Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Migration Act 1958, and for related purposes
Administered by: Immigration and Border Protection
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.
Registered 26 Jun 2014
Introduced HR 25 Jun 2014
Table of contents.

2013‑2014

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

Presented and read a first time

 

 

 

 

Migration Amendment (Protection and Other Measures) Bill 2014

 

No.      , 2014

 

(Immigration and Border Protection)

 

 

 

A Bill for an Act to amend the Migration Act 1958, and for related purposes

  

  


Contents

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

2............ Commencement................................................................................... 1

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

Schedule 1—Protection visas                                                                                           4

Part 1—Amendments commencing on day after Royal Assent              4

Migration Act 1958                                                                                                     4

Part 2—Amendments commencing on Proclamation                                   5

Migration Act 1958                                                                                                     5

Part 3—Application                                                                                                       9

Schedule 2—Amendments relating to Australia’s protection obligations under certain international instruments                                                                                                 10

Part 1—Amendments commencing on the day after Royal Assent    10

Migration Act 1958                                                                                                   10

Part 2—Contingent amendments                                                                          13

Migration Act 1958                                                                                                   13

Schedule 3—Unauthorised maritime arrivals and transitory persons 16

Part 1—Amendments                                                                                                  16

Migration Act 1958                                                                                                   16

Part 2—Application and transitional                                                                   19

Schedule 4—Migration Review Tribunal and Refugee Review Tribunal              21

Part 1—Amendments                                                                                                  21

Migration Act 1958                                                                                                   21

Part 2—Application                                                                                                     38


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 (Protection and Other Measures) 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.

 

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 this Act receives the Royal Assent.

 

2.  Schedule 1, Part 1

The day after this Act receives the Royal Assent.

 

3.  Schedule 1, Part 2

A single day to be fixed by Proclamation.

However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

4.  Schedule 1, Part 3

The day after this Act receives the Royal Assent.

 

5.  Schedule 2, items 1 to 4

The day after this Act receives the Royal Assent.

 

6.  Schedule 2, item 5

The day after this Act receives the Royal Assent.

However, if the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014 receives the Royal Assent before that day, the provision(s) do not commence at all.

 

7.  Schedule 2, item 6

The day after this Act receives the Royal Assent.

 

8.  Schedule 2, Part 2

Immediately after the commencement of Schedule 1 to the Migration Amendment (Regaining Control Over Australia’s Protection Obligations) Act 2014.

However, if that Schedule does not commence, the provision(s) do not commence at all.

 

9.  Schedule 3

A single day to be fixed by Proclamation.

However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

10.  Schedule 4

A single day to be fixed by Proclamation.

However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

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 1Protection visas

Part 1Amendments commencing on day after Royal Assent

Migration Act 1958

1  After section 5

Insert:

5AAA  Non‑citizen’s responsibility in relation to protection claims

             (1)  This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

             (2)  For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

             (3)  The purposes of this Act include:

                     (a)  the purposes of a regulation or other instrument under this Act; and

                     (b)  the purposes of any administrative process that occurs in relation to:

                              (i)  this Act; or

                             (ii)  a regulation or instrument under this Act.

             (4)  To remove doubt, the Minister does not have any responsibility or obligation to:

                     (a)  specify, or assist in specifying, any particulars of the non‑citizen’s claim; or

                     (b)  establish, or assist in establishing, the claim.

Part 2Amendments commencing on Proclamation

Migration Act 1958

2  Subsection 5(1)

Insert:

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

                     (a)  purports to have been, but was not, issued in respect of the person; or

                     (b)  is counterfeit or has been altered by a person who does not have authority to do so; or

                     (c)  was obtained because of a false or misleading statement, whether or not made knowingly.

3  Subparagraph 65(1)(a)(iii)

After “section 40 (circumstances when granted),”, insert “91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit),”.

4  Section 91W (heading)

Repeal the heading, substitute:

91W  Evidence of identity and bogus documents

5  Subsection 91W(2)

Omit “If”, substitute “The Minister must refuse to grant the protection visa to the applicant if”.

6  Paragraph 91W(2)(b)

After “request”, insert “, or produces a bogus document in response to the request”.

