Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Migration Act 1958, and for other purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Introduced HR 28 Aug 2001

Migration Legislation Amendment Bill (No. 6) 2001

1998 - 1999 - 2000 - 2001

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

HOUSE OF REPRESENTATIVES

MIGRATION LEGISLATION AMENDMENT BILL (NO. 6) 2001

EXPLANATORY MEMORANDUM

(Circulated by authority of the

Minister for Immigration and Multicultural Affairs,

The Hon. Philip Ruddock MP)

MIGRATION LEGISLATION AMENDMENT BILL (NO. 6) 2001

OUTLINE

1.       The purpose of the Migration Legislation Amendment Bill (No. 6) 2001 ("the Bill") is to amend the Migration Act 1958 ("the Act") to:

*       restore the application of the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees ("the Refugees Convention") in Australia to its proper interpretation; and

*       promote integrity in protection visa application and decision-making processes.

2.       Under the Refugees Convention, a "refugee" is defined broadly as a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The key elements of this test are not further defined in the Convention and are matters for each Convention member state to address.

3.       Over recent years the interpretation of the definition of a "refugee" by various courts and tribunals has expanded the interpretation of the definition so as to require protection to be provided in circumstances that are clearly outside those originally intended.

4.       These circumstances have included situations where hardship or serious inconvenience has been considered to be persecution and situations where mistreatment is feared for reasons other than those intended to be covered by the Convention. Other circumstances have arisen where the provisions within the Convention which exclude from protection people of serious character concern have been interpreted in a way which could lead to protection being provided to people who should not be entitled to this.

5.       In recent years there have been increasing numbers of attempts to misuse Australia's onshore protection processes to delay or frustrate removal by people who have no need for Convention protection. This Bill contains measures which will address these attempts to misuse onshore protection processes.

6.       The Bill ensures that the Refugees Convention provides appropriate protection to refugees consistent with the international obligations that Australia assumed when becoming a party to the Convention. It also minimises the misuse of Australia's protection processes.

7.       The amendments in the Bill will:

*       clarify and define certain Refugee Convention matters;

*       extend the bar in section 48A of the Act against a further application for a protection visa. This will make it clear that the s48A bar applies to all protection visa applicants, irrespective of whether they have sought the visa because of personal claims for refugee protection or as a family member of such a person. This will prevent members of families pursuing claims for protection one after the other - dragging on resolution of their status for years;

*       allow the Minister, in certain circumstances, to draw a reasonable inference unfavourable to an unauthorised arrival or protection visa applicant if they fail to provide information on oath or affirmation or to produce documentary evidence of the applicant's identity, nationality or citizenship. This addresses growing concerns, particularly in relation to unauthorised arrivals, that individuals are disposing of identifying documentation and engaging in sophisticated research and 'schooling' of claims in order to mislead Australian officials about their identity, nationality, or real need for protection;

*       provide that the Minister shall not take into account the implications of actions taken in Australia by asylum seekers which are intended to create or strengthen their claims for protection;

*       require the High Court and Federal Court not to publish (electronically or otherwise) the name of a person who is seeking or who has sought protection and who is engaging in certain types of litigation related to their status to remain in Australia. This will substantially reduce the potential that the publication of court records and proceedings may create further protection claims for people in Australia or put their families and colleagues overseas at risk of harm. The proposed legislation will leave intact the capacity of the Minister or the person engaged in the litigation to seek the confidential treatment of further identifying information;

*       require the Administrative Appeals Tribunal ("the AAT") not to publish (electronically or otherwise) any information which may identify persons;


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*       require that certain crimes listed in section 5 of the Extradition Act 1988 as being non-political will be taken to be serious non-political crimes for the purposes of assessing exclusion from protection under Article 1F of the Refugees Convention and that, for the purposes of that Article, a crime will be non -political where the primary motivation was non-political; and

*       require that certain crimes against people, serious drug or property damage crimes and serious crimes committed in relation to immigration detention, will be taken to be particularly serious crimes for the purposes of assessing whether Australia owes protection obligations to an individual under Article 33(2) of the Refugees Convention. This will not affect the requirement, under Article 33(2) of the Refugees Convention, to consider whether a person convicted of a particularly serious crime also represents a risk to the community;

*       provide the Minister with a power to substitute a more favourable decision for an AAT decision where that decision is in relation to a review of a decision to refuse a Protection visa. This legislation mirrors provisions already in place to allow the Minister to substitute a more favourable decision in relation to decisions of the Refugee Review Tribunal.

