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1998 – 1999 – 2000
- 2001
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION
AMENDMENT BILL (NO. 6) 2001
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the
Minister for Immigration and Multicultural Affairs,
The
Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT BILL (NO. 6)
2001
OUTLINE
1. The purpose of the Migration
Legislation Amendment Bill (No. 6) 2001 (“the Bill”) is to amend the
Migration Act 1958 (“the Act”) to:
• restore the
application of the Convention relating to the Status of Refugees as amended by
the Protocol relating to the Status of Refugees (“the Refugees
Convention”) in Australia to its proper interpretation;
and
• promote integrity in protection visa application and
decision-making processes.
2. Under the Refugees Convention, a
“refugee” is defined broadly as a person who has a well-founded fear
of being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion. The key elements of this test are
not further defined in the Convention and are matters for each Convention member
state to address.
3. Over recent years the interpretation of the
definition of a “refugee” by various courts and tribunals has
expanded the interpretation of the definition so as to require protection to be
provided in circumstances that are clearly outside those originally intended.
4. These circumstances have included situations where hardship or
serious inconvenience has been considered to be persecution and situations where
mistreatment is feared for reasons other than those intended to be covered by
the Convention. Other circumstances have arisen where the provisions within the
Convention which exclude from protection people of serious character concern
have been interpreted in a way which could lead to protection being provided to
people who should not be entitled to this.
5. In recent years there have
been increasing numbers of attempts to misuse
Australia's onshore protection processes to delay or frustrate removal by people
who have no need for Convention protection. This Bill contains measures which
will address these attempts to misuse onshore protection
processes.
6. The Bill ensures that the Refugees
Convention provides appropriate protection to refugees consistent with the
international obligations that Australia assumed when becoming a party to the
Convention. It also minimises the misuse of Australia’s protection
processes.
7. The amendments in the Bill will:
• clarify
and define certain Refugee Convention matters;
• extend the bar in
section 48A of the Act against a further application for a protection visa.
This will make it clear that the s48A bar applies to all protection visa
applicants, irrespective of whether they have sought the visa because of
personal claims for refugee protection or as a family member of such a person.
This will prevent members of families pursuing claims
for protection one after the other - dragging on resolution of their status for
years;
• allow the Minister, in certain circumstances, to draw a
reasonable inference unfavourable to an unauthorised arrival or protection visa
applicant if they fail to provide information on oath or affirmation or to
produce documentary evidence of the applicant’s identity, nationality or
citizenship. This addresses growing concerns, particularly in relation to
unauthorised arrivals, that individuals are disposing of identifying
documentation and engaging in sophisticated research and 'schooling' of claims
in order to mislead Australian officials about their identity, nationality, or
real need for protection;
• provide that the Minister shall not take
into account the implications of actions taken in Australia by asylum seekers
which are intended to create or strengthen their claims for protection;
• require the High Court and Federal Court not to publish
(electronically or otherwise) the name of a person who is seeking or who has
sought protection and who is engaging in certain types of litigation related to
their status to remain in Australia. This will substantially reduce the
potential that the publication of court records and proceedings may create
further protection claims for people in Australia or put their families and
colleagues overseas at risk of harm. The proposed legislation will leave intact
the capacity of the Minister or the person engaged in the litigation to seek the
confidential treatment of further identifying information;
• require
the Administrative Appeals Tribunal (“the AAT”) not to publish
(electronically or otherwise) any information which may identify persons;
• require that certain crimes listed in
section 5 of the Extradition Act 1988 as being non-political will be
taken to be serious non-political crimes for the purposes of assessing exclusion
from protection under Article 1F of the Refugees Convention and that, for the
purposes of that Article, a crime will be non -political where the primary
motivation was non-political; and
• require that certain crimes against
people, serious drug or property damage crimes and serious crimes committed in
relation to immigration detention, will be taken to be particularly serious
crimes for the purposes of assessing whether Australia owes protection
obligations to an individual under Article 33(2) of the Refugees Convention.
This will not affect the requirement, under Article 33(2) of the Refugees
Convention, to consider whether a person convicted of a particularly serious
crime also represents a risk to the community;
• provide the Minister
with a power to substitute a more favourable decision for an AAT decision where
that decision is in relation to a review of a decision to refuse a Protection
visa. This legislation mirrors provisions already in place to allow the
Minister to substitute a more favourable decision in relation to decisions of
the Refugee Review Tribunal.
