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1998
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
MIGRATION
LEGISLATION AMENDMENT (STRENGTHENING OF PROVISIONS RELATING TO CHARACTER AND
CONDUCT) BILL 1998
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural Affairs,
the Hon.
Philip Ruddock MP)
ISBN: 0642 377073
MIGRATION LEGISLATION AMENDMENT (STRENGTHENING OF PROVISIONS RELATING TO
CHARACTER AND CONDUCT) BILL 1998
OUTLINE
1. The
Migration Legislation Amendment (Strengthening of Provisions relating to
Character and Conduct) Bill 1998 ("the Bill") amends provisions in the
Migration Act 1958 ("the Act") to implement a number of Government
initiatives in the Immigration and Multicultural Affairs Portfolio.
Specifically, the Bill amends the Act to give the Government greater control
over the entry into, and presence in, Australia of certain non-citizens who are
unable to satisfy the Minister that they pass the "character test". Other
amendments are also required to strengthen the procedures used in dealing with
such people.
2. The amendments to the Migration Act:
· strengthen the power to refuse to grant or cancel a visa on
character grounds by:
- introducing a character test in section
501;
- deeming certain persons not to pass the character test;
- providing
that visa applicants and visa holders who are being considered under section 501
bear the burden of proof in convincing the Minister that they pass the character
test;
- deeming refusal of all visa applications applied for, and
cancellation of all visas held by, a person who has "failed" the character test
and whose visa application has consequently been refused or whose visa has been
cancelled;
- detailing the obligations of the Minister to notify an
applicant or visa holder of a decision to refuse to grant or cancel a visa on
the basis of the person's character;
- providing for the consideration of
evidence and determination of whether a person passes the character test to
cover cases which do not fall within the new deeming provisions;
and
- permitting temporary detention of a visa holder where a section 501 or
501A cancellation decision is being considered;
· expand the
Minister's power to give binding directions under section 499 to delegates and
Tribunals, particularly in terms of the factors to be taken into account in
deciding whether to refuse a visa application or cancel the visa of a
non-citizen who has been found not to have passed the character
test;
· prevent (with limited exceptions) persons who have had a
visa refused or cancelled on character grounds from applying for further visas
while they are still in the migration zone;
· expedite the process of
review by the Administrative Appeals Tribunal ("AAT") of decisions made under
the new character provisions where the decision relates to a person who is in
the migration zone. The most significant amendments include:
- imposing
strict time limits on, and otherwise expediting, the review of section 501
decisions made by a delegate of the Minister; and
- deeming a delegate's
decision to be affirmed where the AAT fails to make a decision within 84
days;
· enhance the power to remove unlawful non-citizens from
Australia;
· strengthen the Minister's personal powers to refuse to
grant or cancel a visa on character grounds:
- to enable the Minister to
personally exercise a special power to intervene in any case and substitute
his/her own decision to refuse to grant or cancel. This decision may be revoked
if made without prior notice to the person; and
- to ensure that the
Minister's personal decisions are not reviewable;
· provide
protection from disclosure of confidential security and criminal intelligence
information that is provided by Gazetted agencies;
· introduce
consistency into the circumstances in which conclusive certificates may be
granted to prevent review of a decision: the new standard test for all
conclusive certificates will be "the national interest";
· create
transitional provisions in respect of the above amendments;
and
· make minor technical amendments arising out of the above
amendments.
FINANCIAL IMPACT STATEMENT
3. Moderate
increases to administrative costs will be incurred by the Immigration and
Multicultural Affairs portfolio as a result of the passage of this Bill.
MIGRATION LEGISLATION AMENDMENT (STRENGTHENING OF PROVISIONS RELATING TO
CHARACTER AND CONDUCT) BILL 1998
NOTES ON INDIVIDUAL
CLAUSES
Clause 1 Short title
1. This clause provides
that the short title of this Act is the Migration Legislation Amendment
(Strengthening of Provisions relating to Character and Conduct) Act
1998.
Clause 2 Commencement
2. Subclause 2(1) provides
that, subject to this section, this Act commences on a day to be fixed by
Proclamation.
3. Subclause 2(2) provides that, if item 10 of Schedule 1
to the Migration Legislation Amendment Act (No. 1) 1998 ("MLAA No. 1")
does not commence before the day fixed under subclause 2(1), then items 12 and
29 of Schedule 1 to this Act commence immediately after the commencement of item
10 of Schedule 1 to the MLAA No. 1.
Clause
3 Schedule(s)
4. This clause provides that, subject to section 2 of
this Act, the Acts specified in the Schedule to this Act are amended or repealed
as set out in the relevant Schedule. This item also provides that any other
item in a Schedule to this Act has effect according to its terms.
SCHEDULE 1 - AMENDMENT OF THE MIGRATION ACT
1958
Migration Act 1958
Item 1 Paragraph
46(1)(d)
5. Section 46 of the Act sets out the requirements that must
be met for a visa application to be valid. This item amends paragraph 46(1)(d)
so that an application for a visa will not be valid if it is prevented by
section 501E, inserted by this Act. New section 501E provides for limitations
on the circumstances in which, and the classes of visa for which, a person who
has had a visa refused or cancelled under section 501, 501A or 501B (inserted by
this Act) can make a further application.
