ATTACHMENT
B
Statement of Compatibility with Human Rights
Prepared in
accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to Migration
Regulations 1994 (Relating to the reintroduction of Temporary Protection
visas)
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
This Legislative Instrument seeks to amend the Migration
Regulations 1994 to:
-
Reintroduce Temporary Protection visas (subclass 785).
The
reintroduction of Temporary Protection visas is a key element of the
Government's border protection strategy to combat people smuggling and to
discourage people from making dangerous voyages to Australia.
Unauthorised Maritime Arrivals (UMAs) and Unauthorised Air
Arrivals (UAA) who are found to engage Australia's non refoulement
obligations will be granted a Temporary Protection Visa for a period of up to
three years at one time. A reassessment will be required to determine if an
individual is eligible for a further Temporary Protection visa.
Holders of a Temporary Protection visa will have access to
work rights and selected support services. They will have access to Medicare
and pending arrangements with state and territory governments, children will
have access to public education. Holders of Temporary Protection visas receive
greater access to benefits and services than other temporary visa holders.
Holders of a Temporary Protection visa are not eligible to
sponsor family members for an Australian visa, including under the family
migration program.
Human rights implications
Family Sponsorship
As explained above, those granted Temporary Protection visas
will not be eligible to sponsor family members to migrate to Australia. Under
the International Covenant on Civil and Political Rights (ICCPR), Article 17
states that no one shall be subjected to arbitrary or unlawful interference
with his family and that everyone has the right to protection of the law
against such interference. Article 23 states that the family is the natural
and fundamental group unit of society and is entitled to protection by society
and the state.
As refugees are unable to return to their country of origin
for fear of persecution, if family reunification is not available there is the
potential that some Temporary Protection visa holders may be separated from
their family for years until they are either deemed not to engage Australia's
protection obligations and removed from Australia or they are granted a
permanent Protection visa.
Circumstances in someone's country of origin may change, and
TPV holders will be able to voluntarily depart and return to their country of
origin and family at any time.
There is no right to family reunification under international
law. The protection of the family unit under Articles 17 and 23 does not
amount to a right to enter Australia where there is no other right to do
so. Further, avoiding arbitrary interference with the family or
protecting the family can be weighed against other countervailing considerations
including the integrity of the migration system and the national
interest.
A UMA and UAA becomes separated from their family when they
choose to travel to Australia without their family, Australia has not caused
that separation. To this end, Australia does not consider that Articles
17 and 23 are engaged by this Legislative Instrument. To the extent that
this might amount to interference with the family, Australia maintains that any
interference is not arbitrary and Australia considers that this is a necessary,
reasonable and proportionate measure to achieve the legitimate aim of
preventing UMAs from making the dangerous journey to Australia by boat. In
addition, it furthers the legitimate aim of encouraging people to arrive in
Australia via regular means, such as by obtaining a permanent visa under
Australia's Refugee and Humanitarian Programme for persons outside Australia,
which allows family groups to migrate together. Therefore, the Legislative
instrument is consistent with the rights contained under Articles 17 and 23 of
the ICCPR.
Rights of the Child
Article 3 of the Convention on the Rights of the Child (CRC)
requires that the best interests of the child are treated as a primary
consideration in all actions concerning children. However, other considerations
may also be primary considerations. While it may be in the best interests
of unaccompanied minors (UAMs) to be reunited with their family, it is clearly
not in their best interests to be placed in the hands of people smugglers to
take the dangerous journey by boat to Australia.
The reintroduction of Temporary Protection visas seek to
prevent minors from taking potentially life threatening avenues to achieve
resettlement for their families in Australia. This goal, as well as the
need to maintain the integrity of Australia's migration system and protect the
national interest, is also a primary consideration. Australia considers
that on balance these and other primary considerations outweigh the best
interests of the child in seeking family reunification. Therefore,
Australia considers that this Legislative Instrument is consistent with Article
3 of the CRC.
Article 10 of the CRC requires that applications for family
reunification made by minors or their parents are treated in a positive, humane
and expeditious manner. However, Article 10 does not amount to a right to
family reunification. The Australian Government will not provide a separate
pathway to family reunification that will allow people smugglers to exploit
children and encourage them to risk their lives on dangerous boat
journeys. As such, to the extent that the rights under Article 10 are
limited by the reintroduction of Temporary Protection visas, Australia
considers that these limitations are necessary, reasonable and proportionate to
achieve a legitimate aim.