7  Paragraph 91W(2)(c)

After “request”, insert “, or for producing the bogus document”.

8  Paragraph 91W(2)(d)

Repeal the paragraph, substitute:

                     (d)  when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:

                              (i)  refuses or fails to comply with the request; or

                             (ii)  produces a bogus document in response to the request.

9  Subsection 91W(2)

Omit all the words after paragraph (d).

10  At the end of section 91W

Add:

             (3)  Subsection (2) does not apply if the Minister is satisfied that the applicant:

                     (a)  has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and

                     (b)  either:

                              (i)  produces documentary evidence of his or her identity, nationality or citizenship; or

                             (ii)  has taken reasonable steps to produce such evidence.

             (4)  For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.

11  After section 91W

Insert:

91WA  Providing bogus documents or destroying identity documents

             (1)  The Minister must refuse to grant a protection visa to an applicant for a protection visa if:

                     (a)  the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or

                     (b)  the Minister is satisfied that the applicant:

                              (i)  has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

                             (ii)  has caused such documentary evidence to be destroyed or disposed of.

             (2)  Subsection (1) does not apply if the Minister is satisfied that the applicant:

                     (a)  has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and

                     (b)  either:

                              (i)  provides documentary evidence of his or her identity, nationality or citizenship; or

                             (ii)  has taken reasonable steps to provide such evidence.

             (3)  For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.

91WB  Application for protection visa by member of same family unit

             (1)  This section applies to a non‑citizen in Australia (the family applicant):

                     (a)  who applies for a protection visa; and

                     (b)  who is a member of the same family unit as a person (the family visa holder) who has been granted a protection visa.

             (2)  Despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa.

12  Section 97 (definition of bogus document)

Repeal the definition.

13  At the end of section 97

Add:

Note:          Bogus document is defined in subsection 5(1).

14  After section 423

Insert:

423A  How Tribunal is to deal with new claims or evidence

             (1)  This section applies if, in relation to an application for review of an RRT‑reviewable decision (the primary decision) in relation to a protection visa, the applicant:

                     (a)  raises a claim that was not raised in the application before the primary decision was made; or

                     (b)  presents evidence in the application that was not presented in the application before the primary decision was made.

             (2)  In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

Part 3Application

15  Application of amendments

(1)       Section 5AAA of the Migration Act 1958 as amended by Part 1 of this Schedule applies to an application:

                     (a)  made on or after the commencement of that Part; or

                     (b)  made before the commencement of that Part but not finally determined as at the commencement of that Part.

(2)       Section 5AAA of the Migration Act 1958 as amended by Part 1 of this Schedule also applies in relation to an administrative process:

                     (a)  starting on or after the commencement of that Part; or

                     (b)  starting before the commencement of that Part and not completed as at the commencement of that Part.

(3)       Sections 91W, 91WA and 91WB of the Migration Act 1958 as amended by Part 2 of this Schedule apply to an application for a protection visa:

                     (a)  made on or after the commencement of that Part; or

                     (b)  made before the commencement of that Part but not finally determined as at the commencement of that Part.

(4)       Section 423A of the Migration Act 1958 as amended by Part 2 of this Schedule applies to an application for a protection visa made on or after the commencement of Part 1 of this Schedule.

Schedule 2Amendments relating to Australia’s protection obligations under certain international instruments

Part 1Amendments commencing on the day after Royal Assent

Migration Act 1958

1  Subsection 5(1) (definition of Covenant)

Omit “, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986”, substitute “done at New York on 16 December 1966”.

2  Subsection 5(1) (at the end of the definition of Covenant)

Add:

Note:          The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

3  Subsection 5(1) (definition of receiving country)

Repeal the definition, substitute:

receiving country, in relation to a non‑citizen, means:

                     (a)  a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or

                     (b)  if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.

4  After section 6

Insert:

6A  Determining whether Australia has protection obligations in relation to a non‑citizen

             (1)  The section applies for the purposes of determining whether Australia has protection obligations in relation to a non‑citizen in Australia under:

                     (a)  this Act; or

                     (b)  a regulation or other instrument made under this Act; or

                     (c)  an administrative process that occurs in relation to:

                              (i)  this Act; or

                             (ii)  a regulation or other instrument made under this Act.