Item 2 Subparagraph
48(b)(i)
6. This item amends subparagraph 48(b)(i). The amendment of
subparagraph 48(b)(i) is to prevent a person whose visa has been refused under
new section 501, 501A or 501B from applying for any visa which might be
prescribed for the purposes of section 48. Any person so affected may apply for
a visa prescribed for the purposes of new section 501E.
Item
3 Subparagraph 48(b)(ii)
7. Section 48 of the Act provides that
persons in the migration zone who do not hold a substantive visa and who have
been refused a visa after last entering Australia or who have had a visa
cancelled under specified sections of the Act, can only apply for a limited
range of visa classes, prescribed in regulation 2.12.
8. This item
removes the reference to section 501 in subparagraph 48(b)(ii). Where a person
has had a visa refused or cancelled under the character provisions introduced by
this Act, new section 501E specifies limitations on the circumstances in which,
and the classes for which, that person can make a further visa application.
Item 4 At the end of section 66
9. Section 66 of the Act
sets out the obligations of the Minister in respect of notifying an applicant of
a decision to grant or refuse to grant a visa. This item adds new subsection
66(5) with the intention of excluding a decision to refuse to grant a visa under
new section 501, 501A, 501B or 501F from the operation of section 66.
10. Notification by the Minister of a decision to refuse to grant a visa
under new section 501, 501A, 501B or 501F will be covered by new sections 501C
and 501G, inserted by this Act.
Item 5 Paragraph
118(f)
11. Section 118 of the Act provides that the powers to cancel
a visa specified in that section are not limited, or otherwise affected, by each
other. Therefore, the fact that a particular visa can or cannot be cancelled
under one of the specified powers does not affect any power to cancel that visa
under another of the specified powers.
12. This item amends paragraph
118(f) to insert a reference to new sections 501A and 501B into section 118.
Item 6 Subsections 192(1) and (4)
13. Subsection 192(1)
permits detention of a non-citizen where an officer knows or reasonably suspects
that the non-citizen holds a visa that may be cancelled under certain provisions
of the Act. This item amends subsection 192(1) to extend the power to detain a
person under subsection 192(1) to the situation where an officer knows or
reasonably suspects that a person's visa may be cancelled under section 501 or
501A (as inserted by this Act).
14. Subsection 192(4) provides that a
visa holder must be released from questioning detention if an officer becomes
aware that the person's visa is not one that may be cancelled under specified
provisions of the Act. This item amends subsection 192(4) to add a reference to
sections 501 and 501A (as inserted by this Act).
Item 7 After
subparagraph 193(1)(a)(iii)
15. Subsection 193(1) specifies the
circumstances when sections 194 and 195 of the Act do not apply. Section 194 of
the Act obliges an officer to inform a detainee of the types of visas for which
the person may apply. Section 195 of the Act makes provision for the time frame
within which such an application may be made.
16. This item amends
paragraph 193(1)(a) by inserting new subparagraph 193(1)(a)(iv), so as to
exclude the operation of sections 194 and 195 in respect of a person who has
been detained under subsection 189(1) because of a decision the Minister has
made personally under section 501, 501A or 501B (inserted by this Act). This
amendment discharges the Minister's obligation in order to strengthen the power
to remove unlawful non-citizens from Australia.
Item 8 Paragraph
198(2)(a)
17. This item amends paragraph 198(2)(a). This amendment
is technical and consequential in nature.
Item 9 After subsection
198(2)
18. Section 198 of the Act provides for the removal from
Australia of unlawful non-citizens (as defined in section 14 of the Act).
Subsection 189(1) of the Act provides that where an officer knows or reasonably
suspects that a person in the migration zone is an unlawful non-citizen, the
officer must detain the person.
19. The insertion of subsection 198(2A)
puts beyond doubt the Minister's power to remove persons who have had visa
applications refused or visas cancelled by the Minister acting personally under
new section 501, 501A or 501B. The amendments are not intended to derogate from
the power in section 198 to remove persons who have had a visa application
cancelled or a visa refused under other provisions of the Act, including other
character provisions.
20. This item inserts new subsection 198(2A),
which provides for an officer to remove an unlawful non-citizen where:
. sections 194 and 195 do not apply to the non-citizen because they have
been detained under subsection 189(1) as a result of a personal decision of the
Minister to refuse to grant a visa to, or to cancel a visa held by, the
non-citizen under new section 501, 501A or 501B (subparagraph 193(1)(a)(iv)
refers); and
. since the decision of the Minister, referred to above, the
non-citizen has not made a valid application for a substantive visa that can be
granted when the non-citizen is in the migration zone, that is, a protection
visa or a visa specified in the regulations (new section 501E refers);
and
. if the non-citizen has been invited to make representations to the
Minister about revoking the original decision (paragraph 501C(3)(b) refers),
either:
- the non-citizen has not made representations in accordance with
the invitation and the time for making representations has ended;
or
- the non-citizen has made representations in accordance with the
invitation but the Minister decides not to revoke the original
decision.
Item 10 Subsection 198(3)
21. This item amends
subsection 198(3) by adding a reference to new subsection 198(2A) so that a
person can be removed from Australia under subsection 198(2A) even though the
person can apply (but has not applied) for a substantive visa that could be
granted while the person remains in the migration zone.