FINANCIAL IMPACT
STATEMENT
8. These amendments will have minimal direct financial
impact.
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short
Title
1. The short title by which this Act may be cited is the
Migration Legislation Amendment Act (No. 6) 2001.
Clause
2 Commencement
2. Subclause 2(1) provides that subject to subsection
2(2), this Act commences on a day to be fixed by
Proclamation.
3. Subclause 2(2) provides that, if this Act is not
proclaimed within 6 months of the Act receiving the Royal Assent, then the Act
commences on the first day after the end of that period.
Clause
3 Schedule(s)
4. This clause provides that each Act 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.
Item 1 At the end of subsection 36(1)
5. This item adds a
note at the end of subsection 36(1) of the Act to provide a cross-reference to
new Subdivision AL, which is inserted into the Act by item 5 of this Schedule.
New Subdivision AL contains other provisions about protection visas in addition
to those set out in section 36 of the Act.
Item 2 Subsection
36(2)
6. This item repeals subsection 36(2) and substitutes a new
subsection 36(2) into the Act.
7. New subsection 36(2) provides that a
criterion for a protection visa is that the applicant for the visa
is:
• a non-citizen in Australia to whom Australia has protection
obligations under the Refugees Convention; or
• a non-citizen in
Australia who is the spouse or a dependant of a non-citizen who:
- is
mentioned above; and
- holds a protection visa.
8. Existing subsection
36(2) does not clearly apply to a non-citizen who falls within the second
scenario. While the Refugees Convention does not require member States to
provide protection to a person solely by reason of their close family
relationship with a person who is owed protection under the Convention, it has
been longstanding practice in Australia to allow the spouse and dependants in
Australia of those persons found to be owed protection under the Refugees
Convention to be granted a visa to remain with that person in Australia. New
subsection 36(2) makes it clear that a non-citizen in Australia is eligible for
the grant of a protection visa if he or she is the spouse or a dependant of a
non-citizen who is owed protection obligations and who holds a protection visa.
9. This is the case even though this non-citizen does not himself or
herself claim to be refugee to whom Australia owes protection obligations under
the Refugees Convention.
Item 3 After subsection
48A(1A)
10. This item inserts new subsection 48A(1B) after subsection
48A(1A) of the Act.
11. New subsection 48A(1B) extends the bar on making
a further application for a protection visa in the migration zone to a
non-citizen who held a protection visa that was cancelled.
12. As a
matter of practice, cancellation of protection visas does not occur where
protection obligations continue to be owed to the person. Opportunities
provided in the visa cancellation process allow a person to bring forward
reasons why their visa should not be cancelled. These may include information
or claims regarding the existence of protection obligations owed to the person.
In addition, new subsection 48A(1B) is subject to section 48B of the Act.
Section 48B allows the Minister to determine, in the public interest, that the
bar in section 48A does not apply to prevent an application for a protection
visa made by a non-citizen.
Item 4 Subsection 48A(2) (before
paragraph (a) of the definition of application for a protection
visa)
13. This item inserts new paragraphs 48A(2)(aa) and
48A(2)(ab) into the definition of “application for a protection
visa” set out in subsection 48A(2) of the Act.
14. As a result of
these new provisions, an “application for a protection visa” for the
purposes of section 48A also includes:
• an application for a visa
a criterion for which is that the applicant is a non-citizen in Australia to
whom Australia has protection obligations under the Refugees Convention;
and
• an application for a visa a criterion for which is that the
applicant is a non-citizen in Australia who is the spouse or a dependant of a
non-citizen in Australia:
- to whom Australia has protection obligations
under the Refugees Convention; and
- who holds a protection visa.
15. These changes make clear that the existing section 48A bar on making
further protection visa applications applies to unsuccessful protection visa
applicants where the application relied on the grounds that the applicant was
the spouse or dependant of a person who is owed protection obligations under the
Refugees Convention. This change is necessary to prevent misuse of the
protection visa process by family groups wishing to prolong their stay in
Australia by lodging protection applications serially, each member taking turns
to advance claims for protection while the others apply as family members. As
flagged at paragraph 12 above, the existing section 48B provides a power for the
Minister to lift the bar on making further protection visa applications where
this is in the public interest.