             (2)  The Minister can only be satisfied that Australia has protection obligations in respect of the non‑citizen if the Minister considers that it is more likely than not that the non‑citizen will suffer significant harm if the non‑citizen is removed from Australia to a receiving country.

             (3)  A non‑citizen will suffer significant harm if:

                     (a)  the non‑citizen will be arbitrarily deprived of his or her life; or

                     (b)  the death penalty will be carried out on the non‑citizen; or

                     (c)  the non‑citizen will be subjected to torture; or

                     (d)  the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

                     (e)  the non‑citizen will be subjected to degrading treatment or punishment.

             (4)  In this section:

protection obligations means any obligations that may arise because Australia is a party to:

                     (a)  the Covenant; or

                     (b)  the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.

Note 1:       Paragraph (a)—for the definition of Covenant, see subsection 5(1).

Note 2:       Paragraph (b)—the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

5  Paragraph 36(2)(aa)

Repeal the paragraph, substitute:

                    (aa)  a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister considers that it is more likely than not that the non‑citizen will suffer significant harm if the non‑citizen is removed from Australia to a receiving country; or

6  Application

(1)       The amendments made by this Part apply in relation to an assessment under:

                     (a)  the Migration Act 1958; or

                     (b)  a regulation or other instrument made under that Act; or

                     (c)  an administrative process that occurs in relation to that Act, regulation or other instrument;

of whether Australia has protection obligations in respect of a person, regardless of whether the assessment is made as a result of an application for a visa by a person.

(2)       Subitem (1) covers the following assessments:

                     (a)  an assessment made on or after the day this item commences;

                     (b)  if an assessment is made as a result of an application for a visa—an assessment that begins before the day this item commences, if the application has not been finally determined before that day;

                     (c)  if an assessment is made as part of an administrative process—an assessment that begins before the day this item commences, if the administrative process has not been completed before that day.

Part 2Contingent amendments

Migration Act 1958

7  Subsection 5(1)

Insert:

Covenant means the International Covenant on Civil and Political Rights done at New York on 16 December 1966.

Note:          The International Covenant on Civil and Political Rights is in Australian Treaty Series 1980 No. 23 ([1980] ATS 23) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

cruel or inhuman treatment or punishment means an act or omission by which:

                     (a)  severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

                     (b)  pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

                     (c)  that is not inconsistent with Article 7 of the Covenant; or

                     (d)  arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

                     (a)  that is not inconsistent with Article 7 of the Covenant; or

                     (b)  that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

receiving country, in relation to a non‑citizen, means:

                     (a)  a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or

                     (b)  if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.

significant harm means harm of a kind mentioned in subsection 6A(3).

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

                     (a)  for the purpose of obtaining from the person or from a third person information or a confession; or

                     (b)  for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

                     (c)  for the purpose of intimidating or coercing the person or a third person; or

                     (d)  for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

                     (e)  for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

8  Application

(1)       The amendments made by this Part apply in relation to an assessment under:

                     (a)  the Migration Act 1958; or

                     (b)  a regulation or other instrument made under that Act; or

                     (c)  an administrative process that occurs in relation to that Act, regulation or other instrument;

of whether Australia has protection obligations in respect of a person, regardless of whether the assessment is made as a result of an application for a visa by a person.

(2)       Subitem (1) covers the following assessments:

                     (a)  an assessment made on or after the day this item commences;

                     (b)  if an assessment is made as a result of an application for a visa—an assessment that begins before the day this item commences, if the application has not been finally determined before that day;

                     (c)  if an assessment is made as part of an administrative process—an assessment that begins before the day this item commences, if the administrative process has not been completed before that day.

Schedule 3Unauthorised maritime arrivals and transitory persons

Part 1Amendments

Migration Act 1958

1  Paragraph 46A(1)(b)

Repeal the paragraph, substitute:

                     (b)  either:

                              (i)  is an unlawful non‑citizen; or

                             (ii)  holds a bridging visa or a temporary visa of a class prescribed for the purposes of this subparagraph.