Item
11 Subsection 198(4)
22. This item amends subsection 198(4) by
adding a reference to new subsection 198(2A) so that nothing in new subsection
198(2A) requires the Minister or any officer, in relation to a person covered by
subsection 193(1) (see item 7 above) to:
. advise them that they may
apply for another visa; or
. give them an opportunity to apply for a
visa; or
. allow them to have access to advice concerning visa
applications.
Item 12 Section 339
23. The commencement of
this item is dependent upon item 10 of Schedule 1 to MLAA No. 1 having
commenced (see the comments on subclause 2(3)). This item repeals section 339,
as amended by MLAA No. 1 and substitutes a new section 339, which provides that,
in respect of a decision that would otherwise be reviewable by the new Migration
Review Tribunal ("MRT") (introduced by MLAA No. 1), the Minister may issue a
conclusive certificate where it would be contrary to the national interest to
change the decision or for the decision to be reviewed.
24. This item is
intended, in conjunction with other amendments made by this Act, to provide for
consistency in respect of the Minister's powers to issue a conclusive
certificate under the Act.
Item 13 Subsection
411(3)
25. As explained above under item 12, the Government has
determined that the various provisions in the Act which empower the Minister to
issue a conclusive certificate to a person should be amended so as to be
consistent with each other.
26. This item repeals subsection 411(3) and
substitutes a new subsection 411(3), which provides that, in respect of
decisions that would be otherwise reviewable by the Refugee Review Tribunal
("RRT"), the Minister may issue a conclusive certificate where it would be
contrary to the "national interest" to change the decision or for the decision
to be reviewed.
Item 14 After subsection
496(1)
27. Subsection 496(1) enables the Minister to delegate any of
his/her powers under the Act to a person. This item inserts new subsection
496(1A), which puts beyond doubt that a person to whom the Minister's powers
under the Act have been delegated is subject to the directions of the Minister.
Item 15 At the end of section 496
28. This item is
intended to ensure that subsection 496(1A), inserted by this Act, does not limit
the Minister's powers to give directions under subsection 499(1) (inserted by
this Act).
Item 16 Subsection 499(1)
29. This item
repeals subsection 499(1) and substitutes new subsections 499(1) and (1A). New
subsection 499(1) provides that the Minister may give written directions (that
must be tabled in Parliament) to a person or body having functions or powers
under the Act if the directions are about the:
. performance of those
functions; or
. exercise of those powers.
30. New subsection 499(1)
removes the existing restriction that the Minister may give "general" directions
only. Advice was received from the Attorney-General's Department that a
"general direction" may be limited to giving directions that decision-makers
have due regard to certain matters in the exercise of their discretion. This
amendment is intended to ensure that the Minister can specify more precisely how
a discretion should be exercised. This would relate in particular to directions
on how the discretion should be exercised to refuse a visa application made by,
or to cancel a visa held by, a non-citizen who does not pass the character test.
It would enable directions to be given on what weight should be given to
different factors (eg nature of criminal offences, links to Australia,
observation of international law requirements).
31. New subsection
499(1A) provides by way of example that the Minister may, under new subsection
499(1), require a person or body to exercise the power under section 501 rather
than section 200, in circumstances where both powers apply. This amendment is
not intended to limit the scope of the power under subsection 499(1).
Item 17 After subsection 499(2)
32. This item inserts new
subsection 499(2A), which is intended to put beyond doubt the binding nature of
a direction given by the Minister under subsection 499(1).
Item
18 At the end of section 499
33. This item inserts new subsection
499(4), which is intended to make it clear that the Minister's power to make
directions under subsection 499(1) does not limit the Minister's power to make
directions under subsection 496(1A) (inserted by this Act).
Item
19 Paragraph 500(1)(b)
34. Subsection 500(1) of the Act specifies
the decisions in respect of which an application for review may be lodged with
the AAT. This item amends paragraph 500(1)(b) of the Act by inserting a
reference to decisions of a delegate of the Minister under section 501. This
amendment is required to ensure that decisions made personally by the Minister
under section 501, as inserted by this Act, are not reviewable by the AAT.
Item 20 Subsection 500(4)
35. This item repeals
subsection 500(4) and inserts a new subsection 500(4), which specifies the
decisions which are not merits-reviewable under Part 5 or 7 of the Act.
Part 5 currently provides for review by the Immigration Review Tribunal
("IRT"), while Part 7 provides for review by the RRT.
36. This item is
intended to put beyond doubt that the issue of a certificate under
section 502 does not make the decision of which it forms a part
merits-reviewable under Part 5 or 7 of the Act.
Item 21 After
subsection 500(6)
37. This item inserts new subsections 500(6A) to
(6L). These amendments are necessary in order to expedite review of decisions
made by a delegate of the Minister under the new character provisions. The
amendments balance the Government's concern to expedite review of character
decisions against the need to ensure that the AAT has relevant information and
sufficient time to properly review a particular decision to refuse to grant or
to cancel a visa on the basis of a person's character.
38. These
amendments are also intended to ensure that the review process is not used as a
mechanism to prolong stay in Australia by people whose visa has been refused or
cancelled as a consequence of:
them being unable to satisfy a delegate
of the Minister that they pass the character test; and
. there being
insufficient mitigating factors for the delegate to exercise the discretion not
to refuse a visa application or not to cancel a visa.