Item 5 After Subdivision AK of
Division 3 of Part 2
16. This item inserts new Subdivision AL after
Subdivision AK of Division 3 of Part 2 of the Act. New Subdivision AL contains
additional provisions about protection visas.
Section 91R
Persecution
17. This item inserts new section 91R into the Act
which deals with “persecution”.
18. Broadly speaking,
Australia owes protection obligations to a person who is a refugee as defined in
Article 1 of the Refugees Convention and who is not excluded from protection by
the provisions of Articles 1 or 33 of the Convention. Under Article 1A(2) a
refugee is a person who, among other things, has a well founded fear of being
persecuted for reason of race, religion, nationality, membership of a particular
social group or political opinion.
19. Claims of persecution have been
determined by Australian courts to fall within the
scope of the Refugees Convention even though the harm feared fell short of the
level of harm accepted by the parties to the Convention
to constitute persecution. Persecution has also been
interpreted to be for reason of the above Convention
grounds where there have been a number of motivations for the harm feared and
the Convention-based elements have not been the dominant reasons for that harm.
Taken together these trends in Australian domestic law
have widened the application of the Refugee Convention beyond the bounds
intended.
20. New subsection 91R(1) contains a definition of
“persecution” for the purposes of the application of the Act or the
regulations. It provides the Refugees Convention will apply only to persecution
for one or more of the reasons mentioned in Article 1A(2) of the Refugees
Convention if it satisfies the requirements of new paragraph 91R(1)(a),
91R(1)(b) and 91R(1)(c).
21. Under new paragraph 91R(1)(a), persecution
for one or more of the reasons mentioned in Article 1A(2) of the Refugees
Convention does not constitute persecution unless that reason is the essential
and significant reason, or those reasons are the essential and significant
reasons, for the persecution. The Refugees Convention does not require that
persecution for non-Convention grounds be taken into account in assessing
whether a person is owed protection obligations under the Convention. Where the
harm feared is attributed to a number of motivations, the proposed legislation
will make it clear that it is insufficient that there are merely minor or
non-central Convention related motivations in order to bring the persecution
within the scope of the Convention. However, persecution for multiple
motivations will satisfy the proposed legislative requirements where the
Convention ground or grounds in aggregate constitute at least the essential and
significant motivation for the harm feared.
22. Under new paragraphs
91R(1)(b) and 91R(1)(c), the persecution must involve serious harm to the person
and systematic and discriminatory conduct. New subsection 91R(2) sets out a
non-exhaustive list of the type and level of harm that will meet the serious
harm test and fall within the meaning of persecution for the purposes of the
Refugees Convention. New subsection 91R(2) makes it clear that serious harm
includes a reference to any of the following:
• a threat to the
person’s life or liberty; or
• significant physical harassment of
the person; or
• significant physical ill-treatment of the person;
or
• significant economic hardship that threatens the person’s
capacity to subsist; or
• denial of access to basic services, where the
denial threatens the person’s capacity to subsist; or
• denial of
capacity to earn a livelihood of any kind, where the denial threatens the
person’s capacity to subsist.
23. The above definition of
persecution reflects the fundamental intention of the Convention to identify for
protection by member states only those people who, for Convention grounds, have
a well founded fear of harm which is so serious that they cannot return to their
country of nationality, or if stateless, to their country of habitual residence.
These changes make it clear that it is insufficient to establish an entitlement
for protection under the Refugees Convention that the person would suffer
discrimination or disadvantage in their home country, or in comparison to the
opportunities or treatment which they could expect in Australia. Persecution
must constitute serious harm. The serious harm test does not exclude serious
mental harm. Such harm could be caused, for example, by the conducting of mock
executions, or threats to the life of people very closely associated with the
person seeking protection. In addition, serious harm can arise from a series or
number of acts which, when taken cumulatively, amount to serious harm of the
individual.
24. The Refugees Convention is not
intended to justify providing residence status on broader humanitarian grounds.
Existing provisions in the Migration Act establish powers for the Minister to
substitute a decision of the merits review tribunals
with a decision more favourable to the applicant, where this is in the
public interest. This is the mechanism in Australian domestic law for
addressing cases where protection obligations arise under international
Conventions other than the Refugees Convention or where there are public
interest grounds, for example of a humanitarian nature, for providing residence
status in Australia.