Permission to Travel
A holder of a Temporary Protection visa will not be able to
re-enter Australia if they depart. 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)). Article 12 states that everyone lawfully within the
territory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence and everyone shall be free to
leave any country, including his own. Article 12 further states that the
above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public
order, public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognised in the present Covenant.
The inability of a Temporary Protection visa holder to
re-enter Australia is not a prohibition on departing Australia, although it may
discourage Temporary Protection holders from choosing to depart. This
restriction on re-entry is designed to maintain the integrity of Australia's
borders, encourage regular migration and discourage dangerous voyages by boat.
The potential discouraging effect of restricting travel is considered to be
reasonable in the circumstances and proportionate to Australia's legitimate aim
of offering protection to genuine refugees and those fearing significant harm,
while also protecting the integrity of the protection visa regime. The
inability to re-enter Australia is not exclusive to Temporary Protection visa
holders, several other temporary visas do not allow re-entry to Australia after
departure.
Conclusion
The Regulation amendment is compatible with human rights
because it is consistent with Australia's human rights obligations and to the
extent that it may also limit human rights, those limitations are reasonable,
necessary and proportionate.
ATTACHMENT C
Details
of the Migration Amendment (Temporary Protection Visas) Regulation 2013
Section 1
- Name of Regulation
This section
provides that the Regulation is the Migration Amendment (Temporary
Protection Visas) Regulation 2013 ('the Regulation').
Section 2
- Commencement
This section
provides that the Regulation commences on 18 October 2013.
The purpose of this section is to
provide for when the amendments made by the Regulation commence.
Section 3
- Authority
This section
provides that this Regulation is made under the Migration Act 1958
('the Act').
The purpose of this section is to
set out the Act under which the Regulation is made.
Section 4 - Schedule(s)
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 this Regulation operate.
Schedule 1
- Amendments
Item [1] - Subregulation
2.07AQ(3) (table item 1, column headed "Criterion 2", at the end of paragraph
(d))
This item inserts 'granted before 18
October 2013' at the end of paragraph (d) in the column headed Criterion 2,
table item 1, in subregulation 2.07AQ(3) of the Migration Regulations 1994
(the Principal Regulations).
Regulation 2.07AQ provides that an
application for a Resolution of Status (Class CD) visa is taken to have been
validly made by a person if the requirements of subregulation 2.07AQ(3) are
met. One requirement in item 1 of the table in 2.07AQ(3) is that the holder of
a Subclass 785 (Temporary Protection) visa makes a valid application for a
Protection (Class XA) visa.
The amendment to paragraph (d) in
the column headed criterion 2 in item 1 of the table in regulation 2.07AQ(3)
means that this requirement is that the holder of a Subclass 785 (Temporary
Protection) visa granted before 18 October 2013 makes a valid application for a
Protection (Class XA) visa.
The date of 18 October 2013 is the
date on which these amendments commence. The purpose of choosing this date is
to ensure that people who are granted a Subclass 785 (Temporary Protection)
visa after the commencement of the Regulation are unable to access the
Resolution of Status (Class CD) visa, which is a permanent visa. This reflects
the Government's intention that there will be no permanent visa pathway
available to people granted a Subclass 785 (Temporary Protection) visa under
the new Temporary Protection Visa regime.
Item [2] - After regulation 2.08G
This item inserts new regulation
2.08H after regulation 2.08G in Part 1 of the Principal Regulations.
New regulation 2.08H entitled
'Certain persons taken to have applied for Subclass 785 (Temporary Protection)
visas' provides:
*
For subsection 46(2) of the Act, a Protection (Class XA) visa is
a prescribed class of visa.
*
A valid application for a Protection (Class XA) visa made, but
not finally determined, before 18 October 2013 is taken to also be a valid
application for a Subclass 785 (Temporary Protection) visa if the applicant:
o
holds a Subclass 785 (Temporary Protection) visa; or
o
has held a subclass 785 (Temporary Protection) visa since last
entering Australia; or
o
did not hold a visa that was in effect on the applicant's last
entry into Australia; or
o
is an unauthorised maritime arrival; or
o
was not immigration cleared on the applicant's last entry into
Australia.
Subsection 46(2) of the Act
relevantly provides that an application for a visa is valid if it is an
application for a visa of a class prescribed for the purposes of subsection
46(2) and, under the regulations, the application is taken to be validly made.
The effect of this regulation is
that a valid application for a Protection (Class XA) visa that was made, but
not finally determined, before 18 October 2013 by a person who falls into one
of the categories above is taken to also be an application for a Subclass 785
(Temporary Protection) visa.