39. The
amendments to the process of review of character decisions by the AAT apply only
to decisions regarding persons who are in the migration zone. The "migration
zone" is defined in subsection 5(1) of the Act.
40. New subsection
500(6A) provides that if an AAT-reviewable decision is made under section 501 of
the Act which relates to a person in the migration zone, section 28 of the
Administrative Appeals Tribunal Act 1975 ("the AAT Act") does not apply.
Section 28 of the AAT Act entitles a person affected by a decision to request
the decision-maker to provide written reasons for the decision. It also sets
out the obligations of the decision-maker in providing those reasons. It is
intended that reasons for the decision will be furnished under new section 501G
(inserted by this Act).
41. This item also provides that, if an
application is made to the AAT for review of an AAT-reviewable decision made
under section 501 of the Act, which relates to a person in the migration zone:
. the review application must be lodged with the AAT within 9 days of
the date on which the person was notified of the decision. Accordingly
paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the AAT Act do
not apply (new subsection 500(6B));
. the review application must include
one set of all the documents (originals or copies) given to the person at the
time of notification of the decision, including the document notifying the
person of the decision (new subsection 500(6C)). This truncates the process
leading to consideration at review. It also replaces the obligation in the AAT
Act (in section 37) for the Minister to provide the AAT with relevant documents
and a statement of reasons after a review application has been
made;
. section 37 of the AAT Act does not apply. Section 37 of the AAT
Act specifies requirements for the lodging of documents by the Minister with the
AAT. That section is made redundant by the insertion of new subsections
500(6C), 500(6F) and 500(6K) (new subsection 500(6D));
. the AAT must
notify the Minister of the application, within the time and in the way
prescribed in the Migration Regulations and accordingly subsection 29(11) of the
AAT Act does not apply (new subsection 500(6E));
. the Minister must lodge 2
copies of documents (including parts of documents) containing relevant
non-disclosable information with the AAT within 14 days of the Minister being
notified that an application for review had been made. The AAT may have regard
to the documents but must not disclose them to the review applicant (new
subsection 500(6F)). This, in conjunction with other amendments made by this
Act, replaces the Minister's obligations under section 37 of the AAT
Act;
. the AAT cannot, in respect of that application, hold a hearing
(other than a directions hearing) or make a decision (under section 43 of the
AAT Act) until at least 14 days after the Minister has been notified that the
application for review had been made (new subsection 500(6G));
. the AAT
must not have regard to any oral information in support of a person's case
unless it has been given to the Minister in writing at least 2 business days
before the Tribunal holds a hearing (other than a directions hearing) in
relation to the decision under review (new subsection 500(6H));
. the AAT
must not have regard to any document in support of a person's case (apart from
documents covered by new subsection 501G(2) or new subsection 500(6F))
unless a copy has been given to the Minister at least 2 business days before the
Tribunal holds a hearing (other than a directions hearing) in relation to the
decision under review (new subsection 500(6J));
. the AAT may require the
Minister to lodge 2 copies of documents specified by the AAT, in the Minister's
possession or control, that the AAT considers relevant to the decision (new
subsection 500(6K)); and
. the original decision is deemed to be affirmed
by the AAT if the AAT has not, for whatever reason, made a decision in respect
of the application within 84 days of the person being notified of the decision
(new subsection 500(6L)).
Item 22 At the end of section
500
42. This item inserts a new subsection 500(8). This subsection
defines the meaning of "business day" for the purposes of section 500.
Particular reference to the Australian Capital Territory in the new subsection
arises as all of the Minister's responses to AAT appeals from the Minister's
decisions are coordinated in that Territory.
Item 23 Section
501
501 Refusal or cancellation of visa on character
grounds
43. Section 501 currently provides for a two stage process
for refusal to grant or cancellation of a visa. The first stage involves a
decision-maker making a finding of fact as to whether a person is "not of good
character". The second stage is a discretion to grant or not to cancel a visa,
despite a finding that a person is not of good character.
44. This item
repeals section 501 and substitutes a new section 501. The new section retains
a staged decision making process. The number of stages in the new decision
making process may vary according to whether:
. refusal of a visa
application or cancellation of a visa is being considered; or
. the
decision-maker is a delegate or the Minister acting personally.
45. New
subsection 501(1) provides that the Minister may refuse to grant a visa where
the visa applicant does not satisfy the Minister that they pass the character
test (defined in subsection 501(6) inserted by this Act).
46. New
subsection 501(2) provides that the Minister may cancel a visa where:
. the Minister reasonably suspects that the visa holder does not pass
the character test (defined in subsection 501(6) inserted by this Act); and
. the visa holder does not satisfy the Minister that they pass the
character test.
47. The exercise of the discretion that the Minister may
cancel a visa in new subsection 501(2), would remove a benefit that has been
given to a person (that is, they are already a visa holder), hence the
requirement that there be a reasonable suspicion that the person does not meet
the character test before that person is then obliged to satisfy the Minister
that he or she satisfies the character test. New subsection 501(1) relates to
the power to refuse an application by a person seeking a benefit, that is, the
grant of a visa. As a result, there is an absence of any preliminary
requirement that there be a reasonable suspicion that the visa applicant does
not satisfy the character test before that person is obliged to satisfy the
Minister that they do satisfy the character test.