FINANCIAL IMPACT STATEMENT

8.       These amendments will have minimal direct financial impact.

MIGRATION LEGISLATION AMENDMENT BILL (NO. 6) 2001

NOTES ON INDIVIDUAL CLAUSES

Clause 1       Short Title

1.       The short title by which this Act may be cited is the Migration Legislation Amendment Act (No. 6) 2001.

Clause 2       Commencement

2.       Subclause 2(1) provides that subject to subsection 2(2), this Act commences on a day to be fixed by Proclamation.

3.       Subclause 2(2) provides that, if this Act is not proclaimed within 6 months of the Act receiving the Royal Assent, then the Act commences on the first day after the end of that period.

Clause 3       Schedule(s)

4.       This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned. In addition, 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

Item 1         At the end of subsection 36(1)

5.       This item adds a note at the end of subsection 36(1) of the Act to provide a cross-reference to new Subdivision AL, which is inserted into the Act by item 5 of this Schedule. New Subdivision AL contains other provisions about protection visas in addition to those set out in section 36 of the Act.

Item 2         Subsection 36(2)

6.       This item repeals subsection 36(2) and substitutes a new subsection 36(2) into the Act.

7.       New subsection 36(2) provides that a criterion for a protection visa is that the applicant for the visa is:

*       a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention; or

*       a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

-       is mentioned above; and

-       holds a protection visa.

8.       Existing subsection 36(2) does not clearly apply to a non-citizen who falls within the second scenario. While the Refugees Convention does not require member States to provide protection to a person solely by reason of their close family relationship with a person who is owed protection under the Convention, it has been longstanding practice in Australia to allow the spouse and dependants in Australia of those persons found to be owed protection under the Refugees Convention to be granted a visa to remain with that person in Australia. New subsection 36(2) makes it clear that a non-citizen in Australia is eligible for the grant of a protection visa if he or she is the spouse or a dependant of a non-citizen who is owed protection obligations and who holds a protection visa.

9.       This is the case even though this non-citizen does not himself or herself claim to be refugee to whom Australia owes protection obligations under the Refugees Convention.

Item 3        After subsection 48A(1A)

10.       This item inserts new subsection 48A(1B) after subsection 48A(1A) of the Act.


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11.       New subsection 48A(1B) extends the bar on making a further application for a protection visa in the migration zone to a non-citizen who held a protection visa that was cancelled.

12.       As a matter of practice, cancellation of protection visas does not occur where protection obligations continue to be owed to the person. Opportunities provided in the visa cancellation process allow a person to bring forward reasons why their visa should not be cancelled. These may include information or claims regarding the existence of protection obligations owed to the person. In addition, new subsection 48A(1B) is subject to section 48B of the Act. Section 48B allows the Minister to determine, in the public interest, that the bar in section 48A does not apply to prevent an application for a protection visa made by a non-citizen.

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

13.       This item inserts new paragraphs 48A(2)(aa) and 48A(2)(ab) into the definition of "application for a protection visa" set out in subsection 48A(2) of the Act.

14.       As a result of these new provisions, an "application for a protection visa" for the purposes of section 48A also includes:

*       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; and

*       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:

-       to whom Australia has protection obligations under the Refugees Convention; and

-       who holds a protection visa.

