Migration Amendment Act 2014

No. 30, 2014

An Act to amend the Migration Act 1958, and for related purposes

Contents

1 Short title

2 Commencement

3 Schedule(s)

Schedule 1—When decisions are made and finally determined

Migration Act 1958

Schedule 2—Bar on further applications for protection visas

Migration Act 1958

Schedule 3—Security assessments

Migration Act 1958

Migration Amendment Act 2014

No. 30, 2014

An Act to amend the Migration Act 1958, and for related purposes

[Assented to 27 May 2014]

The Parliament of Australia enacts:

1  Short title

  This Act may be cited as the Migration Amendment Act 2014.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note:  This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

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  Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—When decisions are made and finally determined

Migration Act 1958

1  Subsection 5(1)

Insert:

finally determined: for when an application under this Act is finally determined, see subsections (9) and (9A).

2  Subsection 5(9)

Omit “finally determined”, substitute “ finally determined”.

3  After subsection 5(9)

Insert:

 (9A) Without limiting subsection (9), if a review of a decision that has been made in respect of an application under this Act is instituted under Part 5 or 7 as prescribed, the application is finally determined when a decision on the review in respect of the application is taken to have been made as provided by any of the following provisions:

 (a) subsection 368(2) (Migration Review Tribunal written decisions);

 (b) subsection 368D(1) (Migration Review Tribunal oral decisions);

 (c) subsection 430(2) (Refugee Review Tribunal written decisions);

 (d) subsection 430D(1) (Refugee Review Tribunal oral decisions).

 (9B) However, subsection (9A) does not apply in relation to the following decisions:

 (a) a decision of the Migration Review Tribunal under paragraph 349(2)(c);

 (b) a decision of the Refugee Review Tribunal under paragraph 415(2)(c).

Note: These decisions are for the remission of some matters by the relevant Tribunal.

4  Section 67

Repeal the section, substitute:

67  Grant and refusal of visa—how and when

 (1) The following decisions are taken to be made by the Minister causing a record to be made of the decision:

 (a) a decision to grant a visa;

 (b) a decision to refuse to grant a visa.

 (2) The record must state the day and time of its making.

 (3) The decision is taken to have been made on the day and at the time the record is made.

 (4) The Minister has no power to vary or revoke the decision after the day and time the record is made.

 (5) Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).

5  Subsection 134(1)

Omit “, by written notice given to its holder,”.

6  Subsection 134(3A)

Omit “, by written notice to its holder,”.

7  Subsection 134(4)

Omit “by giving written notice to that person”.

8  Subsection 134(7)

Omit “include in the notice given to its holder”, substitute “give written notice of the cancellation decision to its holder, including”.

9  Section 138

Repeal the section, substitute:

138  Cancellation and revocation of cancellation of visas—how and when

 (1) The following decisions are taken to be made by the Minister causing a record to be made of the decision:

 (a) a decision to cancel a visa, or not to cancel a visa;

 (b) a decision to revoke the cancellation of a visa, or not to revoke the cancellation of a visa.

 (2) The record must state the day and time of its making.

 (3) The decision is taken to have been made on the day and at the time the record is made.

 (4) The Minister has no power to vary or revoke the decision after the day and time the record is made.

 (5) Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).

10  After subsection 355(1)

Insert:

 (1A) To avoid doubt, this section does not apply after a decision on the review is taken to have been made as provided by subsection 368(2) (written decisions) or subsection 368D(1) (oral decisions).

11  Paragraph 355A(2)(a)

Repeal the paragraph, substitute:

 (a) the Tribunal’s decision on the review has not been taken to have been made as provided by subsection 368(2) (written decisions) or subsection 368D(1) (oral decisions); and

12  Section 368 (heading)

Repeal the heading, substitute:

368  Tribunal’s decision and written statement

Written statement of decision

13  Subsection 368(1)

Omit “prepare”, substitute “make”.

14  Paragraph 368(1)(a)

Omit “review;”, substitute “review; and”.

15  Paragraph 368(1)(b)

Omit “decision;”, substitute “decision; and”.

16  At the end of subsection 368(1)

Add:

 ; and (e) unless the decision is given orally—records the day and time the statement is made; and

 (f) if the decision is given orally—records the day and time the decision is given orally.

17  Subsection 368(2)

Repeal the subsection, substitute:

How and when written decisions are taken to be made

 (2) A decision on a review (other than an oral decision) is taken to have been made:

 (a) by the making of the written statement; and

 (b) on the day, and at the time, the written statement is made.