48. New subsections
501(1) and (2) place the burden of proof as to whether the character test is
passed, on the visa applicant and visa holder, respectively. This was the
situation that existed in 1992 prior to the passage of the Migration
(Offences and Undesirable Persons) Amendment Act 1992.
49. New
subsections 501(3) and (4) provide that the Minister, acting personally, may
refuse to grant or cancel a visa if the Minister reasonably suspects that the
person does not pass the character test (defined in subsection 501(6) inserted
by this Act). Also, the Minister must be satisfied that it is in the national
interest to refuse to grant or cancel the visa.
50. New subsection
501(5) provides that the rules of natural justice and the code of procedure (set
out in Subdivision AB of Division 3 of Part 2) do not apply where the Minister,
acting personally, makes a decision under subsection 501(3) inserted by this
Act. This amendment ensures that the Minister does not have to give prior
notice of the decision, whether by way of natural justice principles or the code
of procedure, where it would otherwise be applicable. In these circumstances,
the Minister will provide the non-citizen with a subsequent opportunity to make
representations as to why the decision should be revoked (see new section 501C).
51. The only circumstances upon which natural justice will not be
accorded and the code of procedure not applicable prior to the exercise of the
power in new subsection 501(3) is when the Minister is satisfied that the
refusal or cancellation is in the national interest.
52. New subsection
501(6) provides that a person does not pass the character test if:
. the
person has a substantial criminal record (defined in subsection 501(7) inserted
by this Act); or
. the person has or has had associations with a person,
group or organisation the Minister reasonably suspects has been or is involved
in criminal conduct; or
. the person is not of good character having
regard to either or both:
- the person's past and present criminal
conduct;
- the person's past and present general conduct; or
. in
the event that the person were allowed to enter or remain in Australia, there is
a significant risk that the person would engage in specified conduct. The types
of conduct specified in new paragraph 501(6)(d) are the same as paragraph
501(1)(b), with the addition of conduct amounting to harassment, molestation,
intimidation or stalking of a person in Australia. The scope of the terms
"harassment" and "molestation" is defined in subsection 501(11), inserted by
this Act. The requirement of "significant risk" is intended to reduce the
current threshold of risk that a decision-maker can accept before making a
finding that a person will not pass the character test because they may engage
in specified conduct.
53. New subsection 501(7) defines a "substantial
criminal record" for the purposes of the new character test (as defined in new
subsection 501(6)) as:
. a sentence to death;
. one sentence of
12 months or more;
. a total sentence of 2 years or more where the person
has been sentenced to 2 or more terms of imprisonment. It is intended that
sentences be "totalled" irrespective of the time and place at which each
sentence was imposed; or
. detention in a facility or institution as a
result of being acquitted of an offence on the grounds of unsoundness of mind or
insanity. This amendment is intended to deal with the situation where a
non-citizen has been acquitted of a particularly serious offence due to
unsoundness of mind or insanity.
54. New subsection 501(8) provides that,
where a person has been sentenced to periodic detention, the term of
imprisonment is taken to be equal to the number of days the person is required
under that sentence to spend in detention. For example, a sentence of 90 days
to be served over 1 year would count as a sentence of 90 days.
55. New
subsection 501(9) defines the duration of a sentence of imprisonment, for the
purposes of the character test, where a person is ordered by the court to
participate in a residential drug rehabilitation scheme or a residential program
for the mentally ill as a result of being convicted of an offence. In these
circumstances, the sentence is the period of time the person is required to
participate in the scheme or program respectively.
56. New subsection
501(10) provides that a sentence is to be disregarded if the conviction has been
quashed (or otherwise nullified) or if the person has been pardoned of the
offence.
57. New subsection 501(11) provides, for the purposes of the
character test in subparagraph 501(6)(d)(ii), that conduct can amount to
harassment or molestation even if it does not involve violence or threatened
violence to the person. The subsection also provides that damage or threatened
damage to property belonging to, in the possession of or used by the person, can
constitute harassment or molestation.
58. New subsection 501(12) defines
the terms "court", "imprisonment" and "sentence" for the purposes of section 501
(as inserted by this Act).
501A Refusal or cancellation of visa -
setting aside and substitution of non-adverse decision under subsection 501(1)
or (2)
59. New subsection 501A(1) provides that section 501A
(inserted by this Act) applies where a visa is granted or remains in effect as a
result of a decision, by a delegate of the Minister or by the AAT ("the original
decision"), not to exercise the power contained in subsection 501(1) or (2)
respectively (as inserted by this Act).
60. New subsections 501A(2) and
(3) allow the Minister to set aside the original decision and substitute a less
favourable decision (that is, the Minister may decide to refuse to grant or
cancel a visa) where the Minister is satisfied that it is in the national
interest to refuse to grant or cancel the visa and either:
. the
Minister reasonably suspects the person does not pass the character test and the
person does not satisfy the Minister that the person passes the character test
(defined in subsection 501(6) inserted by this Act) (new subsection 501A(2));
or
. the Minister reasonably suspects the person does not pass the
character test (new subsection 501A(3)).
61. New subsection 501A(4)
provides that the rules of natural justice and the code of procedure (set out in
Subdivision AB of Division 3 of Part 2) do not apply to new subsection 501A(3).