2  After subsection 46A(2)

Insert:

          (2A)  A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.

          (2B)  The period specified in a determination may be different for different classes of unauthorised maritime arrivals.

          (2C)  The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.

3  Subsection 46A(3)

After “subsection (2)”, insert “or (2C)”.

4  Subsection 46A(4)

Repeal the subsection, substitute:

             (4)  If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination, the determination as varied or the instrument of revocation; and

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

5  Subsection 46A(7)

After “subsection (2)”, insert “or (2C)”.

6  Paragraph 46B(1)(b)

Repeal the paragraph, substitute:

                     (b)  either:

                              (i)  is an unlawful non‑citizen; or

                             (ii)  holds a bridging visa or a temporary visa of a class prescribed for the purposes of this subparagraph.

7  After subsection 46B(2)

Insert:

          (2A)  A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.

          (2B)  The period specified in a determination may be different for different classes of transitory persons.

          (2C)  The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.

8  Subsection 46B(3)

After “subsection (2)”, insert “or (2C)”.

9  Subsection 46B(4)

Repeal the subsection, substitute:

             (4)  If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination, the determination as varied or the instrument of revocation; and

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

10  Subsection 46B(7)

After “subsection (2)”, insert “or (2C)”.

11  Section 91H

Omit “non‑citizen who holds”, substitute “non‑citizen (other than an unauthorised maritime arrival or a transitory person) who holds”.

12  Section 91J

Before “This”, insert “(1)”.

13  At the end of section 91J

Add:

             (2)  This Subdivision does not apply to an unauthorised maritime arrival or a transitory person.

Note:          Unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B.

Part 2Application and transitional

14  Definitions

            In this Part:

amended Act means the Migration Act 1958 as in force on and after the commencement time.

commencement time means the commencement of this Schedule.

old Act means the Migration Act 1958 as in force immediately before the commencement time.

15  Transitional arrangements for unauthorised maritime arrivals who hold or have held temporary safe haven visas

(1)       This item applies in relation to an unauthorised maritime arrival to whom Subdivision AJ of Division 3 of Part 2 of the old Act applies immediately before the commencement time.

(2)       On and after the commencement time:

                     (a)  that Subdivision of the old Act ceases to apply to the unauthorised maritime arrival; and

                     (b)  subject to subitem (3), section 46A of the amended Act applies in relation to an application for a visa by the unauthorised maritime arrival made on or after the commencement time.

(3)       For the purposes of subitem (2), section 46A of the amended Act applies as if each of the following classes of visa were a class of temporary visa prescribed for the purposes of subparagraph 46A(1)(b)(ii) of the amended Act on and after the commencement time:

                     (a)  a temporary safe haven visa;

                     (b)  a temporary humanitarian concern visa;

                     (c)  a temporary protection visa.

16  Transitional arrangements for transitory persons who hold or have held temporary safe haven visas

(1)       This item applies in relation to a transitory person to whom Subdivision AJ of Division 3 of Part 2 of the old Act applies immediately before the commencement time.

(2)       On and after the commencement time:

                     (a)  that Subdivision of the old Act ceases to apply to the transitory person; and

                     (b)  subject to subitem (3), section 46B of the amended Act applies in relation to an application for a visa by the transitory person on or after the commencement time.

(3)       For the purposes of subitem (2), section 46B of the amended Act applies as if each of the following classes of visa were a class of temporary visa prescribed for the purposes of subparagraph 46B(1)(b)(ii) of the amended Act on and after the commencement time:

                     (a)  a temporary safe haven visa;

                     (b)  a temporary humanitarian concern visa;

                     (c)  a temporary protection visa.

Schedule 4Migration Review Tribunal and Refugee Review Tribunal

Part 1Amendments

Migration Act 1958

1  Subsection 5(9)

After “For the purposes of this Act,”, insert “subject to subsection (9A),”.

2  Subsection 5(9A)

Omit “Without limiting subsection (9), if”, substitute “If”.