Previously, an applicant for a
Protection (Class XA) visa would be granted a Subclass 866 (Protection) visa
should they satisfy the criteria for the grant of that visa. From 18 October
2013, the Protection (Class XA) visa will include the Subclass 785 (Temporary
Protection) visa.
The purpose of this amendment is to
reflect the Government's intention by ensuring that those applicants who fall
into one of the categories above can be considered for the grant of a Subclass
785 (Temporary Protection) visa, which is a temporary visa that permits the
holder to stay in Australia for up to 3 years after the visa is granted. A
complementary amendment in this Regulation means that they could not be granted
a Subclass 866 (Protection) visa, which is a visa that would allow the holder
to stay in Australia indefinitely.
Item [3] - Subitem 1127AA(3) of
Schedule 1 (table item 1, column headed "Criterion 1", at the end of paragraph
(d))
This item inserts 'granted before
the 18 October 2013' at the end of paragraph (d) in the column headed
Criterion 1, table item 1, in subitem 1127AA(3) of Schedule 1 to the Principal
Regulations.
Previously, Subitem 1127AA(3)
relevantly provided that an application for a Resolution of Status (Class CD)
visa was a valid application where the applicant holds a Subclass 785
(Temporary Protection) visa.
Amended paragraph (d) in the column
headed Criterion 1, table item 1, subitem 1127AA(3) provides that an
application for a Resolution of Status (Class CD) visa is a valid application
where the applicant holds a Subclass 785 (Temporary Protection) visa that has
been granted before 18 October 2013.
The date of 18 October 2013 is the
date on which these amendments commence. The purpose of choosing this date is
to ensure that people who are granted a Subclass 785 (Temporary Protection)
visa after the commencement of the Regulation are unable to make a valid
application for a Resolution of Status (Class CD) visa. This reflects the
Government's intention that there will be no permanent visa pathway available to
people granted a Subclass 785 (Temporary Protection) visa under the new
Temporary Protection Visa regime.
Item [4] - At the end of
subitem 1401(3) of Schedule 1
This item
inserts new paragraphs (d) and (e) into subitem 1401(3) of
Schedule 1 to the Principal Regulations.
Item 1401 provides for the
requirements for a valid application for a Protection (Class XA) visa.
New paragraph 1401(3)(d)
provides that an application by a person for a Protection (Class XA) visa is a
valid application for a Subclass 785 (Temporary Protection) visa only if the
person:
*
holds a Subclass 785 (Temporary Protection) visa; or
*
had held a Subclass 785 (Temporary Protection) visa since last
entering Australia; or
*
did not hold a visa that was in effect on the person's last entry
into Australia; or
*
is an unauthorised maritime arrival; or
*
was not immigration cleared on the person's last entry into
Australia.
The effect of the amendment is that
a person making an application for a Protection (Class XA) visa will be able to
make a valid application for a Subclass 785 (Temporary Protection) visa
application only if they satisfy one of the five alternatives in paragraph
1401(3)(d).
New paragraph 1401(3)(e)
provides that an application by a person for a Protection (Class XA) visa is a
valid application for a Subclass 866 (Protection) visa only if the person:
*
does not hold a Subclass 785 (Temporary Protection) visa; and
*
has not held a Subclass 785 (Temporary Protection) visa since
last entering Australia; and
*
held a visa that was in effect on the person's last entry into
Australia;
*
is not an unauthorised maritime arrival; and
*
was immigration cleared on the person's last entry into
Australia.
The effect of the amendment is that
a person making an application for a Protection (Class XA) visa will be able to
make a valid application for a Subclass 866 (Protection) visa only if they
satisfy one of the five alternatives in paragraph 1401(3)(e).
The purpose of inserting new
paragraphs 1401(3)(d) and 1401(3)(e) is to establish the requirements that must
be met in order to make a valid application for a particular subclass of visa
within the Protection (Class XA) visa.
New paragraphs (d) and (e) reflect
the Government's intention that a person who is an unauthorised maritime
arrival, who arrived in Australia without a visa, or who was not immigration
cleared on their last entry into Australia (including unauthorised arrivals by
air) will not be able to make a valid application for a Subclass 866
(Protection) visa. In addition the new paragraph (e) reflects the Government's
intention that someone who holds a Subclass 785 (Temporary Protection) visa, or
who held a Subclass 785 (Temporary Protection) visa since last entering
Australia will never be able to make a valid application for a Subclass 866
(Protection) visa.
Item [5] -
Subitem 1401(4) of Schedule 1
This item repeals and substitutes
subitem 1401(4) of Schedule 1 to the Regulations.
