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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Migration
Legislation Amendment Bill (No. 2) 1999
No.
, 1999
(Immigration and Multicultural
Affairs)
A Bill for an Act to amend the
Migration Act 1958, and for related purposes
ISBN: 0642 387044
Contents
Migration Act
1958 4
Migration Act
1958 8
Migration Act
1958 10
Migration Act
1958 11
Part 1—Permanent
provisions 12
Migration Act
1958 12
Part 2—Temporary
provisions 13
Migration Act
1958 13
Migration Age
1958 15
Migration Act
1958 17
Migration Act
1958 18
Part
1—Amendments 19
Migration Act
1958 19
Part 2—Transitional
provisions 20
Migration Act
1958 20
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment Act (No.
2) 1999.
(1) Subject to this section, this Act commences on the day on
10
which it receives the Royal Assent.
(2) Subject to subsection (3), Schedules 1, 2, 3, 4, 6, 7 and 8 commence
on a day or days to be fixed by Proclamation.
(3) If Schedule 1, 2, 3, 4, 6, 7 or 8 does not commence under subsection
(2) within 6 months after the day on which this Act receives the Royal Assent,
that Schedule commences on the first day after the end of that period.
(4) If
this Act receives the Royal Assent before or on the date of commencement of
Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998, Part
1 of Schedule 5 to this Act commences on the date of commencement of Schedule 1
to that Act, immediately after the commencement of that Schedule.
(5) If this Act receives the Royal Assent after the date of commencement
of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998,
then, subject to subsection (8), Part 1 of Schedule 5 to this Act commences on a
day to be fixed by Proclamation.
(6) If this Act receives the Royal Assent before the date of commencement
of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998,
then, subject to subsection (8), Part 2 of Schedule 5 to this Act commences on a
day to be fixed by Proclamation.
(7) If this Act receives the Royal Assent on or after the date of
commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1)
1998, Part 2 of Schedule 5 to this Act does not commence and is taken not to
have been enacted.
(8) If subsection (5) or (6) applies to the commencement of Part 1 or 2 of
Schedule 5 to this Act and that Part does not commence under the subsection
concerned within 6 months after the day on which this Act receives the Royal
Assent, that Part of that Schedule commences on the first day after the end of
that period.
(9) If an Act entitled Migration Legislation Amendment (Judicial
Review) Act 1999 commences on or before 1 June 1999, Schedule 9 does not
commence and is taken not to have been enacted.
(10) If an Act entitled Migration Legislation Amendment (Judicial
Review) Act 1999 has been enacted but has not commenced on or before 1 June
1999, or has not been enacted on or before that date, and this Act receives the
Royal Assent on or before that date, Schedule 9 commences on 1 June
1999.
(11) If an Act entitled Migration Legislation Amendment (Judicial
Review) Act 1999 has been enacted but has not commenced on or before 1 June
1999, or has not been enacted on or before that date, and this Act receives the
Royal Assent after that date, Schedule 9 is taken to have commenced on 1 June
1999.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 After Subdivision G of Division 3 of Part
2
Insert:
In this Subdivision:
approval of a person as a business sponsor or
approval means an approval (including a renewal of an approval) under
the regulations of a person as a business sponsor.
business sponsor means a pre-qualified business sponsor, or a
standard business sponsor, under the provisions of the regulations relating to
the approval of such sponsors.
(1) The Minister may cancel an approval of a person as a business sponsor
if the Minister is satisfied that a prescribed ground for cancelling the
approval applies to the person.
(2) To avoid doubt, a matter may constitute a ground for cancelling an
approval of a person as a business sponsor:
(a) whether or not the Minister became aware of the matter because of
information given by the person; and
(b) if the matter is an act or omission by the person—whether the
act or omission was deliberate or inadvertent.
(3) If the Minister may, under subsection (1), cancel an approval of a
person as a business sponsor, the Minister must do so if there exist prescribed
circumstances in which the approval must be cancelled.
(4) To avoid doubt, the cancellation under subsection (1) of an approval
of a person as a business sponsor terminates the approval in the same way as the
revocation of such an approval under the regulations.
If:
(a) a matter constituted a ground for cancelling under section 137B an
approval of a person as a business sponsor; and
(b) despite that matter, the approval has not been cancelled;
the failure to cancel the approval on the ground constituted by that matter
does not prevent the cancellation, or the taking of steps for the cancellation,
of the approval on a ground constituted by another matter.
(1) If the Minister decides to cancel under section 137B an approval of a
person as a business sponsor, the Minister is to give the person written notice
of the decision.
