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MIGRATION AMENDMENT (PROTECTION AND OTHER MEASURES) REGULATION 2015 (SLI NO 47 OF 2015)

EXPLANATORY STATEMENT

Select Legislative Instrument No. 47, 2015

Issued by the Minister for Immigration and Border Protection

Migration Act 1958

Migration Amendment (Protection and Other Measures) Regulation 2015

Subsection 504(1) of the Migration Act 1958 (the Migration Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters that by the Migration Act are required or permitted to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act.

In addition, regulations may be made pursuant to the provisions of the Migration Act in Attachment A.

The Migration Amendment (Protection and Other Measures) Regulation 2015 (the Regulation) amends the Migration Regulations 1994 (the Migration Regulations).  The Regulation is consequential to the Migration Amendment (Protection and Other Measures) Act 2015 (the POM Act) which implements a range of measures to increase efficiency and enhance integrity in the onshore protection status determination process.

In particular, the Regulation amends the Migration Regulations to:

*         reflect the relocation of the definition of "bogus document" from section 97 of the Migration Act to section 5 of the Migration Act which ensures that the definition applies to the whole of the Migration Act and Migration Regulations;

• prescribe a new direction under regulation 4.33 to ensure that the Refugee Review Tribunal (RRT) and the Administrative Appeals Tribunal (AAT) can make a permissible direction that the grant of the visa is not prevented by sections 91W or 91WA (relating to the provision of identity documents) or 91WB (relating to family members who apply after the primary applicant has been granted a visa) of the Migration Act, should the relevant tribunal exercise its power to remit the matter for reconsideration;

*         prescribe certain temporary visas for sections 46A and 46B of the Migration Act as amended by Schedule 3 to the POM Act. The effect is that an application for a visa is not a valid application if it is made by an unauthorised maritime arrival or a transitory person who is in Australia and who is the holder of a temporary visa of a kind prescribed;

*         prescribe the period within which an applicant must make a written request for an oral statement given by the Migration Review Tribunal (MRT) or the RRT to be provided in writing. New subsections 368D(4) and 430D(4) of the Act introduce a new regulation making power which provides for the MRT or RRT to give a written copy of an oral statement to the applicant if the applicant makes a request for the oral statement to be provided in writing within the period prescribed by the regulation; and

*         ensure the Safe Haven Enterprise visa (SHEV) acts as an effective and  flexible pathway that allows a person who meets certain requirements and their family members to apply for visas they would otherwise be barred from applying for, and to facilitate Temporary Protection Visa holders transitioning to a SHEV and a post-SHEV visa.

A Statement of Compatibility with Human Rights (the Statement) has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Statement's overall assessment is that the measures in the Regulation are compatible with Australia's human rights obligations. A copy of the Statement is at Attachment B.

Details of the Regulation are set out in Attachment D.

The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

The Office of Best Practice Regulation has been consulted in relation to the amendments made by Schedules 1, 2 and 3 to the Regulation. OBPR advises that the changes do not have a regulatory impact on business or the not-for-profit sector. The OBPR consultation references are as follows:

*         17122

*         17957

*         17958

The Office of Best Practice Regulation was consulted in relation to the amendments made by Schedule 4 to the Regulation. A short form RIS was prepared and is attached at Attachment C. The OBPR consultation reference number is 17519.

The relevant review tribunals have been consulted in relation to the amendments made by the Regulation. Advice provided was taken into account in developing the amendments.

No other consultations were undertaken because the amendments are not likely to have a direct, or a substantial indirect, effect on business or restrict competition, or impact significantly on other government departments, non-government organisations, businesses or other interested parties.

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Schedule 1 to the Regulation commences the later of:

• the day after the Regulation is registered; and
• the commencement of Part 2 of Schedule 1 to the POM Act.

Part 2 of Schedule 1 to the POM Act commences on a single day to be fixed by Proclamation. However, if the provision(s) do not commence within a period of 6 months beginning on the day the POM Act received the Royal Assent, they commence on the day after the end of that period.