25. New subsection 91R(3)
applies to sur place claims. It is generally accepted that a person can
acquire refugee status sur place where, as a consequence of events that
have happened since he or she left his or her country of origin, he or she has a
well-founded fear of persecution upon return to that country. Difficulties have
arisen in cases where Australian courts have found that
a person may act while in Australia with the specific
intention of establishing or strengthening their protection claims and
this intention cannot be taken into account in assessing the existence of
protection obligations under the Refugees Convention.
26. Actions
undertaken intentionally to raise the risk of persecution or create the pretext
of such a risk, raise also serious questions about the presence of subjective
fear in the mind of the protection visa applicant. In order for a fear of
persecution to be well founded, it must be both objectively and subjectively
based. Under new section 91R, for the purposes of the application of the Act
and the regulations to a particular person, any conduct engaged in by the person
in Australia must be disregarded unless the person satisfies the Minister that
he or she engaged in the conduct otherwise than for the purpose of strengthening
the person’s claim to be a refugee within the meaning of the Refugees
Convention.
27. This maintains the integrity of Australia’s
protection process by ensuring that a protection applicant cannot generate
sur place claims by deliberately creating circumstances to strengthen his
or her claim for refugee status. The Ministerial intervention powers provide an
avenue for the Minister to provide a visa, should there be an exceptional case
where this is in the pubic interest.
Section 91S Membership of a
particular social group
28. This item inserts new section 91S into
the Act which deals with “membership of a particular social group”.
This proposed provision addresses a recent court finding that a relative of a
person facing persecution for a non-Refugees Convention reason, such as pursuit
by criminal elements for repayment of debts, is themselves facing persecution
for the Convention ground of membership of a particular social group when the
attentions of the agents of persecution turn to them, for example for repayments
of the debts. This type of situation falls outside the range of grounds for
persecution covered in the Refugees Convention.
29. New section 91S
provides that certain matters must be disregarded in determining whether a
particular person (“the first person”) has a well-founded fear of
persecution for the reason of membership of a particular social group that
consists of the person’s family.
30. The matters that must
be disregarded are:
• any fear of persecution or any persecution
that any other family member (whether alive or dead) has ever experienced where
that fear or persecution is not for a reason mentioned in Article 1A(2) of the
Refugees Convention; and
• any fear of persecution or any persecution
that the first person has ever experienced or any other family member (whether
alive or dead) has ever experienced where it is reasonable to conclude that the
fear or persecution would not exist if it were assumed that the fear or
persecution mentioned in the above point had never existed.
31. The
above provisions do not prevent a family, per se, being a particular social
group for the purpose of establishing a Convention reason for persecution.
However, they prevent the family being used as a vehicle to bring with the scope
of the Convention persecution motivated for non-Convention reasons.
Section 91T Non-political crime
32. This item inserts new
section 91T into the Act which clarifies what constitutes a “non-political
crime” under Article 1F of the Refugees Convention.
33. Article
1F of the Refugees Convention, among other things, excludes from being a refugee
a person with respect to whom there are serious reasons for considering that he
or she has committed a serious non-political crime outside the country of refuge
prior to his or her admission to that country as a refugee. Court judgements
had set too low a threshold when determining the degree of political motivation
needed in order for a criminal act to fall outside the Article 1F exclusion
clause.
34. New subsection 91T(1) provides that a reference to a
“non-political crime” in that Article has effect as if it were a
reference to a crime where the person’s motives for committing the crime
were wholly or mainly non-political in nature. It is insufficient to avoid
exclusion from protection under Article 1F, to establish that there is some
minority motivation which is political.
35. However, under new subsection
91T(2), new subsection 91T(1) has effect subject to new subsection
91T(3).
36. New subsection 91T(3) provides that a reference to a
“non-political crime” in Article 1F has effect as if the reference
were to an offence that, under paragraph (a), (b), (c), or (d) of the definition
of “political offence” in section 5 of the Extradition Act
1988, is not a political offence in relation to a country for the purposes
of that Act.
Section 91U Particularly serious
crime
37. This item inserts new section 91U into the Act which
clarifies what constitutes a “particularly serious crime” under
Article 33(2) of the Refugees Convention..
