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2013 - 2014
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT BILL (No. 1) 2014
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Border Protection,
the Hon. Scott Morrison MP)
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Migration Legislation Amendment Bill (No. 1) 2014
OUTLINE
The Migration Legislation Amendment Bill (No. 1) 2014 (the Bill) amends the Migration Act 1958
(the Act) to:
clarify that the application limitation under section 48 applies to persons who, after
last entering Australia, held a visa that was refused or cancelled;
clarify that the limitations under sections 48, 48A and 501E will apply to a non-citizen
who has previously been refused a visa for which an application was made on the
non-citizens behalf, even if the non-citizen did not know of or did not understand the
nature of the application due to a mental impairment or because they were a minor;
clarify that limitations on applying for a further visa under sections 48, 48A and 501E
also include applications made on behalf of the non-citizen;
ensure that a bridging visa application is not an impediment to removal under
subsection 198(5);
strengthen debt recovery provisions to ensure that existing debt recovery provisions
can be applied to all convicted people smugglers and illegal foreign fishers regardless
of whether they are detained because of subsection 250(2) of the Act;
clarify the role of an authorised recipient and the extent of the obligation to inform the
authorised recipient of direct communication with the non-citizen who authorised the
authorised recipient;
clarify the Migration Review Tribunal and Refugee Review Tribunals obligation to
give documents to authorised recipients, including in circumstances where the review
application is found not to be properly made, and the Ministers obligation to give
documents to authorised recipients;
provide access to, and use of, material and information obtained under a search
warrant issued under the Crimes Act 1914 for the purposes of the Migration Act;
clarify the procedural fairness provisions relating to giving of certain information to a
visa applicant; and
amend subsection 494C(6), and other analogous provisions for tribunals, to realign
with provisions of the Electronic Transactions Act 1999.
The Bill also amends the Australian Citizenship Act 2007 (the Citizenship Act) to:
provide access to, and use of, material information obtained under a search warrant
issued under the Crimes Act 1914 for the purposes of the Citizenship Act.
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FINANCIAL IMPACT STATEMENT
The financial impact of the Bill is low. Any costs will be met from within existing resources of the
Department of Immigration and Border Protection.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation has been consulted and assessed that a regulation impact
statement is not required. The advice references are 16473 (Schedule 1, Schedule 4 and Schedule
6), 16713 (Schedule 2), 16739 (Schedule 3) and 16578 (Schedule 5).
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with Australias human
rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
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MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2014
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title by which this Act may be cited is the
Migration Legislation Amendment Act (No. 1) 2014.
Clause 2 Commencement
2. Subclause 2(1) provides that each provision of this 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.
3. Table item 1 provides that sections 1 to 3 of this Act and anything in this Act not elsewhere
covered by the table will commence on the day this Act receives the Royal Assent.
4. Table item 2 provides that Schedules 1 to 5 of this Act will commence the day after this Act
receives the Royal Assent.
5. Table item 3 provides that Part 1 of Schedule 6 of this Act will commence on a single day to
be fixed by Proclamation. However, if the provision(s) do not commence within the period
of 6 months beginning on the day this Act receives the Royal Assent, they commence on the
day after the end of that period.
6. Table item 4 provides that Part 2 of Schedule 6 of this Act will commence the day after this
Act receives the Royal Assent.
7. The note in subclause 2(1) makes it clear that the table relates only to the provisions of this
Act as originally enacted. The table will not be amended to deal with any later amendments
of this Act.
8. Subclause 2(2) provides that any information in column 3 of the table is not part of this Act.
It provides that information may be inserted in column 3, or information in it may be edited,
in any published version of this Act.
Clause 3 Schedule(s)
9. This clause provides that each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned.
In addition, any other item in a Schedule to this Act has effect according to its terms.
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Schedule 1 - Applications for visas
Migration Act 1958
Item 1 Subsection 48(1)
1. This item repeals subsection 48(1) of Division 3 of Part 2 of the Act and substitutes new
subsections 48(1) and 48(1A).
2. Subsection 48(1) of the Act currently provides that a non-citizen in the migration zone who:
does not hold a substantive visa; and
either:
o after last entering Australia, was refused a visa, other than a refusal of a
bridging visa or a refusal under section 501, 501A or 501B, for which the non-
citizen had applied (whether or not the application has been finally
determined); or
o held a visa that was cancelled under section 109 (incorrect information), 116
(general power to cancel), 134 (business visas), 137J (student visas) or 137Q
(regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this
section, but not for a visa of any other class.
3. New subsection 48(1) of the Act provides that a non-citizen in the migration zone who:
does not hold a substantive visa; and
after last entering Australia:
o was refused a visa, other than a refusal of a bridging visa or a refusal under
section 501, 501A or 501B, for which the non-citizen had applied (whether or
not the application has been finally determined); or
o held a visa that was cancelled under section 109 (incorrect information), 116
(general power to cancel), 134 (business visas), 137J (student visas) or 137Q
(regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this
section or have an application for such a visa made on his or her behalf, but not for a visa of
any other class.
4. The language of existing subparagraph 48(1)(b)(ii) of the Act suggests that a person who has
had a visa cancelled under section 109, 116, 134, 137J or 137Q at any time is subject to the
prohibition on applying for a further visa in subsection 48(1). This is not consistent with the
policy intention, which is that such a person is subject to subsection 48(1) only if they have
had a visa cancelled under one of those provisions since last entering Australia.
5. Accordingly, the purpose of this amendment is to clarify that it is only if a person has had a
visa cancelled under section 109, 116, 134, 137J or 137Q since last entering Australia that
they will come within section 48 of the Act.
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6. This amendment also addresses the argument that a person is not prevented by section 48 of
the Act from making a further visa application after having been refused a visa since they last
entered Australia, if the application for the visa they were refused was made on their behalf
and they did not know about, or understand the nature of, the application because of lack of
capacity due to a mental impairment, or that they were a minor at the time the application was
made.
7. New subsection 48(1A) of the Act provides that a non-citizen in the migration zone who:
does not hold a substantive visa; and
after last entering Australia, was refused a visa (other than a refusal of a bridging visa
or a refusal under section 501, 501A or 501B) for which an application had been
made on the non-citizens behalf, whether or not:
o the application has been finally determined; or
o the non-citizen knew about, or understood the nature of, the application due to
any mental impairment; or
o the non-citizen knew about, or understood the nature of, the application due to
the fact that the non-citizen was, at the time the application was made, a
minor;
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this
section or have an application for such a visa made on his or her behalf, but not for a visa of
any other class.
8. The purpose of this amendment is to clarify that a non-citizen in the migration zone who does
not hold a substantive visa and since last entering Australia was refused a visa for which an
application was made on his or her behalf is subject to section 48 of the Act. It is irrelevant
that the visa application may not have been finally determined. It is also irrelevant that the
visa applicant may not have known of, or understood the nature of, the application because
they had a mental impairment, or because they were a minor at the time the visa application
was made.
9. This amendment addresses a possible interpretation of section 48 of the Act that a person is
not subject to that provision despite having been refused a visa, in circumstances where they
did not know of, or understand the nature of, the application that was made on their behalf
because they were a minor at the time it was made. The policy intention is that section 48 of
the Act applies to all people who are in the migration zone and do not hold a substantive visa
and who were refused a visa since last entering Australia, regardless of the fact that they did
not know of, or understand the nature of, that application because they were a minor at the
time it was made, or because they had a mental impairment. New subsection 48(1A) gives
effect to this policy position.
Item 2 Subsection 48A(1)
10. This item omits all the words after paragraph 48A(1)(b) of Division 3 of Part 2 of the Act and
substitutes new words.
11. Subsection 48A(1) of the Act currently provides that subject to section 48B, a non-citizen
who, while in the migration zone, has made:
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an application for a protection visa, where the grant of the visa has been refused
(whether or not the application has been finally determined); or
applications for protection visas, where the grants of the visas have been refused
(whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.
12. New subsection 48A(1) of the Act provides that subject to section 48B, a non-citizen who,
while in the migration zone, has made:
an application for a protection visa, where the grant of the visa has been refused
(whether or not the application has been finally determined); or
applications for protection visas, where the grants of the visas have been refused
(whether or not the applications have been finally determined);
may not make a further application for a protection visa, or have a further application for a
protection visa made on his or her behalf, while the non-citizen is in the migration zone.
13. The purpose of this amendment is to clarify that a person to whom subsection 48A of the Act
applies will be prevented from having a further visa application made on his or her behalf
while they are in the migration zone, as well as prevented from making a further visa
application himself or herself. This amendment addresses the argument that a person is not
prevented by section 48A of the Act from making a further application for a protection visa
because that further protection visa application will be made by another person on his or her
behalf, and puts it beyond doubt that it does not matter whether the further protection visa
application is being made by the person in their own right or by another person on their
behalf.
Item 3 After subsection 48A(1)
14. This item inserts new subsection 48A(1AA) after subsection 48A(1) of Division 3 of Part 2 of
the Act.
15. New subsection 48A(1AA) of the Act provides that subject to section 48B, if:
an application for a protection visa is made on a non-citizens behalf while the non-
citizen is in the migration zone; and
the grant of the visa has been refused, whether or not:
o the application has been finally determined; or
o the non-citizen knew about, or understood the nature of, the application due to
any mental impairment; or
o the non-citizen knew about, or understood the nature of, the application due to
the fact that the non-citizen was, at the time the application was made, a
minor;
the non-citizen may not make a further application for a protection visa, or have a further
application for a protection visa made on his or her behalf, while the non-citizen is in the
migration zone.
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16. The purpose of this amendment is to clarify that if an application for a protection visa was
made on behalf of a non-citizen while the non-citizen was in the migration zone, and that
application was refused, the non-citizen cannot make a further protection visa application, or
have a further protection visa application made on his or her behalf, while the non-citizen is
in the migration zone. It is irrelevant that the protection application may not have been
finally determined. It is also irrelevant that the non-citizen may not have known of, or
understood the nature of, the protection visa application because of any mental impairment or
because the non-citizen was a minor at the time the protection visa application was made.
17. This amendment addresses a possible interpretation of section 48A of the Act that the
restriction on making a further application for a protection visa in that provision would not
apply to a person who has been refused a protection visa in respect of which the application
was made on their behalf, if the person did not know of, or understand the nature of the
application because they either have a mental impairment, or were a minor at the time the
application was made.
18. The amendment reflects the policy intention that section 48A of the Act applies to all people
who, while in the migration zone made a valid application for a protection visa that was
refused, regardless of whether they made the application themselves or had the application
made on their behalf, and regardless of whether or not they knew of, or understood the nature
of, that application because they were a minor at the time it was made, or because they had a
mental impairment.
Item 4 Subsection 501E(1)
19. This item inserts ", or have an application for a visa made on the persons behalf," after "for a
visa" in subsection 501E(1) of Part 9 of the Act.
20. Subsection 501E(1) of the Act currently provides that a person is not allowed to make an
application for a visa at a particular time (the application time) that occurs during a period
throughout which the person is in the migration zone if:
at an earlier time during that period, the Minister made a decision under section 501,
501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been
granted to the person; and
the decision was neither set aside nor revoked before the application time.
21. Subsection 501E(2) of the Act provides that subsection (1) does not prevent a person, at the
application time, from making an application for:
a protection visa; or
a visa specified in the regulations for the purposes of this subsection.
22. The purpose of this amendment is to clarify that a person to whom subsection 501E(1) of the
Act applies is not allowed to make an application for a further visa, or have a further visa
application made on his or her behalf (other than a protection visa or a visa specified in the
regulations for the purposes of subsection 501E(2)) while the person is in the migration zone.
This amendment addresses the argument that a person is not prevented by section 501E of the
Act from making a further application for a visa because that further visa application will be
made by another person on his or her behalf, and puts it beyond doubt that it does not matter
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whether the further visa application is being made by the person in their own right, or by
another person on their behalf.
Item 5 After subsection 501E(1)
23. This item inserts new subsection 501E(1A) after subsection 501E(1) of Part 9 of the Act.
24. New subsection 501E(1A) of the Act provides that in relation to the Ministers decision to
refuse to grant a visa to the person, as mentioned in paragraph (1)(a), it does not matter
whether:
the application for the visa was made on the persons behalf; or
the person knew about, or understood the nature of, the application for the visa due to:
o any mental impairment; or
o the fact that the person was, at the time the application was made, a minor.
25. The purpose of this amendment is to clarify that a person will be subject to section 501E of
the Act regardless of whether the application that was previously refused under section 501,
501A or 501B was made by another person on behalf of the visa applicant, and regardless of
whether the person knew of, or understood the nature of, the application for the visa because
they had a mental impairment or because they were a minor at the time the application was
made.
26. This amendment addresses a possible argument that the limitation on making a further visa
application in section 501E of the Act would not apply to a person who has been refused a
visa under section 501, 501A or 501B in respect of which the application was made on their
behalf, if the person did not know of, or understand the nature of, the application because
they either had a mental impairment, or were a minor at the time the application was made.
27. The amendment avoids this result by clarifying that section 501E of the Act applies to all
people who, while in the migration zone were refused a visa under section 501, 501A or
501B, regardless of whether they made the application themselves or had the application
made on their behalf, and regardless of whether they knew of, or understood the nature of,
that application because they were a minor at the time it was made, or because they had a
mental impairment.
