Federal Register of Legislation - Australian Government

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Act No. 10 of 2002 as made
An Act to amend the Migration Act 1958, and for related purposes
Administered by: Immigration and Border Protection
Originating Bill: Migration Legislation Amendment (Transitional Movement) Bill 2002
Date of Assent 04 Apr 2002
Table of contents.

 

 

 

 

 

Migration Legislation Amendment (Transitional Movement) Act 2002

 

No. 10, 2002

 

 

 

 

 

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

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 2

3............ Schedule(s).......................................................................................... 2

Schedule 1—Amendments                                                                                                 3

Migration Act 1958                                                                                                     3

 


 

Migration Legislation Amendment (Transitional Movement) Act 2002

No. 10, 2002

 

 

 

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

[Assented to 4 April 2002]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Migration Legislation Amendment (Transitional Movement) Act 2002.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent

4 April 2002

2.  Schedule 1

A single day to be fixed by Proclamation, subject to subsection (3)

12 April 2002 (Gazette 2002, No. S105)

Note:          This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

             (3)  If a provision covered by item 2 of the table does not commence within the period of 6 months beginning on the day on which this Act 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 1Amendments

  

Migration Act 1958

1  Subsection 5(1)

Insert:

transitory person means:

                     (a)  an offshore entry person who was taken to another country under section 198A; or

                     (b)  a person who was taken to a place outside Australia under paragraph 245F(9)(b); or

                     (c)  a person who, while a non‑citizen and during the period from 27 August 2001 to 6 October 2001:

                              (i)  was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and

                             (ii)  was then taken by HMAS Manoora to another country; and

                            (iii)  disembarked in that other country;

but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.

2  After paragraph 42(2A)(c)

Insert:

                    (ca)  the non‑citizen is brought to Australia under section 198B; or

3  After section 46A

Insert:

46B  Visa applications by transitory persons

             (1)  An application for a visa is not a valid application if it is made by a transitory person who:

                     (a)  is in Australia; and

                     (b)  is an unlawful non‑citizen.

             (2)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

             (3)  The power under subsection (2) may only be exercised by the Minister personally.

             (4)  If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

             (5)  A statement under subsection (4) must not include:

                     (a)  the name of the transitory person; or

                     (b)  any information that may identify the transitory person; 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.

             (6)  A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances.

4  After subsection 198(1)

Insert:

          (1A)  In the case of an unlawful non‑citizen who has been brought to Australia under section 198B for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).

5  After section 198A

Insert:

198B  Power to bring transitory persons to Australia

             (1)  An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.

             (2)  The power under subsection (1) includes the power to do any of the following things within or outside Australia:

                     (a)  place the person on a vehicle or vessel;

                     (b)  restrain the person on a vehicle or vessel;

                     (c)  remove the person from a vehicle or vessel;

                     (d)  use such force as is necessary and reasonable.

             (3)  In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

198C  Certain transitory persons entitled to assessment of refugee status

             (1)  If a transitory person is brought to Australia under section 198B and remains in Australia for a continuous period of 6 months, then the person is entitled to make a request under this section.

             (2)  The person may make a request to the Refugee Review Tribunal for an assessment of whether the person is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.

             (3)  On receiving such a request, the Tribunal must notify the Secretary. The Tribunal cannot commence the assessment earlier than 14 days after notifying the Secretary.

             (4)  The Tribunal cannot commence, or continue, the assessment at any time when a certificate by the Secretary is in force under section 198D.

             (5)  Divisions 4, 6, 7 and 7A of Part 7 apply for the purposes of the assessment in the same way as they apply to a review by the Tribunal under Part 7.

             (6)  Subject to section 441G, the Tribunal must notify the person and the Minister of its decision on the request.

             (7)  The decision of the Tribunal is final and cannot be challenged in any court. However, this is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

             (8)  If the Tribunal decides that the person is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol:

                     (a)  the Minister must determine a class of visa in relation to the person for the purposes of this subsection; and

                     (b)  if the person later makes an application for a visa of that class, then section 46B does not apply to the application.

             (9)  A person who has made a request under this section is not entitled to make any further request under this section while the person remains in Australia.

198D  Certificate of non‑cooperation

             (1)  If the Secretary is satisfied that a transitory person has engaged in uncooperative conduct, either before or after the person was brought to Australia, then the Secretary may issue a certificate to that effect to the Tribunal.

             (2)  A decision of the Secretary to issue, revoke or vary a certificate is final and cannot be challenged in any court. However, this is not intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

Note:          Subsection 33(3) of the Acts Interpretation Act 1901 allows the certificate to be revoked or varied.

             (3)  In this section:

uncooperative conduct means refusing or failing to cooperate with relevant authorities in connection with any of the following:

                     (a)  attempts to return the person to a country where the person formerly resided;

                     (b)  attempts to facilitate the entry or stay of the person in another country;

                     (c)  the detention of the person in a country in respect of which a declaration is in force under subsection 198A(3).

6  After section 494AA

Insert:

494AB  Bar on certain legal proceedings relating to transitory persons

             (1)  The following proceedings against the Commonwealth may not be instituted or continued in any court:

                     (a)  proceedings relating to the exercise of powers under section 198B;

                     (b)  proceedings relating to the status of a transitory person as an unlawful non‑citizen during any part of the ineligibility period;

                     (c)  proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non‑citizen;

                     (d)  proceedings relating to the removal of a transitory person from Australia under this Act.

             (2)  This section has effect despite anything else in this Act or any other law.

             (3)  Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

             (4)  In this section:

Commonwealth includes:

                     (a)  an officer of the Commonwealth; and

                     (b)  any other person acting on behalf of the Commonwealth.

ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non‑citizen.

 

 

[Minister’s second reading speech made in—

House of Representatives on 13 March 2002

Senate on 20 March 2002]

 

Text Box: (69/02)