This amendment ensures that the Minister does not have to give prior notice of
the decision, whether by way of natural justice principles or the code of
procedure, where it would otherwise be applicable. However, under new section
501C (inserted by this Act), the visa applicant/holder must (subject to any
contrary regulations) be invited to make representations concerning the
revocation of a decision under new subsection 501A(3).
62. The only
circumstances upon which natural justice will not be accorded and the code of
procedure not applicable prior to the exercise of the power in new subsection
501A(3) is when the Minister is satisfied that the refusal or cancellation is in
the national interest.
63. New subsection 501A(5) provides that the
Minister's powers under new subsections 501A(2) and (3) must be exercised by the
Minister personally.
64. New subsection 501A(6) provides that the
Minister cannot be compelled to consider whether to exercise the powers
contained in new subsections 501A(2) and (3).
65. New subsection 501A(7)
provides that the Minister's decision under new subsection 501A(2) or (3), which
is a decision made by the Minister personally, is not merits-reviewable under
Part 5 or 7 of the Act. Part 5 currently provides for review by the IRT, while
Part 7 provides for review by the RRT.
501B Refusal or cancellation
of visa - setting aside and substitution of adverse decision under subsection
501(1) or (2)
66. New section 501B permits the Minister to intervene
on specified grounds at any time during the review process, that is, at any time
after a delegate's decision has been made to refuse to grant or cancel a visa.
67. New subsection 501B(1) provides that new section 501B applies where
a delegate of the Minister makes a decision to refuse to grant or cancel a visa
under subsection 501(1) or (2) respectively (as inserted by this Act).
68. New subsections 501B(2) and (3) enable the Minister acting
personally to set aside the delegate's decision and refuse to grant or cancel a
visa where:
. the Minister reasonably suspects that the person does not
pass the character test;
. the visa applicant/holder does not satisfy the
Minister that they pass the character test; and
. the Minister is
satisfied that refusal or cancellation of the visa is in the national
interest.
69. New subsection 501B(4) provides that the Minister's
decision under subsection 501B(2), which is a decision made by the Minister
personally, is not merits-reviewable under Part 5 or 7 of the Act.
70. New subsection 501B(5) clarifies that the Minister may set aside a
decision using subsection 501B(2) even if the delegate's decision is the subject
of an application for review by the AAT.
501C Refusal or cancellation
of visa - revocation of decision under subsection 501(3) or
501A(3)
71. New subsection 501C(1) provides that new section 501C
applies to decisions made under new subsection 501(3) or 501A(3) (as inserted by
this Act), which must be made personally by the Minister ("the original
decision").
72. New subsection 501C(2) inserts a definition of "relevant
information", which excludes "non-disclosable information" and is information
that the Minister considers:
. would have been at least part of the
reason the original decision was made; and
. is specific to a person
(whether the visa applicant/holder or not) and is not just about a class of
persons to which that person belongs.
73. New subsection 501C(3) requires
the Minister to give the visa applicant/holder a written notice advising of the
original decision as well as details of the relevant information. The person
must also be invited to make representations on the revocation of the original
decision, unless the person is not entitled to do so because of
subsection 501C(10) (inserted by this Act). The representations must be
within the time and manner specified by the regulations.
74. New
subsections 501C(4) and 501C(5) give the Minister, acting personally, a
discretion to revoke the original decision if the person responds to an
invitation with representations about the revocation of the original decision
and the Minister is satisfied that the person passes the character test.
75. New subsection 501C(6) provides that if the original decision is
revoked by the Minister, that decision is taken never to have been made. This
subsection is subject to subsection 501C(7), inserted by this Act.
76. New subsection 501C(7) provides that any detention of the visa
applicant/holder between the time of making the original decision and the
revocation of that decision is lawful. This subsection precludes the person
from making any claim against the Commonwealth, an officer or any other person
because of that detention.
77. New subsection 501C(8) requires that the
Minister must lay before each House of Parliament notice of a decision to revoke
or not to revoke the original decision. The notice must be so laid within 15
sitting days of that House after the day on which the subsequent decision was
made. This notice will also include notice of the original decision.
78. New subsection 501C(9) requires that the Minister must lay before
each House of Parliament notice of the failure of the person to make
representations concerning revocation of the original decision. The notice must
be so laid within 15 sitting days of that House after the last day on which the
person could have made representations. This notice will also include notice of
the original decision.
79. New subsection 501C(10) provides that
regulations may be made, for the purposes of section 501C, which prevent a
person, or a person within a specified class of persons, from making
representations about revocation of the original decision, unless the person is
a detainee. This amendment enables the Minister to exercise greater control
over unlawful non-citizens who would, if the regulation making power was
exercised, have to become detainees before they are able to make representations
to the Minister to have the original decision revoked.
80. New
subsection 501C(11) provides that a decision not to exercise the power conferred
by new subsection 501C(4) is not merits-reviewable under Part 5 or 7 of the Act.
501D Refusal or cancellation of visa - method of satisfying Minister
that person passes the character test
81. New section 501D enables
the Minister to consider certain information or material in determining for the
purposes of section 501, 501A or 501B (inserted by this Act), whether a person,
or a person within a particular class of persons, passes the character test,
unless precluded by the regulations made under this section.