Schedule 2 to the Regulation commences the later of:

• the day after the Regulation is registered; and
• the commencement of Schedule 3 to the POM Act.

Schedule 3 to the POM Act commences on a single day to be fixed by Proclamation. However, if the provision(s) do not commence within a period of 6 months beginning on the day the POM Act received the Royal Assent, they commence on the day after the end of that period.

Schedule 3 to the Regulation commences the later of:

• the day after the Regulation is registered; and
• the commencement of Schedule 4 to the POM Act.

Schedule 4 to the POM Act commences on a single day to be fixed by Proclamation. However, if the provision(s) do not commence within a period of 6 months beginning on the day the POM Act received the Royal Assent, they commence on the day after the end of that period.

Part 1 of Schedule 4 to the Regulation commences the later of:

• the day after the Regulation is registered; and
• immediately after the commencement of Division 2A of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the RALC Act).

Part 2 of Schedule 4 to the Regulation commences the later of:

• the day after the Regulation is registered; and
• the commencement of Schedule 3 to the POM Act.

Schedule 5 to the Regulation commences the later of:

• the start of the day after this instrument is registered; and
• the commencement of Part 2 of Schedule 1 to the POM Act.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

Part 2 of Schedule 1 to the POM Act commences on a single day to be fixed by Proclamation. However, if the provision(s) do not commence within a period of 6 months beginning on the day the POM Act received the Royal Assent, they commence on the day after the end of that period.

ATTACHMENT A

AUTHORISING PROVISIONS

Subsection 504(1) of the Migration Act 1958 provides, in part, that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters that by the Migration Act are required or permitted to be prescribed, or that are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act.

In addition, the following provisions of the Migration Act may apply:

*         subsection 31(1), which provides that the regulations may prescribe classes of visas; 

*         subsection 31(3), which provides that regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not section 33, 34, 35, 38 or 38A);

*         subsection 46A(1A), which provides that subsection 46A(1) does not apply in relation to an application for a visa if:

o   either:

§  the applicant holds a safe haven enterprise visa; or

§  the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and

o   the application is for a visa prescribed for the purposes of paragraph 46A(1A)(b); and

o   the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of paragraph 46A(1A)(c);

*         subparagraph 46A(1)(b)(ii), which relevantly provides that section 46A applies when an Unauthorised Maritime Arrival holds a visa of a prescribed class for the purposes of that subparagraph;

*         subsection 349(1), which provides that the Migration Review Tribunal (MRT) may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision;

*         subsection 368D(4), which provides that if the MRT makes an oral statement and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must provide the applicant with a written copy of the oral statement;

*         paragraph 415(2)(c), which provides that if a decision relates to a prescribed matter, the Tribunal may remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations;

*         subsection 415(1), which provides that the Refugee Review Tribunal (RRT) may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision;

*         paragraph 415(2)(c), which provides that if a decision relates to a prescribed matter, the Tribunal may remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; and

*         subsection 430D(4), which provides that if the RRT makes an oral statement and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must provide the applicant with a written copy of the oral statement.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Protection and Other Measures) Regulation 2015

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument - Schedule 1

The amendments to the Migration Regulations are a consequence of the POM Act.

Schedule 1 to the POM Act amended section 91W of the Migration Act and added sections 91WA and 91WB to the Migration Act.  Sections 91W and 91WA created grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship, and does not have a reasonable explanation for doing so, including when an applicant provides bogus documents to establish their identity or either destroys or discards such evidence, or has caused that evidence to be destroyed or discarded. 

Section 91WB applies to a non-citizen (the family applicant) who applies for a protection visa and who is a member of the same family unit as a person who has been granted protection visa (the family visa holder).  Section 91WB provides that the Minister must not grant a protection visa to a family applicant, on the basis of a criterion in paragraph 36(2)(b) or (c) of the Migration Act, unless the family applicant has applied for the protection visa before the family visa holder was granted their protection visa.