(2) Subject to subsection (3), the notice:
(a) is to be addressed to the person; and
(b) is to be given by the prescribed method, or, if there is no prescribed
method, by a method that the Minister considers to be appropriate, to an address
that, under section 137E, is an appropriate address for delivery of the
notice.
(3) Subsection (2) does not prevent the Minister from giving notice of the
decision to the person by a method or to an address not mentioned in that
subsection provided that the person receives the notice.
(4) Notice of the decision must state the ground for the
cancellation.
(5) Failure to give notice of the decision does not affect the validity of
the decision.
(1) Subject to subsection (2), if a person has, whether before or after
the commencement of this section, notified the Minister of an address at which
the person lives or carries on business, or proposes to live or carry on
business for at least 14 days, the address is taken to be an appropriate address
for delivery of notice of the decision.
(2) If the person notifies the Minister of an address to which a notice to
the person of a decision to cancel the approval may be delivered, subsection (1)
does not apply in relation to the person but that address is an appropriate
address for delivery of notice of the decision.
(3) If the person has notified the Minister, as mentioned in subsection
(1) or (2), of different addresses at different times, references in the
subsection concerned to the address are taken to be references to the later or
latest such address.
If the Minister complies with this Subdivision in respect of the
cancellation of an approval of a person as a business sponsor, the Minister is
not required to take any other action in respect of the cancellation.
(1) If the Federal Court sets aside a decision under section 137B to
cancel an approval, the approval is taken never to have been
cancelled.
(2) However, the person is not entitled to make any claim against the
Commonwealth or an officer because of the purported cancellation.
(1) Subject to subsection (2), the Secretary may, by written notice to a
person who has at any time applied for approval as a business sponsor (whether
or not the person was approved as a business sponsor), require the person to
give the Secretary information about any matters stated in the notice.
(2) The Secretary may not require information under subsection (1) unless
the information relates to:
(a) the person’s application for the approval; or
(b) any approval of the person as a business sponsor; or
(c) anything done as a result of the application or as a result of such an
approval.
(3) A notice under subsection (1) is to state that the information must be
given within a period stated in the notice, being a prescribed period or, if no
period is prescribed, a reasonable period.
(4) The Secretary may, at the request of the person to whom a notice under
subsection (1) is given, fix a day later than the day stated in the notice and,
if a later day is so fixed, the information is to be given by the person on or
before the later day.
2 Application
The provisions of the Subdivision inserted by item 1 that relate to the
cancellation of approvals of persons as business sponsors apply only to
approvals granted or renewed, whether before or after the commencement of this
Schedule, as a result of applications made on or after 1 August
1996.
1 Subsections 45(2) and (3)
Repeal the subsections.
2 Paragraph 46(1)(b)
Repeal the paragraph, substitute:
(b) it satisfies the criteria and requirements prescribed under this
section; and
3 At the end of section 46
Add:
(3) The regulations may prescribe criteria that must be satisfied for an
application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also
prescribe:
(a) the circumstances that must exist for an application for a visa of a
specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made;
and
(c) where an application for a visa of a specified class must be made;
and
(d) where an applicant must be when an application for a visa of a
specified class is made.
4 Saving
Any regulations that:
(a) were in force, or were purportedly in force, under section 45 of the
Migration Act 1958 immediately before the commencement of this Schedule;
and
(b) could validly be made under section 46 of the Migration Act
1958 as amended by this Schedule;
have effect after the commencement of this Schedule as if they had been
made under section 46 of the Migration Act 1958 as amended by this
Schedule.
1 Subsection 5(1) (paragraph (f) of the
definition of officer)
Repeal the paragraph, substitute:
(f) a person who is authorised in writing by the Minister to be an officer
for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in writing
by the Minister to be officers for the purposes of this Act, including a person
who becomes a member of the class after the authorisation is given.
2 After subsection 5(1)
Insert:
(1A) The Minister has power to give authorisations as provided by
paragraphs (f) and (g) of the definition of officer in subsection
(1) and, if such an authorisation is given:
(a) the Minister is to cause notice of the authorisation to be published
in the Gazette; but
(b) without affecting the obligation of the Minister to cause a notice to
be so published:
(i) the authorisation takes effect when it is given; and
(ii) the validity of the authorisation is not affected if such a notice is
not published.
3 Saving of existing
authorisations
A person who, immediately before the commencement of this Schedule, was
authorised, under paragraph (f) of the definition of officer in
subsection 5(1) of the Migration Act 1958, to be an officer for the
purposes of that Act is taken, after that commencement, to have been authorised
to be such an officer under the paragraph substituted for the first-mentioned
paragraph by item 1 of this Schedule.