82. This
section enables the Minister to consider information or material submitted by,
or on behalf of, that person within a prescribed time or manner, unless
precluded by the regulations made under this section.
501E Refusal or
cancellation of visa - prohibition on applying for other
visas
83. New section 501E prevents a person, who has had a visa
application refused or a visa cancelled under section 501, 501A or 501B
(inserted by this Act) while they are in the migration zone, from making an
application at a particular time for a visa while they remain in the migration
zone, unless:
. the decision is revoked or set aside; or
. the
application is for a protection visa and is not precluded by section 48A;
or
. the application is permitted by the regulations made pursuant to new
subsection 501E(2).
501F Refusal or cancellation of visa - refusal
of other visa applications and cancellation of other visas
84. New
subsection 501F(1) provides that new section 501F applies where the Minister
makes a decision to refuse to grant or cancel a visa under section 501, 501A or
501B, inserted by this Act.
85. Where a person has had a visa
application refused or a visa cancelled under new section 501, 501A or 501B, the
Minister is taken to have:
. refused any other visa application made by
the person that has not been granted or refused (new subsection 501F(2));
and
. cancelled all other visas held by the person (new subsection
501F(3)).
86. New subsections 501F(2) and (3) also specify that these
provisions do not operate in respect of protection visas, visas prescribed by
the regulations made pursuant to each subsection respectively or applications
for such visas.
87. New subsection 501F(4) provides that, if the original
decision made under new section 501, 501A or 501B is set aside or revoked, any
refusals or cancellations deemed under new subsection 501F(2) or (3) are to be
taken also to be set aside or revoked.
88. New subsection 501F(5)
provides that a decision taken to have been made under new subsection 501F(2) or
(3) is not merits-reviewable under Part 5 or 7 of the Act.
501G Refusal or cancellation of visa - notification of
decision
89. New section 501G sets out the notification obligations
of the Minister to a person in relation to a decision to refuse to grant or
cancel a visa under new subsection 501(1) or (2) or 501A(2) or new section 501B
or 501F. The notification provisions contained in new section 501G replace
those contained in sections 28 and 37 of the AAT Act, which have been excluded,
and also section 66 of the Act (see item 4).
90. New subsection 501G(1)
provides that the Minister must give the person written notice that:
. sets out the decision;
. specifies the provision under which
the decision was made and the effect of the provision;
. sets out the
reasons for the decision (other than non-disclosable information);
and
. if the person has an appeal right to the AAT, specify details of
that review right.
91. In addition to the above, new subsection 501G(2)
provides that, if the decision was made under new subsection 501(1) or (2) (as
inserted by this Act) by a delegate of the Minister which relates to a person in
the migration zone and is reviewable by the AAT, the notice must be accompanied
by two copies of all documents (or parts of documents) that:
. are in
the delegate's possession or control;
. were relevant to the delegate's
decision; and
. do not contain non-disclosable
information.
92. New subsection 501G(3) provides that the notice must be
given in the prescribed manner.
93. New subsection 501G(4) ensures that
failure to comply with the notification provisions described above, does not
invalidate the decision.
501H Refusal or cancellation of visa -
miscellaneous provisions
94. New subsection 501H(1) is intended to
ensure that the powers to refuse to grant or cancel a visa under new section
501, 501A or 501B are additional to any other power in the Act to refuse to
grant or cancel a visa.
95. New subsection 501H(2) provides that a
reference in Part 5 of the Act to a decision made under new section 501,
includes a reference to a decision made under new section 501A, 501B, 501C or
501F.
Item 24 Subparagraph 502(1)(a)(ii)
96. Section 502
currently specifies the circumstances in which the Minister may, acting
personally, include a certificate declaring the person to be an excluded person
as part of a decision. The effect of section 502 is to remove a review right
that would otherwise exist in relation to certain decisions. Subparagraph
502(1)(a)(ii) currently specifies a decision under section 501 as a decision
which may, in certain circumstances, include a certificate declaring the person
to be an excluded person.
97. This item repeals subparagraph
502(1)(a)(ii), which is made redundant by the amendment of paragraph 500(1)(b)
and subsection 500(4) inserted by this Act. This is because new paragraph
500(1)(b) and subsection 500(4) have the effect that no right of review exists
from a decision of the Minister, acting personally.
Item
25 Paragraph 503(1)(b)
98. Subsection 503(1) currently provides that
a person in relation to whom a decision has been made under certain provisions
of the Act, including section 501, is not entitled to enter or to be in
Australia at any time during the period determined under the regulations.
99. This item amends paragraph 503(1)(b) by inserting a reference to
sections 501A and 501B (inserted by this Act).
Item 26 After section
503
503A Protection of information supplied by law enforcement
agencies or intelligence agencies
100. This item inserts new section
503A. This section is intended to protect information supplied to an
"authorised migration officer" by a "gazetted agency" (both terms are defined in
new subsection 503A(9) inserted by this Act). The information is intended to be
protected under this section if it has been provided on the basis that it is
confidential and where the information is relevant to the exercise of a power
under new section 501, 501A, 501B or 501C.