Item 6 Application
28. Subitem 6(1) provides that the amendment made by item 1 of Schedule 1 applies to an
application for a visa that is made by or on behalf of a non-citizen on or after the day this
item commences, even if:
the refusal of a visa, as mentioned in subparagraph 48(1)(b)(i) of the Migration Act
1958, occurs before that day; or
the cancellation of a visa, as mentioned in subparagraph 48(1)(b)(ii) of the Migration
Act 1958, occurs before that day; or
the refusal of a visa, as mentioned in paragraph 48(1A)(b) of the Migration Act 1958,
occurs before that day.
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29. The purpose of this provision is to clarify that new subsections 48(1) and 48(1A) of the Act
apply to visa applications made by, or on behalf of, non-citizens on or after the day those
provisions commence, even if the visa the person previously applied for was refused before
that day, or a visa the person previously held was cancelled before that day.
30. Subitem 6(2) provides that the amendment made by item 2 of Schedule 1 applies in relation
to:
a decision to refuse to grant a protection visa to a non-citizen that is made before the
day this item commences, if the further application for a protection visa mentioned
subsection 48A(1) of the Migration Act 1958 is made by or on behalf of the non-
citizen on or after that day; or
a decision to refuse to grant a protection visa to a non-citizen that is made on or after
the day this item commences, regardless of when the application for the visa to which
the decision relates was made.
31. The purpose of this provision is to clarify that new subsection 48A(1) of the Act applies to a
decision to refuse to grant a protection visa to a non-citizen that is made before that provision
commences, if a further application for a protection visa is made by, or on behalf of, the non-
citizen on or after that day. New subsection 48A(1) also applies to a decision to refuse to
grant a protection visa that is made on or after the day that provision commences, regardless
of when the application for the visa to which the decision relates was made.
32. Subitem 6(3) provides that the amendment made by item 3 of Schedule 1 applies in relation
to:
a decision to refuse to grant a protection visa to a non-citizen that is made before the
day this item commences, if the further application for a protection visa mentioned in
subsection 48A(1AA) of the Migration Act 1958 (as inserted by that item) is made by
or on behalf of the non-citizen on or after that day; or
a decision to refuse to grant a protection visa to a non-citizen that is made on or after
the day this item commences, regardless of when the application for the visa to which
the decision relates was made.
33. The purpose of this provision is to clarify that new subsection 48A(1AA) of the Act applies
to a decision to refuse to grant a protection visa to a non-citizen that is made before the day
the provision commences, if the further protection visa application mentioned in that
provision is made by or on behalf of the non-citizen on or after that day. New subsection
48A(1AA) of the Act also applies to a decision to refuse to grant a protection visa to a non-
citizen that is made on or after the provision commences, regardless of when the application
for the visa to which the decision relates was made.
34. Subitem 6(4) provides that the amendments made by items 4 and 5 of Schedule 1 apply in
relation to:
a decision to refuse to grant a visa to a person that is made before the day this item
commences, if an application for a visa mentioned in subsection 501E(1) of the
Migration Act 1958 is made by or on behalf of the person on or after that day; or
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a decision to refuse to grant a visa to a person that is made on or after the day this
item commences, regardless of when the application for the visa to which the decision
relates was made.
35. The purpose of this provision is to clarify that the amendments made to subsection 501E(1) of
the Act, and new subsection 501E(1A) of the Act, apply in relation to a decision to refuse to
grant a visa to a person that is made before the day those provisions commence, if an
application for a visa mentioned in subsection 501E(1) is made by or on behalf of the person
on or after that day. Subsection 501E(1) as amended, and new subsection 501E(1A), also
apply to a decision to refuse to grant a visa to a person that is made on or after the day those
provisions commence, regardless of when the application for the visa to which the decision
relates was made.
Item 7 Saving of regulations
36. Item 7 provides that the amendment made by item 1 of Schedule 1 does not affect the validity
of regulations in force for the purposes of section 48 of the Migration Act 1958 immediately
before the commencement of that item.
37. The purpose of this provision is to clarify that the amendment to subsection 48(1) of the Act
does not affect the validity of regulations under section 48 immediately before the
commencement of that provision as amended.
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Schedule 2 - Removal of unlawful non-citizens
Migration Act 1958
Item 1 Paragraph 198(5)(b)
38. This item repeals current paragraph 198(5)(b) of Division 8 of Part 2 of the Act and
substitutes a new paragraph 198(5)(b).
39. Subsection 198(5) of the Act currently provides that an officer must remove as soon as
reasonably practicable an unlawful non-citizen if the non-citizen:
is a detainee; and
was entitled to apply for a visa in accordance with section 195, to apply under section
137K for revocation of the cancellation of a visa, or both, but did neither.
40. New subsection 198(5) of the Act provides that an officer must remove as soon as reasonably
practicable an unlawful non-citizen if the non-citizen:
is a detainee; and
neither applied for a substantive visa in accordance with subsection 195(1) nor
applied under section 137K for revocation of the cancellation of a substantive visa;
regardless of whether the non-citizen made a valid application for a bridging visa.
41. Section 194 of the Act provides that an officer must ensure that a person who is detained
under section 189 is made aware of the provisions of section 195 and 196, and the provisions
of section 137K if their visa was cancelled under section 137J.
42. Subsection 195(1) of the Act provides that a detainee may apply for a visa within one of the
following periods:
within 2 working days after the day on which section 194 was complied with in
relation to his or her detention; or
within the next 5 working days, if the detainee informs an officer in writing within
those first 2 working days of his or her intention to apply for a visa.
43. Subsection 195(2) of the Act provides that a detainee who does not apply for a visa within the
time allowed in subsection 195(1) may not apply for a visa, other than a bridging visa or a
protection visa, after that time.
44. Under subsection 5(1) of the Act, a substantive visa means a visa other than a bridging visa, a
criminal justice visa, or an enforcement visa.
45. The policy intention behind subsection 198(5) of the Act is that the making of a bridging visa
application is not a temporary or a permanent bar to removal. That is, if an unlawful non-
citizen who is a detainee has applied for a bridging visa, but not a substantive visa, in
accordance with section 195 of the Act, an officer must, as soon as reasonably practicable,
remove the person in accordance with subsection 198(5) of the Act.
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46. However, the language of subsection 198(5) of the Act does not explicitly cover situations
where a detainee has only applied for a bridging visa. This was acknowledged by the Federal
Court case of Foo v Minister for Immigration and Multicultural and Indigenous Affairs
[2003] FCA 1277, in which it was held that if an unlawful non-citizen who is a detainee
chooses not to apply for a substantive visa, but only applies for a bridging visa in accordance
with subsection 195(1), there is no power in the Act for an officer to remove the unlawful
non-citizen from Australia under subsection 198(5).
47. There is no other provision in section 198 of the Act that supports the removal of a person in
this situation. This leads to a situation whereby a person who has applied for a bridging visa
in accordance with subsection 198(5) remains in a state of indefinite immigration detention,
which is not consistent with the policy intention.
48. Therefore, the purpose of the amendment to paragraph 198(5)(b) of the Act is to ensure that
an application for a bridging visa is not an impediment to the exercise of the power to remove
an unlawful non-citizen who is a detainee in accordance with subsection 198(5) of the Act.
Item 2 After subsection 198(5)
49. This item inserts new subsection 198(5A) after subsection 198(5) of Division 8 of Part 2 of
the Act.
50. New subsection 198(5A) of the Act provides that despite subsection (5), an officer must not
remove an unlawful non-citizen if:
the non-citizen made a valid application for a protection visa (even if the application
was made outside the time allowed by subsection 195(1)); and
either:
o the grant of the visa has not been refused; or
o the application has not been finally determined.
51. The purpose of this amendment is to put it beyond doubt that subsection 198(5) of the Act
does not apply to an unlawful non-citizen who made a valid application for a protection visa,
even in circumstances where that application was made outside the timeframe allowed by
subsection 195(1), and that visa application has not been refused or has not been finally
determined. The amendment reflects the fact that a detainee who has not applied for a visa
within the timeframes in subsection 195(1) of the Act is nevertheless entitled to apply for a
protection visa after that time.
52. The amendment also preserves the policy position that a detainee cannot be removed while
they are entitled to apply for a substantive visa in accordance with subsection 195(1) of the
Act. That is, an officer is not under any legal obligation to remove a detainee while they are
entitled to apply for a substantive visa pursuant to subsection 195(1) of the Act.
Item 3 Application
53. This item provides that the amendments made by Schedule 2 apply to the removal of a
detainee on or after the day this item commences, even if the detainee was detained before
that day.
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54. The purpose of this provision is to clarify that new paragraph 198(5)(b) of the Act and new
subsection 198(5A) apply to the removal of a detainee on or after the day those provisions
commence, even if the detainee was detained before the provisions commence.
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Schedule 3 - Recovery of costs from certain persons
Migration Act 1958
Item 1 Section 262 (heading)
55. This item repeals the heading to section 262 of Division 14 of Part 2 of the Act and
substitutes a new heading.
56. Currently, the heading to section 262 of the Act provides:
262 Liability to the Commonwealth for the cost of keeping, maintaining and
removing certain persons because of section 250
57. The new heading to section 262 of the Act provides:
262 Liability to the Commonwealth for the cost of keeping, maintaining and
removing certain persons
58. The amendment made by this item is consequential to the amendments made by item 2
below, which repeals the references to section 250 in section 262 of the Act.
Item 2 Paragraphs 262(1)(a) and (b)
59. This item repeals paragraphs 262(1)(a) and 262(1)(b) of Division 14 of Part 2 of the Act, and
substitutes new paragraphs 262(1)(a), 262(1)(b) and 262(1)(ba).
60. Currently, paragraphs 262(1)(a) and 262(1)(b) of the Act provide:
A person who:
o is in immigration detention because of subsection 250(2); and
o while in that immigration detention, is convicted of an offence against this Act
or against a prescribed law in force in the Commonwealth or in a State or
Territory, being a law relating to the control of fishing.
and the master, owner, agent and charterer of the vessel on which the person travelled to
Australia, are, jointly and severally, liable to pay the Commonwealth the costs associated with
their immigration detention and removal mentioned in paragraphs 262(1)(c) - (g).
61. Subsection 250(2) of the Act provides that a non-citizen may be detained in immigration
detention if they are a "suspect", meaning a non-citizen who has travelled, or was brought to,
the migration zone, and is believed by an authorised officer on reasonable grounds to have
been on board a vessel (not being an aircraft) when it was used in connection with the
commission of an offence against a law in the whole or any part of Australia.
62. The current wording of subsection 262(1) of the Act means that detention debts cannot be
recovered from illegal foreign fishers and people smugglers who are not initially detained
"because of subsection 250(2) of the Act" (for example, because they were not initially
suspected of being involved in a people smuggling offence) or who are not in immigration
detention because they have been granted a criminal justice stay visa while in criminal
detention. These amendments intend to overcome this issue.
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63. New paragraphs 262(1)(a), 262(1)(b) and 262(1)(ba) of the Act provide:
A person who:
o is, or has been, detained under section 189; and
o was on board a vessel (not being an aircraft) when it was used in connection
with the commission of an offence against this Act or against a prescribed law
in force in the Commonwealth or in a State or Territory, being a law relating
to the control of fishing; and
o is convicted of the offence.
and the master, owner, agent and charterer of the vessel on which the person travelled to
Australia, are, jointly and severally, liable to pay the Commonwealth the costs associated with
their immigration detention and removal mentioned in paragraphs 262(1)(c) - (g).
64. The purpose of these amendments is to provide that all convicted people smugglers and
people who have been convicted of an offence relating to the control of fishing (illegal
foreign fishers), regardless of whether they are in immigration detention when the conviction
occurred and regardless of whether or not they were detained because of subsection 250(2) of
the Act, are liable to the Commonwealth for the cost associated with their immigration
detention and removal.
Item 3 At the end of section 262
65. This item adds new subsection 262(4) at the end of section 262 of Division 14 of Part 2 of the
Act.
66. New subsection 262(4) of the Act provides:
To avoid doubt, the liability to pay the Commonwealth an amount under subsection
262(1) may be enforced:
o at the time the person is convicted of an offence mentioned in paragraph
(1)(b); or
o after the person has served the whole or a part of any sentence imposed upon
the person because of his or her conviction of an offence mentioned in
paragraph (1)(b).
67. The purpose of this amendment is to clarify that subsection 262(1) applies to a person who
was convicted of an offence against this Act or against a prescribed law in force in the
Commonwealth or in a State or Territory, being a law relating to the control of fishing,
regardless of whether or not the person has completed serving any sentence imposed in
respect of the commission of that offence. The amendment also makes it clear that the debt
can also be recovered from the person at the time they are convicted of the relevant offence.
Item 4 Application
68. Subitem 4(1) provides that the amendments made by Schedule 3 apply to a conviction for an
offence against paragraph 262(1)(b) of the Act (as amended by Schedule 3), that occurs on or
after the day this item commences.
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69. Subitem 4(2) provides that the amendments made by Schedule 3 also apply to costs incurred
before the day this item commences in relation to a conviction mentioned in subitem 4(1).
Item 5 Saving of regulations
70. Item 5 provides that the amendment made by item 2 of Schedule 3 does not affect the validity
of regulations in force for the purposes of paragraph 262(1)(b) of the Act immediately before
the commencement of that item.