38. Article 33(2) of the
Refugees Convention provides that the benefits of protection may not be claimed
by a refugee who, having been convicted by a final judgement of a particularly
serious crime, constitutes a danger to the community of the country in which he
or she is. The term "particularly serious crime" is not defined in the Refugees
Convention and it is the responsibility of member states to ensure that this
reflects community views about what constitutes such a crime.
39. New
subsection 91U(1) provides that a “particularly serious crime”
includes a reference to a crime that is a serious Australian offence or a
serious foreign offence.
40. “Serious Australian offence” is
defined in new subsection 91U(2) to mean an offence against a law in force in
Australia where:
• the offence:
- involves violence against a
person; or
- is a serious drug offence; or
- involves serious damage to
property; or
- is an offence against section 197A or 197B of the Act
(offences relating to immigration detention); and
• the offence is
punishable by:
- imprisonment for life; or
- imprisonment for a fixed term
of not less than 3 years; or
- imprisonment for a maximum term of not less
than 3 years.
41. Serious foreign offence is defined in new subsection
91U(3) as an offence committed in a foreign country where:
• the
offence involves violence against a person, or is a serious drug offence or
involves serious property damage; and
• if the offence had taken place
in the Australian Capital Territory, it would have been punishable by
imprisonment for life, imprisonment for a fixed term of not less than 3 years,
or imprisonment for a maximum term of not less than 3 years.
42. The
above provision does not exhaustively define what constitutes a "particularly
serious crime". It remains possible that other types of "particularly serious
crime" may occur depending on the circumstances of particular cases. The new
provision ensures that core types of criminal offences which are viewed by the
community as being particularly serious are treated as "particularly serious
crimes" for the purpose of Article 33(2) of the Refugees Convention. The new
provision does not affect the existing requirements at Article 33(2) that a
person must be convicted by final judgement of a "particularly serious crime"
and must also be assessed as representing a risk to the community in order to be
ineligible for protection. This latter consideration will continue to be
undertaken on a case-by-case basis.
Section 91V Verification of
information
43. This item inserts new section 91V into the
Act.
44. This new provision addresses increasing concerns that some
applicants are engaging in sophisticated identity, nationality and claims fraud
in order to bolster their chances of gaining protection in Australia. In some
circumstances, individuals have recanted otherwise robust accounts of their
background, and have provided truthful accounts, when presented with the
prospect of affirming by way of oath or affirmation the truthfulness of the
information they had originally given.
45. Under new subsection 91V(1),
the Minister may, either orally or in writing, request a protection visa
applicant to make an oral statement, on oath or affirmation, that information
given in, or in connection with, the application for the visa is true.
46. New subsection 91V(2) sets out the circumstances in which the
Minister may draw any inference unfavourable to the applicant’s
credibility if he or she fails or refuses to comply with a request to make an
oath or affirmation under new subsection 91V(1). This new provision provides
that the Minister may draw any reasonable inference unfavourable to the
applicant’s credibility where the applicant was given a warning, either
orally or in writing, that the Minister may draw such an inference in the event
that the applicant refuses or fails to comply with the request.
47. New
subsection 91V(3) sets out the circumstances in which the Minister may draw any
inference unfavourable to the applicant’s credibility because of the
manner or demeanour in which he or she complies with a request for an oath or
affirmation given under new subsection 91V(1).
48. Under new subsection
91V(3), the Minister may draw any reasonable inference unfavourable to the
applicant’s credibility where the Minister has reason to believe that the
applicant was not sincere in making an oath or affirmation because
of:
• the manner in which the applicant complied with the request;
or
• the applicant’s demeanour in relation to compliance with the
request.
49. New subsection 91V(4) applies where information relevant
to the administration or enforcement of the Act is given to an officer
by:
• a non-citizen when the non-citizen was in immigration
clearance and is subsequently refused immigration clearance.
• a
non-citizen after he or she was refused immigration clearance.
50. Under
new subsection 91V(4), the officer may, either orally or in writing, request the
non-citizen to make an oral statement, on oath or affirmation, that information
is true.
51. New subsection 91V(5) sets out the circumstances in which
the Minister may draw any inference unfavourable to the non-citizen’s
credibility if he or she fails or refuses to comply with a request to make an
oath or affirmation under new subsection 91V(4). This new provision provides
that the Minister may draw any reasonable inference unfavourable to the
applicant’s credibility where the non-citizen was given a warning, either
orally or in writing, that the Minister may draw such an inference in the event
that the non-citizen refuses or fails to comply with the request.