Note: For oral decisions, see section 368D.

 (2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

Return of documents etc.

18  Subsection 368(3)

Omit “Where the Tribunal has prepared the written statement, the Tribunal shall”, substitute “After the Tribunal makes the written statement, the Tribunal must”.

19  At the end of section 368

Add:

Validity etc. not affected by procedural irregularities

 (4) The validity of a decision on a review, and the operation of subsection (2A), are not affected by:

 (a) a failure to record, under paragraph (1)(e) or (f), the day and time when the written statement was made or the decision was given orally (as the case requires); or

 (b) a failure to comply with subsection (3).

20  Section 368D

Repeal the section, substitute:

368D  Tribunal’s decision given orally

 (1) A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.

 (2) The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.

 (3) The Tribunal must give the applicant and the Secretary a copy of the statement made under subsection 368(1) within 14 days after the decision is given orally.

 (4) Failure to comply with subsection (3) does not affect the validity of the decision or the operation of subsection (2).

21  After subsection 422(1)

Insert:

 (1A) To avoid doubt, this section does not apply after a decision on the review is taken to have been made as provided by subsection 430(2) (written decisions) or subsection 430D(1) (oral decisions).

22  Paragraph 422A(2)(a)

Repeal the paragraph, substitute:

 (a) the Tribunal’s decision on the review has not been taken to have been made as provided by subsection 430(2) (written decisions) or subsection 430D(1) (oral decisions); and

23  Section 430 (heading)

Repeal the heading, substitute:

430  Refugee Review Tribunal’s decision and written statement

Written statement of decision

24  Subsection 430(1)

Omit “prepare”, substitute “make”.

25  At the end of subsection 430(1)

Add:

 ; and (e) unless the decision is given orally—records the day and time the statement is made; and

 (f) if the decision is given orally—records the day and time the decision is given orally.

26  Subsection 430(2)

Repeal the subsection, substitute:

How and when written decisions are taken to be made

 (2) A decision on a review (other than an oral decision) is taken to have been made:

 (a) by the making of the written statement; and

 (b) on the day, and at the time, the written statement is made.

Note: For oral decisions, see section 430D.

 (2A) The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

Return of documents etc.

27  Subsection 430(3)

Omit “Where the Tribunal has prepared the written statement, the Tribunal must”, substitute “After the Tribunal makes the written statement, the Tribunal must”.

28  At the end of section 430

Add:

Validity etc. not affected by procedural irregularities

 (4) The validity of a decision on a review, and the operation of subsection (2A), are not affected by:

 (a) a failure to record, under paragraph (1)(e) or (f), the day and time when the written statement was made or the decision was given orally (as the case requires); or

 (b) a failure to comply with subsection (3).

29  Section 430D

Repeal the section, substitute:

430D  Tribunal’s decision given orally

 (1) A decision on a review that is given orally by the Tribunal is taken to have been made, and notified to the applicant for the review, on the day and at the time the decision is given orally.

 (2) The Tribunal has no power to vary or revoke the decision after the day and time the decision is given orally.

 (3) The Tribunal must give the applicant and the Secretary a copy of the statement made under subsection 430(1) within 14 days after the decision is given orally.

 (4) Failure to comply with subsection (3) does not affect the validity of the decision or the operation of subsection (2).

30  Application—Schedule 1

(1) The amendments of the Migration Act 1958 made by items 1 to 3 and items 10 to 29 apply in relation to a decision of the Migration Review Tribunal or the Refugee Review Tribunal that is taken to have been made, as provided by that Act as so amended, on or after the commencement of this Schedule.

(2) The amendments of the Migration Act 1958 made by items 4 to 9 apply in relation to a decision of the Minister that is taken to have been made, as provided by that Act as so amended, on or after the commencement of this Schedule.

Schedule 2—Bar on further applications for protection visas

Migration Act 1958

1  Section 48A (heading)

Repeal the heading, substitute:

48A  No further applications for protection visa after refusal or cancellation

2  After subsection 48A(1B)

Insert:

 (1C) Subsections (1) and (1B) apply in relation to a non‑citizen regardless of any of the following:

 (a) the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy;

 (b) whether the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy existed earlier;

 (c) the grounds on which an earlier application was made or the criteria which the non‑citizen earlier claimed to satisfy;

 (d) the grounds on which a cancelled protection visa was granted or the criteria the non‑citizen satisfied for the grant of that visa.