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Schedule 4 - Authorised recipients
Migration Act 1958
Item 1 Paragraph 379G(1)(b)
71. This item omits the words "authorised by the applicant to do things on behalf of the applicant
that consist of, or include, receiving documents" and substitutes the words "authorised by the
applicant to receive documents" in paragraph 379G(1)(b) in Division 8A of Part 5 of the Act.
72. Subsection 379G(1) of the Act provides for an applicant for review of an MRT-reviewable
decision to give to the Migration Review Tribunal (the MRT) written notice of the name and
address of another person (the authorised recipient) authorised by the applicant to do things
on behalf of the applicant that consist of, or include, receiving documents in connection with
the review. If an authorised recipient is authorised in this way, the MRT must give the
authorised recipient, instead of the applicant, any document that it would otherwise have
given to the applicant.
73. This amendment clarifies that the role of an authorised recipient is merely to receive
documents on behalf of the applicant in connection with the review, as the current provision
in subsection 379G(1) is broader than the intended policy position. The amendment also
addresses comments made by the Full Federal Court in MZZDJ v Minister for Immigration
and Border Protection [2013] FCAFC 156, at paragraph 35, in relation to the similarly
worded section 494D of the Act, that an authorised recipient is "constituted effectively as the
agent of the visa applicant" because the provision allows the authorised recipient to "do
things on behalf of" the applicant. This is broader than the policy intention for the role of an
authorised recipient, which is only to receive documents and not to do anything else on behalf
of the applicant or person.
74. The amendment preserves the intended operation of section 379G of the Act by clarifying
that under that provision, the authorised recipient is only authorised to receive documents in
connection with the review and not to do anything else on behalf of the applicant (other than
update an address as provided for in new subsection 379G(3A) inserted by item 4 of
Schedule 4). For example, the authorised recipient cannot unilaterally withdraw their
authorisation to receive documents on behalf of the applicant for review. It is the applicant
for review who must make arrangements for this to occur. This clarification is important to
avoid administrative uncertainty for the Tribunal in relation to its communications with
applicants for review.
75. These amendments do not prevent a person from acting as the agent of the applicant for
review due to some other authorisation. However, the amendments are intended to ensure
that such an authorisation cannot be found within subsection 379G(1) of the Act itself.
Item 2 After subsection 379G(1)
76. This item inserts new subsection 379G(1A) after subsection 379G(1) in Division 8A of Part 5
of the Act.
77. New subsection 379G(1A) of the Act provides that for the purposes of subsection 379G(1)
(which allows for an applicant for review of an MRT-reviewable decision to authorise an
authorised recipient to receive documents in connection with the review):
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paragraph 379G(1)(a) is taken to also apply to an application for review of an MRT-
reviewable decision where the application is not properly made under section 347;
and
in connection with such an application, paragraph 379G(1)(b) is taken to apply to a
notice of a kind referred to in that paragraph as if the notice authorised the authorised
recipient to receive documents in connection with the application (including a
document notifying that recipient that the application is not properly made under that
section).
78. The effect of new paragraph 379G(1A)(a) of the Act is that the MRT must give the authorised
recipient, instead of the applicant, any document that it would otherwise have given to the
applicant in connection with the application, even if the application for review is not properly
made under section 347 (which sets out the requirements for making an application for
review). This means, for example, that notification of a "no jurisdiction" decision made by
the MRT must be sent to the applicants authorised recipient if one has been authorised.
79. The effect of new paragraph 379G(1A)(b) of the Act is to ensure that the notice authorising
the authorised recipient is relevant to the situation where the application for review is not
properly made under section 347 of the Act.
80. The purpose of this amendment, together with the equivalent amendment in item 7 below
relating to the Refugee Review Tribunal (RRT), is to provide that the tribunals have a
statutory obligation to give documents (including notification of a "no jurisdiction" decision)
to an authorised recipient, instead of the review applicant, regardless of whether the review
application itself was properly made. This is consistent with the Tribunals current practice
of giving all documents to the authorised recipient where one is authorised, in accordance
with the express wishes of the purported review applicant. The Tribunals are not prevented
from also giving a copy of the document to the applicant.
81. This amendment addresses the finding of the Full Federal Court in SZJDS v Minister for
Immigration and Citizenship [2012] FCAFC 27 that the term "applies for review" in
subsection 379G(1) of the Act means that an application must have been properly made under
section 347 for the obligation of the Tribunal to give documents to an authorised recipient to
be engaged.
82. The amendment is required to ensure that a review applicants express wish to have
documents given to their authorised recipient can be complied with by the MRT, irrespective
of whether the review application was properly made. The amendment will also provide
certainty as to who is to be notified and when notification has occurred to allow, if relevant,
any bridging visa held by the applicant in connection with the review to cease. This will
reduce the risk of unlawful immigration detention and unlawful removal due to defective
notification in relation to an application for review.
Item 3 Subsection 379G(3)
83. This item omits the words "The applicant" and substitutes the words "Subject to subsection
(3A), the applicant (but not the authorised recipient)" in subsection 379G(3) of Division 8A
of Part 5 of the Act.
84. Subsection 379G(3) of the Act as amended provides that subject to subsection 379G(3A)
(which is inserted by item 4 of Schedule 4), the applicant (but not the authorised recipient)
may vary or withdraw the notice under paragraph 379G(1)(b) at any time, but must not
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(unless the regulations provide otherwise) vary the notice so that any more than one person
becomes the applicants authorised recipient.
85. This amendment makes it clear (consistently with the purpose of the amendment made by
item 1 of Schedule 4) that the authorised recipient is not permitted to unilaterally vary or
withdraw the notice authorising the authorised recipient. Instead, the applicant for review
must make arrangements with the MRT for this to occur. The only exception is that the
authorised recipient may vary the address of the authorised recipient, as provided for in new
subsection 379G(3A) (inserted by item 4 of Schedule 4).
Item 4 After subsection 379G(3)
86. This item inserts new subsection 379G(3A) after subsection 379G(3) in Division 8A of Part 5
of the Act.
87. New subsection 379G(3A) of the Act provides that in addition to the applicant being able to
vary the notice under paragraph 379G(1)(b) (relating to the authorisation of an authorised
recipient) by varying the address of the authorised recipient, that recipient may also vary that
notice by varying that address.
88. This amendment ensures that an authorised recipient who is authorised in a notice to receive
documents on behalf of the applicant in connection with the review is able to unilaterally vary
the address given for the authorised recipient in the notice. This is to avoid the MRT being
legally required to send correspondence to an outdated address merely because it was the
authorised recipient, rather than the applicant, who had notified of the change in address.
Item 5 Subsection 379G(4)
89. This item repeals subsection 379G(4) in Division 8A of Part 5 of the Act.
90. Subsection 379G(4) of the Act currently provides that the Tribunal may communicate with
the applicant by means other than giving a document to the applicant, provided the Tribunal
gives the authorised recipient notice of the communication.
91. The effect of this amendment is to remove the requirement to give the authorised recipient
notice of direct communications with the applicant. The amendment to paragraph 379G(1)(b)
of the Act (made by item 1 of Schedule 4) that clarifies that an authorised recipient is only
authorised to receive documents in connection with the review means there is no longer a
reason or need to inform the authorised recipient of communications made directly with the
applicant. However, this would not prevent the Tribunal, from informing the authorised
recipient of relevant and important direct communications made with the applicant in
circumstances where the authorised recipient has also been given separate authority to act for
the applicant (other than to receive documents).
Item 6 Paragraph 441G(1)(b)
92. This item omits the words "authorised by the applicant to do things on behalf of the applicant
that consist of, or include, receiving documents" and substitutes the words "authorised by the
applicant to receive documents" in paragraph 441G(1)(b) of Division 7A of Part 7 of the Act.
93. Subsection 441G(1) of the Act provides for an applicant for review of an RRT-reviewable
decision to give to the RRT written notice of the name and address of another person (the
authorised recipient) authorised by the applicant to do things on behalf of the applicant that
consist of, or include, receiving documents in connection with the review. If an authorised
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recipient is authorised in this way, the RRT must give the authorised recipient, instead of the
applicant, any document that it would otherwise have given to the applicant.
94. This amendment clarifies that the role of an authorised recipient is merely to receive
documents on behalf of the applicant in connection with the review, as the current provision
in subsection 441G(1) is broader than the intended policy position. The amendment also
addresses comments made by the Full Federal Court in MZZDJ v Minister for Immigration
and Border Protection [2013] FCAFC 156, at paragraph 35, in relation to the similarly
worded section 494D of the Act, that an authorised recipient is "constituted effectively as the
agent of the visa applicant" because the provision allows the authorised recipient to "do
things on behalf of" the applicant. This is broader than the policy intention for the role of an
authorised recipient, which is only to receive documents and not to do anything else on behalf
of the applicant or person.
95. The amendment preserves the intended operation of section 441G of the Act by clarifying
that under that provision, the authorised recipient is only authorised to receive documents in
connection with the review and not to do anything else on behalf of the applicant (other than
update an address as provided for in new subsection 441G(3A) inserted by item 9 of
Schedule 4). For example, the authorised recipient cannot unilaterally withdraw their
authorisation to receive documents on behalf of the applicant for review. It is the applicant
for review who must make arrangements for this to occur. This clarification is important to
avoid administrative uncertainty for the Tribunal in relation to its communications with
applicants for review.
96. These amendments do not prevent a person from acting as the agent of the applicant for
review due to some other authorisation. However, the amendments are intended to ensure
that such an authorisation cannot be found within subsection 441G(1) of the Act itself.
Item 7 After subsection 441G(1)
97. This item inserts new subsection 441G(1A) after subsection 441G(1) in Division 7A of Part 7
of the Act.
98. New subsection 441G(1A) of the Act provides that for the purposes of subsection 441G(1)
(which allows for an applicant for review of an RRT-reviewable decision to authorise an
authorised recipient to receive documents in connection with the review):
paragraph 441G(1)(a) is taken to also apply to an application for review of an RRT-
reviewable decision where the application is not a valid application under section 412;
and
in connection with such an application, paragraph 441G(1)(b) is taken to apply to a
notice of a kind referred to in that paragraph as if the notice authorised the authorised
recipient to receive documents in connection with the application (including a
document notifying that recipient that the application is not a valid application under
that section).
99. The effect of new paragraph 441G(1A)(a) of the Act is that the RRT must give the authorised
recipient, instead of the applicant, any document that it would otherwise have given to the
applicant in connection with the application, even if the application for review is not validly
made under section 412 of the Act (which sets out the requirements for making an application
for review of an RRT-reviewable decision). This means, for example, that notification of a
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"no jurisdiction" decision made by the RRT must be sent to the applicants authorised
recipient if one has been authorised.
100. The effect of new paragraph 441G(1A)(b) of the Act is to ensure that the notice authorising
the authorised recipient is relevant to the situation where the application for review is not
validly made under section 412 of the Act.
101. The purpose of this amendment, together with the equivalent amendment in item 2 above
relating to the MRT, is to provide that the tribunals have a statutory obligation to give
documents (including notification of a "no jurisdiction" decision) to an authorised recipient,
instead of the review applicant, regardless of whether the review application itself was validly
made. This is consistent with the Tribunals current practice of giving all documents to the
authorised recipient where one is authorised, in accordance with the express wishes of the
purported review applicant. The Tribunals are not prevented from also giving a copy of the
document to the applicant.
102. This amendment addresses the finding of the Full Federal Court in SZJDS v Minister for
Immigration and Citizenship [2012] FCAFC 27 that the term "applies for review" in
subsection 379G(1) of the Act means that an application must have been properly made under
section 347 of the Act for the obligation of the Tribunal to give documents to an authorised
recipient to be engaged.
103. The amendment is required to ensure that a review applicants express wish to have
documents given to their authorised recipient can be complied with by the RRT, irrespective
of whether the review application was validly made. The amendment will also provide
certainty as to who is to be notified and when notification has occurred to allow, if relevant,
any bridging visa held by the applicant in connection with the review to cease. This will
reduce the risk of unlawful immigration detention and unlawful removal due to defective
notification in relation to an application for review.
Item 8 Subsection 441G(3)
104. This item omits the words "The applicant" and substitutes the words "Subject to subsection
(3A), the applicant (but not the authorised recipient)" in subsection 441G(3) in Division 7A
of Part 7 of the Act.
105. Subsection 441G(3) of the Act as amended provides that subject to subsection 441G(3A)
(which is inserted by item 9 of Schedule 4), the applicant (but not the authorised recipient)
may vary or withdraw the notice under paragraph 441G(1)(b) at any time, but must not
(unless the regulations provide otherwise) vary the notice so that any more than one person
becomes the applicants authorised recipient.
106. This amendment makes it clear (consistently with the purpose of the amendment made by
item 6 of Schedule 4) that the authorised recipient is not permitted to unilaterally vary or
withdraw the notice authorising the authorised recipient. Instead, the applicant for review
must make arrangements with the RRT for this to occur. The only exception is that the
authorised recipient may vary the address of the authorised recipient, as provided for in new
subsection 441G(3A) (inserted by item 9 of Schedule 4).
Item 9 After subsection 441G(3)
107. This item inserts new subsection 441G(3A) after subsection 441G(3) in Division 7A of Part 7
of the Act.