15.       These changes make clear that the existing section 48A bar on making further protection visa applications applies to unsuccessful protection visa applicants where the application relied on the grounds that the applicant was the spouse or dependant of a person who is owed protection obligations under the Refugees Convention. This change is necessary to prevent misuse of the protection visa process by family groups wishing to prolong their stay in Australia by lodging protection applications serially, each member taking turns to advance claims for protection while the others apply as family members. As flagged at paragraph 12 above, the existing section 48B provides a power for the Minister to lift the bar on making further protection visa applications where this is in the public interest.

Item 5        After Subdivision AK of Division 3 of Part 2

16.       This item inserts new Subdivision AL after Subdivision AK of Division 3 of Part 2 of the Act. New Subdivision AL contains additional provisions about protection visas.

Section 91R         Persecution

17.       This item inserts new section 91R into the Act which deals with "persecution".

18.       Broadly speaking, Australia owes protection obligations to a person who is a refugee as defined in Article 1 of the Refugees Convention and who is not excluded from protection by the provisions of Articles 1 or 33 of the Convention. Under Article 1A(2) a refugee is a person who, among other things, has a well founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion.

19.       Claims of persecution have been determined by Australian courts to fall within the scope of the Refugees Convention even though the harm feared fell short of the level of harm accepted by the parties to the Convention to constitute persecution. Persecution has also been interpreted to be for reason of the above Convention grounds where there have been a number of motivations for the harm feared and the Convention-based elements have not been the dominant reasons for that harm. Taken together these trends in Australian domestic law have widened the application of the Refugee Convention beyond the bounds intended.

20.       New subsection 91R(1) contains a definition of "persecution" for the purposes of the application of the Act or the regulations. It provides the Refugees Convention will apply only to persecution for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention if it satisfies the requirements of new paragraph 91R(1)(a), 91R(1)(b) and 91R(1)(c).

21.       Under new paragraph 91R(1)(a), persecution for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention does not constitute persecution unless that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution. The Refugees Convention does not require that persecution for non-Convention grounds be taken into account in assessing whether a person is owed protection obligations under the Convention. Where

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the harm feared is attributed to a number of motivations, the proposed legislation will make it clear that it is insufficient that there are merely minor or non-central Convention related motivations in order to bring the persecution within the scope of the Convention. However, persecution for multiple motivations will satisfy the proposed legislative requirements where the Convention ground or grounds in aggregate constitute at least the essential and significant motivation for the harm feared.

22.       Under new paragraphs 91R(1)(b) and 91R(1)(c), the persecution must involve serious harm to the person and systematic and discriminatory conduct. New subsection 91R(2) sets out a non-exhaustive list of the type and level of harm that will meet the serious harm test and fall within the meaning of persecution for the purposes of the Refugees Convention. New subsection 91R(2) makes it clear that serious harm includes a reference to any of the following:

*       a threat to the person's life or liberty; or

*       significant physical harassment of the person; or

*       significant physical ill-treatment of the person; or

*       significant economic hardship that threatens the person's capacity to subsist; or

*       denial of access to basic services, where the denial threatens the person's capacity to subsist; or

*       denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

23.       The above definition of persecution reflects the fundamental intention of the Convention to identify for protection by member states only those people who, for Convention grounds, have a well founded fear of harm which is so serious that they cannot return to their country of nationality, or if stateless, to their country of habitual residence. These changes make it clear that it is insufficient to establish an entitlement for protection under the Refugees Convention that the person would suffer discrimination or disadvantage in their home country, or in comparison to the opportunities or treatment which they could expect in Australia. Persecution must constitute serious harm. The serious harm test does not exclude serious mental harm. Such harm could be caused, for example, by the conducting of mock executions, or threats to the life of people very closely associated with the person seeking protection. In addition, serious harm can arise from a series or number of acts which, when taken cumulatively, amount to serious harm of the individual.