Subitem 1401(4) lists the subclasses
of the Protection (Class XA) visa. Previously Subclass 866 (Protection) visa
was the only subclass in that class.
Substituted subitem 1401(4)
provides that the subclasses of the Protection (Class XA) visa are:
*
the Subclass 785 (Temporary Protection) visa; and
*
the Subclass 866 (Protection) visa.
The purpose of this amendment is to
complement other amendments in this Regulation by listing the new Subclass 785
(Temporary Protection) visa as another subclass of the Protection (Class XA)
visa.
Item [6] - After Subclass
773 of Schedule 2
This item inserts a new Subclass 785
after Subclass 773 of Schedule 2 to the Regulations.
Subclass 785 - Temporary
Protection
New Subclass 785 provides for the
criteria for the grant of the Subclass 785 (Temporary Protection) visa, the
circumstances applicable to grant, when the visa is in effect and also the
conditions to be attached to the visa.
New Division 785.1 -
Interpretation
This amendment inserts a new
Division 785.1 and new clause 785.111, which provide that, in
Part 785, the term Refugees Convention means the Refugees
Convention as amended by the Refugees Protocol. A new note is also inserted to
provide that the terms Refugees Convention, Refugees Protocol and member
of the same family unit are defined in section 5 of the Act.
The purpose of this amendment is to provide
for the meaning of the term 'Refugees Convention' as used in new Subclass 785.
New Division 785.2 - Primary
criteria
The amendment inserts new Division
785.2 which lists the primary criteria for the grant of a Subclass 785
(Temporary Protection) visa.
A new note is inserted to provide
that all applicants must satisfy the primary criteria.
The purpose of the note is to
explicitly provide that all applicants seeking to satisfy the criteria for the
grant of a Subclass 785 (Temporary Protection) visa must satisfy the primary
criteria.
The primary criteria for the grant
of a Subclass 785 (Temporary Protection) visa largely replicates the primary
criteria for the grant of a Subclass 866 (Protection) visa.
The requirements that an applicant
is a person in respect of whom Australia has protection obligations, either
under the Refugees Convention or under the complementary protection provisions
of the Act or is a member of the same family unit as a person in respect of
whom Australia has protection obligations are the same for both visa subclasses
in the Protection (Class XA) visa.
Further, the current health and
public interest criteria in the Subclass 866 (Protection visa) are replicated
in the new Subclass 785 (Temporary Protection) visa.
The fundamental difference between
the Subclass 866 (Protection) visa and the Subclass 785 (Temporary Protection
visa) is that one is a permanent visa and the other is a temporary visa. The
Subclass 866 (Protection) visa is a permanent visa which allows the holder to
travel outside Australia and return, and to sponsor others for the grant of an
Australian visa. The Subclass 785 (Temporary Protection) visa can only be
granted for a period of up to 36 months and only permits the holder to remain
in Australia. Because it is not a permanent visa, the holder is not able to
sponsor other people for the grant of a visa.
New Subdivision 785.21 - Criteria
to be satisfied at time of application
New Subdivision 785.21 provides
for the primary criteria to be satisfied at the time of application for a
Subclass 785 (Temporary Protection) visa.
New clause 785.211 provides that the
applicant must satisfy one of the following criteria:
*
the applicant:
o
claims to be a person in respect of whom Australia has protection
obligations under the Refugees Convention; and
o
makes specific claims under the Refugees Convention; or
*
the applicant claims to be a member of the same family unit as a
person who:
o
claims to be a person in respect of whom Australia has protection
obligations under the Refugees Convention; and
o
makes specific claims under the Refugees Convention; and
o
is an applicant who has made a valid application for a Subclass
785 (Temporary Protection) visa; or
*
the applicant claims to be a person in respect of whom Australia
has protection obligations because the applicant claims that, as a necessary
and foreseeable consequence of the applicant being removed from Australia to a
receiving country, there is a real risk that the applicant will suffer
significant harm; or
*
the applicant claims to be a member of the same family unit as a
person who:
o
claims to be a person in respect of whom Australia has protection
obligations because the applicant claims that, as a necessary and foreseeable
consequence of the applicant being removed from Australia to a receiving
country, there is a real risk that the applicant will suffer significant harm;
and
o
is an applicant who has made a valid Subclass 785 (Temporary
Protection) visa.
New clause 785.211 largely replicates,
for the Subclass 785 (Temporary Protection) visa, the time of application
criterion in clause 866.211 for the Subclass 886 (Protection) visa.
