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1998-1999
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
MIGRATION
LEGISLATION AMENDMENT (TEMPORARY SAFE HAVEN VISAS) BILL
1999
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural Affairs,
the Hon. Philip
Ruddock MP)
ISBN: 0642 392765
MIGRATION LEGISLATION AMENDMENT (TEMPORARY SAFE HAVEN VISAS) BILL
1999
OUTLINE
Overview
1 The Migration
Legislation Amendment (Temporary Safe Haven Visas) Bill 1999 (“the
Bill”) provides the legislative framework for the Australian Government to
provide persons with temporary safe haven in Australia. The Bill will ensure
that persons to whom temporary safe haven is provided are unable to change their
status to remain in Australia after temporary safe haven is no longer necessary.
Consistent with the Government’s commitment on 6 April 1999, to provide
temporary safe haven for 4,000 persons displaced from their homes in Kosovo any
applications made from that date will be rendered invalid.
2 The Bill
also contains specific powers to enable prompt action to be taken to withdraw
temporary safe haven to persons who represent a danger to the Australian
community, or Australia’s security or whose presence in Australia would be
harmful to Australia’s international relations.
3 The amendments to
the Migration Act 1958 (“the Migration
Act”):
• establish that there is to be a class of visas known
as temporary safe haven visas;
• provide that the Minister may, by
notice in the Gazette, extend or shorten the visa period of a temporary
safe haven visa so that the visa ceases to be in effect on the day specified in
the notice;
• provide that where new Subdivision AJ applies, a
non-citizen who holds a temporary safe haven visa, or who has not left Australia
since ceasing to hold such a visa, is not be allowed to apply for any other type
of visa;
• provide the Minister with the power to determine, if he
or she believes it to be in the public interest, to allow a particular
non-citizen who holds a temporary safe haven visa, or who has not left Australia
since ceasing to hold such a visa, to make a valid visa application for another
type of visa;
• provide a removal
power in section 198 for those unlawful non-citizens in detention to whom
subdivision AJ applies;
• provide the Minister with a special power
to cancel a person’s temporary safe haven visa or refuse to grant a person
a temporary safe haven visa on character grounds without the rules of natural
justice applying to his or her decision;
• extend the
Minister’s decision to refuse to grant or cancel a temporary safe haven
visa to each member of the immediate family of that
person;
• provide that any decision to refuse to grant a temporary
safe haven visa or to cancel a temporary safe haven visa is not reviewable under
Part 5 of the Migration Act; and
• provide that the
Minister’s decision to extend or shorten the visa period of a temporary
safe haven visa, or whether to exercise the power to allow a particular
non-citizen to make a valid visa application for another type of visa is not
judicially reviewable.
FINANCIAL IMPACT
STATEMENT
4 The amendments proposed in the Bill are intended to limit
the costs incurred by the Australian community to those associated with the
provision of temporary safe haven. The Bill stops persons from seeking to
change their status to remain in Australia and limits the use of costly review
processes to delay departure from Australia.
MIGRATION LEGISLATION AMENDMENT (TEMPORARY SAFE HAVEN VISAS) BILL
1999
NOTES ON INDIVIDUAL CLAUSES
Clause
1 Short title
5 This clause provides that the Act may be cited
as the Migration Legislation Amendment (Temporary Safe Haven Visas) Act
1999.
Clause 2 Commencement
6 Subclause 2(1)
provides that, subject to this section, this Act commences on the day on which
it receives the Royal Assent.
7 Subclause 2(2) provides that, item 11 of
Schedule 1 commences immediately after the commencement of item 10 of Schedule 1
to the Migration Legislation Amendment Act (No. 1) 1998.
Clause
3 Schedule(s)
8 This clause provides that, subject to section 2, the
provisions of each Act set out in the items of the Schedule to this Act are
amended or repealed as indicated and any other item has effect according to its
terms.
Clause 4 Applications for certain visas
made before the commencement of this Act
9 This item ensures
that if, during the period between 6 April 1999 and the commencement of this
section, a non-citizen in Australia who holds a temporary safe haven visa or who
has not left Australia since ceasing to hold a temporary safe haven visa, makes
an application for a visa and is not granted a substantive visa as a result of
that application, that person no longer has a valid application.
10 This provision applies even if the application or a decision in
relation to the application is the subject of a review by a review officer on
internal review or by a Tribunal, or by a court.
11 This clause provides that a visa that falls within Class UJ of the
regulations is deemed to be a temporary safe haven visa on the commencement of
this section. Therefore, a visa within Class UJ issued before the commencement
of this Act will be subject to the provisions of this Act.
SCHEDULE 1
– AMENDMENT OF THE MIGRATION ACT 1958
Item
1 Subsection 31(2)
12 This item is consequential to reflect the
insertion of new section 37A into the Migration Act.
Item 2 Subsection
31(3)
13 This item is consequential to reflect the insertion of new
section 37A into the Migration Act.
Item 3 After section
37
New section 37A – Temporary safe haven
visas
14 New section 37A provides that there is to be a class of
temporary visas known as temporary safe haven visas. The Minister may by notice
in the Gazette, extend or shorten the visa period of a temporary safe
haven visa, so that the visa ceases to be in effect on the day specified in the
notice. The Minister may do this despite any other provision in the Act. The
Minister does not have a duty to consider whether to exercise his or her power
to extend the period of temporary safe haven, irrespective of whether he or she
is requested to do so by the visa holder, or any other person, or in any other
circumstances.