The consequential amendments to Regulation 4.33 will provide that the Refugee Review Tribunal (RRT) or Administrative Appeals Tribunal can make a permissible direction in relation to sections 91W, 91WA or 91WB should it exercise its power under subsection 415(2)(c) of the Migration Act or subsection 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 to remit a matter for reconsideration.

Human rights implications

The amendments to the Migration Regulations in Schedule 1 to the Regulation are consequential to provisions in Schedule 1 to the POM Act.  As such, the Statement of Compatibility with Human Rights made in relation to Schedule 1 to the POM Act addresses any human rights implications of the amendments in Schedule 1 to the Regulation.

Conclusion

The amendments to the Migration Regulations above are compatible with human rights.

Overview of the Legislative Instrument - Schedule 2

These amendments to the Migration Regulations are a consequence of the POM Act.  Schedule 3 to the POM Act simplifies the legal framework which applies to unauthorised maritime arrivals (UMAs) and transitory persons. Currently, UMAs may be subject to section 46A or section 91K of the Migration Act or both, while transitory persons may be subject to section 46B or section 91K of the Migration Act or both. Schedule 3 to the POM Act amends section 46A and section 46B to extend the statutory bar which prevents the making of a valid visa application to UMAs and transitory persons who hold temporary visas, and amends section 91K so that the bar to making a valid visa application in that section no longer applies to UMAs. 

These consequential amendments to the Migration Regulations will prescribe the temporary visas at subparagraph 46A(1)(b)(ii) and subparagraph 46B(1)(b)(ii) of the Migration Act as amended by the POM Act, which provide that an application for a visa is not a valid application if it is made by a UMA or transitory person who is in Australia and either is an unlawful non-citizen or the holder of a bridging visa or a temporary protection visa or a temporary visa of a kind prescribed.

New regulation  2.11A prescribes the following temporary visas for subparagraph 46A(1)(b)(ii) and subparagraph 46B(1)(b)(ii), as amended by the POM Act:

(a) Temporary Safe Haven (Class UJ) visas;

(b) Temporary (Humanitarian Concern) (Class UO) visas;

(c) Subclass 785 (Temporary Protection) visas granted before 2 December 2013.

Human rights implications

These amendments to the Migration Regulations are consequential to Schedule 3 to the POM Act (being the amendments to the statutory bars at sections 46A, 46B and 91K of the Migration Act).

The Statement of Compatibility with Human Rights made in relation to Schedule 3 to the POM Act addresses the human rights implications of these proposed amendments to the Migration Regulations.

Conclusion

The above amendments to the Migration Regulations are compatible with human rights because they are consistent with Australia's human rights obligations and to the extent that they may also limit human rights, those limitations are reasonable, necessary and proportionate.

Overview of the Legislative Instrument - Schedule 3

The Regulation seeks to amend the Migration Regulations to improve processing and administration of the Migration Review Tribunal and Refugee Review Tribunal (MRT-RRT) following similar amendments to the Migration Act as a result of the POM Act.

The Regulation specifically relates to provisions in the Migration Act permitting an oral statement for a decision to be provided in certain situations without having to provide a subsequent written statement for a decision.  Where an oral statement is given, a written statement is to be provided if the applicant makes a request within a specified period.

The Regulation inserts into the Migration Regulations two clauses that specify the prescribed period for requesting a written statement in relation to an oral statement made by the MRT-RRT under subsections 368D(4) and 430D(4) of the Migration Act.

Both new clauses, which respectively relate to the MRT and the RRT, prescribe the timeframe for which an applicant has to seek such a written statement as being 14 days after the day on which the relevant tribunal made the oral statement.

These measures apply to all individuals within the MRT-RRT's jurisdiction.

Human rights implications

These amendments to the Migration Regulations are consequential to Schedule 4 to the POM Act (see subsections 368D(4) and 430D(4) of the Migration Act).

Therefore, the Statement of Compatibility with Human Rights made in relation to Schedule 4 to the POM Act addresses the human rights implications of these proposed amendments to the Migration Act.  These regulation amendments, which specify the prescribed period for requesting a written statement in relation to an oral statement made by the MRT-RRT, do not have human rights implications.

