision has been made.
141. Where an oral
decision is given the applicant is taken to be notified of the decision on the
day on which the decision is made.
Item 10 Subsection
431(1)
142. The intention of this subsection is to remove the
requirement to publish all Tribunal decisions and allow for those decisions the
Principal Member thinks are of particular interest to be published. The section
provides that it is the Registrar who must ensure publication of any decision
found to be of particular interest.
Item 11 At the end of section
432
143. This subsection is included to make it clear that an
invitation to appear before the Tribunal under section 425 is not a summons and
failure to appear is not an offence and such failure will not incur the penalty
of imprisonment for 6 months.
Item 12 At the end of Division 7 of Part
6
Section 441A Methods of dispatch of certain
documents
144. The purpose of new section 441A is to provide that
certain documents must be given to an applicant (other than an applicant who is
in immigration) by either being:
− sent to the last address for
service, or residential address given by the applicant, in a way in which a
receipt or some other evidence of the date of dispatch is given;
or
− given to the applicant or a person authorised by the
applicant; or
− left at the applicant’s place of residence
with a person who appears to live there and appears to have turned 16 years
old.
145. The documents covered by the section
are:
− invitations to applicants (but not to other people) to give
additional information that the Tribunal considers relevant to the review
– except where the applicant is in immigration
detention;
− invitations to applicants to comment on additional
information – except where the applicant is in immigration detention;
− notices of invitations for applicants to appear before the
Tribunal – except where the applicant is in immigration
detention;
− notices of invitations for applicants to be present at
a handing down; and
− statements of the decision given to
applicants by the Tribunal.
Items 13 to
19
146. New items 13 to 19 amend section 469 of
the Migration Act 1958 to provide that the Minister may appoint a person
to act in a senior office of the Refugee Review Tribunal for a period of less
than 12 months. A senior office is defined to mean the office of Principal
Member, the office of Deputy Principal Member and an office of Senior
Member.
Item 13 Subsection
469(1)
147. This item amends subsection
469(1) to replace "the office of Principal Member" with "a senior office". The
effect of the amendment, together with the amendment made by item 16, is to
allow the Minister to appoint a person to act in the office of Principal Member,
the office of Deputy Principal Member or an office of Senior Member of the RRT,
during a vacancy in the office or when the holder of the office is absent from
duty or from Australia, or is unable to perform the duties of the
office.
Item 14 Paragraph
469(1)(b)
Item 15 Subsection 469(1A)
Item 16 Subsection
469(2)
Item 17 Subsection
469(9)(paragraph (a) of the definition of normal terminating
event)
Item 18 Subsection
469(9)(paragraph (b) of the definition of normal terminating
event)
148. These items make
consequential amendments necessary due to the amendment made by item
13.
Item 19 Subsection
469(9)
149. This item inserts a
definition of "senior office", which means the office of Principal Member, the
office of Deputy Principal Member and an office of Senior
Member.
Part 2 - Application provisions
Item
20 Existing applications for review
150. This item provides that the
amendments in this Schedule apply to all applications for review of an
RRT-reviewable decision that are not completed at the time of commencement. In
addition, the item ensures that statements setting out the decision of the RRT,
written pursuant to subsection 430(1) of the Migration Act 1958 prior to
the commencement of Schedule 3, must continue to be given to the applicant and
the Secretary pursuant to subsection 430(2) of that Act (as it was prior to
amendment).
Item 21 Applications for review of existing RRT-reviewable
decisions
151. This item provides that the amendments in this
Schedule apply to those applications made on or after commencement of this
Schedule for review of a primary decision made before the commencement of this
Schedule.
SCHEDULE 4 - "No Further Stay" conditions applicable to
visas
Migration Act 1958
Item 1 After
subsection 41(2)
152. Paragraph 41(2)(a) of the Migration Act enables
the regulations to provide that specified visas are to be subject to the
condition that the holder of a visa will not after entering Australia be
entitled to be granted a further substantive visa other than a protection visa
(the "no further stay" condition).
153. This item inserts a new
subsection 41(2A) which provides that the "no further stay" condition may be
waived by the Minister in writing in prescribed circumstances.
Item
2 Paragraph 46(1)(e)
154. This item makes a consequential amendment
to section 46 by repealing paragraph 46(1)(e) and substituting a new paragraph.
This will allow the holder of the visa to make a valid application for another
visa where the Minister has waived the "no further stay" condition.
SCHEDULE 5 - Cancellation of visas
Part 1 - Amendment
Migration Act 1958
Item 1 At the end of section
129
155. This item adds a new subsection 129(3) to put beyond doubt
that the validity of a visa cancellation decision made under section 128 of the
Migration Act is not affected by a failure to notify the visa holder of the
cancellation decision.
Part 2 - Application of
amendment
Item 2 Application
156. This item provides
that the amendment made by this Schedule applies to any cancellation of a visa
under section 128 of the Migration Act after commencement of this Schedule,
regardless of whether the circumstances, acts or omissions which led to the
making of the cancellation decision occurred after that commencement.
SCHEDULE 6 - Miscellaneous migration matters
Migration
Act 1958
157. Subdivision C of Division 3 of Part 2 of the
Migration Act makes provision for the cancellation of visas which were granted
on the basis of incorrect information. The amendments proposed by items 1 to 7
of this Schedule make amendments to Subdivision C of Division 3 to strengthen
these provisions.
Item 1 Subsection 104(1)
Item 2
Subsection 105(1)
158. Items 1 and 2 amend sections 104 and 105 to
require non-citizens to advise of certain information including change in
circumstances and incorrect answers "as soon as practicable". In legal terms,
this is the earliest possible time that the information can be required.
