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1998-1999
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
BORDER PROTECTION
LEGISLATION AMENDMENT BILL 1999
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
(Amendments to be moved on behalf of the
Government)
(Circulated by authority
of the
Minister for Immigration and Multicultural Affairs,
the Hon. Philip
Ruddock MP)
ISBN: 0642 425655
BORDER PROTECTION LEGISLATION AMENDMENT BILL
1999
OUTLINE
Overview
1 Australia has
comprehensive refugee determination processes in place to fulfil its obligations
under the 1951 Convention and 1967 Protocol Relating to the Status of Refugees.
A significant number of persons seeking asylum in Australia are nationals of
more than one country, or have rights of return or entry to another country,
where they may reside free from persecution or forced return to the country
where they claim they will be persecuted. These persons attempt to use refugee
processes as a means of by-passing general immigration requirements to obtain
residence in Australia. This practice of seeking protection elsewhere, widely
referred to as “forum shopping”, represents an increasing problem
faced by Australia and other countries viewed as desirable migration
destinations. The Government believes that Australia’s obligations do not
require these persons to be permitted to reside in Australia when they have
protection from persecution in another country.
2 The purpose of these
amendments to the Border Protection Legislation Amendment Bill 1999 is to
prevent the misuse of Australia’s asylum processes by “forum
shoppers”. These amendments will ensure that persons who are nationals of
more than one country, or who have a right to enter and reside in another
country where they will be protected, have an obligation to avail themselves of
the protection of that other country.
3 In particular, the amendments
will provide for the following in the Migration Act 1958 (“the
Migration Act”):
• an interpretative provision which will
make it clear that Australia does not owe protection obligations to non-citizens
who, without a well-founded fear of persecution, do not take all possible steps
to avail themselves of a right to enter and reside in another
country;
• a legislative definition of nationality such that
nationality is determined solely by reference to the domestic law of the country
in question;
• statutory bars on protection visa applications, or in
some cases, any other visa applications, by non-citizens in the migration zone
who are dual or multiple nationals, or who have a right to enter and reside in
another country. Non-citizens who fall within this group and have not been
immigration cleared will be barred from making any visa application while
remaining in the migration zone. On the other hand, non-citizens who have been
immigration cleared will only be barred from making protection visa applications
while remaining in the migration zone; and
• accompanying discretionary
provisions for Ministerial intervention to lift the bars in the public
interest.
FINANCIAL IMPACT STATEMENT
4 The amendments
proposed to this Bill will have no significant financial impact.
BORDER PROTECTION LEGISLATION AMENDMENT BILL 1999
NOTES ON
AMENDMENT TO SCHEDULE 1
Amendment (1)
1 This amendment
adds new Part 6 at the end of proposed Part 5 to the Border Protection
Legislation Amendment Bill 1999. New Part 6 is entitled “Amendments to
prevent forum shopping”.
Item 60 At the end of section
36
2 This amendment adds new subsections (3), (4), (5), (6) and (7)
to existing section 36 of the Migration Act. Section 36 of the Migration Act
provides that there is a class of visas to be known as protection visas, a
criterion for which is that the applicant is a non-citizen in Australia to whom
Australia has protection obligations under the Refugees Convention.
3 New
subsection 36(3) is an interpretative provision relating to Australia’s
protection obligations. This provision provides that Australia does not owe
protection obligations to a non-citizen who has not taken all possible steps to
avail him or herself of a right to enter and reside in another
country.
4 Proposed subsection 36(3) does not apply in relation to a
country in respect of which the non-citizen has a well-founded fear of being
persecuted, or of being returned to another country in which he or she has a
well-founded fear of being persecuted, for reasons of race, religion,
nationality, membership of a particular group or political opinion (new
subsections 36(4) and 36(5)).
5 The purpose of proposed subsections
36(3), (4) and (5) is to ensure that a protection visa applicant will not be
considered to be lacking the protection of another country if without valid
reason, based on a well-founded fear of persecution, he or she has not taken all
possible steps to access that protection.
6 New subsection 36(6)
introduces a legislative definition of “nationality” which is the
term used in the Refugees Convention and international law generally to cover a
person’s “nationality” or “citizenship”. It
provides that the question of whether a non-citizen is a national or citizen of
a particular country must be determined solely by reference to the law of that
country. This will ensure that nationality is determined solely with reference
to the domestic law of the country in question, and not in relation to
assessments made in Australia as to the effectiveness of a nationality held by a
protection visa applicant.
7 New subsection 36(7) provides that proposed
subsection 36(6) does not affect the interpretation of any other provision of
the Migration Act.