24.       The Refugees Convention is not intended to justify providing residence status on broader humanitarian grounds. Existing provisions in the Migration Act establish powers for the Minister to substitute a decision of the merits review tribunals with a decision more favourable to the applicant, where this is in the public interest. This is the mechanism in Australian domestic law for addressing cases where protection obligations arise under international Conventions other than the Refugees Convention or where there are public interest grounds, for example of a humanitarian nature, for providing residence status in Australia.

25.       New subsection 91R(3) applies to sur place claims. It is generally accepted that a person can acquire refugee status sur place where, as a consequence of events that have happened since he or she left his or her country of origin, he or she has a well-founded fear of persecution upon return to that country. Difficulties have arisen in cases where Australian courts have found that a person may act while in Australia with the specific intention of establishing or strengthening their protection claims and this intention cannot be taken into account in assessing the existence of protection obligations under the Refugees Convention.

26.       Actions undertaken intentionally to raise the risk of persecution or create the pretext of such a risk, raise also serious questions about the presence of subjective fear in the mind of the protection visa applicant. In order for a fear of persecution to be well founded, it must be both objectively and subjectively based. Under new section 91R, for the purposes of the application of the Act and the regulations to a particular person, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister that he or she 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.

27.       This maintains the integrity of Australia's protection process by ensuring that a protection applicant cannot generate sur place claims by deliberately creating circumstances to strengthen his or her claim for refugee status. The Ministerial intervention powers provide an avenue for the Minister to provide a visa, should there be an exceptional case where this is in the pubic interest.

Section 91S        Membership of a particular social group

28.       This item inserts new section 91S into the Act which deals with "membership of a particular social group". This proposed provision addresses a recent court finding that a relative of a person facing

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persecution for a non-Refugees Convention reason, such as pursuit by criminal elements for repayment of debts, is themselves facing persecution for the Convention ground of membership of a particular social group when the attentions of the agents of persecution turn to them, for example for repayments of the debts. This type of situation falls outside the range of grounds for persecution covered in the Refugees Convention.

29.       New section 91S provides that certain matters must be disregarded in determining whether a particular person ("the first person") has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the person's family.

30.       The matters that must be disregarded are:

*       any fear of persecution or any persecution that any other family member (whether alive or dead) has ever experienced where that fear or persecution is not for a reason mentioned in Article 1A(2) of the Refugees Convention; and

*       any fear of persecution or any persecution that the first person has ever experienced or any other family member (whether alive or dead) 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 the above point had never existed.

31.       The above provisions do not prevent a family, per se, being a particular social group for the purpose of establishing a Convention reason for persecution. However, they prevent the family being used as a vehicle to bring with the scope of the Convention persecution motivated for non-Convention reasons.

Section 91T        Non-political crime

32.       This item inserts new section 91T into the Act which clarifies what constitutes a "non-political crime" under Article 1F of the Refugees Convention.

33.       Article 1F of the Refugees Convention, among other things, excludes from being a refugee a person with respect to whom there are serious reasons for considering that he or she has committed a serious non-political crime outside the country of refuge prior to his or her admission to that country as a refugee. Court judgements had set too low a threshold when determining the degree of political motivation needed in order for a criminal act to fall outside the Article 1F exclusion clause.

34.       New subsection 91T(1) provides that a reference to a "non-political crime" in that Article has effect as if it were a reference to a crime where the person's motives for committing the crime were wholly or mainly non-political in nature. It is insufficient to avoid exclusion from protection under Article 1F, to establish that there is some minority motivation which is political.

35.       However, under new subsection 91T(2), new subsection 91T(1) has effect subject to new subsection 91T(3).

36.       New subsection 91T(3) provides that a reference to a "non-political crime" in Article 1F has effect as if the reference were 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.

Section 91U        Particularly serious crime

37.       This item inserts new section 91U into the Act which clarifies what constitutes a "particularly serious crime" under Article 33(2) of the Refugees Convention..

