Migration Legislation Amendment Act (No. 6) 2001
No. 131, 2001
Migration Legislation Amendment Act (No. 6) 2001
No. 131, 2001
An Act to amend the Migration Act 1958, and for other purposes
Contents
1............ Short title............................................................................................ 1
2............ Commencement.................................................................................. 1
3............ Schedule(s).......................................................................................... 2
Schedule 1—Amendment of the Migration Act 1958 3
Part 1—Amendments 3
Part 2—Application of amendments 13
Migration Legislation Amendment Act (No. 6) 2001
No. 131, 2001
An Act to amend the Migration Act 1958, and for other purposes
[Assented to 27 September 2001]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Legislation Amendment Act (No. 6) 2001.
2 Commencement
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendment of the Migration Act 1958
Part 1—Amendments
1 At the end of subsection 36(1)
Add:
Note: See also Subdivision AL.
2 Subsection 36(2)
Repeal the subsection, substitute:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
3 After subsection 48A(1A)
Insert:
(1B) Subject to section 48B, a non‑citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
4 Subsection 48A(2) (before paragraph (a) of the definition of application for a protection visa)
Insert:
(aa) an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ab) an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia who is the spouse or a dependant of a non‑citizen in Australia:
(i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ii) who holds a protection visa; and
5 After Subdivision AK of Division 3 of Part 2
Insert:
Subdivision AL—Other provisions about protection visas
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
91S Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
91T Non‑political crime
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non‑political crime were a reference to a crime where the person’s motives for committing the crime were wholly or mainly non‑political in nature.
(2) Subsection (1) has effect subject to subsection (3).
(3) For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non‑political crime included a reference to an offence that, under paragraph (a), (b), (c) or (d) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
91U Particularly serious crime
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 33(2) of the Refugees Convention as amended by the Refugees Protocol has effect as if a reference in that Article to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence (as defined by subsection (2)); or
(b) a serious foreign offence (as defined by subsection (3)).
(2) For the purposes of this section, a serious Australian offence is an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
(3) For the purposes of this section, a serious foreign offence is an offence against a law in force in a foreign country, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; and
(b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
91V Verification of information
Applicant for protection visa
(1) If an applicant for a protection visa has given information to the Minister or an officer in, or in connection with, the application for the visa, the Minister or an officer may, either orally or in writing, request the applicant to make an oral statement, on oath or affirmation, to the effect that the information is true.
(2) If:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request; and
(c) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s credibility in the event that the applicant refuses or fails to comply with the request;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.
(3) If:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant complies with the request; and
(c) the Minister has reason to believe that, because of:
(i) the manner in which the applicant complied with the request; or
(ii) the applicant’s demeanour in relation to compliance with the request;
the applicant was not sincere;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.
Non‑citizen refused immigration clearance
(4) If:
(a) either:
(i) a non‑citizen gave information to an officer when the non‑citizen was in immigration clearance, and the non‑citizen is subsequently refused immigration clearance; or
(ii) a non‑citizen was refused immigration clearance and subsequently gave information to an officer; and
(b) the information is relevant to the administration or enforcement of this Act or the regulations;
an officer may, either orally or in writing, request the non‑citizen to make an oral statement, on oath or affirmation, to the effect that the information is true.
(5) If:
(a) the non‑citizen has been given a request under subsection (4); and
(b) the non‑citizen refuses or fails to comply with the request; and
(c) when the request was made, the non‑citizen was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the non‑citizen’s credibility in the event that the non‑citizen refuses or fails to comply with the request;
then, in making a decision about the non‑citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non‑citizen’s credibility.
(6) If:
(a) the non‑citizen has been given a request under subsection (4); and
(b) the non‑citizen complies with the request; and
(c) the Minister has reason to believe that, because of:
(i) the manner in which the non‑citizen complied with the request; or
(ii) the non‑citizen’s demeanour in relation to compliance with the request;
the non‑citizen was not sincere;
then, in making a decision about the non‑citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non‑citizen’s credibility.
Officer
(7) A reference in this section to an officer includes a reference to a person who is a clearance officer within the meaning of section 165.
Oaths or affirmations
(8) The Minister or an officer may administer an oath or affirmation for the purposes of this section.
91W Documentary evidence of identity, nationality or citizenship
(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.
(2) If:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request; and
(c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request; and
(d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s identity, nationality or citizenship in the event that the applicant refuses or fails to comply with the request;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s identity, nationality or citizenship.
91X Names of applicants for protection visas not to be published by the High Court or the Federal Court
(1) This section applies to a proceeding before the High Court or the Federal Court if the proceeding relates to a person in the person’s capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection‑related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection‑related bridging visa has been cancelled.
(2) The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
(3) In this section:
application for a protection‑related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
protection‑related bridging visa means a bridging visa granted as a result of an application for a protection‑related bridging visa.
6 After section 501H
Insert:
501J Refusal or cancellation of protection visa—Minister may substitute more favourable decision
(1) If the Minister thinks that it is in the public interest to do so, the Minister may set aside an AAT protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the Administrative Appeals Tribunal had the power to make that other decision.
(2) For the purposes of this section, an AAT protection visa decision is a decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa.
(3) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
(4) The power under subsection (1) may only be exercised by the Minister personally.
(5) If the Minister substitutes a decision under subsection (1), the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the Administrative Appeals Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(6) A statement made under subsection (5) is not to include:
(a) the name of the applicant; or
(b) any information that may identify the applicant; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(7) A statement under subsection (5) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(8) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
501K Identity of applicants for protection visas not to be published by the Administrative Appeals Tribunal
(1) This section applies to a review by the Administrative Appeals Tribunal if the review relates to a person in the person’s capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection‑related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection‑related bridging visa has been cancelled.
(2) The Administrative Appeals Tribunal must not publish (in electronic form or otherwise), in relation to the review, any information which may identify:
(a) the person; or
(b) any relative or other dependant of the person.
(3) In this section:
application for a protection‑related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
protection‑related bridging visa means a bridging visa granted as a result of an application for a protection‑related bridging visa.
Part 2—Application of amendments
7 Application of amendment—Subdivision AL of Division 3 of Part 2 of the Migration Act 1958
Subdivision AL of Division 3 of Part 2 of the Migration Act 1958 (other than section 91X) applies in relation to:
(a) an application for a protection visa made after the commencement of this item; and
(b) an application for a protection visa made before the commencement of this item, where the visa was neither granted, nor refused, before the commencement of this item; and
(c) an application for a protection visa made before the commencement of this item, where:
(i) a decision to refuse to grant the visa was made before that commencement; and
(ii) an application for review of that decision is or was made to the Refugee Review Tribunal or the Administrative Appeals Tribunal (whether before, at or after that commencement); and
(iii) the Refugee Review Tribunal or the Administrative Appeals Tribunal made a decision on that review after that commencement.
8 Application of amendment—section 91X of the Migration Act 1958
Section 91X of the Migration Act 1958 applies in relation to a proceeding that is instituted after the commencement of this item.
9 Application of amendment—section 501J of the Migration Act 1958
Section 501J of the Migration Act 1958 applies in relation to a decision of the Administrative Appeals Tribunal, whether made before, at or after the commencement of this item.
10 Application of amendment—section 501K of the Migration Act 1958
Section 501K of the Migration Act 1958 applies in relation to a review, where the application for review was made after the commencement of this item.
[Minister’s second reading speech made in—
House of Representatives on 28 August 2001
Senate on 24 September 2001]
(169/01)
