Commonwealth of Australia Explanatory Memoranda

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 (Circulated by authority of the Minister for Immigration and Border Protection,

                           the Hon. Peter Dutton MP)

1 Migration and Maritime Powers Amendment Bill (No. 1) 2015 The purpose of this addendum is to provide additional material to the Explanatory Memorandum to the Migration and Maritime Powers Amendment Bill (No. 1) 2015. This addendum responds to concerns raised by the Senate Standing Legal and Constitutional Affairs Legislation Committee in its Report of 10 November 2015. Schedule 2, Item 22 After paragraph 110 on page 22, insert the following paragraph: The introduction of a new removal power and amendment to the existing removal power of 198(2A) will provide certainty about when a person becomes liable for removal. It is intended that a non-citizen whose visa has been mandatorily cancelled under subsection 501(3A) and either does not seek revocation within the statutory timeframe under section 501CA, or is unsuccessful in seeking revocation will be liable for removal. Applying the amendments retrospectively to these persons provides clarity on when the person can be removed under section 198. After paragraph 112 on page 23, insert the following paragraph: The retrospective application of the amendment at item 12 means that all applicants for judicial review of the Minister's decision under section 501CA or section 501BA will have access to the same level of the Court (the Federal Court) as other applicants seeking judicial review of personal decisions of the Minister under 501, 501A, 501B and 501C. Character decisions often involve similar issues and legal principles and it is important that they are heard in the Federal Court, which is experienced in this area. After paragraph 116 on page 23, insert the following paragraph: The application of the amendment at item 20 will ensure that all persons whose visas are cancelled under one of the character provisions are treated consistently in terms of their ability to return to Australia, and that any person whose visa may be cancelled prior to the Bill passing is subject to the same provisions as a person whose visa is cancelled afterwards.

2 After paragraph 118 on page 23, insert the following paragraph: Confidential information provided in relation to the exercise of one of the character cancellation powers needs to be protected for use in the exercise of any of the other character cancellation powers. This is particularly the case where some character cancellation powers are not enlivened until another power has been used (for example, the Minister's power to set-aside a non-adverse delegate or Tribunal decision is only enlivened once the power in section 501 has been exercised). The retrospective application of the amendment at item 21 will ensure that confidential information provided to the department prior to the introduction of this amendment is protected and dealt with by the same administrative procedures used for all of the character cancellation and revocation powers. Schedule 3, Part 1, Item 1 After paragraph 132 on page 25, insert the following paragraphs: The amendment is a technical amendment that clarifies the interaction between subsections 48A(1AA) and (1C) of the Act, and does not broaden the situations in which a minor or a person with a mental impairment who was previously refused a protection visa applied for on their behalf is prevented from making a further protection visa application. As at the date of this Addendum, the Government is not aware of any case since 25 September 2014 in which a minor or a mentally impaired person who was previously refused a protection visa has sought to apply for a further protection visa relying on a ground or criterion that is different from the ground or criterion on which the refused application was based. Therefore, the retrospective commencement of the amendment is also not expected to have any adverse impact. Where a minor or a person with a mental impairment, since their previous protection visa application was refused, develops personal claims for protection that warrant opportunity to be given to allow those personal claims to be assessed, the following safeguards are available:  the Minister's intervention powers under section 48B;  the right to seek judicial review and be heard in a judicial proceeding; and  pre-removal clearance processes, which provide another opportunity for protection claims to be assessed to ensure compliance with Australia's international obligations. Where the decision to refuse the previous protection visa application has been merits reviewed by the Tribunal (whether the former Refugee Review Tribunal, or the Administrative Appeals Tribunal in its Migration and Refugee Division), the Minister's power to intervene under section 417 of the Act will also be available.


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