Item 61 Paragraph 46(1)(d)
8 This item is a
consequential amendment to reflect the insertion of new section 91P into the
Migration Act.
Item 62 After Subdivision AJ of Division 3 of Part
2
Subdivision AK – Non-citizens with access to protection from
third countries
9 This section sets out Parliament’s intention that this
Subdivision is enacted to ensure that non-citizens who can avail themselves of
protection from a third country, should seek protection from that third country
rather than apply for a protection visa, or in some cases, any other visa. Any
such person who is an unlawful non-citizen will be subject to removal under
Division 8 of Part 2 of the Migration Act.
10 New section 91N provides that this Subdivision applies to a
non-citizen at a particular time if, at that time, the
non-citizen:
• is a national of two or more countries;
or
• has a right to re-enter and reside in any country apart from
Australia, a country of which the non-citizen is a national or, if the
non-citizen has no country of nationality, the country of which the non-citizen
is an habitual resident. In addition, the non-citizen must have resided in that
other country for a continuous period of at least seven days.
11 New
subsection 91N(3), as per proposed subsection 36(6), introduces a legislative
definition of “nationality” to provide that the question of whether
a non-citizen is a national or citizen of a particular country must be
determined solely by reference to the law of that country.
12 New
subsection 91N(4) provides that proposed subsection 91N(3) does not affect the
interpretation of any other provision of the Migration Act.
Section
91P Non-citizens to whom this Subdivision applies are unable to make valid
applications for certain visas
13 New subsection 91P(1) ensures that
if Subdivision AK applies to a non-citizen at a particular time and, at that
time, the non-citizen applies or purports to apply for a visa then, if the
non-citizen has not been immigration cleared and is in the migration zone
– that application, or any other visa application made by the non-citizen
while he or she remains in the migration zone, is not a valid
application.
14 New subsection 91P(2) ensures that if Subdivision AK
applies to a non-citizen at a particular time and, at that time, the non-citizen
applies or purports to apply for a protection visa then, if the non-citizen has
been immigration cleared and is in the migration zone – that application,
or any other protection visa application made by the non-citizen while he or she
remains in the migration zone, is not a valid application.
These
provisions apply despite any other provision that may apply in the Act, but are
subject to new section 91Q.
15 This section provides the Minister with the discretion, if he or she
believes it to be in the public interest to do so, to determine that section 91P
does not apply to a particular non-citizen. If the Minister makes such a
determination, then that non-citizen may make a valid application for a visa
within seven working days of receiving the Minister’s written
notice.
16 This power can only be exercised by the Minister personally
(new subsection 91Q(2)). If the Minister makes such a determination then the
Minister must table before each House of Parliament a statement that sets out
the determination and the reasons for the determination (new subsection 91Q(3)).
The statement must not provide any information that could identify the person
who is the subject of the determination or any other person in connection with
that statement (new subsection 91Q(4)). The statement must be tabled in
Parliament within fifteen sitting days from the end of a six month period in
which the determination was made, as set out in new subsection
91Q(5).
17 The Minister does not have a duty to consider whether to
exercise this power in any circumstances (new subsection 91Q(6)).
18 New subsection 198(9) is inserted to provide that an unlawful
non-citizen in detention covered by new Subdivision AK must be removed, unless
the non-citizen:
• has been immigration cleared or has made a valid
application for a substantive visa that can be granted when the non-citizen is
in the migration zone; or
• the Minister has given a notice under new
subsection 91Q(1) to the non-citizen and that person has made a valid
application for a substantive visa that can be granted when the applicant is in
the migration zone within the time required by new subsection
91Q(1).
This amendment operates in addition to the other circumstances
where removal of unlawful non-citizens is required by section
198.
Item 64 Paragraph 475(2)(e)
19 Subsection 475(2)
provides that certain decisions are not judicially-reviewable. This amendment
provides that a decision of the Minister not to exercise, or not to consider the
exercise of, his or her power under section 91Q is not a judicially-reviewable
decision.
Item 65 Application of amendments
20 This item
provides that the amendment made by item 60 applies to decisions relating to the
grant of, or refusal to grant, a protection visa that are made after the
commencement of this item. This includes decisions by, or as a result of
consideration by, merits review bodies. Item 60 applies to these decisions
notwithstanding that the application for the visa, or any previous decision
relating to the application, may have been made before the commencement
time.
21 This item provides that the other amendments made by Part 6
apply to applications, or purported applications, for a substantive visa made
after the commencement time of the Border Protection Legislation Amendment Bill
1999.