MIGRATION AMENDMENT (COMPLEMENTARY PROTECTION) BILL 2011
This is a Bill, not an Act. For current law, see the Acts databases.
MIGRATION AMENDMENT (COMPLEMENTARY PROTECTION) BILL 2011
2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Complementary
Protection) Bill 2011
No. , 2011
(Immigration and Citizenship)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
i Migration Amendment (Complementary Protection) Bill 2011 No. , 2011
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments
3
Migration Act 1958
3
Migration Amendment (Complementary Protection) Bill 2011 No. , 2011 1
A Bill for an Act to amend the Migration Act 1958,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Migration Amendment
5
(Complementary Protection) Act 2011.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2 Migration Amendment (Complementary Protection) Bill 2011 No. , 2011
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
items 1 to 17
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence within the period of 6 months
beginning on the day this Act receives the
Royal Assent, they commence on the day
after the end of that period.
3. Schedule 1,
item 18
Immediately after the commencement of the
provision(s) covered by table item 2.
4. Schedule 1,
items 19 and 20
At the same time as the provision(s) covered
by table item 2.
5. Schedule 1,
item 21
Immediately after the commencement of the
provision(s) covered by table item 2.
6. Schedule 1,
items 22 to 35
At the same time as the provision(s) covered
by table item 2.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2011 No. , 2011 3
Schedule 1--Amendments
1
2
Migration Act 1958
3
1 Subsection 5(1)
4
Insert:
5
Covenant means the International Covenant on Civil and Political
6
Rights, a copy of the English text of which is set out in Schedule 2
7
to the Australian Human Rights Commission Act 1986.
8
2 Subsection 5(1)
9
Insert:
10
cruel or inhuman treatment or punishment means an act or
11
omission by which:
12
(a) severe pain or suffering, whether physical or mental, is
13
intentionally inflicted on a person; or
14
(b) pain or suffering, whether physical or mental, is intentionally
15
inflicted on a person so long as, in all the circumstances, the
16
act or omission could reasonably be regarded as cruel or
17
inhuman in nature;
18
but does not include an act or omission:
19
(c) that is not inconsistent with Article 7 of the Covenant; or
20
(d) arising only from, inherent in or incidental to, lawful
21
sanctions that are not inconsistent with the Articles of the
22
Covenant.
23
3 Subsection 5(1)
24
Insert:
25
degrading treatment or punishment means an act or omission that
26
causes, and is intended to cause, extreme humiliation which is
27
unreasonable, but does not include an act or omission:
28
(a) that is not inconsistent with Article 7 of the Covenant; or
29
(b) that causes, and is intended to cause, extreme humiliation
30
arising only from, inherent in or incidental to, lawful
31
sanctions that are not inconsistent with the Articles of the
32
Covenant.
33
Schedule 1 Amendments
4 Migration Amendment (Complementary Protection) Bill 2011 No. , 2011
4 Subsection 5(1)
1
Insert:
2
non-political crime:
3
(a) subject to paragraph (b), means a crime where a person's
4
motives for committing the crime were wholly or mainly
5
non-political in nature; and
6
(b) includes an offence that, under paragraph (a), (b), (c) or (d)
7
of the definition of political offence in section 5 of the
8
Extradition Act 1988, is not a political offence in relation to a
9
country for the purposes of that Act.
10
5 Subsection 5(1)
11
Insert:
12
receiving country, in relation to a non-citizen, means:
13
(a) a country of which the non-citizen is a national; or
14
(b) if the non-citizen has no country of nationality--the country
15
of which the non-citizen is an habitual resident;
16
to be determined solely by reference to the law of the relevant
17
country.
18
6 Subsection 5(1)
19
Insert:
20
serious Australian offence means an offence against a law in force
21
in Australia, where:
22
(a)
the
offence:
23
(i) involves violence against a person; or
24
(ii) is a serious drug offence; or
25
(iii) involves serious damage to property; or
26
(iv) is an offence against section 197A or 197B (offences
27
relating to immigration detention); and
28
(b) the offence is punishable by:
29
(i) imprisonment for life; or
30
(ii) imprisonment for a fixed term of not less than 3 years;
31
or
32
(iii) imprisonment for a maximum term of not less than 3
33
years.
34
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2011 No. , 2011 5
7 Subsection 5(1)
1
Insert:
2
serious foreign offence means an offence against a law in force in
3
a foreign country, where:
4
(a)
the
offence:
5
(i) involves violence against a person; or
6
(ii) is a serious drug offence; or
7
(iii) involves serious damage to property; and
8
(b) if it were assumed that the act or omission constituting the
9
offence had taken place in the Australian Capital Territory,
10
the act or omission would have constituted an offence (the
11
Territory offence) against a law in force in that Territory, and
12
the Territory offence would have been punishable by:
13
(i) imprisonment for life; or
14
(ii) imprisonment for a fixed term of not less than 3 years;
15
or
16
(iii) imprisonment for a maximum term of not less than 3
17
years.