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108. New subsection 441G(3A) of the Act provides that in addition to the applicant being able to
vary the notice under paragraph 441G(1)(b) (relating to the authorisation of an authorised
recipient) by varying the address of the authorised recipient, that recipient may also vary that
notice by varying that address.
109. This amendment ensures that an authorised recipient who is authorised in a notice to receive
documents on behalf of the applicant in connection with the review is able to unilaterally vary
the address given for the authorised recipient in the notice. This is to avoid the RRT being
legally required to send correspondence to an outdated address merely because it was the
authorised recipient, rather than the applicant, who had notified of the change in address.
Item 10 Subsection 441G(4)
110. This item repeals subsection 441G(4) in Division 7A of Part 7 of the Act.
111. Subsection 441G(4) of the Act currently provides that the Tribunal may communicate with
the applicant by means other than giving a document to the applicant, provided the Tribunal
gives the authorised recipient notice of the communication.
112. The effect of this amendment is to remove the requirement to give the authorised recipient
notice of direct communications with the applicant. The amendment to paragraph 441G(1)(b)
of the Act (made by item 6 of Schedule 4) that clarifies that an authorised recipient is only
authorised to receive documents in connection with the review means there is no longer a
reason or need to inform the authorised recipient of communications made directly with the
applicant. However, this would not prevent the Tribunal, from informing the authorised
recipient of relevant and important direct communications made with the applicant in
circumstances where the authorised recipient has also been given separate authority to act for
the applicant (other than to receive documents).
Item 11 Subsection 494D(1)
113. This item omits the words "authorised by the first person to do things on behalf of the first
person that consist of, or include, receiving documents in connection with matters arising
under this Act or the regulations" and substitutes the words "authorised by the first person to
receive documents in connection with specified matters arising under this Act or the
regulations" in subsection 494D(1) of Part 9 of the Act.
114. Subsection 494D(1) of the Act currently provides for a person (the first person) to give to the
Minister written notice of the name and address of another person (the authorised recipient)
authorised by the first person to do things on behalf of the first person that consist of, or
include, receiving documents in connection with matters arising under this Act or the
regulations. If an authorised recipient is authorised in this way, the Minister must give the
authorised recipient, instead of the first person, any documents that the Minister would
otherwise have given to the first person.
115. This amendment clarifies that the role of an authorised recipient is merely to receive
documents on behalf of the visa applicant in connection with specified matters arising under
this Act or the regulations, as the current provision under subsection 494D(1) is broader than
the intended policy position. The amendment also addresses comments made by the Full
Federal Court in MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC
156, at paragraph 35, in relation to section 494D of the Act, that an authorised recipient is
"constituted effectively as the agent of the visa applicant" because the provision allows the
authorised recipient to "do things on behalf of" the applicant. This is broader than the policy
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intention for the role of an authorised recipient, which is only to receive documents and not to
do anything else on behalf of the applicant or person.
116. The amendment preserves the intended operation of section 494D of the Act by clarifying
that under that provision, the authorised recipient is only authorised to receive documents in
connection with the visa application and not to do anything else on behalf of the visa
applicant (other than update an address as provided for in new subsection 494D(3A) inserted
by item 14 of Schedule 4). For example, the authorised recipient cannot unilaterally
withdraw their authorisation to receive documents on behalf of the visa applicant. It is the
visa applicant who must make arrangements for this to occur. This clarification is important
to avoid administrative uncertainty for the Minister in relation to his or her communications
with visa applicants.
117. This amendment also clarifies that the authorised recipient is only authorised to receive
documents in connection with specified matters arising under the Act or the Regulations, and
not in connection with any matter arising under the Act or regulations in relation to the first
person.
118. These amendments do not prevent a person from acting as the agent of the first person due to
some other authorisation. However, the amendments are intended to ensure that such an
authorisation cannot be found within subsection 494D(1) of the Act itself.
Item 12 Subsection 494D(1)
119. This item inserts the words "in connection with those matters" after the words "any
documents" in subsection 494D(1) of Part 9 of the Act.
120. This is a consequential amendment to item 11 above, and clarifies that the Ministers
obligation to give documents to an authorised recipient of a person only extends to
documents in connection with specified matters arising under the Act or the regulations, and
does not extend to other documents.
121. The effect of this amendment, together with the amendment made by item 11 above, is that
subsection 494D(1) of the Act now provides that if a person (the first person) gives the
Minister written notice of the name and address of another person (the authorised recipient)
authorised by the first person to receive documents in connection with specified matters
arising under this Act or the regulations the Minister must give the authorised recipient,
instead of the first person, any documents in connection with those matters that the Minister
would otherwise have given to the first person.
Item 13 Subsection 494D(3)
122. This item omits the words "The first person" and substitutes the words "Subject to subsection
(3A), the first person (but not the authorised recipient)" in subsection 494D(3) of Part 9 of the
Act.
123. Subsection 494D(3) of the Act currently provides that the first person may vary or withdraw
the notice under subsection 494D(1) at any time, but must not (unless the regulations provide
otherwise) vary the notice so that any more than one person becomes the first persons
authorised recipient.
124. This amendment makes it clear that the authorised recipient is not permitted to unilaterally
vary or withdraw the notice authorising the authorised recipient. Instead, the first person
must make arrangements with the Minister for this to occur. The only exception is that the
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authorised recipient may vary the address of the authorised recipient, as provided for in new
subsection 494D(3A) (inserted by item 14 of Schedule 4).
Item 14 After subsection 494D(3)
125. This item inserts new subsection 494D(3A) after subsection 494D(3) of Part 9 of the Act.
126. New subsection 494D(3A) of the Act provides that in addition to the first person being able
to vary the notice under subsection 494D(1) (relating to the authorisation of an authorised
recipient) by varying the address of the authorised recipient, that recipient may also vary that
notice by varying that address.
127. This amendment ensures that an authorised recipient who is authorised in a notice to receive
documents on behalf of the first person is able to unilaterally vary the address given for the
authorised recipient in the notice. This is to avoid the Minister being legally required to send
correspondence to an outdated address merely because it was the authorised recipient, rather
than the first person, who had notified of the change in address.
Item 15 Subsection 494D(4)
128. This item repeals subsection 494D(4) of Part 9 of the Act.
129. Subsection 494D(4) of the Act currently provides that the Minister may communicate with
the first person by means other than giving a document to the first person, provided the
Minister gives to the authorised recipient notice of the communication.
130. The effect of this amendment is to remove the requirement to give the authorised recipient
notice of direct communications with the first person. The amendments to subsection
494D(1) of the Act (made by items 11 and 12 of Schedule 4) that clarify that an authorised
recipient is only authorised to receive documents in connection with specified matters arising
under the Act or the regulations means there is no longer a reason or need to inform the
authorised recipient of communications made directly with the first person. However, this
would not prevent the Minister, from informing the authorised recipient of relevant and
important direct communications made with the first person in circumstances where the
authorised recipient has also been given separate authority to act for the first person (other
than to receive documents).
Item 16 Subsection 494D(5)
131. This item omits ", or the requirement in subsection (4) to give a notice," from subsection
494D(5) of Part 9 of the Act.
132. Subsection 494D(5) of the Act currently provides that the Minister need not comply with
subsection 494D(1), or the requirement in subsection 494D(4) to give a notice, if:
the authorised recipient is not a registered migration agent (within the meaning of Part
3); and
the Minister reasonably suspects that the authorised recipient is giving immigration
assistance (within the meaning of that Part); and
the Minister has given the first person a notice, by one of the methods specified in
section 494B, stating that he or she does not intend to give the authorised recipient
documents as mentioned in subsection 494D(1).
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133. This is a consequential amendment to item 15 above which repeals subsection 494D(4) of the
Act.
Item 17 Application provisions
134. Subitem 17(1) provides that the amendment made by item 1 of Schedule 4 applies in relation
to a notice given under paragraph 379G(1)(b) of the Migration Act 1958 on or after the
commencement of that item.
135. Subitem 17(2) provides that the amendment made by item 2 of Schedule 4 applies in relation
to:
an application purportedly made on or after commencement of that item; and
an application purportedly made before that commencement, where the Migration
Review Tribunal had not decided before that commencement that the application was
not properly made.
136. Subitem 17(3) provides that the amendments made by items 3 and 4 of Schedule 4 apply in
relation to a notice given under paragraph 379G(1)(b) of the Migration Act 1958 before, on or
after the commencement of those items.
137. Subitem 17(4) provides that the amendments made by items 5, 10, 15 and 16 of Schedule 4
apply in relation to communications that occur on or after the commencement of those items
(whether the authorisation of the authorised recipient occurred before, on or after that
commencement).
138. Subitem 17(5) provides that the amendments made by item 6 of Schedule 4 applies in relation
to a notice given under paragraph 441G(1)(b) of the Migration Act 1958 on or after the
commencement of that item.
139. Subitem 17(6) provides that the amendment made by item 7 of Schedule 4 applies in relation
to:
an application purportedly made on or after the commencement of that item; and
an application purportedly made before that commencement, where the Refugee
Review Tribunal had not decided before that commencement that the application was
not a valid application.
140. Subitem 17(7) provides that the amendments made by items 8 and 9 of Schedule 4 apply in
relation to a notice given under paragraph 441G(1)(b) of the Migration Act 1958 before, on or
after the commencement of those items.
141. Subitem 17(8) provides that the amendments made by items 11 and 12 of Schedule 4 apply in
relation to a notice given under subsection 494D(1) of the Migration Act 1958 on or after the
commencement of those items.
142. Subitem 17(9) provides that the amendments made by items 13 and 14 of Schedule 4 apply in
relation to a notice given under subsection 494D(1) of the Migration Act 1958 before, on or
after the commencement of those items.
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Schedule 5 - Crimes Act Warrants etc.
Australian Citizenship Act 2007
Item 1 After section 51
143. This item inserts new section 51A after section 51 of Part 3 of the Australian Citizenship Act
2007 (the Citizenship Act).
144. New section 51A of the Citizenship Act deals with things seized under Crimes Act search
warrants and information about such things.
145. New subsection 51A(1) of the Citizenship Act provides that new section 51A applies to the
following:
a thing seized (warrant material) under a search warrant issued under Division 2 of
Part 1AA of the Crimes Act 1914; and
information (warrant information) that is about, or obtained from, warrant material.
146. New subsection 51A(2) of the Citizenship Act provides that a constable or Commonwealth
officer who, under subsection 3ZQU(1) of the Crimes Act 1914, may use or make available
warrant material, is authorised to make available warrant material or warrant information:
to a person covered by new subsection 51A(4); and
for a purpose mentioned in new subsection 51A(3).
147. New subsection 51A(3) of the Citizenship Act provides that a person covered by new
subsection 51A(4) is authorised to receive and use warrant material and warrant information,
or make it available to another person covered by new subsection 51A(4) for the following
purposes:
making a decision, or assisting in making a decision, to approve or refuse to approve a
person becoming an Australian citizen;
making a decision, or assisting in making a decision, to revoke a persons Australian
citizenship;
making a decision, or assisting in making a decision, to cancel an approval given to a
person under section 24 of the Citizenship Act.
148. The note at the end of new subsection 51A(3) of the Citizenship Act clarifies that subsection
3ZQU(4) of the Crimes Act 1914 contemplates that another law of the Commonwealth may
require or authorise the use or making available of a document or other thing to persons, or
for purposes, in addition to those listed in subsection 3ZQU(1) of that Act.
149. New subsection 51A(4) of the Citizenship Act provides that the following persons are
covered by this subsection:
the Minister;
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the Secretary;
an APS employee in the Department whose duties include making decisions, or assisting
in making decisions, in relation to Australian citizenship.
150. The purpose of the amendments made by this item is to overcome the limitation on using
information obtained under a search warrant issued under Division 2 of Part 1AA of the
Crimes Act 1914 for the purposes of making an administrative decision under the Citizenship
Act as provided for in new subsection 51A(3). The amendments do not require or compel a
constable or Commonwealth officer to provide this information or material.
Migration Act 1958
Item 2 After section 488A
151. This item inserts new section 488AA after section 488A of Part 9 of the Act.
152. New section 488AA of the Act deals with things seized under Crimes Act search warrants
and information about such things.
153. New subsection 488AA(1) of the Act provides that new section 488AA applies to the
following:
a thing seized (warrant material) under a search warrant issued under Division 2 of Part
1AA of the Crimes Act 1914; and
information (warrant information) that is about, or obtained from, warrant material.
154. New subsection 488AA(2) of the Act provides that a constable or Commonwealth officer
who, under subsection 3ZQU(1) of the Crimes Act 1914, may use or make available warrant
material, is authorised to make available warrant material or warrant information:
to a person covered by new subsection 488AA(4); and
for a purpose mentioned in new subsection 488AA(3).
155. New subsection 488AA(3) of the Act provides that a person covered by new subsection
488AA(4) is authorised to receive and use warrant material and warrant information, or make
it available to another person covered by new subsection 488AA(4) for the following
purposes:
making a decision, or assisting in making a decision, to grant or refuse to grant a visa;
making a decision, or assisting in making a decision, to cancel a visa;
making a decision, or assisting in making a decision, to revoke a cancellation of a visa;
making a decision in relation to the detention, removal, or deportation of a non-citizen
from Australia.