Item 3 Paragraph 107(1)(b)
Item 4 Subparagraphs
107(1)(c)(i), (ii) and (iii)
159. Items 3 and 4 amend section 107 to
provide flexibility in setting the time period within which a visa holder may
respond to a notice given under section 107. In respect of a temporary visa,
the 14 day period in which to respond to a notice of intention to cancel a visa
is removed.
160. Instead, the period in which a non-citizen has to
respond, is calculated by reference to new subsections (1A) and (1B) referred to
in item 6. The response period for a permanent visa holder will however remain
at 14 days.
Item 5 At the end of subsection
107(1)
161. This item inserts new paragraph 107(1)(f) to ensure that
the notice of an intention to cancel a visa includes a statement requiring the
holder of a visa to provide up-to-date information of the address at which the
holder is living, including any change of address.
Item 6 After
subsection 107(1)
162. This item complements the amendments made by
items 3 and 4, by providing the time period within which a visa holder has to
respond to a notice given under section 107. In particular, new subsection
107(1A) provides that in the case of temporary visa holders the time period will
be prescribed, or if not prescribed, then a reasonable period, and in all other
cases will be 14 days. This means that permanent visa holders will continue to
have 14 days in which to respond.
163. New subsection 107(1B) provides
that the period which may be prescribed in respect of temporary visa holders may
be different, based on the characteristics of visa holders and
visas.
Item 7 After section 107
164. This item inserts a
new section 107A to make it clear that a non-compliance that is specified in a
section 107 notice, which can constitute a ground for cancellation, may have
occurred at any time, even in relation to a previous visa. Such non-compliance
can lead to cancellation of a visa under section 109.
Item 8 Paragraph
127(2)(b)
165. This item amends paragraph 127(2)(b) to correct an
ambiguity - it will ensure that notification of a decision to cancel a visa
(under Subdivision E of Division 3) states whether a decision is
reviewable under Part 5 or 7 rather than if it is
reviewable.
Item 9 Paragraph 128(b)
166. This item amends
paragraph 128(b) to correct an ambiguity as it currently could be interpreted as
only applying to non-citizens who have never entered Australia. Whilst the
Explanatory Memorandum to the Migration Reform Act 1992 stated that the
provision "will also apply to non-citizens who have previously been in Australia
but are now outside it", litigants in the Federal Court have suggested
otherwise.
167. The amendment removes any doubt by omitting reference
to a non-citizen who "has not entered" Australia instead referring to a
non-citizen who "is outside" Australia.
Item 10 Subsection
160(2)
168. An important element of the criminal justice visa regime
is that "satisfactory arrangements" must be made to meet the cost of the
non-citizen remaining in Australia (sections 147 and 148). Some law enforcement
agencies have been reluctant to meet these costs when the visa holder may be
required to remain in Australia for many months and is not permitted to
work.
169. As a consequence, this item removes the prohibition in
subsection 160(2) on the right to work for holders of criminal justice stay
visas. However, the prohibition on work will remain for holders of criminal
justice entry visas.
Item 11 After subsection
235(4)
170. This item inserts a new subsection 235(4A) as a
consequence of the amendment made to subsection 160(2) - it will ensure that the
holder of a criminal justice stay visa does not commit an offence by working in
Australia unless he or she also falls within subsection 235(1).
Note:
The heading to section 253 is replaced by Detention of
deportee.
171. This change in the heading corrects an oversight. The
Migration Amendment Act 1992 removed or amended references to "arrest" in
the Migration Act so that the provisions of the Crimes Act 1914 would not
apply. This heading was not amended.
SCHEDULE 7 - False representations etc. under the Australian Citizenship
Act 1948
Part 1 - Amendments
Australian
Citizenship Act 1948
Item 1 Subsection 50(1)
(penalty)
Item 2 Subsections 50(2) and (3)
172. Item 1
changes the penalty provision at subsection 50(1) of the Australian
Citizenship Act 1948 from "$1,000 or imprisonment for 6 months, or both" to
"12 months imprisonment". Item 2 removes the express provisions in subsections
50(2) and 50(3) regarding time limits for commencing prosecutions.
173. The reason for making these amendments is to bring the penalty
provision into line with similar offences under Commonwealth law. The intention
is that the offence should be considered a more serious offence for the purposes
of general Commonwealth policy on commencing prosecutions. The main consequence
of being considered a more serious offence is that a prosecution may be
commenced at any time - see section 15B of the Crimes Act.
Part 2 -
Application of amendments
Item 3 Application
174. This
part provides that the amendments made by this Schedule only apply to acts or
omissions after the commencement of this Schedule.
SCHEDULE 8 - Technical amendments
Immigration (Education)
Act 1971
Item 1 Paragraph 4B(b)
175. This amendment
corrects a minor oversight in terminology in relation to introduction of the
visa application charge by the Migration Legislation Amendment Act (No. 1)
1997.
Migration Reform Act 1992
Item
2 Schedule (Part 1) (amendment of subsection 4(1) (definition of applicable
priority mark))
176. This item repeals an amendment which
purported to omit a definition that had already been omitted by an earlier
Act.
Migration Legislation Amendment Act (No. 5)
1995
Item 3 Subsection 2(3)
Item 4 Subsection
2(4)
Item 5 Subsection 2(5)
177. These amendments all
correct technical cross-referencing errors that occurred in the print of the
Migration Legislation Amendment Act (No. 5) 1995 when it was prepared for the
Royal Assent.