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2002 – 2003
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
MIGRATION LEGISLATION
AMENDMENT
(SPONSORSHIP MEASURES) BILL
2003
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
(Amendments to be Moved on Behalf of the
Government)
(Circulated by authority of
the
Minister for Immigration and Multicultural and Indigenous Affairs,
The
Hon. Philip Ruddock MP)
AMENDMENTS TO THE MIGRATION LEGISLATION AMENDMENT
(SPONSORSHIP
MEASURES) BILL 2003
OUTLINE
1. The purpose of these amendments to the Migration Legislation Amendment (Sponsorship Measures) Bill 2003 (“the Bill”) is to provide, in the Migration Act 1958 (“the Act”), for a monetary limit, or cap, on the liability of a person (“the sponsor") to pay the Commonwealth’s costs in locating and detaining another person who the sponsor has sponsored for a visa, and where the sponsor has given an undertaking to pay such costs.
2. Subsection 140H(1) of the Bill currently provides that where a person has
applied for approval as a sponsor of a person for a visa, the former person may
be required to make undertakings that are to be prescribed in the Migration
Regulations 1994 (“the regulations”). The note to sub section
140H(1) lists examples of the type of undertakings that might be prescribed in
the regulations. The example at paragraph (b) of the note is:
(b) To
pay to the Commonwealth the costs of locating, detaining and removing from
Australia a visa holder sponsored by the sponsor
3. This is consistent with the intention of the Bill, which is to ensure that a person who sponsors the visa of a non-citizen (as opposed to the Australian community), should bear any costs the Commonwealth might incur in respect of the non-citizen’s stay in Australia.
4. Subsection 140H(2) provides that the undertakings only have effect if the
applicant for sponsorship approval has consented in writing to sponsor a
non-citizen’s visa. Subsection 140H(3) provides that the undertakings do
not have effect until the visa is granted.
5. Subsection 140I(1) specifically provides - without limiting the generality
of subsection 140H(1) – that the regulations may prescribe an undertaking
to pay to the Commonwealth an amount specified in that subsection.
6. Subsection 140I(3) limits the enforceability of such an undertaking
to the amount of the Commonwealth’s actual costs in relation to which the
undertaking was given.
7. In its report tabled on 12 August 2003, the
Senate Legal and Constitutional Legislation Committee ("the Committee"),
expressed concern that if the Bill in its current form were enacted, a sponsor
might become liable to pay the Commonwealth’s costs of the location and
detention of a non-citizen who he or she has sponsored, where, in the
Committee’s view, such costs were potentially unlimited. These amendments
seek to address the Committee’s concerns.
8. These amendments insert a new subsection into section 140I. The new subsection is designed to expressly limit the enforceability of a sponsor’s undertaking to pay the Commonwealth’s costs, in respect of the location and detention of a non-citizen whose visa that person has sponsored, to an amount prescribed in the regulations.
FINANCIAL IMPACT STATEMENT
9. The proposed amendments to the Bill will have minimal financial
impact.
AMENDMENTS TO THE MIGRATION LEGISLATION AMENDMENT
(SPONSORSHIP MEASURES) BILL 2003
NOTES ON
AMENDMENTS
Amendment (1)
1. This amendment inserts a proposed new subsection (4), after subsection (3), in section 140I of the current Bill.
New Proposed Subsection (4)
2. New subsection (4) expressly provides that the enforceability of a sponsor’s undertaking to pay the costs of the Commonwealth, in relation to the location and detention of a non-citizen who that sponsor has sponsored, must not exceed an amount (or “cap”) prescribed in the regulations.
3. New subsection (4) provides for the dollar amount of the cap to be prescribed in the regulations. This means that the amount can be changed from time to time as circumstances require (for example, to take into account the effects of inflation) by appropriate amendments to the regulations, and without the need to amend the Act. It is proposed that the regulations initially prescribe a cap of $10,000.
4. New subsection (4) makes it clear that the dollar amount of the cap applicable in a particular instance, is the cap prescribed by the Regulations at the time the sponsor made the undertaking.
5. The cap applies in respect of each non-citizen the sponsor has sponsored (and in respect of whom the sponsor has given the relevant undertaking).
6. New subsection (4) does not limit the ability of the Commonwealth to recover the full amount of its costs of locating and detaining a non-citizen in accordance with Part 2, Division 10 of the Act, from the non-citizen himself or herself.