1 Subsection 254(3)
Repeal the subsection, substitute:
(2A) If a removee is given notice under subsection (2):
(a) the authority who has custody of the removee immediately before the
custody transfer time is taken from the custody transfer time to be an officer
for the purposes of the application of Division 7 of Part 2 in relation to the
removee; and
(b) the removee is taken from the custody transfer time to be detained by
the authority in the capacity of such an officer in the exercise of the powers
conferred by that Division.
(3) If a deportee is given notice under subsection (2):
(a) the authority who has custody of the deportee immediately before the
custody transfer time is taken from the custody transfer time to be an officer
for the purposes of the application of subsection 253(1) in relation to the
deportee; and
(b) the deportee is taken from the custody transfer time to be detained by
the authority in the capacity of such an officer in the exercise of the powers
conferred by subsection 253(1); and
(c) subsection 253(3) does not apply in relation to the
deportee.
1 After subsection 338(7)
Insert:
(7A) A decision to refuse to grant a non-citizen a permanent visa is an
MRT-reviewable decision if:
(a) the non-citizen made the application for the visa at a time when the
non-citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non-citizen is
either in or outside the migration zone.
2 Subparagraph 347(1)(b)(i)
Omit “or (4)”, substitute “, (4) or
(7A)”.
3 Paragraph 347(2)(a)
Omit “or (4)”, substitute “, (4) or
(7A)”.
4 After subsection 347(3)
Insert:
(3A) If the primary decision was covered by subsection 338(7A), an
application for review may only be made by a non-citizen who:
(a) was physically present in the migration zone at the time when the
decision was made; and
(b) is physically present in the migration zone when the application for
review is made.
5 Section 337 (after paragraph (g) of the
definition of Part 5 reviewable decision)
Insert:
(ga) a decision to refuse to grant to a non-citizen a permanent visa
where:
(i) the non-citizen made the application for the visa at a time when the
non-citizen was outside the migration zone; and
(ii) the visa is a visa that could be granted while the non-citizen is
either in or outside the migration zone;
6 Subparagraph 339(1)(b)(i)
Omit “or (b)”, substitute “, (b) or
(ga)”.
7 Paragraph 339(2)(a)
Omit “or (b)”, substitute “, (b) or
(ga)”.
8 After subsection 339(3)
Insert:
(3A) An application for review of a decision covered by paragraph (ga) of
the definition of Part 5 reviewable decision may only be made by a
non-citizen who:
(a) was physically present in the migration zone at the time when the
decision was made; and
(b) is physically present in the migration zone when the application for
review is made.
9 Subparagraph 347(1)(b)(i)
Omit “or (d)”, substitute “, (d) or
(ga)”.
10 Paragraph 347(2)(a)
Omit “or (d)”, substitute “, (d) or
(ga)”.
11 After subsection 347(3)
Insert:
(3A) If the primary decision was covered by paragraph (ga) of the
definition of Part 5 reviewable decision, an application for
review may only be made by a non-citizen who:
(a) was physically present in the migration zone at the time when the
decision was made; and
(b) is physically present in the migration zone when the application for
review is made.
1 After section 87
Insert:
If:
(a) a person has applied, whether before or after the commencement of this
section, for the grant of a visa; and
(b) a time was or is reached when the grant of the visa to the person in a
particular financial year was or is prevented by section 86; and
(c) the person was requested by the Minister after that time to satisfy
requirements for the grant of the visa that relate to health or character;
and
(d) after the making of the request referred to in paragraph (c) the
person satisfies the requirements referred to in that paragraph in a financial
year subsequent to the financial year in which the time referred to in paragraph
(b) occurred; and
(e) the grant of the visa to the person at the time when the requirements
referred to in paragraph (c) are satisfied would, apart from this section, be
prevented by section 86; and
(f) the person was unable to satisfy the requirements referred to in
paragraph (c) at a time when, apart from this section, section 86 would not have
prevented the grant of the visa to the person; and
(g) the Minister is satisfied that the person’s inability to satisfy
the requirements referred to in paragraph (c) at a time mentioned in paragraph
(e) was due to circumstances beyond the person’s control;
section 86 does not prevent the grant of the visa to the
person.
1 At the end of section 95
Add:
Section to be subject to section 95A
(5) This section has effect subject to section 95A.
Note: The heading to subsection 95(4) is replaced by
“Removal from pool under paragraph (3)(a) treated as failure to receive
qualifying score”.
2 After section 95
Insert:
(1) This section applies to an application that:
(a) is in the pool at the commencement of this section; or
(b) is put in the pool after that commencement.