18
8 Subsection 5(1)
19
Insert:
20
significant harm means harm of a kind mentioned in subsection
21
36(2A).
22
9 Subsection 5(1)
23
Insert:
24
torture means an act or omission by which severe pain or
25
suffering, whether physical or mental, is intentionally inflicted on a
26
person:
27
(a) for the purpose of obtaining from the person or from a third
28
person information or a confession; or
29
(b) for the purpose of punishing the person for an act which that
30
person or a third person has committed or is suspected of
31
having committed; or
32
(c) for the purpose of intimidating or coercing the person or a
33
third person; or
34
Schedule 1 Amendments
6 Migration Amendment (Complementary Protection) Bill 2011 No. , 2011
(d) for a purpose related to a purpose mentioned in paragraph (a),
1
(b) or (c); or
2
(e) for any reason based on discrimination that is inconsistent
3
with the Articles of the Covenant;
4
but does not include an act or omission arising only from, inherent
5
in or incidental to, lawful sanctions that are not inconsistent with
6
the Articles of the Covenant.
7
10 At the end of subparagraph 5A(3)(j)(ii)
8
Add "or".
9
11 After subparagraph 5A(3)(j)(ii)
10
Insert:
11
(iii) an offshore entry person who makes a claim for
12
protection on the basis that the person will suffer
13
significant harm;
14
12 After paragraph 36(2)(a)
15
Insert:
16
(aa) a non-citizen in Australia (other than a non-citizen mentioned
17
in paragraph (a)) to whom the Minister is satisfied Australia
18
has protection obligations because the Minister has
19
substantial grounds for believing that, as a necessary and
20
foreseeable consequence of the non-citizen being removed
21
from Australia to a receiving country, there is a real risk that
22
the non-citizen will suffer significant harm; or
23
13 At the end of subsection 36(2)
24
Add:
25
; or (c) a non-citizen in Australia who is a member of the same
26
family unit as a non-citizen who:
27
(i) is mentioned in paragraph (aa); and
28
(ii) holds a protection visa.
29
14 After subsection 36(2)
30
Insert:
31
(2A) A non-citizen will suffer significant harm if:
32
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2011 No. , 2011 7
(a) the non-citizen will be arbitrarily deprived of his or her life;
1
or
2
(b) the death penalty will be carried out on the non-citizen; or
3
(c) the non-citizen will be subjected to torture; or
4
(d) the non-citizen will be subjected to cruel or inhuman
5
treatment or punishment; or
6
(e) the non-citizen will be subjected to degrading treatment or
7
punishment.
8
(2B) However, there is taken not to be a real risk that a non-citizen will
9
suffer significant harm in a country if the Minister is satisfied that:
10
(a) it would be reasonable for the non-citizen to relocate to an
11
area of the country where there would not be a real risk that
12
the non-citizen will suffer significant harm; or
13
(b) the non-citizen could obtain, from an authority of the
14
country, protection such that there would not be a real risk
15
that the non-citizen will suffer significant harm; or
16
(c) the real risk is one faced by the population of the country
17
generally and is not faced by the non-citizen personally.
18
Ineligibility for grant of a protection visa
19
(2C) A non-citizen is taken not to satisfy the criterion mentioned in
20
paragraph (2)(aa) if:
21
(a) the Minister has serious reasons for considering that:
22
(i) the non-citizen has committed a crime against peace, a
23
war crime or a crime against humanity, as defined by
24
international instruments prescribed by the regulations;
25
or
26
(ii) the non-citizen committed a serious non-political crime
27
before entering Australia; or
28
(iii) the non-citizen has been guilty of acts contrary to the
29
purposes and principles of the United Nations; or
30
(b) the Minister considers, on reasonable grounds, that:
31
(i) the non-citizen is a danger to Australia's security; or
32
(ii) the non-citizen, having been convicted by a final
33
judgment of a particularly serious crime (including a
34
crime that consists of the commission of a serious
35
Australian offence or serious foreign offence), is a
36
danger to the Australian community.
37
Schedule 1 Amendments
8 Migration Amendment (Complementary Protection) Bill 2011 No. , 2011
15 Subsections 36(4) and (5)
1
Repeal the subsections, substitute:
2
(4) However, subsection (3) does not apply in relation to a country in
3
respect of which:
4
(a) the non-citizen has a well-founded fear of being persecuted
5
for reasons of race, religion, nationality, membership of a
6
particular social group or political opinion; or
7
(b) the Minister has substantial grounds for believing that, as a
8
necessary and foreseeable consequence of the non-citizen
9
availing himself or herself of a right mentioned in
10
subsection (3), there would be a real risk that the non-citizen
11
will suffer significant harm in relation to the country.
12
(5) Subsection (3) does not apply in relation to a country if the
13
non-citizen has a well-founded fear that:
14
(a) the country will return the non-citizen to another country; and
15
(b) the non-citizen will be persecuted in that other country for
16
reasons of race, religion, nationality, membership of a
17
particular social group or political opinion.