52. New
subsection 91V(6) sets out the circumstances in which the Minister may draw any
inference unfavourable to the non-citizen’s credibility because of the
manner or demeanour in which he or she complies with a request for an oath or
affirmation given under new subsection 91V(4).
53. Under new subsection
91V(6), the Minister may draw any reasonable inference unfavourable to the
non-citizen’s credibility where the Minister has reason to believe that
the non-citizen was not sincere in making an oath or affirmation because
of:
• the manner in which the non-citizen complied with the
request; or
• the non-citizen’s demeanour in relation to
compliance with the request.
54. New subsection 91V(7) provides that a
reference to an “officer” in new section 91V includes a reference to
a person who is a clearance officer within the meaning of section 165 of the
Act.
55. New subsection 91V(8) provides the Minister or an officer with
the power to administer an oath or affirmation for the purposes of new section
91V.
Section 91W Documentary evidence of identity, nationality or
citizenship
56. This item inserts new section 91W into the
Act.
57. New section 91W provides that the Minister or an officer may
request, either orally or in writing, an applicant for a protection visa to
produce documentary evidence of his or her identity, nationality or citizenship
for inspection by the Minister or the officer. This new provision is needed to
increase the incentives for protection visa applicants, and unauthorised
arrivals who apply for protection visas in particular, to provide travel and
identity documentation to those persons assessing their claims for protection.
Information is being received regularly by Commonwealth
officers that most unauthorised arrivals to Australia possessed travel and
identity documentation, in many cases legitimate documentation, until shortly
before their arrival in Australia.
58. New subsection 91W(2) sets out
the circumstances in which the Minister may draw an inference unfavourable to
the applicant’s claimed identity, nationality or citizenship if her or she
fails or refuses to comply with a request given under new subsection 91W(1).
The Minister is not compelled to draw adverse inferences where documentation is
not forthcoming. This accommodates situations, such as influxes of individuals
fleeing to Australia as a country of first asylum, where it is understandable
that the individuals may neither have nor be able to obtain travel or
identification documents. In addition, specific provision is made at new
paragraph 91W(2)(c) for a person who has been requested to provide such
documentation to give reasonable explanation for a refusal or failure to comply
with the request.
59. New paragraph 91W(2)(d) provides that the Minister
may draw any reasonable inference unfavourable to the applicant’s claimed
identity, nationality or citizenship where the applicant was given a warning,
either orally or in writing, that the Minister may draw such an inference in the
event that the applicant refuses or fails to comply with the
request.
Section 91X Identity of applicants for protection visas not
to be published ` by the High Court or the Federal Court
60. This
item inserts new section 91X into the Act. This provision is required to
minimise the risk that publication of court proceedings might identify
individuals as having applied for protection in Australia. Such publication can
create a need for protection for the litigants and also place their family and
colleagues overseas at risk. The new section does not prevent the Minister or
other litigants from seeking court orders for further confidentiality in
particular cases, for example to suppress any information which may identify the
litigants.
61. New subsection 91X(2) prohibits the High Court or the
Federal Court from publishing (electronically or otherwise) the name of certain
persons. Under new subsection 91X(1), this prohibition applies to a proceeding
before the High Court or the Federal Court if the proceeding relates to a person
in the person’s capacity as:
• a person who applied for a
protection visa; or
• a person who applied for a protection-related
bridging visa; or
• a person whose protection visa has been cancelled;
or
• a person whose protection-related bridging visa has been
cancelled.
62. New subsection 91X(3) defines:
• an
“application for a protection-related bridging visa” to mean an
application for a bridging visa, where the applicant for the bridging visa is
also an applicant for a protection visa; and
• “proceeding”
to mean a proceeding in a court, whether between parties or not, and includes an
incidental proceeding in the course of, or in connection with, a proceeding, and
also includes an appeal; and
• “protection-related bridging
visa” to mean a bridging visa granted as a result of an application for a
protection-related bridging visa.
Item 6 After section
501H
63. This item inserts new section 501J after section 501H of the
Act.
64. New subsection 501J(1) provides the Minister with power to set
aside an AAT protection visa decision and substitute a decision that is more
favourable to the applicant, where it is in the public interest to do so. The
power established by this new section is a logical extension of the equivalent
power available to the Minister under current section 417 to substitute a more
favourable decision for a decision of the RRT in relation to decisions made by
that tribunal. This power to set aside an AAT protection visa decision may be
exercised whether or not the AAT had the power to make the other more favourable
decision.