101. New subsections 503A(1)
and (2) provide that where the preconditions identified above are met:
. the authorised migration officer ("the first officer") can only
disclose the information to the Minister or another authorised migration officer
("the second officer") and only where such disclosure is for the purposes of
exercising a power under new section 501, 501A, 501B or 501C;
. the
second officer can also only disclose the information to the Minister or another
authorised migration officer and only where such disclosure is for the purposes
of exercising a power under new section 501, 501A, 501B or 501C;
. a
person to whom the information is communicated under the section must not be
required to disclose the information to a court, a tribunal, a parliament, a
parliamentary committee or any other body or person; and
. an authorised
migration officer to whom the information is communicated under the section must
not give it in evidence before a court, a tribunal, a parliament, a
parliamentary committee or any other body or person.
102. New subsection
503A(3) provides a mechanism for limited disclosure to persons or bodies outside
the range of the new subsections 503A(1) and (2). The subsection allows the
Minister to make a declaration stipulating the circumstances in which, and
persons or bodies to whom, specified information may be disclosed. The Minister
must first consult the gazetted agency from which the information originated
before making the declaration.
103. New subsection 503A(4) provides that
a Commonwealth officer to whom information is disclosed in accordance with a
declaration must comply with any conditions relating to disclosure set out in
the declaration.
104. New subsection 503A(5) prevents a tribunal which
is given information in accordance with a declaration from disclosing the
information to any person, other than the Minister or a Commonwealth officer.
105. New subsection 503A(6) provides that new section 503A is effective
despite any other provision of the Act or any law of a State or Territory. This
subsection ensures that no State or Territory law can be read so as to require
the disclosure of information protected by section 503A.
106. New
subsection 503A(7) provides, to avoid doubt, that disclosure of information in
accordance with new section 503A, is lawful for the purposes of the Information
Privacy Principles contained in section 14 of the Privacy Act 1988.
107. New subsection 503A(8) provides, in effect, that new section 503A
has primacy over any other provision in any other Act (whether it commences
before or after this Act) unless express words are used to provide otherwise.
This subsection ensures that, where another Act requires the disclosure of
information, it will not be read to require the disclosure of information
protected by section 503A, unless very specific words are used.
108. New
subsection 503A(9) defines "authorised migration officer", "Commonwealth
officer" and "gazetted agency" for the purposes of the section.
Item
27 After subsection 504(3)
109. This item inserts new subsection
504(3A) which ensures that any inconsistency between the Act and the Evidence
Act 1995 does not affect the operation of regulations made for the purposes
of paragraph 504(1)(e). That paragraph allows regulations to be made in respect
of the giving, lodging or service of documents on persons for the purposes of
the Act.
Item 28 Application - refusal or cancellation of visas on
character grounds
110. This item provides that new sections 501 to
501H apply to all visa applications and all grants of a visa, including
applications or grants made before those provisions were enacted.
Item 29 Transitional - conclusive certificates issued under section
339 of the Migration Act 1958
111. The commencement of this
item is dependent upon item 10 of Schedule 1 to MLAA
No. 1 having
commenced (see the comments on subclause 2(3)). This item provides that
conclusive certificates issued under section 339 of the Act, are to be treated,
once this item commences operation, as if they had been issued under section 339
as amended by this Act.
Item 30 Transitional - conclusive
certificates issued under subsection 411(3) of the Migration Act
1958
112. This item provides that conclusive certificates issued
under subsection 411(3) of the Act, are to be treated, once this item commences
operation, as if they had been issued under subsection 411(3) as amended by this
Act.
Item 31 Transitional - Ministerial
directions
113. This item provides that Ministerial directions made
under section 499 of the Act are to be treated, once this item commences
operation, as if they had been given under section 499 as amended by this Act.
Item 32 Transitional - review of adverse pre-commencement decisions
under the Migration Act 1958
114. Subitem 32(1) ensures that
the existing merits review system continues to apply to decisions to refuse to
grant or cancel a visa where the decision was made under existing section 501 of
the Act (that is, prior to the commencement of this Act).
115. Subitem
32(1) also ensures that certificates declaring the person to be an excluded
person under section 502 of the Act as part of a section 501 decision, continue
to apply as if the amendments made by this Act had not been made.
116. Subitem 32(2) puts beyond doubt that repeal of subsection 500(4) by
this Act does not make the issue of a certificate under section 502 reviewable
by the AAT.
Item 33 Transitional - setting aside and substitution of
non-adverse pre-commencement decisions under section 501 of the Migration Act
1958
117. This item applies where a visa has been granted or
remains in effect as a result of a decision, by a delegate of the Minister or by
the AAT ("the original decision"), not to exercise the power contained in
section 501 (as it operated at any time prior to the commencement of this item
or as continued in force by item 32).
118. The item specifies that new
section 501A applies to the original decision. New section 501A provides for
the Minister, acting personally, to set aside the original decision and
substitute another decision in certain circumstances.
Item
34 Transitional - setting aside and substitution of adverse pre-commencement
decisions under section 501 of the Migration Act
1958
119. This item provides that, where a decision ("the
original decision") has been made to refuse to grant or cancel a visa under
section 501 (as it operated at any time prior to the commencement of this item),
new section 501B applies to that decision. New section 501B permits the
Minister to intervene at any time after the original decision has been made to
refuse to grant or cancel a visa so as to substitute his/her own
(non-reviewable) decision to refuse to grant or cancel the visa.