18
(5A) Also, subsection (3) does not apply in relation to a country if:
19
(a) the non-citizen has a well-founded fear that the country will
20
return the non-citizen to another country; and
21
(b) the Minister has substantial grounds for believing that, as a
22
necessary and foreseeable consequence of the non-citizen
23
availing himself or herself of a right mentioned in
24
subsection (3), there would be a real risk that the non-citizen
25
will suffer significant harm in relation to the other country.
26
16 Subsection 48A(2) (paragraphs (aa) and (ab) of the
27
definition of application for a protection visa)
28
Repeal the paragraphs, substitute:
29
(aa) an application for a visa, a criterion for which is mentioned in
30
paragraph 36(2)(a), (aa), (b) or (c); and
31
17 Subparagraph 91N(3)(a)(i)
32
Omit "asylum", substitute "protection".
33
18 Subsection 91T(1)
34
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2011 No. , 2011 9
Omit "(1)".
1
19 Subsection 91T(1)
2
Omit all the words after "were a reference to", substitute "a
3
non-political crime within the meaning of this Act".
4
20 Subsections 91T(2) and (3)
5
Repeal the subsections.
6
21 Subsection 91U(1)
7
Omit "(1)".
8
22 Paragraph 91U(1)(a)
9
Omit "(as defined by subsection (2))".
10
23 Paragraph 91U(1)(b)
11
Omit "(as defined by subsection (3))".
12
24 Subsections 91U(2) and (3)
13
Repeal the subsections.
14
25 Subparagraph 336F(3)(a)(ii)
15
Omit "Refugees Protocol; and", substitute "Refugees Protocol; or".
16
26 At the end of paragraph 336F(3)(a)
17
Add:
18
(iii) an offshore entry person who makes a claim for
19
protection on the basis that the person will suffer
20
significant harm; and
21
27 Subparagraph 336F(4)(a)(ii)
22
Omit "Refugees Protocol; and", substitute "Refugees Protocol; or".
23
28 At the end of paragraph 336F(4)(a)
24
Add:
25
(iii) an offshore entry person who makes a claim for
26
protection on the basis that the person will suffer
27
significant harm; and
28
Schedule 1 Amendments
10 Migration Amendment (Complementary Protection) Bill 2011 No. , 2011
29 At the end of paragraph 336F(5)(c)
1
Add "or".
2
30 After paragraph 336F(5)(c)
3
Insert:
4
(ca) the person is an offshore entry person:
5
(i) who makes a claim for protection on the basis that the
6
person will suffer significant harm; and
7
(ii) who, following assessment of his or her claim, is found
8
not to be a person for whom there is a real risk of
9
suffering significant harm; or
10
(cb) the person is an offshore entry person:
11
(i) who makes a claim for protection on the basis that the
12
person will suffer significant harm; and
13
(ii) who, following assessment of his or her claim, is found
14
to be a person in respect of whom there are serious
15
reasons for considering that he or she has committed a
16
crime against peace, a war crime or a crime against
17
humanity (as defined by international instruments
18
prescribed by the regulations) or a serious non-political
19
crime before entering Australia, or that he or she has
20
been guilty of acts contrary to the purposes and
21
principles of the United Nations; or
22
(cc) the person is an offshore entry person:
23
(i) who makes a claim for protection on the basis that the
24
person will suffer significant harm; and
25
(ii) who, following assessment of his or her claim, is found
26
to be a person in respect of whom there are reasonable
27
grounds for considering that he or she is a danger to
28
Australia's security or is a person who, having been
29
convicted by a final judgment of a particularly serious
30
crime (including a crime that consists of the commission
31
of a serious Australian offence or serious foreign
32
offence), is a danger to the Australian community;
33
31 At the end of paragraph 411(1)(c)
34
Add " (other than a decision that was made relying on paragraph
35
36(2C)(a) or (b))".
36
32 At the end of paragraph 411(1)(d)
37
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2011 No. , 2011 11
Add " (other than a decision that was made because of paragraph
1
36(2C)(a) or (b))".
2
33 Paragraph 500(1)(c)
3
Repeal the paragraph, substitute:
4
(c) a decision to refuse to grant a protection visa, or to cancel a
5
protection visa, relying on:
6
(i) one or more of the following Articles of the Refugees
7
Convention, namely, Article 1F, 32 or 33(2); or
8
(ii) paragraph 36(2C)(a) or (b) of this Act;
9
34 Paragraph 500(4)(c)
10
Repeal the paragraph, substitute:
11
(c) a decision to refuse to grant a protection visa, or to cancel a
12
protection visa, relying on:
13
(i) one or more of the following Articles of the Refugees
14
Convention, namely, Article 1F, 32 or 33(2); or
15
(ii) paragraph 36(2C)(a) or (b) of this Act.
16
35 Application
17
The amendments made by this Schedule apply in relation to an
18
application for a protection visa (within the meaning of the Migration
19
Act 1958):
20
(a) that is made on or after the day on which this item
21
commences; or
22
(b) that is not finally determined (within the meaning of
23
subsection 5(9) of that Act) before the day on which this item
24
commences.
25
AustLII Search