Conclusion

The Regulation amendments are compatible with human rights as they do not engage Australia's human rights obligations.

Overview of the Legislative Instrument - Schedule 4

Safe Haven Enterprise visas (SHEVs) were created by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the RALC Act).

The changes seek to resolve a number of technical issues and policy issues that have become evident since the initial SHEV regulations were passed in the RALC Act.

These include:

*         repealing the regulation based definition of  'member of the same  family unit' and related technical changes;

*         prescribing circumstances in which the Minister may waive the 'no further stay' condition 8503 (which may have been attached to a Temporary Protection Visa (TPV) that the person held) to allow the Minister to waive the condition once the person has met the SHEV pathway requirements;

*         removing access to Bridging B (Class WB) visas (BVBs)  for SHEV holders and people whose last substantive visa was a SHEV, as Bridging Visa B contains different travel rights to those available to those people;

*         providing that applicants cannot make simultaneous applications for a TPV and a SHEV;

*         providing that only one member of a family needs to indicate an intent to work or study while accessing minimum social security benefits in a regional area when that family makes a combined application; and

*         providing that when a person holds either a TPV or SHEV and applies for either a TPV or SHEV, their current visa will only cease once the application is refused, or if the application is withdrawn after the original visa period would have expired.

For further details on these measures please refer to the Explanatory Memorandum.

Human rights implications

With the exception of the removal of access to BVBs (details below), the amendments listed above are largely technical in nature and relate to the SHEV regulations created by the RALC Act.  The Statement of Compatibility with Human Rights made in relation to RALC Act address the human rights implications of those regulations.  These amendments do not limit the human rights of SHEV applicants and SHEV holders. 

Some of the amendments promote human rights, for example, ensuring that a TPV or SHEV continues until a subsequent TPV or SHEV application is decided means that visa holders retain continuity in access to services. In addition, the measures relating to:

*         the ability of the Minister to waive condition 8503, and

*         the amendment that will provide that only one member of a family unit needs to indicate an intent to work or study while accessing minimum social security benefits in a regional area

will both have a positive effect on the human rights of applicants as they will allow greater access to onshore non-protection visas and possible pathways to Australian citizenship in some instances. These rights include the right to freedom of movement, the right to social security, and the right to take part in public affairs and elections as these other types of visas, and ultimately citizenship, confer a broader range of benefits on their holders than being the holder of a SHEV.  In addition, these measures positively engage rights relating to family unity as they allow family members to be treated consistently with each other.

Removal of access to BVBs

The RALC Act made it a condition imposed on all SHEV holders that they must seek permission before travelling overseas and are not to travel to the country in respect of which protection was sought.  If the visa holder breaches this condition a discretion to cancel the visa under s116(1)(b) of the Migration Act will be enlivened.

However, due to an oversight in the Government-sponsored amendments, the RALC Act did not make a consequential amendment to remove the access of SHEV holders to BVBs.  If SHEV holders were to be granted BVBs whilst waiting for a further substantive visa to be granted, the intended restriction on travel could not be enforced.

This raises issues relating to freedom of movement under Article 12 of the ICCPR, in particular the right to leave any country (Art 12(2)).  The Statement of Compatibility for the RALC Act explained the compatibility of the travel restrictions on SHEV holders with Article 12 (see Supplementary Explanatory Memorandum for [HA110]).  While this amendment may mean that SHEV holders may feel discouraged from leaving Australia more so than if they held a BVB, this is consistent with the policy intention for SHEVs as explained in the Statement of Compatibility to the RALC Act.

The amendments are reasonable and proportionate in pursuit of the Government's legitimate aim of offering protection to genuine refugees and those fearing significant harm, while also protecting the integrity of the protection visa regime by enabling cancellation of a protection visa (which includes a SHEV) where circumstances indicate the person does not, or no longer, requires Australia's protection.  The amendments are therefore consistent with Australia's international human rights obligations.