The purpose of this provision is to
provide that, at the time of application, the applicant must claim to be a
person, or a member of the same family unit as a person in respect of whom
Australia has protection obligations, either under the Refugees Convention or
under the complementary protection provisions in the Act.
New Subdivision 785.22 - Criteria
to be satisfied at time of decision
New Subdivision 785.22 provides
for the primary criteria to be satisfied at the time of decision for a Subclass
785 (Temporary Protection) visa.
The criterion in new clause 785.221
provides that the applicant must satisfy one of the following:
*
the Minister is satisfied that the applicant is a person in
respect of whom Australia has protection obligations under the Refugees
Convention (see paragraph 36(2)(a) of the Act); or
*
the Minister is satisfied that the applicant is a person who is a
member of the same family unit as an applicant who:
o
is a person in respect of whom Australia has protection
obligations under the Refugees Convention (see paragraph 36(2)(a) of the Act);
and
o
has been granted a Subclass 785 (Temporary Protection) visa (see
paragraph 36(2)(b) of the Act); or
*
the Minister is satisfied that the applicant:
o
is not a person in respect of whom Australia has protection
obligations under the Refugees Convention; and
o
is a person in respect of whom Australia has protection
obligations because the Minister has substantial grounds for believing that, as
a necessary and foreseeable consequence of the person being removed from
Australia to a receiving country, there is a real risk that the person will
suffer significant harm (see paragraph 36(2)(aa) of the Act); or
*
the Minister is satisfied that the applicant is a person who is a
member of the same family unit as an applicant who:
o
is not a person in respect of whom Australia has protection
obligations under the Refugees Convention; and
o
is a person in respect of whom Australia has protection
obligations because the Minister has substantial grounds for believing that, as
a necessary and foreseeable consequence of the person being removed from
Australia to a receiving country, there is a real risk that the person will
suffer significant harm (see paragraph 36(2)(aa) of the Act); and
o
has been granted a Subclass 785 (Temporary Protection) visa (see
paragraph 36(2)(c) of the Act).
The new clause 785.221 largely
replicates for the Subclass 785 (Temporary Protection) visa the time of
decision criterion (clause 866.221) for the current Subclass 886 (Protection)
visa.
The purpose of this provision is to
provide that the Minister must be satisfied that the applicant is either:
*
a person in respect of whom Australia has protection obligations,
either under the Refugees Convention or under the complementary protection
provisions of the Act; or
*
a member of the same family unit as a person in respect of whom
Australia has protection obligations.
The criterion in new subclause
785.222 requires that either:
*
the applicant, or a member of the family unit of the applicant,
has not been offered a temporary stay in Australia by the Australian Government
for the purposes of regulation 2.07AC; or
*
Section 91K of the Act does not apply to the applicant's
application because of a determination made by the Minister under subsection
91L(1) of the Act.
New clause 785.222 replicates, for
the Subclass 785 (Temporary Protection) visa, the time of decision criterion in
clause 866.227 for the Subclass 866 (Protection) visa.
Section 91K of the Act prevents a
valid Protection (Class XA) visa application being made by a Temporary Safe
Haven visa holder (or by persons who have not left Australia since ceasing to
hold a temporary safe haven visa) unless the Minister has personally intervened
in the public interest under s91L of the Act to lift this bar.
The purpose of the amendment is to
prevent persons being eligible for the grant of a Subclass 785 (Temporary
Protection) visa where they have been offered a Temporary Safe Haven (Class UJ)
visa or where they hold a Temporary Safe Haven visa, unless the Minister has
personally intervened in the public interest under s91L of the Act to lift the
91K bar.
The criterion in new clause
785.223 requires that the applicant has undergone a medical examination carried
out by any of the following (a relevant medical practitioner):
*
a Medical Officer of
the Commonwealth;
*
a medical practitioner approved by the Minister for the purposes
of this paragraph;
*
a medical practitioner employed by an organisation approved by
the Minister for the purposes of this paragraph.
The purpose of the new clause is to
ensure that an applicant must meet health requirements equivalent to those in
subclause 866.223 for the Subclass 866 (Protection) visa.
The criterion in new clause 785.224
requires that the applicant satisfies one of the following:
*
the applicant has undergone a chest x-ray examination conducted
by a medical practitioner who is qualified as a radiologist in Australia; or
*
the applicant is under 11 years of age and is not a person in
respect of whom a relevant medical practitioner has requested a chest x-ray
examination conducted by a medical practitioner who is qualified as a
radiologist in Australia; or
*
the applicant is a person:
o
who is confirmed by a relevant medical practitioner to be
pregnant; and
o
who has been examined for tuberculosis by a chest clinic officer
employed by a health authority of a State or Territory; and
o
who has signed an undertaking to place herself under the
professional supervision of a health authority in a State or Territory and to
undergo any necessary treatment; and
o who the
Minister is satisfied should not be required to undergo a chest x-ray
examination at this time.