156. The note at the end of new section 488AA of the Act clarifies that subsection 3ZQU(4) of the
Crimes Act 1914 contemplates that another law of the Commonwealth may require or
authorise the use or making available of a document or other thing to persons, or for
purposes, in addition to those listed in subsection 3ZQU(1) of that Act.
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157. New subsection 488AA(4) of the Act provides that the following persons are covered by this
subsection:
the Minister
an officer, including the Secretary.
158. The purpose of the amendments made by this item is to overcome the limitation on using
information obtained under a search warrant issued under Division 2 of Part 1AA of the
Crimes Act 1914 for the purposes of making an administrative decision under the Act as
provided for in new subsection 488AA(3). The amendments do not require or compel a
constable or Commonwealth officer to provide this information or material.
Item 3 Application
159. This item provides that the amendments made by Schedule 5 apply in relation to search
warrants issued under Division 2 of Part 1AA of the Crimes Act 1914 on or after the
commencement of Schedule 5.
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Schedule 6 - Miscellaneous
Part 1 - Procedural Fairness Requirements
Migration Act 1958
Item 1 Subsection 57(2)
160. This item omits "Subject to subsection (3), the" and substitutes the word "The" in subsection
57(2) of Division 3 of Part 2 of the Act.
161. The amendment made by this item is consequential to the amendment made by item 2 below,
which repeals subsection 57(3) of the Act.
Item 2 Subsection 57(3)
162. This item repeals subsection 57(3) of Division 3 of Part 2 of the Act.
163. Section 57 of the Act is part of the Code of Procedure in Subdivision AB of Division 3 of
Part 2 of the Act for dealing fairly, efficiently and quickly with visa applications.
164. Subsection 57(1) of the Act provides that in this section, relevant information means
information (other than non-disclosable information) that the Minister considers:
would be the reason, or part of the reason, for refusing to grant a visa; and
is specifically about the applicant or another person and is not just about a class of
persons of which the applicant or another person is a member; and
was not given by the applicant for the purpose of the application.
165. Subsection 57(2) of the Act provides that subject to subsection (3), the Minister must:
give particulars of the relevant information to the applicant in the way that the
Minister considers appropriate in the circumstances; and
ensure, as far as is reasonably practicable, that the applicant understands why it is
relevant to consideration of the application; and
invite the applicant to comment on it.
166. Subsection 57(3) of the Act currently provides that this section does not apply in relation to
an application for a visa unless:
the visa can be granted when the applicant is in the migration zone; and
this Act provides, under Part 5 or 7, for an application for review of a decision to refuse
to grant the visa. (Parts 5 and 7 relate to merits review by the Migration Review Tribunal
and the Refugee Review Tribunal, respectively).
167. The purpose of repealing this subsection is to remove the distinction between applications for
visas that can be granted when the applicant is in the migration zone and which are subject to
merits review, and applications for other types of visas.
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168. In Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (Saeed), the High Court
found that although subsection 57(3) of the Act does not require an opportunity to comment
to be given under section 57 to applicants for visas that cannot be granted when the applicant
is in the migration zone and in relation to which there is no right of merits review by the
MRT or the RRT, nevertheless there is a requirement under common law to provide the visa
applicant with an opportunity to comment before a decision can be made on the visa
application.
169. The decision in Saeed means that procedural fairness must be given to all visa applicants,
irrespective of whether the visa applied for can be granted when the applicant is in the
migration zone and irrespective of whether the decision to refuse to grant the visa is
reviewable by the MRT or the RRT. The only difference is the ,,type of procedural fairness
that must be given.
170. Given all visa applications now require procedural fairness to be applied, this amendment
intends to remove the distinction between applications for visas that can be granted when the
applicant is in the migration zone and which are subject to merits review under Part 5 or Part
7 of the Act, and applications for other types of visas. This means all visa applications will
be subject to the procedural fairness requirements provided for in section 57 and ensures
consistency.
Item 3 Application provision
171. This item provides that the amendments made by Part 1 of Schedule 6 apply in relation to
applications for visas that are made on or after the commencement of Part 1 of Schedule 6.
Part 2 - Removing Redundant References
Migration Act 1958
Item 4 Subsections 379C(6), 379D(5), 441C(6), 441D(5) and 494C(6)
172. This item repeals subsections 379C(6) and 379D(5) of Division 8A of Part 5 of the Act,
subsections 441C(6) and 441D(5) of Division 7A of Part 7 of the Act, and subsection
494C(6) of Part 9 of the Act.
173. These subsections all contain references to section 14 of the Electronic Transactions Act
1999 (the ET Act). These subsections state, respectively, that subsections 379C(5), 379D(4),
441C(5) 441D(4) and 494C(5) apply despite section 14 of the ET Act.
174. Relevantly, subsections 379C(5), 441C(5) and 494C(5) of the Act provide that if the
Migration Review Tribunal (the MRT), the Refugee Review Tribunal (the RRT) or the
Minister respectively:
gives a document to a person by transmission by fax, e-mail or other electronic
means, the person is taken to have received the document at the end of the day on
which the document is transmitted.
175. Relevantly, subsections 379D(4) and 441D(4) of the Act provide that if the MRT or the RRT
respectively:
gives a document to the Secretary by transmitting the document by fax, or e mail, or
other electronic means, the Secretary is taken to have received the document at the
end of the day on which the document is transmitted.
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176. The purpose of repealing the references to section 14 of the ET Act is because these
references are unnecessary and inconsistent with the current ET Act.
177. The ET Act was amended in 2011 by the Electronic Transaction Amendment Act 2011 (ET
amendment Act) which resulted in restructuring and renumbering of provisions in the ET
Act. At the time of these amendments, consequential amendments were not made to the
Migration Act.
178. Prior to this amendment in 2011, subsections 14(3) and 14(4) of the ET Act provided that a
person was taken to have received an electronic communication when the electronic
communication enters that information system or when it comes to the attention of the
addressee. The references in subsections 379C(6), 441C(6) and 494C(6) of the Migration Act
created an exception to section 14 of the ET Act so that where the Minister, MRT or RRT
gave a document to a person by fax, e-mail or other electronic means, subsections 379C(5),
441C(5) and 494C(5) applied meaning the person was taken to have received the document at
the end of the day on which the document was transmitted rather than when it entered the
information system or came to the attention of the addressee.
179. The ET amendment Act repealed section 14 of the ET Act and inserted a new section 14.
New section 14 relates to the time of dispatch of electronic communications, not time of
receipt, and is therefore no longer relevant to subsections 379C(5), 441C(5) and 494C(5) of
the Migration Act. This Act also inserted new section 14A (to cover the time of receipt of
electronic communication) and new section 14B (to cover the place of dispatch and the place
of receipt of electronic communication).
180. Further, in 2013, amendments were made to Schedule 1 of the Electronic Transactions
Regulations 2000 ( ET Regulations) to specify that sections 14, 14A, and 14B of the ET Act
do not apply to subsections 379A(5), 441A(5) and 494B(5) of the Migration Act and
paragraphs 2.55(3)(d), 2.55(3A)(d) and 2.55(3A)(f) of the Migration Regulations (see table
items 80AA and 80AB of Schedule 1 to the ET Regulations).
181. The result of the amendments to the ET Regulations is that subsections 379C(5), 441C(5) and
494C(5) of the Migration Act operate as they did prior to 22 June 2011. This means if the
Minister, MRT or RRT gives a document to a person by transmission by fax, e-mail or other
electronic means, the person is taken to have received the document at the end of the day on
which the document is transmitted. This achieves the intended policy outcome.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Legislation Amendment Bill (No. 1) 2014
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 Legislation Amendment Bill (No. 1) 2014 (the Bill) amends the Migration Act 1958
(the Act) to:
clarify that the application limitation under section 48 applies to persons who, after
last entering Australia, held a visa that was refused or cancelled;
clarify that the limitations under sections 48, 48A and 501E will apply to a non-citizen
who has previously been refused a visa for which an application was made on the
non-citizens behalf, even if the non-citizen did not know of or did not understand the
nature of the application due to a mental impairment or because they were a minor;
clarify that limitations on applying for a further visa under sections 48, 48A and 501E
also include applications made on behalf of the non-citizen;
ensure that a bridging visa application is not an impediment to removal under
subsection 198(5);
strengthen debt recovery provisions to ensure that existing debt recovery provisions
can be applied to all convicted people smugglers and illegal foreign fishers regardless
of whether they are detained because of subsection 250(2) of the Act;
clarify the role of an authorised recipient and the extent of the obligation to inform the
authorised recipient of direct communication with the non-citizen who authorised the
authorised recipient;
clarify the Migration Review Tribunal and Refugee Review Tribunals obligation to
give documents to authorised recipients, including in circumstances where the review
application is found not to be properly made, and the Ministers obligation to give
documents to authorised recipients;
provide access to, and use of, material and information obtained under a search
warrant issued under the Crimes Act 1914 for the purposes of the Migration Act;
clarify the procedural fairness provisions relating to giving of certain information to a
visa applicant; and
amend subsection 494C(6), and other analogous provisions for tribunals, to realign
with provisions of the Electronic Transactions Act 1999.
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The Bill also amends the Australian Citizenship Act 2007 (the Citizenship Act) to:
provide access to, and use of, material information obtained under a search warrant
issued under the Crimes Act 1914 for the purposes of the Citizenship Act.
For the purposes of this statement of compatibility, each Schedule of this Bill is assessed
individually and set out below.
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Schedule 1 - Applications for visas, Schedule 4 - Authorised Recipients,
Schedule 6 - Miscellaneous
The amendments that are proposed include the following:
1. Removing the distinction between "onshore" and "offshore" visa applications in section 57
of the Act relating to the application of procedural fairness.
2. Clarifying the Migration Review Tribunal (MRT) and the Refugee Review Tribunal
(RRT)s obligation to give documents to a person who has been authorised by a review
applicant to receive documents ("the authorised recipient") in connection with the review.
3. Clarifying the role of an authorised recipient (irrespective of whether the authorised
recipient is authorised to receive documents in connection with a review application or a
matter before the Department of Immigration and Border Protection (the Department)), and
the extent of the obligation to give documents to an authorised recipient.
4. Removing the obligation to notify the authorised recipient when direct oral communication
is made with the person who authorised the authorised recipient.
5. Aligning the Act with the Electronic Transactions Act 1999.
6. Clarifying the operation of application bars in sections 48, 48A and 501E of the Act.
Procedural fairness under section 57
Subdivision AB of Division 3 of Part 2 of the Act (consisting of sections 51A to 64) provides for a
Code of Procedure for the fair, efficient and quick processing of visa applications. The Code of
Procedure replaces common law procedural fairness and provides the only procedural fairness
requirements that decision makers are required to observe in the course of making decisions on visa
applications.
Section 57, which replaces the common law procedural fairness ,,hearing rule, requires that certain
information must be given to the visa applicant for comment before a decision may be made on the
application. Specifically, information (other than non-disclosable information) must be given to the
visa applicant, if the information:
would be the reason, or a part of the reason, for refusing to grant the visa; and
is specifically about the applicant or another person and is not just about a class of
persons of which the applicant or other person is a member; and
was not given by the applicant for the purpose of the application.
Section 57 of the Act differs from and is narrower in scope than the common law procedural
fairness "hearing rule". Unlike common law, which requires any adverse information that is
"relevant, credible and significant" to be put to the visa applicant, under section 57 the information
only needs to be put to the visa applicant for comment if all of the conditions outlined in the three
dot points above are met.
Under subsection 57(3), however, the obligation to invite comment on certain adverse information
does not apply unless the visa application is an ,,onshore application, i.e. it is for a visa that can be
granted when the applicant is in the migration zone, and a decision to refuse to grant the visa is
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merits reviewable by the Migration Review Tribunal (MRT) or the Refugee Review Tribunal
(RRT).
The Department has previously taken the exception in subsection 57(3) of the Act to mean that
there is no obligation to invite comment on adverse information if it relates to an "offshore" visa
application. This view was upheld in a number of Federal Court decisions.
However, in Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (Saeed), the High
Court found that in circumstances where subsection 57(3) of the Act applies so as to exclude the
statutory obligation to invite comment on adverse information, there is nonetheless an obligation
under common law procedural fairness to invite comment on the adverse information.
The consequences of the Saeed decision are, firstly, to impose an obligation to provide procedural
fairness in relation to "offshore" visa applications where none was thought to apply due to
subsection 57(3) of the Act; and secondly, to create a dichotomy in the application of procedural
fairness for visa applications. That is, for "onshore" visa applications, section 57 applies to require
invitation to comment on information which satisfies the conditions outlined above. For "offshore"
visa applications, common law procedural fairness must be applied instead to require invitation to
comment on any adverse information that is "relevant, credible and significant".
The dual application of procedural fairness under section 57 of the Act or the common law,
depending on the nature of the visa application, has led to some confusion. Apart from increased
risk of applying the incorrect type of procedural fairness, many decision makers also have difficulty
determining whether the adverse information is "relevant, credible and significant" (the common
law test) and must therefore be put to the visa applicant for comment. This has increased the risk of
jurisdictional error in visa decisions due to failure to apply procedural fairness correctly.
To minimise confusion and the associated risk of applying procedural fairness incorrectly, it is
proposed that the Act be amended so that the statutory obligation to invite comment on certain
information under section 57 of the Act applies to all visa applications, regardless of the type of visa
applied for and regardless of whether a decision to refuse to grant the visa is merits reviewable.