Conclusion

The above amendments to the Migration Regulations are compatible with human rights because they are consistent with Australia's human rights obligations and to the extent that they may also limit human rights, those limitations are reasonable, necessary and proportionate.

The Hon Peter Dutton MP

Minister for Immigration and Border Protection

ATTACHMENT C

Regulation Impact Statement

Name of department/agency: Department of Immigration and Border Protection

OBPR Reference number: 17519

Name of proposal: Introduction of new Safe Haven Enterprise Visa (SHEV) and Safe Haven Transitional Visa (SHTV)

The Government wishes to encourage the backlog of 30,000 asylum seekers to seek employment in regional locations. People in this cohort will be able to apply for a SHEV, instead of, or as well as a Temporary Protection Visa (TPV), where they undertake to work in a listed "regional location". Any State/Territory or Local Government Area can 'opt-in' to be a listed regional location.

Holders of a SHEV for 3 years will then be able to apply for a SHTV if they can demonstrate that they worked in a regional area for 24 out of 36 months. They also need to demonstrate that they did not receive income support for more than 12 months out of 36. A SHTV will have the same services and conditions to a SHEV or a TPV, but the holder will be able to leave Australia and re-enter, and the visa holder will have the potential to apply for a permanent onshore visa after 3 years if they meet certain conditions.

There was an option not to introduce these new visa products, but the SHEV and the SHTV may positively contribute to economic growth in Regional Australia by encouraging refugees to work in listed locations, without added fiscal pressure on government social support services, and without any additional red tape burden on businesses.

There is no regulatory burden on business or community organisations. Businesses and community organisations will not have to undertake any new or additional process outside of normal employment processes that would be undertaken to recruit new staff.

The only regulatory burden on applicants for these visas would be to submit an application for the SHTV.

*          

The regulatory onset for the introduction of this visa will be offset by the repeal of the Migration Amendment (Offshore Resources Activity) Act 2013.

ATTACHMENT D

Details of the Migration Amendment (Protection and Other Measures) Regulation 2015

Section 1 - Name

This section provides that the title of the instrument is the Migration Amendment (Protection and Other Measures) Regulation 2015 (the Regulation).

Section 2 - Commencement

This section provides that each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table and that any other statement in column 2 has effect according to its terms.

The table provides that sections 1 to 4 and anything else in this instrument not elsewhere covered by the table commences the day after the instrument is registered.

The table provides that schedule 1 commences on the later of:

(a)    the start of the day after this instrument is registered; and

(b)   the commencement of Part 2 of Schedule 1 to the Migration Amendment (Protection and Other Measures) Act 2015 (the POM Act).

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

The table provides that schedule 2 commences on the later of:

(a)    the start of the day after this instrument is registered; and

(b)   the commencement of Schedule 3 to the POM Act.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

The table provides that schedule 3 commences on the later of:

(a)    the start of the day after this instrument is registered; and

(b)   the commencement of Schedule 4 to the POM Act.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

The table provides that schedule 4, Part 1 commences on the later of:

(a) the start of the day after this instrument is registered; and

(b) immediately after the commencement of Division 2A of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (RALC Act).

The table provides that Schedule 4, Part 2 commences at the same time as the provisions in Schedule 2.

The table provides that Schedule 5 commences the later of:

(a) the start of the day after this instrument is registered; and

(b) the commencement of Part 2 of Schedule 1 to the POM Act.

However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

The purpose of this section is to provide when the amendments made by the Regulation commence.

Section 3 - Authority

This section provides that the Regulation is made under the Migration Act.

The purpose of this section is to set out the Act under which the Regulation is made.

Section 4 - Schedules

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

The purpose of this section is to provide for how the amendments in the Regulation operate.

Schedule 1 - Amendments relating to bogus documents and protection visas

Item 1 - Regulation 1.03 (definition of bogus document)

This item amends regulation 1.03 of the Migration Regulations 1994 (the Migration Regulations) to repeal the definition of bogus document (including the note).