Item 4 Paragraph 46(1)(d)
15 This item is consequential to reflect the insertion of new section
91K in the Act.
Item 5 Subparagraph
65(1)(a)(iii)
16 This item is consequential to reflect the
insertion of new section 500A in the Act.
Item 6 Subdivision AI of
Division 3 of Part 2 (heading)
17 Subdivision AI in Division 3 of
Part 2 of the Migration Act, is amended to reflect the more accurate description
that this Subdivision refers to certain non-citizens who are covered by the
“CPA” or in relation to whom there is a “safe third
country” as defined in that Subdivision.
Subdivision AJ – Temporary safe haven visas
18 This section sets out Parliament’s intention that this
Subdivision is enacted to ensure that persons to whom this Subdivision applies
are not to be able to apply for a visa other than another temporary safe haven
visa. If a person to whom this Subdivision applies ceases to hold a visa then
that person is subject to removal under Division 8 of Part 2 of the Migration
Act.
19 New section 91J provides that this Subdivision applies to non-citizens
who hold a temporary safe haven visa, or who have not left Australia since
ceasing to hold such a visa.
Section 91K Non-citizens to whom this
Subdivision applies are unable to make valid applications for certain
visas
20 This provision ensures that if this Subdivision applies to a
non-citizen at a particular time and at that time the non-citizen applies or
purports to apply for a visa (other than a temporary safe haven visa) then that
application is not a valid application. This provision applies despite any
other provision that may apply in the Act, but is subject to new
section 91L.
21 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 91K
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.
22 This power can only be exercised by the Minister personally
(new subsection 91L(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 91L(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 91L(4)). The statement must be tabled in
Parliament within 15 Sittings days of the making of determination as set out in
new subsection 91L(5).
23 The Minister does not have a duty to consider
whether to exercise this power in any circumstances (new subsection
91L(6)).
Item 8 After paragraph
118(e)
25 New subsection 198(8) is inserted to provide that an unlawful
non-citizen in detention covered by new Subdivision AJ must be removed, unless
the Minister has given a notice under new subsection 91L(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 91L(1). This amendment operates in addition to the other
circumstances where removal of unlawful non-citizens is required by section
198.
Item 10 Section 337 (at the end of the
definition of Part 5 reviewable
decisions)
26 This item provides that
a “Part 5 reviewable decision” does not include any decision to
refuse to grant, or to cancel a temporary safe haven visa. That is, any
decision to refuse to grant or to cancel a temporary safe haven visa is not
internally reviewable by a review officer nor by the Immigration Review
Tribunal.
Item 11 At the end of subsection
338(1)
27 This item provides that any
decision to refuse to grant or to cancel a temporary safe haven visa is not an
“MRT reviewable decision”. That is, any decision to refuse to grant
or to cancel a temporary safe haven visa is not reviewable by the Migration
Review Tribunal (“MRT”). This item will commence immediately after
the commencement of the MRT (clause
2(2)).
Item 12 After paragraph
475(2)(d)
28 Subsection 475(2) provides
that certain decisions are not judicially reviewable. New subparagraph
475(2)(da) provides that a decision of the Minister not to exercise, or not to
consider the exercise of his or her power to extend the visa period of a
temporary safe haven visa under new subsection 37A(2) is not a judicially
reviewable decision.
29 New subparagraph
475(2)(db) provides that a decision of the Minister to shorten the visa period
of a temporary safe haven visa under new subsection 37A(3) is also not a
judicially reviewable decision.
Item
13 Paragraph 475(2)(e)
30 This item
provides that a decision of the Minster not to exercise, or not to consider the
exercise of his or her power under section 91L is also not a judicially
reviewable decision.
Item 14 After section
500
New section 500A - Refusal or
cancellation of temporary safe haven
visas
31 This item inserts new section
500A into the Act to provide the Minister with additional powers to cancel a
temporary safe haven visa or to refuse to grant a temporary safe haven visa on
the grounds set out in that section.
32 The
Minister can only exercise this power personally. If the Minister makes a
decision to refuse to grant or cancel a temporary safe haven visa under new
subsection 500A(1) or 500A(3), then the Minister must table that decision before
Parliament, setting out the reasons for the decision (new subsection 500A(7)).
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 500A(8)). The statement must be tabled in
Parliament within 15 Sittings days of the making of determination as set out in
new subsection 500A(9).
33 If the Minister
makes a decision under 500A(1) or 500A(3), the Minister must notify the person
of the decision (new subsection 500A(10)). However, failure to notify a person
does not affect the validity of the
decision.
34 New subsection 500A(11) provides
that the rules of natural justice and the code of procedure set out in
Subdivision AB of Division 3 of Part 2 do not apply to a decision under
subsection 500A(1) or 500A(3). For example, there is no requirement to give the
visa holder of a temporary safe haven visa or a visa applicant for a temporary
safe haven visa prior notice of the decision to cancel or to refuse to grant
under subsection 500A(1) or 500A(3).
35 New subsection 500A(12) provides that if the Minister refuses to grant a person a temporary safe haven visa under subsection 500A(1) or 500A(3), then the Minister is also taken to have refused to grant a temporary safe haven visa to each member of the immediate family member of that person. The immediate family members need not be notified of the decision to refuse to grant.
36 New subsection 500A(13) provides that if a person’s visa is cancelled under subsection 500A(1) or 500A(3), then visas held by members of that person’s immediate family (“immediate family” is defined in the regulations) are also cancelled. The immediate family members need not be notified of the cancellation.