3  Section 337

Insert:

decision on a review means any of the following decisions of the Tribunal in relation to an application for review of an MRT‑reviewable decision:

                     (a)  a decision to affirm the MRT‑reviewable decision;

                     (b)  a decision to vary the MRT‑reviewable decision;

                     (c)  a decision under paragraph 349(2)(c) to remit a matter in relation to the MRT‑reviewable decision for reconsideration;

                     (d)  a decision to set the MRT‑reviewable decision aside and substitute a new decision;

                     (e)  a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm a decision to dismiss the application.

4  At the end of subsection 349(2)

Add:

               ; or (e)  if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application.

5  Subsection 353A(2)

Repeal the subsection, substitute:

             (2)  Without limiting subsection (1), the directions may:

                     (a)  relate to the application of efficient processing practices in the conduct of reviews by the Tribunal; or

                     (b)  set out procedures to be followed by applicants and their representatives in relation to proceedings before the Tribunal.

6  Subsection 353A(3)

After “review”, insert “(or a decision under paragraph 362B(1A)(b) or (1C)(a))”.

7  After section 353A

Insert:

353B  Guidance decisions

             (1)  The Principal Member may, in writing, direct that a decision (the guidance decision) of the Tribunal specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of an MRT‑reviewable decision of a kind specified in the direction.

             (2)  In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

             (3)  However, non‑compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.

8  Section 359AA

Before “If”, insert “(1)”.

9  At the end of section 359AA

Add:

             (2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

10  At the end of section 359A

Add:

             (5)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

11  Subsection 362B(1)

Repeal the subsection, substitute:

Scope

             (1)  This section applies if the applicant:

                     (a)  is invited under section 360 to appear before the Tribunal; but

                     (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

          (1A)  The Tribunal may:

                     (a)  by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

                     (b)  by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:       Under section 368A, the Tribunal must notify the applicant of a decision on the review.

Note 2:       Under section 362C, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

          (1B)  If the Tribunal dismisses the application, the applicant may, within 7 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.

Note:          Section 379C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

          (1C)  On application for reinstatement in accordance with subsection (1B), the Tribunal must:

                     (a)  if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or

                     (b)  confirm the decision to dismiss the application, by written statement under section 368.

Note 1:       Under section 362C, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:       Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

          (1D)  If the Tribunal reinstates the application:

                     (a)  the application is taken never to have been dismissed; and

                     (b)  the Tribunal must conduct (or continue to conduct) the review accordingly.

          (1E)  If the applicant fails to apply for reinstatement within the 7‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.

Note:          Under section 368A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

           (1F)  If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

          (1G)  To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

12  After section 362B

Insert:

362C  Failure to appear—Tribunal’s decisions, written statements and notifying the applicant

Decisions to which this section applies

             (1)  This section applies in relation to the following decisions (each of which is a non‑appearance decision):

                     (a)  a decision to dismiss an application under paragraph 362B(1A)(b);

                     (b)  a decision to reinstate an application under paragraph 362B(1C)(a) and to give directions (if any) under that paragraph.

Note:          For similar provisions applying to a decision to confirm the dismissal of an application under section 362B, see sections 368 and 368A.

Written statement of decision

             (2)  If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:

                     (a)  sets out the decision; and

                     (b)  sets out the reasons for the decision; and

                     (c)  in the case of a decision to reinstate an application:

                              (i)  sets out the findings on any material questions of fact; and

                             (ii)  refers to the evidence or any other material on which the findings of fact were based; and

                     (d)  records the day and time the statement is made.

             (3)  A non‑appearance 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.

             (4)  The Tribunal has no power to vary or revoke a non‑appearance decision after the day and time the written statement is made.

Note:          However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 362B(1D)).

Notice to applicant

             (5)  The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 379A.

             (6)  In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 362B(1B) to (1F).

Notice to Secretary

             (7)  A copy of the written statement made under subsection (2) must also be given to the Secretary:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 379B.

Validity etc. not affected by procedural irregularities

             (8)  The validity of a non‑appearance decision, and the operation of subsection (4), are not affected by:

                     (a)  a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or

                     (b)  a failure to comply with subsection (5), (6) or (7).

13  Subsection 368(1)

After “decision on a review”, insert “(other than an oral decision)”.