The POM Act relocates the definition of bogus document from section 97 of the Migration Act to section 5 of the Migration Act. The purpose is to broaden the contextual application of the term in the Migration Act. The definition of bogus document is not amended.

A consequence of the relocation of the definition of bogus document in the POM Act is that the definition now applies to the whole of the Migration Act and to regulations made under the Migration Act, including the Migration Regulations, rendering the definition in regulation 1.03 redundant.

Item 2 - At the end of regulation 4.33

This item adds new subregulation 4.33(5) to Subdivision 4.2.3 of the Migration Regulations.

New subregulation 4.33(5) provides that, for paragraph 415(2)(c) of the Migration Act and paragraph 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT-reviewable decision by section 452 of the Migration Act), it is a permissible direction that the grant of the visa is not prevented by section 91W, 91WA or 91WB of the Migration Act.

Amended section 91W and new section 91WA of the Migration Act are integrity measures relating to the provision of documentary evidence of identity, nationality or citizenship for the purposes of a protection visa application. Establishing an asylum seeker's identity is a critical factor in determining whether a non-citizen engages Australia's protection obligations. Section 91W and 91WA establish grounds to refuse the grant of a protection visa to a protection visa applicant who:

*         refuses or fails to provide evidence of identity, nationality or citizenship when requested to do so;

*         provides a bogus document in response to such a request or provides bogus documents for the purposes of their application; or

*         destroys or disposes of documentary evidence of identity, nationality, or citizenship, or causes such evidence to be destroyed or disposed of.

The refusal power will not apply if the applicant has a reasonable explanation and either produces documentary evidence of their identity, nationality or citizenship or has taken reasonable steps to provide such evidence. It is not acceptable for the applicant to produce any document as documentary evidence of their identity, nationality or citizenship that is a bogus document.

New section 91WB in the Migration Act applies to a non-citizen (the family applicant) who applies for a protection visa and who is a member of the same family unit as a person who has been granted a protection visa (the family visa holder). Section 91WB ensures, despite anything else in the Migration Act, that the Minister must not grant the protection visa to the family applicant on the basis of a criterion in paragraph 36(2)(b) or (c) of the Migration Act unless the family applicant applied for the protection visa before the family visa holder was granted their protection visa.

The purpose of subregulation 4.33(5) is to prescribe a further direction to ensure that the Refugee Review Tribunal (RRT) can make a permissible direction in relation to a matter involving a decision to refuse a protection visa due to sections 91W, 91WA or 91WB in the Migration Act, should the RRT exercise their power in paragraph 415(2)(c) of the Migration Act to remit the matter for reconsideration.

Section 415(2)(c) of the Migration Act provides that if  a decision relates to a prescribed matter, the Tribunal may remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations. Section 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT-reviewable decision by section 452 of the Migration Act) provides that, if the decision relates to a matter prescribed for the purposes of section 415(2)(c) of the Migration Act, the Tribunal may remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations under that Migration Act.

Item 3 - Subclause 4020(5) of Schedule 4 (note)

This item repeals the note to subclause 4020(5) to Schedule 4 to the Migration Regulations and substitutes it with a new note.

The old note provided that regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Migration Act.

The effect of the new note is that it provides that the definition of bogus document is found in subsection 5(1) of the Migration Act only.

Schedule 2 - Amendments relating to visa application bars

Item 1 - After regulation 2.11

This item inserts regulations 2.11A and 2.11B of the Migration Regulations to prescribe the following kinds of visa as prescribed visas for the purposes of both subparagraphs 46A(1)(b)(ii) and 46B(1)(b)(ii) of the Migration Act:

            (a)        Temporary Safe Haven (Class UJ) visas;

            (b)        Temporary (Humanitarian Concern) (Class UO) visas;

            (c)        Subclass 785 visas granted before 2 December 2013.

