A Bill for an Act to amend the Migration Act 1958, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Amendment (Reinstatement of Temporary Protection Visas) Act 2013.
2 Commencement
This Act commences on the day this Act receives the Royal Assent.
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Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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—Amendments
Migration Act 1958
1 Subsection 5(1)
Insert:
secondary movement person has the meaning given by section 76A.
2 Subsection 31(2)
After “37,”, insert “37AA,”.
3 After section 37
Insert:
37AA Temporary protection visas
(1) There are to be the following classes of temporary visas, to be granted under Subdivision AFA:
(a) temporary protection (offshore entry) visas;
(b) temporary protection (secondary movement offshore entry) visas.
4 After Subdivision AF of Division 3 of Part 2
Insert:
Subdivision AFA—Temporary protection visas
76A Definition of secondary movement person
A secondary movement person is a non‑citizen seeking protection who has moved beyond his or her country of first asylum and has transited in a country, other than Australia, in which the person could have sought protection:
(a) of the country, because of that country being a signatory to the Refugees Convention or the Refugees Protocol or for any other reason; or
(b) through representatives of the United Nations High Commissioner for Refugees located in the country.
76B Eligibility for temporary protection (offshore entry) visa
(1) A non‑citizen is eligible for a temporary protection (offshore entry) visa if:
(a) the non‑citizen:
(i) was an unlawful non‑citizen when he or she entered the migration zone; or
(ii) is an offshore entry person; and
(b) the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol in respect of the non‑citizen; and
(c) the non‑citizen meets the health and character requirements prescribed by the regulations.
(2) Australia is not taken to have protection obligations in respect of a non‑citizen who has a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country (apart from Australia) that has protection obligations under the Refugees Convention as amended by the Refugees Protocol in respect of the non‑citizen.
76C Grant of temporary protection (offshore entry) visa
If the Minister is satisfied that a non‑citizen meets the criteria for a temporary protection (offshore entry) visa mentioned in section 76B, the Minister may grant a temporary protection (offshore entry) visa permitting the non‑citizen to remain in, or travel to, enter and remain in Australia during a specified period of no longer than 3 years.
76D Conditions of temporary protection (offshore entry) visa
(1) If the Minister grants a temporary protection (offshore entry) visa to a non‑citizen under section 76C, the visa is subject to the following conditions:
(a) the holder of the visa may engage in work in Australia;
(b) if the holder of the visa departs Australia, he or she may not re‑enter Australia;
(c) family reunion is not permitted under the visa;
(d) the holder of the visa may access social security and other benefits as prescribed by the regulations.
(2) Regulations made for the purposes of paragraph (1)(d) must ensure that the holder of the visa must participate in a mutual obligation program specified in the regulations in order to access relevant social security benefits.
76E Eligibility for permanent visas
(1) A person who is the holder of a temporary protection (offshore entry) visa is not entitled to be granted a permanent visa that is protection visa, and any application by the person for that kind of visa is invalid.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to the holder of the visa, 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 offshore entry person; or
(b) any information that may identify the offshore entry 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 person who holds a temporary protection (offshore entry) visa, whether the Minister is requested to do so by the visa holder or by any other person, or in any other circumstances.
76F Eligibility for temporary protection (secondary movement offshore entry) visa
(1) A non‑citizen is eligible for a temporary protection (secondary movement offshore entry) visa if:
(a) the non‑citizen:
(i) was an unlawful non‑citizen when he or she entered the migration zone; or
(ii) is an offshore entry person; and
(b) the non‑citizen is a secondary movement person; and
(c) the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol in respect of the non‑citizen; and
(d) the non‑citizen meets the health and character requirements prescribed by the regulations.
(2) Australia is not taken to have protection obligations in respect of a non‑citizen who has a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country (apart from Australia) that has protection obligations under the Refugees Convention as amended by the Refugees Protocol in respect of the non‑citizen.
76G Grant of temporary protection (secondary movement offshore entry) visa
If the Minister is satisfied that a non‑citizen meets the criteria for a temporary protection (secondary movement offshore entry) visa mentioned in section 76F, the Minister may grant a temporary protection (secondary movement offshore entry) visa permitting the non‑citizen to remain in, or travel to, enter and remain in Australia during a specified period of no longer than 3 years.
76H Conditions of temporary protection (secondary movement offshore entry) visa
(1) If the Minister grants a temporary protection (secondary movement offshore entry) visa to a non‑citizen under section 76G, the visa is subject to the following conditions:
(a) the holder of the visa may engage in work in Australia;
(b) if the holder of the visa departs Australia, he or she may not re‑enter Australia;
(c) family reunion is not permitted under the visa;
(d) the holder of the visa may access social security and other benefits as prescribed by the regulations.
(2) Regulations made for the purposes of paragraph (1)(d) must ensure that the holder of the visa must participate in a mutual obligation program specified in the regulations in order to access relevant social security benefits.
76J Eligibility for permanent visas
A person who is the holder of a temporary protection (secondary movement offshore entry) visa is not entitled to be granted a permanent visa that is a protection visa, and any application by the person for that kind of visa is invalid.
76K Application of other provisions
The following provisions of this Act apply in relation to temporary protection (offshore entry) visas and temporary protection (secondary movement offshore entry) visas in the same way as they apply to protection visas:
(a) subsection 39(1) (criterion limiting number of visas);
(b) subsection 46(2AA) (valid visa application);
(c) section 65A (period within which Minister must make decision on protection visas);
(d) subsection 195(2) (detainee may apply for visa);
(e) section 336F (disclosure of identifying information);
(f) Part 7 (review of protection visa decisions);
(g) section 500 (review of decisions);
(h) sections 501E, 501F and 501J (refusal or cancellation of visa);
(i) section 501K (identity of applicants for protection visas);
(j) section 502 (excluded persons).
5 Regulations may make consequential amendments of Acts
(1) The Governor‑General may make regulations amending Acts (including the Migration Act 1958) being amendments that are consequential on, or that otherwise relate to, the amendments made by this Schedule.
(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.
(3) Amendments of an Act made by regulations for the purposes of this item can be incorporated into a reprint or compilation of the Act as provided by the Acts Publication Act 1905.