Commonwealth of Australia Explanatory Memoranda

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MIGRATION AND MARITIME POWERS AMENDMENT BILL (NO. 1) 2015

                                2013-2014-2015



    THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                                   SENATE




MIGRATION AND MARITIME POWERS AMENDMENT BILL (NO. 1) 2015




         ADDENDUM TO THE EXPLANATORY MEMORANDUM




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

                           the Hon. Peter Dutton MP)
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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.
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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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