Section 46A of the Migration Act was amended by the POM Act to provide that an unauthorised maritime arrival who is an unlawful non-citizen, a bridging visa holder, the holder of a temporary protection visa or the holder of a temporary visa of a kind prescribed is prevented from making a valid application for a visa unless the Minister determines that it is in the public interest to allow them to do so. Previously, section 46A of the Migration Act provided only that an unauthorised maritime arrival who was an unlawful non-citizen was prevented from making a valid application for a visa unless the Minister determined that it was in the public interest to allow them to do so.

Subparagraph 46A(1)(b)(ii) of the Migration Act, inserted by the POM Act, authorises prescribing kinds of temporary visas for the purpose of section 46A. New regulation 2.11A prescribes the kinds of temporary visas listed above under subparagraph 46A(1)(b)(ii) of the Migration Act.

Section 46B of the Migration Act was amended by the POM Act to provide that a transitory person who is an unlawful non-citizen, a bridging visa holder, the holder of a temporary protection visa or the holder of a temporary visa of a kind prescribed is prevented from making a valid application for a visa unless the Minister determines that it is in the public interest to allow them to do so. Previously, section 46B of the Migration Act provided only that a transitory person who was an unlawful non-citizen was prevented from making a valid application for a visa unless the Minister determined that it was in the public interest to allow them to do so.

Subparagraph 46B(1)(b)(ii) of the Migration Act, inserted by the POM Act, authorises prescribing kinds of temporary visas for the purpose of section 46B. New regulation 2.11B prescribes the kinds of temporary visas listed above under subparagraph 46B(1)(b)(ii) of the Migration Act.

Schedule 3 - Amendments relating to oral statements

Item 1 - At the end of Division 4.1 of Part 4

This item inserts new regulation 4.27B at the end of Division 4.1 of Part 4 to the Migration Regulations.

New subsection 368D(4) in the Migration Act provides that the Migration Review Tribunal (MRT) is to give a written copy of an oral statement to the applicant if the applicant makes a written request for the oral statement to be provided in writing within the period prescribed by the regulation. This item prescribes the period as being 14 days after the day on which the MRT makes the oral statement.

Item 2 - After regulation 4.35D

This item inserts new regulation 4.35F at the end of regulation 4.35D to the Migration Regulations.

New subsection 430D(4) in the Migration Act provides that the RRT is to give a written copy of an oral statement to the applicant if the applicant makes a written request for the oral statement to be provided in writing within the period prescribed by the regulation. This item prescribes the period as being 14 days after the day on which the RRT makes the oral statement. 

Schedule 4 - Amendments relating to safe haven enterprise visas

Part 1 - Safe haven enterprise visas: pathways to other visas

Items in this part relate to section 46A of the Migration Act. Subsection 46A(1) provides for when an application for a visa is not a valid application if it is made by an unauthorised maritime arrival.

Subsection 46A(1A) provides that subsection 46A(1) does not apply in relation to an application for a visa if either:

*         the applicant holds a safe haven enterprise visa (SHEV) (see subsection 35A(3A)); or

*         the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and

the application is for a visa prescribed for the purposes of paragraph 46(1A)(b), and the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of paragraph 46(1A)(c).

The combined effect of these subsections is that a person who holds or has held a SHEV will not be barred from making applications for visas of a prescribed kind if they meet prescribed requirements.

Item 1 - Subregulation 2.06AAB(1) (table item 10)

The table in subregulation 2.06AAB(1) prescribes visas for the purposes of paragraph 46(1A)(b) (post-SHEV visas). This list contains the visas that a person can apply for after satisfying the employment, educational or social security benefit requirements prescribed for the purposes of 46(1A)(c) (the SHEV pathway requirements) as the holder of a Safe Haven Enterprise Visa (SHEV).

This item repeals table item 10, which prescribed the Subclass 416 (Special Program) visa. Subclass 416 (Special Program) visa was not appropriate for this list as under clause 416.222B of Schedule 2 to the Migration Regulations, the Minister must be satisfied that an applicant for this visa genuinely intends to stay temporarily in Australia to carry out a specific activity. As it would be difficult to be satisfied that a SHEV holder intends to stay temporarily, it would not be possible to grant them this visa.