This will provide greater certainty and consistency for decision makers and reduce the risk of
jurisdictional error in visa decisions.
Tribunal's obligation to give documents to authorised recipients
Subsection 379G(1) of the Act provides that if a person (the applicant):
(a) applies for review of an MRT-reviewable decision, and
(b) the applicant gives the MRT written notice of the name and address of another person
(the authorised recipient) authorised by the applicant to do things on behalf of the
applicant that consist of, or include, receiving documents in connection with the review,
the MRT must give the authorised recipient, instead of the applicant, any document which it would
have otherwise given to the applicant.
On 13 March 2012, the Full Federal Court found in the matter of SZJDS v Minister for Immigration
and Citizenship [2012] FCAFC 27 (SZJDS) that the term "applies for review" in subsection
379G(1) of the Act has the meaning that the review application must have been properly made (i.e.
valid), before the MRTs obligation to give documents to the authorised recipient is engaged.
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The decision in SZJDS has implications for the RRT as well because subsection 441G(1) of the Act,
which relates to the RRTs obligation to give documents to an authorised recipient, is drafted in
almost identical language to subsection 379G(1) of the Act.
The interpretation taken by the Full Federal Court in SZJDS has significant potential consequences
for the Department, in particular the operation of the bridging visa programme and the immigration
status of non-citizens.
In circumstances where a non-citizen holds a bridging visa which was granted in association with a
substantive visa application (which was refused), and the non-citizen makes an application for
merits review of that refusal decision, that bridging visa will cease 28 days after the non-citizen is
taken to have been notified of the relevant tribunals review decision.
If the relevant tribunal finds that it has no jurisdiction to review a decision because the review
application was not properly made, for example because it was made out of time, and if the tribunal
sends notification of its "no jurisdiction" decision to the applicants authorised recipient despite not
being required to do so (following the SZJDS decision), that notification is defective and the
applicant cannot be taken to be notified of the tribunals "no jurisdiction" decision. Consequently,
there may be no effective trigger for ceasing the associated bridging visa held by the review
applicant. This significantly increases the Departments risk of unlawful detention and unlawful
removal of the review applicant.
To avoid these consequences, the Department proposes to amend sections 379G and 441G of the
Act to put it beyond doubt that the MRT or the RRT has an obligation to give documents to a
validly appointed authorised recipient, regardless of whether the review application itself was
validly made.
The role of an authorised recipient and the extent of obligation to give documents
Role of an authorised recipient
As discussed earlier, subsections 379G(1) and 441G(1) of the Act respectively require the MRT and
the RRT to give documents to another person who has been authorised by the review applicant to
do things on their behalf that ,,consist of, or include, receiving documents in connection with the
review. Subsection 494D(1) contains an analogous provision that requires me or my delegate to
give documents to another person who has been appointed by a client to be their authorised
recipient.
The wording of these provisions is broader than the policy intention for an authorised recipient.
Notwithstanding that the provisions permit a review applicant or a departmental client to appoint
another person to do things on their behalf that consist of or ,,include receiving documents, as a
matter of policy and practice, an authorised recipient is regarded as being authorised to receive
documents only. Additional evidence of authority is generally required if an authorised recipient
purports to do other things on behalf of the review applicant or departmental client.
The only exception is if the authorised recipient is also the review applicant or the departmental
clients migration agent (or is someone who has otherwise been given the authority specifically, e.g.
via power of attorney), in which case they are also authorised to act on behalf of the review
applicant or the departmental client in other respects, including to vary or withdraw their
appointment as the authorised recipient. This is on the basis that such authority stems from the
authorised recipients common law agency relationship with the review applicant or the
departmental client (in their capacity as the review applicant or the departmental clients migration
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agent or the grantee of power of attorney), rather than as a consequence of their appointment as the
authorised recipient per se.
However, in MZZDJ v Minister for Immigration and Border Protection [2013] FCAFC 156
(MZZDJ) which examined the operation of subsection 494D(1) of the Act, the Full Federal Court
made comments in its judgment that suggested an authorised recipient appointed under subsection
494D(1) is constituted effectively as the agent of the client and is therefore able to do things on
behalf of the client including varying or withdrawing their notice of appointment. The Full Federal
Court did not make any distinction between an authorised recipient who has only been authorised to
receive documents (a "mere" authorised recipient), and an authorised recipient who, because of
their broader agency relationship with the client (on account of being the clients migration agent or
grantee of power of attorney, as was the case in MZZDJ), is authorised to also do other things on
behalf of the client including to vary or withdraw their appointment.
The Department is concerned that the Full Federal Courts comments in relation to subsection
494D(1) of the Act may be too broad in their application. In particular, the Department is
concerned this means that a mere authorised recipient could simply make an assertion that they
have the clients consent to withdraw themselves as the authorised recipient, and the Department
would have to accept such an assertion despite the absence of supporting evidence. This could
create administrative uncertainty for the Department, as well as negative client service implications
in circumstances where an unwilling authorised recipient seeks to unilaterally abandon their role by
asserting they have the clients consent to withdraw from their role when in fact they do not.
To ensure the legislation accurately reflects policy and practice, and to avoid potential
administrative uncertainty as a result of the MZZDJ decision, it is proposed that the Act be amended
to put it beyond doubt that an authorised recipients role is a passive one and extends only to
receiving documents and, where necessary, to update their own address or addresses where
documents for the client may be sent. The proposed amendments would not affect the ability of
migration agents to do things other than receiving documents on behalf of their clients, because
their broader authority is derived separately from their agency relationship with the client.
Extent of obligation to give documents to an authorised recipient
Further, subsection 494D(1) of the Act provides that where an authorised recipient has been
authorised to receive documents ,,in connection with matters arising under the Act or the
Regulations, the Minister must give to the authorised recipient ,,any document that the Minister
would otherwise have given to the client.
The Department has consistently interpreted subsection 494D(1) of the Act to mean that the
obligation to give documents to the authorised recipient extends only to documents relating to the
particular matter for which the authorised recipient has been nominated to receive documents.
However, there is a possibility that subsection 494D(1) could be taken to literally mean that even
though an authorised recipient has only been nominated to receive documents in connection with a
particular matter, the Minister is required to give other unconnected documents to the authorised
recipient as well because of the reference to ,,any document.
It is proposed that the Act be amended to clarify that only documents connected with the particular
matter for which the authorised recipient has been nominated are to be given to the authorised
recipient.
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Removing obligation to notify an authorised recipient of direct communication with a client
Subsections 379G(4), 441G(4) and 494D(4) of the Act respectively provide that the MRT, the RRT
or the Minister may communicate with a review applicant/departmental client by means other than
giving a document to the applicant, provided the MRT/RRT/Minister gives the authorised recipient
notice of the communication.
In practice, this means that where the MRT, the RRT or the Minister has made direct oral
communication with the review applicant or the departmental client, the MRT, the RRT or the
Minister is obliged to notify the authorised recipient of such communication, even if the
communication is of no particular consequence or relevance to the authorised recipient (for
example, a telephone conversation with the review applicant or the departmental client
acknowledging receipt of supporting documentation).
Subsections 379G(4), 441G(4) and 494D(4) of the Act would become redundant if the amendment
to clarify and confine the role of an authorised recipient to only receiving documents is made. That
is, if an authorised recipient is to be nothing more than the review applicant or the departmental
clients "post box", then there is no reason for requiring the MRT, the RRT or the Minister to
inform the authorised recipient when it has made direct oral communication with the review
applicant or the departmental client. Removing the requirement to inform the authorised recipient
of direct communications made with the review applicant or departmental client would not,
however, prevent the MRT, the RRT or the Minister from informing the authorised recipient of
relevant and important direct communications that have been made with the review applicant or the
departmental client, in circumstances where the authorised recipient has also been given separate
authority to act for the review applicant or departmental client (other than to receive documents).
Therefore, it is proposed that subsections 379G(4), 441G(4) and 494D(4) be repealed.
Alignment with the Electronic Transactions Act 1999
Section 494C of the Act provides for when a document given in accordance with section 494B (see
above) is taken to be received. The deemed receipt provisions in section 494C, which are fixed and
non-rebuttable, assist in providing administrative certainty to various functions under the Act which
rely on or are triggered by the giving of documents, such as the cessation of associated bridging
visas.
However, where a document is transmitted electronically (such as by email) to a person or their
authorised recipient, that document will be subject to the Electronic Transactions Act 1999 (the ET
Act), which has its own provision governing deemed receipt of electronic communications.
Unlike the deemed receipt provision in section 494C of the Act which is "fixed" and non-rebuttable,
the time of deemed receipt under the ET Act is variable and uncertain, depending on when the
electronic communication by which a document has been transmitted becomes capable of being
retrieved by the addressee at the electronic address designated by the addressee.
To ensure certainty regarding when an electronically transmitted document or notification is taken
to be received, subsection 494C(6) expressly excludes the operation of the ET Act by providing that
subsection 494C(5) (which prescribes that a document transmitted electronically pursuant to
subsection 494B(5) is taken to be received at the end of the day on which the document is
transmitted) applies despite section 14 of the ET Act.
The ET Act was amended in 2011, when several of its provisions were restructured and
renumbered. In particular, the deemed receipt provision in the ET Act was separated out from
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section 14 (which dealt with time and place of dispatch and receipt of electronic communications),
and made into a provision of its own and renumbered as section 14A.
Due to an oversight, no consequential amendment was made at the time to the Act. This has
resulted in an unintended disconnect between subsection 494C(6) of the Act which still references
section 14 of the ET Act, and the amended ET Act in which the deemed receipt provision is now
found at section 14A. Consequently, the certainty previously provided for in the Act relating to
deemed receipt of electronically transmitted documents was inadvertently removed.
To restore the longstanding and necessary certainty surrounding the deemed receipt of
electronically transmitted documents, the Electronic Transactions Regulations 2000 (the ET
Regulations) were amended to exempt electronically transmitted migration documents from the
relevant provisions of the ET Act including section 14A.
However, to ensure clarity and remove any doubt, it is proposed that the Act be amended to clarify
that a document transmitted electronically will be deemed to have been received as provided for in
the Act. This amendment is supported by the Attorney Generals Department which administers the
ET Act and the ET Regulations.
Application bars under sections 48, 48A and 501E
Section 48 of the Act limits further visa applications in the migration zone by non-citizens who are
not substantive visa holders and who have had a visa refused since last entering Australia, or who
have had a visa cancelled.
The current wording of section 48 is not consistent with the policy intention and the Departments
long-held understanding of the provision. That is, the "since last entering Australia" qualifier is
intended to apply to visa cancellations as well, not just visa refusals.
To ensure that section 48 of the Act is consistent with the Departments preferred interpretation and
desired policy objective, it is proposed that section 48 be amended to clarify that the limitation on
further onshore visa applications only applies in relation to a non-citizen whose visa has been
refused or cancelled since last entering Australia.
In addition, it is proposed that section 48 of the Act be amended to clarify that, in circumstances
where a non-citizen has had a visa refused since last entering Australia, and that application was
made on the non-citizens behalf by someone who had the authority to do so (for example because
of the non-citizens mental impairment or because the non-citizen was a minor at the time the visa
application was made) the limitation on making further onshore visa applications will also apply to
the non-citizen, whether or not the non-citizen knew about, or understood the nature of. the
application.
In a recent matter before the Full Federal Court challenging the application of section 48 to a minor,
it was argued that section 48 would not operate to limit further applications by the minor (who is
now an adult) if the minor did not know about, or understand the nature of, the visa application that
was made on their behalf by the parent and subsequently refused.
This possible interpretation is contrary to the policy intention and would have significant
implications including the creation of unreasonable administrative burden on the Department.
Operation contrary to the policy intention
If section 48 of the Act does not operate to prevent further visa applications by a non-citizen who is
a minor unless the non-citizen knew about, or understood the nature of, the visa application that was
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made on their behalf and refused, it would theoretically be possible for a parent of the non-citizen to
keep making repeat applications on behalf of the non-citizen despite the non-citizen not being able
to satisfy the criteria for the visa applied for. The same could arguably also apply to enable the
guardian of a non-citizen who lacks capacity because of a mental impairment, to make repeat
applications on behalf of the non-citizen despite the non-citizen not being able to satisfy the
relevant visa criteria.
This could create a potential loophole that undermines the integrity of Australias visa program by
undermining the objective of section 48 of the Act, which is to prevent non-citizens who do not
otherwise have a right to remain in Australia from delaying their departure from Australia by
making repeat unmeritorious applications. This potential loophole could also create inconsistent
immigration outcomes for different members of the same family unit (for example, the parents
could be section 48 barred from making further applications after having been refused a visa since
last entering Australia, but their minor children who were also refused would not be prevented from
making repeat visa applications).
Unreasonable administrative burden
An operation of section 48 of the Act that is predicated on whether a non-citizen knew about, or
understood the nature of, the previous visa application that was refused would also create an
unreasonable administrative burden on the Department. Rather than being able to determine
whether section 48 applies to a non-citizen by reference to an objective assessment of whether or
not the non-citizen has been refused a visa since last entering Australia as a matter of fact, the
Department would be required to query whether the non-citizen knew about and understood the
nature of the previous (refused) application.