(2) Section 95 has effect in relation to the application as if references
in subsections 95(2) and (3) to 12 months were references to 2
years.
1 Subsections 461(2) and
(3)
Repeal the subsections.
1 Paragraph 475(1)(a)
Omit “Immigration Review Tribunal”, substitute “Migration
Review Tribunal”.
2 Paragraph 475(2)(b)
Repeal the paragraph.
3 Paragraph 475(2)(c)
Omit “IRT-reviewable decision”, substitute
“MRT-reviewable decision”.
4 Paragraph 475(2)(f)
Omit “Immigration Review Tribunal”, substitute “Migration
Review Tribunal”.
5 At the end of section 475
Add:
(3) The reference in paragraph (2)(e) to section 345 is a reference to
section 345 of this Act as in force before the commencement of Schedule 1 to the
Migration Legislation Amendment Act (No. 1) 1998.
Part
2—Transitional
provisions
6 Application for judicial review of decision of
Immigration Review Tribunal pending at commencement
For the purposes of Part 8 of the Migration Act 1958, if:
(a) before the commencement of this Schedule, an application had properly
been made under section 476 of the Migration Act 1958 as previously in
force to the Federal Court for judicial review of a decision of the Immigration
Review Tribunal; and
(b) that Court had not made an order on the application under subsection
481(1) of the Migration Act 1958 as previously in force before that
commencement;
the application is taken to be an application properly made, on the day of
that commencement, under section 476 of the Migration Act 1958 for the
judicial review of the decision of the Immigration Review Tribunal as if it were
a decision of the Migration Review Tribunal.
7 Period for making application for judicial
review of decision of Immigration Review Tribunal current at
commencement
If:
(a) before the commencement of this Schedule, an application could have
been properly made under section 476 of the Migration Act 1958 as
previously in force to the Federal Court for judicial review of a decision of
the Immigration Review Tribunal; and
(b) the period under section 478 of the Migration Act 1958 as
previously in force for making the application had not ended before that
commencement;
an application may be made under section 476 of the Migration Act
1958 for judicial review of the decision of the Immigration Review Tribunal
as if it were a decision of the Migration Review Tribunal. However, the period
for making the application is to be worked out from the day, before that
commencement, on which the applicant was notified of the decision.
8 Decision of Immigration Review Tribunal
quashed or set aside and matter to which decision relates referred for further
consideration
(1) For the purposes of Part 8 of the Migration Act 1958,
if:
(a) before the commencement of this Schedule, a decision of the
Immigration Review Tribunal was quashed or set aside under that Part by the
Federal Court; and
(b) the matter to which the decision related was referred by that Court
for further consideration; and
(c) no decision on that further consideration was made before that
commencement;
the decision that was reviewed by the Immigration Review Tribunal is taken,
on and after that commencement, to be an MRT-reviewable decision in respect of
which an application under section 347 of the Migration Act 1958 was made
on the day of that commencement.
(2) For the purposes of Part 8 of the Migration Act 1958,
if:
(a) after the commencement of this Schedule, a decision of the Immigration
Review Tribunal made before that commencement is quashed or set aside by the
Federal Court; and
(b) the matter to which the decision related is referred by that Court for
further consideration;
the decision that was reviewed by the Immigration Review Tribunal is taken,
on and after the day of the referral, to be an MRT-reviewable decision in
respect of which an application under section 347 of the Migration Act
1958 was made on that day.
9 Decision of Immigration Review Tribunal that
the Minister has agreed to reconsider
(1) For the purposes of Part 8 of the Migration Act 1958,
if:
(a) before the commencement of this Schedule, an application had been made
to the Federal Court for judicial review of a decision of the Immigration Review
Tribunal; and
(b) before the judicial review application was determined by that Court,
and before that commencement, the Minister agreed, in writing, to reconsider the
decision; and
(c) no decision on that reconsideration was made before that
commencement;
the decision that is to be reconsidered by the Minister is taken, on and
after that commencement, to be an MRT-reviewable decision in respect of which an
application under section 347 of the Migration Act 1958 was made on the
day of that commencement.
(2) For the purposes of Part 8 of the Migration Act 1958,
if:
(a) before or after the commencement of this Schedule, an application has
been or is made to the Federal Court for judicial review of a decision of the
Immigration Review Tribunal that was made before that commencement;
and
(b) before the judicial review application was or is determined by that
Court, but after that commencement, the Minister agrees, in writing, to
reconsider the decision;
the decision that is to be reconsidered by the Minister is taken, on and
after the day of the Minister’s agreement, to be an MRT-reviewable
decision in respect of which an application under section 347 of the
Migration Act 1958 was made on that day.