The purpose of the new clause is to
ensure that an applicant must meet health requirements equivalent to those in
clause 866.224 for the Subclass 866 (Protection) visa.
The criterion in new clause 785.225
requires that:
*
a relevant medical practitioner has considered the results of any
tests carried out for the purposes of the medical examination required under
clause 785.223 and the radiological report (if any) required under clause
785.224 in respect of the applicant; and
*
if the relevant medical practitioner:
o is
not a Medical Officer of the
Commonwealth; and
o considers
that the applicant has a disease or condition that is, or may result in the
applicant being, a threat to public health in Australia or a danger to the
Australian community,
he or she
has referred any relevant results and reports to a Medical Officer of the
Commonwealth.
The purpose of the new clause is to
ensure that an applicant must meet health requirements equivalent to those in
clause 866.224A for the Subclass 866 (Protection) visa.
The criterion in new clause 785.226
requires that if a Medical Officer
of the Commonwealth considers that the applicant has a disease or condition
that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian
community, arrangements have been made, on the advice of the Medical Officer of
the Commonwealth, to place the applicant under the professional supervision of
a health authority in a State or Territory to undergo any necessary treatment.
The purpose of the new clause is to
ensure that an applicant must meet health requirements equivalent to those in
clause 866.224B for the Subclass 866 (Protection) visa.
The criterion in new clause 785.227
requires the applicant to:
*
satisfy public interest criteria 4001 and 4003A; and
*
if the applicant had turned 18 at the time of application -
satisfy public interest criterion 4019.
Public
interest criterion (PIC) 4001 is a mechanism by which the character test in
subsection 501(6) of the Act is taken into account for an applicant.
PIC 4003A
requires that the applicant is not determined by the Foreign Minister, or a
person authorised by the Foreign minister, to be a person whose presence in
Australia may be directly or indirectly associated with the proliferation of
weapons of mass destruction.
PIC 4019
requires that the applicant sign a values statement relevant to the visa
subclass or, if compelling circumstances exist, the Minister has decided that
the applicant is not required to sign a values statement.
PICs 4001,
4003A and 4019 apply to the Subclass 866 (Protection) visa. The purpose of this
amendment is to replicate for the Subclass 785 (Temporary Protection) visa the
PICs currently applied to the Subclass 866 (Protection) visa.
The criterion
in new subclause 785.228(1) requires that, if the applicant is a child
mentioned in paragraph 2.08(1)(b), subclause 785.228(2) or 785.228(3) is
satisfied.
Paragraph
2.08(1)(b) relevantly describes a child, other than a contributory parent
newborn child, born to a non-citizen after that non-citizen applied for a visa;
but that application has not yet been decided. Under regulation 2.08, such
children are relevantly taken to have applied for a visa of the same class as
the parent at the time he or she was born.
*
New subclause 785.228(2) provides that both of the following
apply:
o the
applicant is a member of the same family unit as an applicant mentioned in
subclause 785.211(2);
o the
applicant mentioned in subclause 785.211(2) has been granted a Subclass 785 (Temporary
Protection) visa.
*
New subclause 785.228(3) provides that both of the following
apply:
o the
applicant is a member of the same family unit as an applicant mentioned in
subclause 785.211(4);
o the
applicant mentioned in subclause 785.211(4) has been granted a Subclass 785
(Temporary Protection) visa.
The purpose of new clause 785.228 is
to ensure that a child who would be taken to have an application due to
subregulation 2.08(1) can only be granted a Subclass 785 (Temporary Protection)
visa if they are a member of the same family unit of someone who was granted a
Subclass 785 (Temporary Protection) visa on the basis of meeting subclause
785.211(2) or subclause 785.211(4).
The criteria
in new clause 785.229 requires that the Minister is satisfied that the grant of
the visa is in the national interest.
New clause
785.229 replicates for the Subclass 785 (Temporary Protection) visa the
criterion in clause 886.226 for the Subclass 866 (Protection) visa. The effect
of new clause 785.229 is that the Minister is able to refuse to grant a
Subclass 785 (Temporary Protection) visa where the Minister is not satisfied
that the grant it is in the national interest.