To address these concerns, it is proposed that section 48 of the Act be amended to put its intended
operation, in so far as it relates to a non-citizen who has been refused a visa since last entering
Australia, beyond doubt. That is, the limitation on further applications whilst in the migration zone
will also apply if, since last entering Australia, the non-citizen was refused a visa for which an
application was made on their behalf, whether or not the non-citizen knew about, or understood the
nature of, the application because of lack of capacity caused by either the non-citizens minority or
mental impairment.
The amendment will ensure that non-citizens who are mentally impaired or are minors cannot make
repeat visa applications in their own right or have further visa applications made on their behalf by
their guardian or parents. The amendment ensures that non-citizens who applied for visas together
as a family unit will get consistent immigration outcomes, rather than having different outcomes
due to section 48 of the Act applying differently to different members of the family unit.
For consistency, it is also proposed sections 48A and 501E of the Act (which respectively prohibit
the making of repeat protection visa applications by non-citizens who were previously been refused
a protection visa, and limit the making of further visa applications where the non-citizen was
previously refused a visa on character grounds) be amended so that they would also operate to
prevent the making of repeat visa applications by non-citizens who are either mentally impaired or
are minors.
Human rights implications
These amendments have been assessed against the seven core human rights treaties.
The following human right is engaged by amendments 2 and 5:
Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR).
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The following human right is engaged by amendments 1, 2, and 5:
Article 13 of the ICCPR.
The following human rights are engaged by amendment 6:
Articles 3(1) and 9(1) of the Convention on the Rights of the Child (CRC).
Article 23(1) of the ICCPR
Article 5(1) of the Convention on the Rights of Persons with Disabilities (CRPD).
Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT)
Articles 6 and 7 of the ICCPR.
Amendments 3 and 4 are assessed as not engaging any rights stated in the seven core human rights
treaties.
Unlike amendments 1, 2, 5 and 6 which have either a direct or indirect impact on a persons status,
rights, freedom or liberties, amendment 3 simply provides legislative clarification for existing
policy and practice in relation to the role of an authorised recipient and does not in any way affect a
review applicant or departmental clients ability to authorise another person to be their authorised
recipient, or if the review applicant or departmental client so wishes, give that other person broader
authority beyond receiving documents.
Similarly, amendment 4 (which is consequential to amendment 3) removes the obligation to inform
the authorised recipient of every oral communication made directly with a review applicant or
departmental client, without removing the ability to inform the authorised recipient of relevant and
important direct communication in appropriate circumstances, particularly where the authorised
recipient has been given additional authority to act for the review applicant or the departmental
client.
Article 9(1) of the ICCPR
Article 9(1) provides:
,,Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.
Amendment 2 seeks to provide clarity and certainty relating to the MRT and the RRTs obligation
to give documents to the review applicants authorised recipient, irrespective of whether a valid
review application has been made. Amendment 5 seeks to realign the Act with the ET Act to
remove any residual uncertainty or doubt about the timing of deemed receipt of a document that has
been transmitted electronically.
Cessation of a bridging visa held by a non-citizen (such as a visa applicant) is triggered by the
effective notification of the visa decision. Amendments 2 and 5 are intended to facilitate certainty in
the deemed receipt of notifications given to the non-citizen and the point at which the bridging visa
held by the non-citizen ceases.
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In turn, this avoids the risk of possible unlawful detention of the non-citizen that might otherwise
occur in the absence of certainty about if and when the bridging visa has been triggered to cease by
the notification given to the non-citizen. Further, it ensures the Government is acting consistently
with its obligation to exercise power of detention in accordance with established procedures under
law and the prohibition on arbitrary detention articulated in Article 9 of the ICCPR above.
Article 13 of the ICCPR
Article 13 provides:
"An alien 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."
Under section 198 of the Act, a lawful non-citizen (i.e. one who holds a visa that is in effect) cannot
lawfully be removed from Australia; only an unlawful non-citizen is subject to mandatory removal
from Australia.
Amendment 1 purports to remove the current requirement to provide procedural fairness under both
the statutory Code of Procedure and the common law in the processing of visa applications,
depending on the type of visa applied for, and replace it with a single requirement to apply the
statutory Code of Procedure. This will ensure uniformity in the procedural fairness requirements
for all visa applications and reduce the likelihood of a possible jurisdictional error in the visa
decision due to the incorrect type of procedural fairness being applied. To that extent, therefore,
amendment 1 will ensure that any visa decision made that leads to the non-citizen becoming an
unlawful non-citizen who is liable for removal from Australia, is made according to law.
Amendments 2 and 5 relate to and are intended to clarify the operation of relevant provisions
concerning the giving of documents (i.e. notifications) to a non-citizen or their authorised recipient.
Clarity in the operation of the provisions that these amendments seek to amend will facilitate
certainty in the legal effectiveness of any document or notification given. In turn, this enables the
deemed receipt of the document or the notification (which triggers the cessation of any bridging
visa held by the non-citizen, and the "count-down" of the statutory timeframe for seeking merits
review of the decision to which the notification relates) be determined with accuracy and certainty.
In other words, the amendments will help a non-citizen who has been effectively notified of a visa
decision to clearly understand when their bridging visa will cease (making them an unlawful non-
citizen) unless they applied for merits review of the decision. To the extent that the notification
serves to also trigger commencement of the (non-extendable) merits review timeframe, the
amendments will assist to ensure that a non-citizen who chooses to exercise that right of review
knows exactly by when they must make the review application, which will in turn "halt" the
cessation of the bridging visa and cause it to remain in effect until the review decision is made and
notified by the MRT or the RRT, as the case may be.
Therefore, amendments 2 and 5 are consistent with Article 13 in so far as they ensure the
notification process affecting the lawful status (and any consequential removal) of a non-citizen will
operate with certainty, and assist affected non-citizens to exercise their right of review within the
legislatively prescribed timeframes prior to any proposed removal.
Articles 3(1) and 9(1) of the CRC
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Article 3(1)
Article 3(1) provides:
"In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration."
The Australian Governments position in respect of Article 3(1) is that the best interests of the child
is a, not the primary consideration, in all actions affecting the child. The best interests of the child
may be outweighed by countervailing considerations. In the migration context, these could include,
for example, national security or the integrity of the migration framework.
Amendment 6, which clarifies the operation of sections 48, 48A and 501E of the Act in limiting or
prohibiting the making of further applications by minors (whether in their own right or by another
person on their behalf) who have been refused a visa since last entering Australia, is one such
measure where the preservation of the integrity of Australias migration program outweighs the best
interests of the child. It is important for the Government to be able to regulate the lawful entry and
stay in Australia of non-citizens, including minors, according to the legislative framework that was
created by Parliament. To this end, it is critical that the integrity measures contained in the Act
such as sections 48, 48A and 501E that are aimed at preventing abuse of Australias visa systems
through the making of repeat and unmeritorious visa applications are able to operate as intended
and not be open to interpretations which are contrary to the underlying objective.
Therefore, whilst the amendment will mean that a minor will be bound by the consequences of a
previous visa application made on their behalf by their parents (in circumstances where the outcome
of the previous visa application was a refusal) such that the minor would be prevented from being
able to make a further application for a visa (even in a situation where allowing the visa application
would likely be in the best interests of the minor) the preservation of the overall integrity of
Australias visa systems in accordance with Parliamentary intent (as reflected in the legislative
framework) and public expectation should take precedence. Otherwise, it could open up scope for
unlawful non-citizen parents who do not otherwise have any lawful basis for remaining in Australia,
to use and exploit their non-citizen children as a means of undermining Australias visa systems in
order to prolong their own stay in Australia.
Section 48A of the Act prohibits the making of further protection visa applications in the migration
zone by non-citizens who were previously refused a protection visa. The amendment to clarify that
section 48A will also apply to a minor even if the minor did not know about, or understand the
nature of, the previous (refused) protection visa application made by a parent on their behalf, may
therefore seem particularly harsh in circumstances where the minor may have their own protection
claims and it may therefore be in the best interests of the minor (and to ensure that Australia does
not breach its non-refoulement obligations under Article 3 of the CAT and Articles 6 and 7 of the
ICCPR) to allow a further protection visa application to be made.
The need to maintain the integrity of Australias visa systems and migration program on the one
hand, and the need to protect the best interests of a minor affected by amendment 6 on the other,
may nevertheless be reconciled because of the existence of section 48B of the Act. Section 48B
enables the Minister to intervene in the public interest to allow a non-citizen affected by section
48A to make a further application for a protection visa.
Therefore, if a minor was previously included in their parents protection visa application without
raising their own claims (or had claims raised on their behalf) and that application was refused, but
the minor has personal protection claims such that it would be in the best interests of the minor (and
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consistent with Australias non-refoulement obligations which the Government takes very
seriously) to allow the minor to make a further protection visa application so that the minors
personal claims may be assessed, the Minister may exercise his or her personal power under section
48B of the Act in relation to the minor.
Article 9(1)
Article 9(1) provides:
"State Parties shall ensure that a child shall not be separated from his or her parents against their
will, except when competent authorities subject to judicial review determine, in accordance with
applicable law and procedures, that such separation is necessary for the best interests of the child.
Such determination may be necessary in a particular case such as one involving abuse or neglect of
the child by the parents, or one where the parents are living separately and a decision must be made
as to the childs place of residence."
Clarifying the operation of sections 48, 48A and 501E of the Act so that their application in relation
to a minor can be determined objectively by reference to whether the minor has been refused a visa
since their last entry into Australia as a matter of fact, rather than by reference to a subjective
retrospective assessment of the minors knowledge or understanding of the previous (refused) visa
application, is not inconsistent with Article 9(1).
That is, the amendment will help to avoid situations where the parents are prevented from making
further applications and may be subject to possible removal from Australia following a visa refusal,
but the child is not liable for removal because they are able to make further applications and be
granted bridging visas in association with those further visa applications. To the extent that the
amendment ensures that members of the same family unit who applied for visas together will
receive consistent immigration outcomes and be bound by the same consequences, the amendment
will assist to preserve family unity and prevent the separation of the child from their parents.
Article 23(1) of the ICCPR
Article 23(1) provides:
"The family is the natural and fundamental group unit of society and is entitled to protection by
society and the State."
For the same reason as provided above in respect of Article 9(1) of the CRC, to the extent that the
amendment clarifying the operation of sections 48, 48A and 501E assists to ensure members of the
same family unit who applied for visas together will receive consistent immigration outcomes and
be bound by the same consequences, this amendment is consistent with Article 23(1).
Article 5(1) of the CRPD
Article 5(1) provides:
"State Parties recognise that all persons are equal before and under the law and are entitled without
any discrimination to the equal protection and equal benefit of the law."
Not all treatment that differs among individuals or groups will amount to prohibited discrimination.
Where the treatment is based on reasonable and objective criteria and to achieve a legitimate
purpose, that treatment will not be prohibited, notwithstanding that it is discriminatory.
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Amendment 6 clarifying the limitation or prohibition on making further applications does not
purport to remove any benefits that non-citizens suffering from mental impairment currently have,
because there is no provision relating to them in particular that the amendment seeks to repeal.
Even if it could be argued that the amendment, in expressively limiting or prohibiting the making
of further applications by non-citizens who have a mental impairment, is discriminatory, the
discrimination (if it is such) is based on reasonable and objective criteria and for the legitimate
objective of protecting the integrity of Australias visa systems. Put differently, the amendment
simply seeks to ensure that the limitation or prohibition on the making of further applications will
apply objectively and consistently to all non-citizens who have been refused a visa while they are in
the migration zone.
Therefore, amendment 6 is not discriminatory on the basis of a non-citizens mental impairment. If
there is indeed any perceived discrimination, it is not inconsistent with Article 5(1) of the CRPD.
Article 3(1) of the CAT and Articles 6(1) and 7 of the ICCPR
Article 3(1) of the CAT provides:
"No State or 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."
Articles 6(1) and 7 of the ICCPR respectively provide:
"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."
"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.
Amendment 6, which seeks to clarify, inter alia, that a non-citizen who has been refused a
protection visa which was made on their behalf will be prohibited under section 48A from making a
further protection visa application, even if they did not know about, or understand the nature of, the
(refused) application because they are either mentally impaired or a minor at the time of application,
engages the human rights stated in these articles.
There may be circumstances where the minor or the mentally impaired non-citizen was included as
a dependent applicant in the protection visa application made by their parent or guardian, without
any specific protection claims in relation to them being raised on their behalf. The amendment
clarifying the operation of section 48A would result in the minor or the mentally impaired non-
citizen being unable to make a further protection visa application for consideration, even if they do
have their own protection claims.
Australia takes its non-refoulement obligations very seriously. Consistent with the Departments
current practice, a non-citizen who is being removed from Australia will be assessed for any
possible risks that might arise under the CAT and the ICCPR as a consequence of their removal
from Australia. Therefore, in circumstances where a minor or a mentally impaired non-citizen
raises, or had raised on their behalf, personal protection claims after having been refused a
protection visa, they will not be denied the opportunity to have their claims assessed simply by
virtue of this amendment.
Furthermore, the Minister has a personal, non-compellable power under section 48B of the Act to
allow the minor or the mentally impaired non-citizen to make a further protection visa application
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in the public interest. In certain circumstances, the Minister also has personal, non-compellable
powers under other relevant provisions in the Act to grant a visa to the minor or mentally impaired
non-citizen in the public interest. In consideration of the public interest, the Minister may take into
account Australias protection obligations as they relate to the minor or the mentally impaired non-
citizen in question.