38.       Article 33(2) of the Refugees Convention provides that the benefits of protection may not be claimed by a refugee who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of the country in which he or she is. The term "particularly serious crime" is not defined in the Refugees Convention and it is the responsibility of member states to ensure that this reflects community views about what constitutes such a crime.

39.       New subsection 91U(1) provides that a "particularly serious crime" includes a reference to a crime that is a serious Australian offence or a serious foreign offence.

40.       "Serious Australian offence" is defined in new subsection 91U(2) to mean an offence against a law in force in Australia where:

*       the offence:

-       involves violence against a person; or

-       is a serious drug offence; or

-       involves serious damage to property; or

-       is an offence against section 197A or 197B of the Act (offences relating to immigration detention); and

*       the offence is punishable by:

-       imprisonment for life; or

-       imprisonment for a fixed term of not less than 3 years; or

-       imprisonment for a maximum term of not less than 3 years.

41.       Serious foreign offence is defined in new subsection 91U(3) as an offence committed in a foreign country where:


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*       the offence involves violence against a person, or is a serious drug offence or involves serious property damage; and

*       if the offence had taken place in the Australian Capital Territory, it would have been punishable by imprisonment for life, imprisonment for a fixed term of not less than 3 years, or imprisonment for a maximum term of not less than 3 years.

42.       The above provision does not exhaustively define what constitutes a "particularly serious crime". It remains possible that other types of "particularly serious crime" may occur depending on the circumstances of particular cases. The new provision ensures that core types of criminal offences which are viewed by the community as being particularly serious are treated as "particularly serious crimes" for the purpose of Article 33(2) of the Refugees Convention. The new provision does not affect the existing requirements at Article 33(2) that a person must be convicted by final judgement of a "particularly serious crime" and must also be assessed as representing a risk to the community in order to be ineligible for protection. This latter consideration will continue to be undertaken on a case-by-case basis.

Section 91V        Verification of information

43.       This item inserts new section 91V into the Act.

44.       This new provision addresses increasing concerns that some applicants are engaging in sophisticated identity, nationality and claims fraud in order to bolster their chances of gaining protection in Australia. In some circumstances, individuals have recanted otherwise robust accounts of their background, and have provided truthful accounts, when presented with the prospect of affirming by way of oath or affirmation the truthfulness of the information they had originally given.

45.       Under new subsection 91V(1), the Minister may, either orally or in writing, request a protection visa applicant to make an oral statement, on oath or affirmation, that information given in, or in connection with, the application for the visa is true.

46.       New subsection 91V(2) sets out the circumstances in which the Minister may draw any inference unfavourable to the applicant's credibility if he or she fails or refuses to comply with a request to make an oath or affirmation under new subsection 91V(1). This new provision provides that the Minister may draw any reasonable inference unfavourable to the applicant's credibility where the applicant was given a warning, either orally or in writing, that the Minister may draw such an inference in the event that the applicant refuses or fails to comply with the request.

47.       New subsection 91V(3) sets out the circumstances in which the Minister may draw any inference unfavourable to the applicant's credibility because of the manner or demeanour in which he or she complies with a request for an oath or affirmation given under new subsection 91V(1).

48.       Under new subsection 91V(3), the Minister may draw any reasonable inference unfavourable to the applicant's credibility where the Minister has reason to believe that the applicant was not sincere in making an oath or affirmation because of:

*       the manner in which the applicant complied with the request; or

*       the applicant's demeanour in relation to compliance with the request.

49.       New subsection 91V(4) applies where information relevant to the administration or enforcement of the Act is given to an officer by:

*       a non-citizen when the non-citizen was in immigration clearance and is subsequently refused immigration clearance.

*       a non-citizen after he or she was refused immigration clearance.

50.       Under new subsection 91V(4), the officer may, either orally or in writing, request the non-citizen to make an oral statement, on oath or affirmation, that information is true.