New
division 785.3 - Secondary Criteria
New division
785.3 provides for the secondary criteria which must be satisfied for the grant
of a Subclass 785 visa.
A new note is
inserted under new division 785.3 which provides that all applicants must
satisfy the primary criteria.
New
division 785.4 - Circumstances applicable to grant
New division
785.4 provides for the circumstances applicable to the grant of a Subclass 785
(Temporary Protection) visa.
New clause
785.411 provides that the applicant must be in Australia when the visa is
granted.
Clause 785.411
replicates current clause 866.411 for the Subclass 866 (Protection) visa. The
purpose of clause 785.411 is to explicitly state that an applicant must be in
Australia to be granted a Subclass 785 (Temporary Protection) visa.
New
division 785.5 - When visa is in effect
New division
785.5 provides for when a visa is in effect.
New clause
785.511 provides that a Subclass 785 (Temporary Protection) visa is a temporary
visa permitting the holder to remain in Australia for 36 months or a shorter
period determined by the Minister.
The effect of
this clause is that a Subclass 785 (Temporary Protection) visa holder can only
be granted a Subclass 785 (Temporary Protection) visa for a period of up to 36
months and that the visa will cease to be in effect when the holder leaves
Australia.
The purpose of
this clause is to explicitly provide that the Subclass 785 (Temporary
Protection) visa is a temporary visa that only permits the holder to remain in
Australia for a period of up to three years. An effect of this is that the visa
will cease if the holder leaves Australia whilst the visa is in effect.
New
Division 785.6 - Conditions
New
Subdivision 785.6 provides for the conditions to be attached to a Subclass 785
(Temporary Protection) visa.
New clause
785.611 provides that conditions 8503, 8564 and 8565 apply.
The effect of
this provision is that those conditions apply by operation of law to a Subclass
785 (Temporary Protection) visa. If a visa holder breaches one of the
conditions, their visa may be liable for cancellation under paragraph 116(b) of
the Act.
Condition 8503
provides that the visa holder will not, after entering Australia, be entitled
to be granted a substantive visa, other than a protection visa, whilst the
holder remains in Australia.
The legal
effect of this condition is that, unless the Minister waives the condition
under subsection 41(2A) of the Act, a person who holds, or who held, a visa
with this condition attached to it cannot make a valid application for a visa
(other than a protection visa) while they remain in Australia (paragraph
46(1A)(c) of the Act).
The purpose of
making condition 8503 a mandatory condition for a Subclass 785 (Temporary
Protection) visa is to reflect the Government's intention that Subclass 785
(Temporary Protection) visa holders are not able to apply for permanent visas
or any substantive visa other than a Subclass 785 (Temporary Protection) visa.
Condition 8564
provides that the visa holder must not engage in criminal conduct.
The purpose of making 8564 a mandatory condition for a
Subclass 785 (Temporary Protection) visa is to send a strong message to
Subclass 785 (Temporary Protection) visa holders about the behaviour expected
of them in the community.
Condition 8565 provides that the holder must notify
Immigration of any change in the holder's residential address within 14 days
after the change.
The purpose of
condition 8565 is to ensure that the Department is made aware of any change in
address of a Subclass 785 (Temporary Protection) visa holder.
Item [7] - Paragraphs
866.211(2)(a) and 4(a) of Schedule 2
This item omits
'to whom' and substitutes 'in respect of whom' in paragraphs 866.211(2)(a) and
866.211(4)(a) of Schedule 2.
Previously paragraph
866.211(2)(a) provided that the applicant 'claims to be a person to whom
Australia has protection obligations under the Refugees Convention'.
Amended paragraph
866.211(2)(a) provides that the applicant 'claims to be a person in respect of
whom Australia has protection obligations under the Refugees Convention'.
Previously paragraph
866.211(4)(a) provided that the applicant 'is not a person to whom Australia
has protection obligations under the Refugees Convention'.
Amended
paragraph 866.211(4)(a) provides that the applicant 'is not a person to whom
Australia has protection obligations under the refugees Convention'.
The purpose of
the amendments is to mirror the language used in subsection 36(2) of the Act.
The use of 'in respect of whom' rather than 'to whom' reflects the fact that
Australia has obligations to other countries under the Refugees Convention,
rather than obligations to individuals.
Item [8] -
subclauses 866.221(2) to (5) of Schedule 2
This item
repeals and substitutes subclauses 866.221(2) to (5) of Schedule 2.
Previously subclauses 866.221(2) to
(5) provided that the Minister must be satisfied that the applicant is a
person, or a member of the same family unit as a person to whom Australia has
protection obligations, either under the Refugees Convention or under the
complementary protection provisions in the Act.