65. An “AAT protection visa decision” is defined in
new subsection 501J(2) to mean a decision of the AAT in relation to an
application for, or the cancellation of, a protection visa.
66. New
subsection 501J(3) makes it clear that in exercising the power under new
subsection 501(1), the Minister is not bound by Subdivision AA or AC of Division
3 of Part 2 of the Act or by the regulations, but is bound by all other
provisions of the Act.
67. New subsection 501J(4) specifies that the
power in new subsection 501J(1) may be exercised only by the Minister
personally.
68. New subsections 501J(5), 501J(6) and 501J(7) all relate
to a statement that the Minister must cause to be laid before each House of the
Parliament if the Minister substitutes a decision under new subsection
501J(1).
69. New subsection 501J(5) provides that such a statement
must:
• set out the decision of the AAT; and
• set out the
decision substituted by the Minister; and
• set out the reasons for the
Minister’s decision.
The reasons for the Minister’s decision
must refer in particular to the Minister’s reasons for thinking that his
or her actions are in the public interest.
70. Under new subsection
501J(6), a statement made under new subsection 501J(5) must not
include:
• the name of the applicant; or
• any information
that may identify the applicant; or
• if the Minister thinks that it
would not be in the public interest to publish the name of another person
connected in any way with the matter concerned - the name of that other person
or any information that may identify that other person.
71. Under new
subsection 501J(7), a statement made under new subsection 501J(5) is to be laid
before each House of the Parliament within 15 sitting days of that House
after:
• if the decision is made between 1 January and 30 June
(inclusive) in a year - 1 July in that year; or
• if a decision is made
between 1 July and 31 December (inclusive) in a year - 1 January in the
following year.
72. New subsection 501J(8) provides that the Minister
does not have a duty to consider whether to exercise the power under new
subsection 501J(1) in respect of any decision, whether he or she is requested to
do so by the applicant or by any other person, or in any other circumstances.
Section 501K Identity of applications for protection visas not to be
published by the Administrative Appeals Tribunal
73. This item
inserts new section 501K into the Act.
74. New subsection 501K(2)
prohibits the AAT from publishing (electronically or otherwise) in relation to a
review any information that may identify a person or any relative or other
dependant of the person.
75. Under new subsection 501K(1), this
prohibition applies to a review by the AAT if the review relates to a person in
the person’s capacity as:
• a person who applied for a
protection visa; or
• a person whose protection visa has been
cancelled; or
• a person whose protection-related bridging visa has
been cancelled.
76. Under new subsection 501K(3), an "application for a
protection-related bridging visa" is defined as meaning an application for a
bridging visa, where the applicant for the bridging visa is, or has been, an
applicant for a protection visa, and "protection related bridging visa" is
defined as meaning a bridging visa granted as a result of an application for a
protection related bridging visa.
Item 7 Application of amendment - Subdivision AL of Division 3 of
Part 2 of the Migration Act 1958
77. This item deals with the
application of new Subdivision AL which is inserted into Division 3 of Part 2 of
the Act by item 5 of this Schedule.
78. It provides that new Subdivision
AL (other than new section 91X) applies in relation to:
• an
application for a protection visa made after the commencement of this item;
and
• an application for a protection visa made before the commencement
of this item, where the visa was neither granted, nor refused, before the
commencement of this item; and
• an application for a protection visa
made before the commencement of this item, where:
- a decision to refuse to
grant the visa was made before that commencement; and
- an application for
review of that decision is or was made to the Refugee Review Tribunal or the AAT
(whether before, at or after that commencement); and
- the Refugee Review
Tribunal or the AAT made a decision on that review after that commencement.
Item 8 Application of amendment - section 91X of the Migration
Act 1958
79. This item provides that new section 91X applies in
relation to a proceeding that is instituted after the commencement of this item.
Item 9 Application of amendment - section 501J of the Migration
Act 1958
80. This item provides that new section 501J applies in
relation to a decision of the AAT, whether made before, at or after the
commencement of this item.
Item 10 Application of amendment –
section 501K of the Migration Act 1958
81. This item provides
that new section 501K applies in relation to a review, where the application for
review was made after the commencement of this item.