51.       New subsection 91V(5) sets out the circumstances in which the Minister may draw any inference unfavourable to the non-citizen's credibility if he or she fails or refuses to comply with a request to make an oath or affirmation under new subsection 91V(4). This new provision provides that the Minister may draw any reasonable inference unfavourable to the applicant's credibility where the non-citizen was given a warning, either orally or in writing, that the Minister may draw such an inference in the event that the non-citizen refuses or fails to comply with the request.

52.       New subsection 91V(6) sets out the circumstances in which the Minister may draw any inference unfavourable to the non-citizen's credibility because of the manner or demeanour in which he or she complies with a request for an oath or affirmation given under new subsection 91V(4).

53.       Under new subsection 91V(6), the Minister may draw any reasonable inference unfavourable to the non-citizen's credibility where the Minister has reason to believe that the non-citizen was not sincere in making an oath or affirmation because of:

*       the manner in which the non-citizen complied with the request; or

*       the non-citizen's demeanour in relation to

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compliance with the request.

54.       New subsection 91V(7) provides that a reference to an "officer" in new section 91V includes a reference to a person who is a clearance officer within the meaning of section 165 of the Act.

55.       New subsection 91V(8) provides the Minister or an officer with the power to administer an oath or affirmation for the purposes of new section 91V.

Section 91W        Documentary evidence of identity, nationality or citizenship

56.       This item inserts new section 91W into the Act.

57.       New section 91W provides that the Minister or an officer may request, either orally or in writing, an applicant for a protection visa to produce documentary evidence of his or her identity, nationality or citizenship for inspection by the Minister or the officer. This new provision is needed to increase the incentives for protection visa applicants, and unauthorised arrivals who apply for protection visas in particular, to provide travel and identity documentation to those persons assessing their claims for protection. Information is being received regularly by Commonwealth officers that most unauthorised arrivals to Australia possessed travel and identity documentation, in many cases legitimate documentation, until shortly before their arrival in Australia.

58.       New subsection 91W(2) sets out the circumstances in which the Minister may draw an inference unfavourable to the applicant's claimed identity, nationality or citizenship if her or she fails or refuses to comply with a request given under new subsection 91W(1). The Minister is not compelled to draw adverse inferences where documentation is not forthcoming. This accommodates situations, such as influxes of individuals fleeing to Australia as a country of first asylum, where it is understandable that the individuals may neither have nor be able to obtain travel or identification documents. In addition, specific provision is made at new paragraph 91W(2)(c) for a person who has been requested to provide such documentation to give reasonable explanation for a refusal or failure to comply with the request.

59.       New paragraph 91W(2)(d) provides that the Minister may draw any reasonable inference unfavourable to the applicant's claimed identity, nationality or citizenship where the applicant was given a warning, either orally or in writing, that the Minister may draw such an inference in the event that the applicant refuses or fails to comply with the request.

Section 91X        Identity of applicants for protection visas not to be published ´ by the High Court or the Federal Court

60.       This item inserts new section 91X into the Act. This provision is required to minimise the risk that publication of court proceedings might identify individuals as having applied for protection in Australia. Such publication can create a need for protection for the litigants and also place their family and colleagues overseas at risk. The new section does not prevent the Minister or other litigants from seeking court orders for further confidentiality in particular cases, for example to suppress any information which may identify the litigants.

61.       New subsection 91X(2) prohibits the High Court or the Federal Court from publishing (electronically or otherwise) the name of certain persons. Under new subsection 91X(1), this prohibition 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 person who applied for a protection visa; or

*       a person who applied for a protection-related bridging visa; or

*       a person whose protection visa has been cancelled; or

*       a person whose protection-related bridging visa has been cancelled.

       

62.       New subsection 91X(3) defines:

*       an "application for a protection-related bridging visa" to mean an application for a bridging visa, where the applicant for the bridging visa is also an applicant for a protection visa; and

*       "proceeding" to mean 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; and

*       "protection-related bridging visa" to mean a bridging visa granted as a result of an application for a protection-related bridging visa.