The amendment does not alter the
purpose of clause 866.221. Substituted subclauses 866.221(2) to (5) replicate
the current subclauses 866.221(2) to (5) with the exceptions discussed below.
Substituted subclauses 866.221(2)
and 866.221(4) omit the current use of the phrase 'to whom Australia has
protection obligations under the Refugees Convention' and replace with 'in
respect of whom Australia has protection obligations under the Refugees
Convention'.
The purpose for this change is to
mirror the language used in subsection 36(2) of the Act. The use of 'in respect
of whom' rather than 'to whom' reflects the fact that Australia has obligations
to other countries under the Refugees Convention, rather than obligations to
individuals.
Substituted paragraphs 866.221(3)(b)
and 866.221(5)(b) remove the current reference to 'Protection (Class XA) visa'
and replace it with 'Subclass 866 (Protection) visa'.
The purpose of this change is to
ensure that only a member of the same family unit as someone who has been
granted a Subclass 866 (Protection) visa is eligible for the grant of a
Subclass 866 (Protection) visa. Given that the amendments in this regulation
insert the Subclass 785 (Temporary Protection) visa into the Protection (Class
XA) visa, it is necessary that the provision clearly apply only to a Subclass
866 (Protection) visa. If the reference to Protection (Class XA) visas was to
be retained there may have been a risk that family members would hold different
visas with different conditions and which would be in effect for different
periods.
Item [9] - After clause 866.221
This item inserts new clause 866.222
after clause 866.221 in Schedule 2.
The criterion in new clause 866.222
requires that the applicant:
*
does not hold a Subclass 785 (Temporary
Protection) visa; and
*
has not held a Subclass 785 (Temporary
Protection) visa since last entering Australia; and
*
held a visa in effect on the
applicant's last entry into Australia; and
*
is not an unauthorised maritime
arrival; and
*
was immigration cleared on the
applicant's last entry into Australia.
Clause 866.222 is a new criterion
that all applicants for a Subclass 866 (Protection) visa must satisfy.
As this provision mirrors the
amendments about who can make a valid application for a Subclass 866
(Protection) visa, the effect of this criterion is that only those people who
have made a valid application for a Subclass 866 visa can be granted a Subclass
866 visa.
The purpose of this amendment is to
ensure that a Subclass 866 (Protection) visa is no longer available to a person
who is an unauthorised maritime arrival, did not hold a visa on their last
entry to Australia, was not immigration cleared on their last entry to
Australia, or who holds or has held a Subclass 785 (Temporary Protection) visa
since last entering Australia. This amendment reflects the Government's
intention that such a person will not be granted a permanent protection visa.
Item [10] - Subclause 866.223
This item amends subclause 866.223 of
Schedule 2.
Previously subclause 866.223 provided:
*
The applicant has undergone a medical examination carried out by
any of the following (a relevant medical practitioner):
o
a Medical Officer of the Commonwealth;
o
a medical practitioner approved by the
Minister for the purposes of this paragraph;
o
a medical practitioner employed by an
organisation approved by the Minister for the purposes of this paragraph.
The amendment removes the reference
to 'relevant medical partitioner' and substitute with 'relevant medical
practitioner' in subclause 866.223 in Schedule 2 to the Regulations.
The amendment is a technical
amendment for the purposes of consistent drafting
Item [11] - At the end of
Schedule 8
This item inserts new condition 8565
into Schedule 8 to the Regulations.
New condition 8565 provides that a
visa holder must notify Immigration of any chance in their residential address
within 14 days after the change occurs.
The purpose of the new condition is
to require the visa holder to inform the Department of Immigration and Border
Protection of any changes to their address.
Item [12] - At the end of
Schedule 13
This amendment inserts Part 21 -
Amendments made by the Migration Amendment (Temporary Protection Visas)
Regulation 2013.
The title of new item 2101 is 'Operation
of Schedule 1'.
New subitem 2101(1) provides that
the amendments made by Schedule 1 to the Migration Amendment (Temporary
Protection Visas) Regulation 2013 apply in relation to an application for a
visa made on or after the day that the schedule commences.
New item 2101(2) provides that the
amendments made by Schedule 1 to the Migration Amendment (Temporary
Protection Visas) Regulation 2013, other than the amendments made by items
[1], [3] and [4] of that Schedule, apply in relation to
an application for a visa made, but not finally determined, before the day that
Schedule commences.
The purpose of item 2101 is to clarify to whom the
amendments in this Regulation apply.