Item 2 - Subregulation 2.06AAB(2)

Existing subregulation 2.06AAB(2) prescribes requirements for the purposes of paragraph 46A(1A)(c) of the Migration Act.

This item revokes subregulations 2.06AAB(2) and substitutes a new subregulation 2.06AAB(2). This new subregulation is differently structured to allow for two substantial amendments to the criteria. These amendments are intended to make the criteria less restrictive in two ways:

*         By allowing time towards the 42 month requirement to be accrued across multiple SHEVs; and

*         By allowing a person to meet the requirements if they make a combined application with a person who is a member of the same family unit who has met the requirements.

Among the existing  requirements is that the applicant must, for a period or periods totalling 42 months (which need not be continuous) while the visa is (or was) in effect satisfy one of the requirements contained in the paragraphs of subregulation 2.06AAB(2).

The new subregulation is intended to broaden that requirement by allowing the applicant to accrue the 42 months as the holder of one or more SHEVs rather than requiring the 42 months to be accrued while a single SHEV is in effect.

Under the existing subregulation 2.06AAB(2) each person is required to individually meet the 42 month requirement if they wish to apply for a post-SHEV visa. This could have the unintended effect of splitting families where part of the family can fulfil the SHEV pathway criteria, but the other part of the family cannot.

To avoid this outcome, this item inserts a new alternative requirement as paragraph 2.06AAB(2)(b) that provides that for the purposes of paragraph 46A(1A)(c) of the Migration Act, an applicant for a visa of a class mentioned in subregulation 2.06AAB(1), who currently holds, or has ever held, a safe haven enterprise visa must be the member of the same family unit of, and have made a combined application with, a non-citizen who:

*         is an applicant for the same class of visa;

*         meets the requirements of paragraphs 46A(1A)(a) and (b) of the Migration Act; and

*         meets the requirements of paragraph 2.06AAB(2)(a).

This amendment is intended to ensure that families will not be inadvertently moved onto different visa products, or unintentionally barred from visas.

Item 3 - Subregulation 2.06AAB(3)

This amendment is consequential to the amendments made by item 2. Item 2 restructured subregulation 2.06AAB(2) and the requirements that existed in paragraphs 2.06AAB(2)(a) and 2.06AAB(2)(b) were repealed and reinserted as  subparagraphs 2.06AAB(2)(a)(i) and 2.06AAB(2)(a)(ii).  As subregulation 2.06AAB(3) referred to these criteria, it has been amended to refer to the criteria in their new location.

Part 2 - Amendments relating to visa application bars

Items 4 and 5 - At the end of regulations 2.11A and 2.11B

These items amend regulations 2.11A and 2.11B of the Migration Regulations inserted by item 1 of Schedule 2 the Regulation to additionally prescribe SHEVs as visas for the purposes of subparagraphs 46A(1)(b)(ii) and 46B(1)(b)(ii) of the Migration Act.

Without this amendment, SHEV holders would immediately be able to apply for a non-protection visa at any time, which would undermine the intention that SHEV holders can apply for post-SHEV visas after meeting certain criteria.

Further discussion on these subregulations can be found in this Explanatory Statement in the section referring to item 1 of Schedule 2-Amendments relating to visa application bars.

SHEV is prescribed in a separate schedule due to the need for different commencement provisions, as including SHEV as a prescribed class was contingent on the commencement of Division 2A of Part 1 of Schedule 2 to the RALC Act, which creates SHEV as a class of visa.

Schedule 5 - Application provisions

Item 1- Schedule 13

This item amends Schedule 13 to the Migration Regulations to insert new Part 42, entitled "Amendments made by Migration Amendment (Protection and Other Measures) Regulation 2015", which contains new clause 4201.

New clause 4201 provides that the amendment of the Migration Regulations made by item 2 of Schedule 1 to the Regulation applies in relation to the following applications:

*         an application made, but not finally determined, before the commencement of that item;

*         an application made on or after the commencement of that item.

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