Item 6        After section 501H

63.       This item inserts new section 501J after section 501H of the Act.

64.       New subsection 501J(1) provides the Minister with power to set aside an AAT protection visa decision and substitute a decision that is more favourable to the applicant, where it is in the public interest to do so. The power established by this new section is a logical extension of the

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equivalent power available to the Minister under current section 417 to substitute a more favourable decision for a decision of the RRT in relation to decisions made by that tribunal. This power to set aside an AAT protection visa decision may be exercised whether or not the AAT had the power to make the other more favourable decision.

65.       An "AAT protection visa decision" is defined in new subsection 501J(2) to mean a decision of the AAT in relation to an application for, or the cancellation of, a protection visa.

66.       New subsection 501J(3) makes it clear that in exercising the power under new subsection 501(1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 of the Act or by the regulations, but is bound by all other provisions of the Act.

67.       New subsection 501J(4) specifies that the power in new subsection 501J(1) may be exercised only by the Minister personally.

68.       New subsections 501J(5), 501J(6) and 501J(7) all relate to a statement that the Minister must cause to be laid before each House of the Parliament if the Minister substitutes a decision under new subsection 501J(1).

69.       New subsection 501J(5) provides that such a statement must:

*       set out the decision of the AAT; and

*       set out the decision substituted by the Minister; and

*       set out the reasons for the Minister's decision.

The reasons for the Minister's decision must refer in particular to the Minister's reasons for thinking that his or her actions are in the public interest.

70.       Under new subsection 501J(6), a statement made under new subsection 501J(5) must not include:

*       the name of the applicant; or

*       any information that may identify the applicant; or

*       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.

71.       Under new subsection 501J(7), a statement made under new subsection 501J(5) is to be laid before each House of the Parliament within 15 sitting days of that House after:

       

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

*       if a decision is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year.

72.       New subsection 501J(8) provides that the Minister does not have a duty to consider whether to exercise the power under new subsection 501J(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.

Section 501K        Identity of applications for protection visas not to be published by the Administrative Appeals Tribunal

73.       This item inserts new section 501K into the Act.

74.       New subsection 501K(2) prohibits the AAT from publishing (electronically or otherwise) in relation to a review any information that may identify a person or any relative or other dependant of the person.

75.       Under new subsection 501K(1), this prohibition applies to a review by the AAT if the review relates to a person in the person's capacity as:

*       a person who applied for a protection visa; or

*       a person whose protection visa has been cancelled; or

*       a person whose protection-related bridging visa has been cancelled.

76.       Under new subsection 501K(3), an "application for a protection-related bridging visa" is defined as meaning an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa, and "protection related bridging visa" is defined as meaning a bridging visa granted as a result of an application for a protection related bridging visa.

Part 2 - Application of amendments

Item 7        Application of amendment - Subdivision AL of Division 3 of Part 2 of the Migration Act 1958

77.       This item deals with the application of new Subdivision AL which is inserted into Division 3 of Part 2 of the Act by item 5 of this Schedule.


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78.       It provides that new Subdivision AL (other than new section 91X) applies in relation to:

*       an application for a protection visa made after the commencement of this item; and

*       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

*       an application for a protection visa made before the commencement of this item, where:

-       a decision to refuse to grant the visa was made before that commencement; and

-       an application for review of that decision is or was made to the Refugee Review Tribunal or the AAT (whether before, at or after that commencement); and

-       the Refugee Review Tribunal or the AAT made a decision on that review after that commencement.

Item 8        Application of amendment - section 91X of the Migration Act 1958

79.       This item provides that new section 91X applies in relation to a proceeding that is instituted after the commencement of this item.

Item 9        Application of amendment - section 501J of the Migration Act 1958

80.       This item provides that new section 501J applies in relation to a decision of the AAT, whether made before, at or after the commencement of this item.

Item 10        Application of amendment - section 501K of the Migration Act 1958

81.       This item provides that new section 501K applies in relation to a review, where the application for review was made after the commencement of this item.