3  Subsection 48A(2) (paragraph (aa) of the definition of application for a protection visa)

Repeal the paragraph, substitute:

 (aa) an application for a visa that, under this Act or the regulations as in force at any time, is or was a visa of the class known as protection visas; and

4  Subsection 48A(2) (paragraph (aa) of the definition of application for a protection visa)

Repeal the paragraph, substitute:

 (aa) an application for a visa that, under this Act or the regulations as in force at any time, is or was a visa of the class known as protection visas; and

Note: This item does not commence at all if item 10 of Schedule 1 to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2013 commences before or on the same day as the provision(s) covered by table item 4 in subsection 2(1) of this Act. See table item 5 in subsection 2(1) of this Act.

5  Application of amendments

(1) For the purposes of the application of section 48A of the Migration Act 1958 after the commencement of item 2 of this Schedule, a non‑citizen is prevented from making an application for a protection visa after the commencement of the item, because of a refusal or cancellation referred to in subsection 48A(1) or (1B), whether the refusal or cancellation happened before, on or after that commencement.

(2) For the purposes of determining whether a non‑citizen is prevented, after the commencement of item 2 of this Schedule, from making an application for a protection visa under section 48A of the Migration Act 1958, an amendment made by item 3 or 4 of this Schedule applies in relation to any earlier application for a protection visa whether made before, on or after the commencement of the item.

Schedule 3—Security assessments

Migration Act 1958

1  After subsection 36(1)

Insert:

 (1A) An applicant for a protection visa must satisfy:

 (a) the criterion in subsection (1B); and

 (b) at least one of the criteria in subsection (2).

 (1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

2  Paragraph 411(1)(c)

Repeal the paragraph, substitute:

 (c) a decision to refuse to grant a protection visa, other than a decision that was made relying on:

 (i) one or more of Articles 1F, 32 or 33(2) of the Refugees Convention; or

 (ii) subsection 36(1B); or

 (iii) paragraph 36(2C)(a) or (b);

Note: This item does not commence at all if item 17 of Schedule 1 to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2013 commences before or on the same day as the provision(s) covered by table item 7 in subsection 2(1) of this Act. See table item 8 in subsection 2(1) of this Act.

3  Paragraph 411(1)(c)

Repeal the paragraph, substitute:

 (c) a decision to refuse to grant a protection visa, other than a decision that was made relying on:

 (i) one or more of Articles 1F, 32 or 33(2) of the Refugees Convention; or

 (ii) subsection 36(1B);

Note: This item does not commence at all if item 17 of Schedule 1 to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2013 does not commence. See table item 9 in subsection 2(1) of this Act.

4  Paragraph 411(1)(d)

Repeal the paragraph, substitute:

 (d) a decision to cancel a protection visa, other than a decision that was made because of:

 (i) one or more of Articles 1F, 32 or 33(2) of the Refugees Convention; or

 (ii) an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

 (iii) paragraph 36(2C)(a) or (b).

Note: This item does not commence at all if item 17 of Schedule 1 to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2013 commences before or on the same day as the provision(s) covered by table item 7 in subsection 2(1) of this Act. See table item 10 in subsection 2(1) of this Act.

5  Paragraph 411(1)(d)

Repeal the paragraph, substitute:

 (d) a decision to cancel a protection visa, other than a decision that was made because of:

 (i) one or more of Articles 1F, 32 or 33(2) of the Refugees Convention; or

 (ii) an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

Note: This item does not commence at all if item 17 of Schedule 1 to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2013 does not commence. See table item 11 in subsection 2(1) of this Act.

6  After subsection 500(4)

Insert:

 (4A) The following decisions are not reviewable under this section, or under Part 5 or 7:

 (a) a decision to refuse to grant a protection visa relying on subsection 36(1B);

 (b) a decision to cancel a protection visa because of an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

7  Application provision

An amendment made by an item of this Schedule applies in relation to:

 (a) an application for a protection visa made on or after the commencement of the item; and

 (b) an application for a protection visa made before the commencement of the item but not finally determined as at the commencement of the item; and

 (c) a decision to cancel a protection visa made on or after the commencement of the item, regardless of whether the visa was granted before, on or after the commencement of the item.

[Minister’s second reading speech made in—

House of Representatives on 12 December 2013

Senate on 12 February 2014]