Conclusion
The amendments are compatible with human rights. To the extent that the amendments engage
human rights, they act as administrative measures that are not inconsistent with any of the rights
articulated under Articles 6, 7, 9, 13 and 23 of the ICCPR, Articles 3 and 9 of the CRC, Article 5 of
the CRPD, and Article 3 of the CAT.
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Schedule 2 - Removal of unlawful non-citizens
Overview of Schedule 2
A legislative gap arising from the unintended interaction between section 195 and subsection 198(5)
of the Act means that in certain specific circumstances there is no power to involuntarily remove an
unlawful non-citizen.
Section 195 of the Act sets out the time periods in which a detained unlawful non-citizen may apply
for a visa. If an unlawful non-citizen does not apply for a visa within these time periods, they may
not apply for a visa other than a bridging visa or a protection visa after that time.
Subsection 198(5) of the Act currently provides for the removal from Australia of an unlawful non-
citizen who was entitled to apply for a visa in accordance with section 195 but did not do so.
The anomaly is that there is a legislative gap that leaves the Department without power to remove
certain detainees who have lodged a bridging visa application in accordance with the timeframes
stated in section 195 of the Act following their detention under section 189. This could potentially
result in the detainee being subject to indefinite detention, if no alternative substantive or non-
substantive visa options are available.
An amendment has been sought to be made to subsection 198(5) of the Act in order to correct this
anomaly. This will ensure that a bridging visa application made by a detainee in accordance with
the timeframes stated in section 195 is not a barrier to the exercise of the removal power under
subsection 198(5).
The scope of the proposed amendment will not affect detainees who were not immigration cleared
(including unauthorised air arrivals) or Illegal Maritime Arrivals (IMAs), referred to in the Act as
unauthorised maritime arrivals. These categories of detainees are not subject to provisions of
section 195 of the Act and as such are not affected by the anomaly arising from its operation which
this proposal seeks to address.
This amendment will correct this unintended operation of subsection 198(5) of the Act to more
accurately define the function and intent of the provision, provide for the removal of an unlawful
non-citizen to whom the provision applies as soon as reasonably practicable.
In order to effect this change, amendments to paragraph 198(5)(b) have been proposed in the draft
version of the Migration Legislation Amendment Bill (No. 1) 2014.
These amendments ensure the current meaning of a ,,visa is clarified to mean a ,,substantive visa,
and that lodgement of a bridging visa either in or out of timeframes stated in subsection 195(1) does
not prevent removal.
Human rights implications
Schedule 2 of the Bill does not engage any of the applicable rights or freedoms.
This amendment has been assessed against the seven core treaties that comprise Australias human
rights obligations.
The amendment may engage non-refoulement obligations under the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International
Covenant on Civil and Political Rights (ICCPR).
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These occur under the following articles:
CAT: article 3(1),
ICCPR: articles 6 & 7
In order to address these obligations, a provision has been added into the amendment for subsection
198(5) as follows:
2 After subsection 198(5)
Insert:
(5A) Despite subsection (5), an officer must not remove an unlawful non-citizen if:
(a) the non-citizen has made a valid application for a protection visa (even if the application
was made outside the time allowed by subsection 195(1)); and
(b) either:
(i) the grant of the visa has not been refused; or
(ii) the application has not been finally determined.
This ensures that despite powers in subsection 198(5), protection visa applicants will not be
considered available for removal until either the visa application has been refused or the application
has been ,,finally determined.
Whilst these assurances are in place for non-citizens lodging valid applications for protection visas,
this amendment do not extend to any other category of visa applicants.
Current removal policy ensures that any removal case that contains particular risk factors undergo a
pre-removal clearance prior to the progression of removal activity.
These risk factors include:
Previously sought protection or held refugee status and/or Protection visa
Criminal history in Australia
Criminal history in country of return
Country of return has taken an adverse interest in the person
Other circumstances where protection or humanitarian issues have arisen.
This assessment is designed to consider a persons circumstances to review whether the Department
is satisfied that removal to their home country or country of habitual residence will not breach
Australias non-refoulement obligations. The pre-removal clearance considers whether there are any
outstanding protection issues that have not already been identified and assessed by the Department
(either claimed or unclaimed). It is a risk management tool to identify where non-refoulement
obligations may exist in a removal and refer such cases for appropriate resolution.
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Conclusion
Schedule 2 of the Bill is compatible with human rights as it does not raise any human rights issues.
The amendments do not engage Article 3(1) of the CAT and Articles 6, and 7 of the ICCPR.
Individuals would not be subject to removal unless and until their claims for protection had been
assessed according to law.
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Schedule 3 - Recovery of costs from certain persons
Overview of Schedule 3
Schedule 3 of the Bill proposes to amend the Migration Act 1958 (the Act) to enable existing debt
recovery provisions to be applied consistently to all convicted people smugglers (PS) and illegal
foreign fishers (IFFs) and clarify when liability for these debts arise.
Under existing legislative arrangements contained in Division 14 of Part 2 of the Act, convicted PS
and IFFs who are detained because of section 250 of the Act, remain liable to the Commonwealth
for their detention costs and for the cost of their removal from Australia. This part of the Act also
contains a number of provisions that facilitate the recovery of these debts.
However, under current provisions of the Act, a person is not liable for costs arising from their
detention and removal when they are no longer detained because of section 250, or because they
were granted a visa, or because they were not in immigration detention at the time of their
conviction. Under these conditions, the debt liability provisions cannot be applied.
This inability to apply the provisions within this Division of the Act consistently to all convicted PS
and IFFs, removes any financial disincentive to these persons to participate in people smuggling
insofar as they do not apply to all PS and IFFs regardless of how or if they were detained and
whether they have been granted a visa.
Changes to section 262 of the Act will make it clear that these provisions will apply either at the
time of conviction or after the convicted PS or IFF has served the whole or part of any sentence
imposed.
These amendments will also clarify that detention, transportation and removal costs are recoverable
from a PS or IFF:
who is, or has been detained under section 189 of the Act alone; or
who is, or has been, detained under section 189 because of subsection 250(2), that is, detained
under section 189 because it is believed by an authorised officer on reasonable grounds that
they have been on board a boat when it was used in connection with the commission of an
offence; or
who has been granted a Criminal Justice Stay visa or any other class of visa.
The detention, transportation and removal costs that a convicted PS or IFF will be liable for will
remain as currently provided for in paragraphs 262(1)(c) to (g) of the Act.
Detention debt liabilities for persons convicted of offences relating to people smuggling or illegal
foreign fishing are intended to act as an adjunct to penalties already in place, to strengthen the
Governments response to people smuggling and illegal foreign fishing, and support the integrity of
Australias border security.
Visa Grant
For those people who are convicted of people smuggling and are subsequently granted a visa, the
detention debt would remain outstanding until such time as the debt is paid in full. Depending on
the individual circumstances of a debtor, consideration will be given to any request to pay in
instalments or the debt may be deferred until such time as the debtor is in a stronger position to
repay the debt.
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Human rights implications
The department has considered the amendments against the seven key core international human
rights treaties. Schedule 3 of the Bill does not engage any of the applicable rights or freedoms
therein.
Conclusion
Schedule 3 of the Bill is compatible with human rights, as it does not raise any human rights issues.
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Schedule 5 - Crimes Act warrants etc
Overview of the Bill
Schedule 5 of the Bill proposes to amend the Australian Citizenship Act 2007 "the Citizenship Act"
to allow:
the Minister;
the Secretary; or
an APS employee in the Department whose duties include making decisions, or assisting
in making decisions, in relation to Australian citizenship
to receive and use warrant material and warrant information, or make it available to one of the
above listed persons for the purposes of:
making a decision, or assisting in making a decision, to approve or refuse to approve a
person becoming an Australian citizen;
making a decision, or assisting in making a decision, to revoke a persons Australian
citizenship;
making a decision, or assisting in making a decision, to cancel an approval given to a
person under section 24 of the Citizenship Act.
Further, Schedule 5 of the Bill proposes to amend the Migration Act 1958 "the Migration Act" to
allow:
the Minister; or
an officer, including the Secretary
to receive and use warrant material and warrant information, or make it available to one of the
above listed persons for the purposes of:
making a decision, or assisting in making a decision, to grant or refuse to grant a visa;
making a decision, or assisting in making a decision, to cancel a visa;
making a decision, or assisting in making a decision, to revoke a cancellation of a visa;
making a decision in relation to the detention, removal, or deportation of a non-citizen
from Australia.
The amendments would not further extend coercive powers or administrative responsibilities,
simply to provide further information to administrative officers for more effective decision making.
This will enhance decision-making and as a result, will enhance the integrity of the migration and
citizenship programmes. This enhancement will be particularly prevalent where persons have
provided false, misleading or fraudulent information to the Department and have acquired, or will
acquire, a visa or citizenship as a result.
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Human rights implications
Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
These amendments engage human rights related to Privacy; as recognised in article 17 of the
ICCPR.
Article 17 states:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
The amendments may be considered to place a limit on the privacy of members of the
community.
The extent to which an individual is entitled to a right to privacy in Australia is governed by
the Privacy Act 1988 (the Privacy Act). Section 14 of the Privacy Act contains the Australian
Privacy Principles which assist Government departments to ensure the lawful collection,
solicitation, storage, record keeping, access, use and disclosure of personal information. From 12
March 2014, the Privacy Act was amended came into effect, including the new Australian
Privacy Principles. The disclosure of information pursuant to this amendment will be in
accordance with requirements under the Privacy Act.
The right to privacy as outlined in article 17 of the ICCPR is not absolute and may be limited in the
public interest. In this instance, the intention of the Government in using information obtained from
a search warrant obtained under the Crimes Act is a legitimate policy objective, namely to support
existing provisions in the Migration Act and Citizenship Act. The use and disclosure of
information derived from Crimes Act search warrants was clearly anticipated to be used by other
Commonwealth agencies as subsection 3ZQU(2), (3) and (4) of the Crimes Act provide that
things/documents seized may be used or provided for any use that is required or authorised by or
under another law of the Commonwealth. This Bill provides this authorisation and clearly links the
use and disclosure of a thing and information seized under a search warrant to specific purpose
under the Migration Act and Citizenship Act. These specific purposes are detailed in new
subsection 51A(3) of the Citizenship Act and new subsection 488AA(3) of the Migration Act.
Subsection 51A(3) of the Citizenship Act provides that a person covered by new subsection 51A(4)
is authorised to receive and use warrant material and warrant information, or make it available to
another person covered by new subsection 51A(4) for the following purposes:
making a decision, or assisting in making a decision, to approve or refuse to approve a
person becoming an Australian citizen;
making a decision, or assisting in making a decision, to revoke a persons Australian
citizenship;
making a decision, or assisting in making a decision, to cancel an approval given to a
person under section 24 of the Citizenship Act.
New subsection 488AA(3) of the Act provides that a person covered by new subsection 488AA(4)
is authorised to receive and use warrant material and warrant information, or make it available to
another person covered by new subsection 488AA(4) for the following purposes:
making a decision, or assisting in making a decision, to grant or refuse to grant a visa;
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making a decision, or assisting in making a decision, to cancel a visa;
making a decision, or assisting in making a decision, to revoke a cancellation of a visa;
making a decision in relation to the detention, removal, or deportation of a non-citizen
from Australia.
Where information obtained from a Crimes Act warrant is used to make decisions under the
Migration Act and Citizenship Act, these decisions would be subject to procedural fairness
requirements, existing merits review mechanisms and existing judicial review functions.
The Government is of the view that the general public would expect that, should information about
an individuals circumstances that impact on their right to be in Australia come to the attention of
the Commonwealth, the information should be used to make an informed administrative decision.
The Department is required by law to ensure that only those people with lawful and legitimate
reasons for being in Australia remain here. In order to deliver on these responsibilities, the Minister
and Departmental officers should use all information at the Commonwealths disposal.
Under the Commonwealth Fraud Control Guidelines, the Department is currently responsible for
the conduct of criminal investigations. Should a search warrant need to be executed in support of a
criminal investigation, the Department seeks agency assistance from the Australian Federal Police
(AFP). Material seized under the section 3E Crimes Act 1914 warrant is then transferred to the
custody and control of Departmental investigators under subsection 3ZQU(1) Crimes Act 1914.
This process is currently in place and has been since 2002.
The amendment proposes to allow Departmental officers (and other specifically nominated persons)
to further use the material for administrative decision making for those specific purposes provided
for in new subsections 51A(3) of the Citizenship Act and 488AA(3) of the Migration Act without
extending the original coercive power used to obtain the material. The amendment also allows for
the AFP to provide material obtained under warrant to the Department for those specific purposes
provided for in new subsections 51A(3) of the Citizenship Act and 488AA(3) of the Migration Act
in cases that warrant immigration attention. All instances are on a case by case basis and all
administrative decisions made, regardless of the material relied upon, are subject to the principles of
good administrative decision making and natural justice.
The amendments are compatible with article 17 of the ICCPR because to the extent that it may limit
the article, those limitations are reasonable, necessary and proportionate.
Conclusion
The amendments are compatible with human rights because to the extent that it may limit human
rights, those limitations are reasonable, necessary and proportionate.
The Hon. Scott Morrison MP, Minister for Immigration and Border Protection