ATTACHMENT A

 

AUTHORISING PROVISIONS

Subsection 504(1) of the Migration Act 1958 ('the Act') provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

In addition, the following provisions may apply:

 

*         subsection 31(3), which provides that regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not section 33, 34, 35, 38 or 38A);

 

*         subsection 31(4), which provides that the regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both;

 

*         subsection 36(1), which provides that there is a class of visas to be known as protection visas;

 

*         subsection 40(1), which provides that the regulations may provide that visa or visas of specified class may only be granted in specified circumstances; and

 

*         subsection 40(2), which provides that, without limiting subsection 40(1), the circumstances may be, or may include that when the person is granted the visa, the person:

 

o   is outside Australia; or

o   is in immigration clearance; or

o   has been refused immigration clearance and has not subsequently been immigration cleared; or

o   is in the migration zone and, on last entering Australia:

 

§  was immigration cleared; or

§  bypassed immigration clearance and had not subsequently been immigration cleared.

 

 

ATTACHMENT B

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013

 

This Legislative Instrument 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 Legislative Instrument

This Legislative Instrument seeks to amend Schedule 2 of the Migration Regulations 1994 (the Regulations) to ensure that a Protection visa (Class XA) (a permanent protection visa) cannot be granted to an Unauthorised Maritime Arrival (UMA) or Unauthorised Air Arrival (UAA) by changing the time of decision criteria of that visa class. For the purposes of this Statement of Compatibility, a UAA is defined as a person who arrived by air without a valid visa and sought Australia's protection prior to being immigration cleared.

As a result of these amendments all Protection visa applications will be assessed however those applications made by UMAs and UAAs which are found to engage Australia's non-refoulement obligations will no longer be eligible for a grant of a Protection visa. It is the Government's intention to ensure that any non-refoulement obligations relating to these arrivals are met in other ways. Australia's non-refoulement obligations will not be removed in breach of those obligations.

The form of administrative arrangements in place to support Australia meeting its non refoulement obligations is a matter for the Government.   It is expected that UMAs and UAAs who are found to engage Australia's protection obligations but who are affected by these amendments will continue to hold a Bridging visa with the same work rights and travel conditions that they currently hold. 

Human rights implications

This amendment has been assessed against the seven core human rights treaties. The amendment engages the following human rights.

Non-refoulement

Article 3 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment  (CAT) - prohibition against return to torture

Article 3 of the CAT states the following:

No State party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

Articles 6 and 7 of the International Covenant on Civil and Political Rights - arbitrary deprivation of life and prohibition on torture and cruel, inhuman or degrading treatment or punishment

Articles 6 and 7 of the ICCPR also impose on Australia an implied non-refoulement obligation.  Article 6 of the ICCPR states that:

Every human being has the inherent right to life.  This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR states the following:

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.

The amendment does not substantively alter the rights and interests of persons whom this amendment would affect as all of Australia's non-refoulement obligations will be assessed, ensuring that no person who engages non-refoulement obligations will be returned to the country from which they have sought protection. The form of administrative arrangements in place to support Australia meeting its non-refoulement obligations is a matter for the Government.   

Non-discrimination

Article 26 of the International Covenant on Civil and Political Rights of the ICCPR provides that:

            All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Under General Comment 18, the UN Human Rights Committee stated:

'the Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant'

The UN Human Rights Committee has recognised in the ICCPR context that "The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party.  It is in principle a matter for the State to decide who it will admit to its territory [ ... ] Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment" (CCPR General Comment 15, 11 April 1986).To the extent that the amendment constitutes differential treatment, this treatment is based on reasonable and objective criteria and is aimed at a legitimate purpose, being the need to maintaining the integrity of Australia's migration system and protecting the national interest.

Rights of the Child

Article 3 of the Convention on the Rights of the Child (CRC) state that:

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.

However, other considerations may also be primary considerations.  While it may be in the best interests of unaccompanied minors (UAMs) to be reunited with their family, it is clearly not in the best interest of a minor, to be placed in the hands of people smugglers to take the dangerous journey by boat to Australia. 

The decision to amend the Regulations to ensure that UAMs who or UMAs or UAAs are not eligible for a permanent Protection visa was made to discourage minors from taking potentially life threatening avenues to achieve resettlement for their families in Australia.  This goal is also a primary consideration, in addition to the need to maintain the integrity of Australia's migration system and protect the national interest.  The Australian Government considers that on balance these and other primary considerations outweigh the best interests of the child.  Therefore, the Australian Government considers that this Legislative Instrument is consistent with Article 3 of the CRC.

Conclusion

The Regulation amendment is compatible with human rights because it is consistent with Australia's human rights obligations and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate. 

 

The Hon. Scott Morrison, Minister for Immigration and Border Protection

 

 

ATTACHMENT C

 

 

Details of the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013

 

Section 1 - Name of Regulation

 

This section provides that the Regulation is the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 ('the Amendment Regulation').

 

Section 2 - Commencement

 

This section provides that the Amendment Regulation commences on 14 December 2013.

 

The purpose of this section is to provide for when the amendments made by the Amendment Regulation commence.

 

Section 3 - Authority

 

This section provides that this Amendment Regulation is made under the Migration Act 1958 ('the Act').

 

The purpose of this section is to set out the Act under which the Amendment Regulation is made.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

The purpose of this section is to provide for how the amendments in this Amendment Regulation operate.

 

Schedule 1 - Amendments

 

Item 1 - After clause 866.221

 

This item inserts new clause 866.222 after clause 866.221 in Schedule 2, which introduces new criteria that all applicants for a Subclass 866 (Protection) visa ('Protection visa') must satisfy at the time of decision.

 

New clause 866.222 provides that, to meet this criterion, the applicant:

*         held a visa in effect on the applicant's last entry into Australia; and

*         is not an unauthorised maritime arrival; and

*         was immigration cleared on the applicant's last entry into Australia.

 

The effect of this clause is to ensure that only applicants who were not unauthorised maritime arrivals, held a visa that was in effect on their last entry into Australia and were immigration cleared on their last entry into Australia, are eligible for the grant of a Protection visa.

 

The purpose of this amendment is to implement the Government's policy intention to ensure that unauthorised maritime arrivals, people who did not hold a visa that was in effect on their last entry into Australia and were not immigration cleared on their last entry into Australia will not be granted permanent protection through the grant of a Protection visa in Australia.

 

Item 2 - At the end of Schedule 13

 

This amendment adds new Part 26 - Amendments made by the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013.

 

The title of new item 2601 is 'Operation of Schedule 1'. This item provides that the amendments of these Amendment Regulations made by Schedule 1 to the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 apply in relation to an application for a visa:

 

-          made, but not finally determined, before the day on which that regulation commences; or

-          made on or after that day.

The purpose of item 2601 is to clarify to whom the amendments in this Amendment Regulation applies.