14  Paragraphs 368(1)(e) and (f)

Repeal the paragraphs, substitute:

                     (e)  in the case of a decision under paragraph 362B(1C)(b) or subsection 362B(1E) to confirm the dismissal of an application—indicates that under subsection 362B(1F), the decision under review is taken to be affirmed; and

                      (f)  records the day and time the statement is made.

15  At the end of subsection 368(1)

Add:

Note:          Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

16  Paragraph 368(4)(a)

Repeal the paragraph, substitute:

                     (a)  a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or

17  Section 368D

Repeal the section, substitute:

368D  Tribunal’s decisions given orally

How and when oral decisions are taken to have been made

             (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.

Statement in relation to oral decision

             (2)  If a decision on a review is given orally, the Tribunal must:

                     (a)  make an oral statement that:

                              (i)  describes the decision of the Tribunal on the review; and

                             (ii)  describes the reasons for the decision; and

                            (iii)  describes the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  identifies the day and time the decision is given orally; or

                     (b)  make a written statement that:

                              (i)  sets out the decision of the Tribunal on the review; and

                             (ii)  sets out the reasons for the decision; and

                            (iii)  sets out the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  records the day and time the decision is given orally.

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

Written statement to be provided on request of applicant

             (4)  If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the applicant by one of the methods specified in section 379A; and

                             (ii)  to the Secretary by one of the methods specified in section 379B.

Written statement to be provided on request of Minister

             (5)  If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the Secretary by one of the methods specified in section 379B; and

                             (ii)  to the applicant by one of the methods specified in section 379A.

Return of documents etc.

             (6)  After the Tribunal makes a statement under subsection (2), the Tribunal must:

                     (a)  return to the Secretary any document that the Secretary has provided in relation to the review; and

                     (b)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

             (7)  The validity of a decision on a review, and the operation of subsection (3), are not affected by:

                     (a)  a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or

                     (b)  a failure to comply with subsection (4), (5) or (6).

Note:          Decisions on a review made under paragraph 362B(1A)(a) or (1C)(b), or under subsection 362B(1E), must be made by a written statement under section 368. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

18  Section 410

Insert:

decision on a review means any of the following decisions of the Tribunal in relation to an application for review of an RRT‑reviewable decision:

                     (a)  a decision to affirm the RRT‑reviewable decision;

                     (b)  a decision to vary the RRT‑reviewable decision;

                     (c)  a decision under paragraph 415(2)(c) to remit a matter in relation to the RRT‑reviewable decision for reconsideration;

                     (d)  a decision to set the RRT‑reviewable decision aside and substitute a new decision;

                     (e)  a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm a decision to dismiss the application.

19  At the end of subsection 415(2)

Add:

               ; or (e)  if the applicant fails to appear—exercise a power under section 426A in relation to the dismissal or reinstatement of an application.

20  Subsection 420A(2)

Repeal the subsection, substitute:

             (2)  Without limiting subsection (1), the directions may:

                     (a)  relate to the application of efficient processing practices in the conduct of reviews by the Tribunal; or

                     (b)  set out procedures to be followed by applicants and their representatives in relation to proceedings before the Tribunal.

21  Subsection 420A(3)

After “review”, insert “(or a decision under paragraph 426A(1A)(b) or (1C)(a))”.

22  After section 420A

Insert:

420B  Guidance decisions

             (1)  The Principal Member may, in writing, direct that a decision (the guidance decision) of the Tribunal specified in the direction is to be complied with by the Tribunal in reaching a decision on a review of an RRT‑reviewable decision of a kind specified in the direction.

             (2)  In reaching a decision on a review of a decision of that kind, the Tribunal must comply with the guidance decision unless the Tribunal is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances of the guidance decision.

             (3)  However, non‑compliance by the Tribunal with a guidance decision does not mean that the Tribunal’s decision on a review is an invalid decision.

23  Section 424AA

Before “If”, insert “(1)”.

24  At the end of section 424AA

Add:

             (2)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

25  At the end of section 424A

Add:

             (4)  A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

26  Subsection 426A(1)

Repeal the subsection, substitute:

Scope

             (1)  This section applies if the applicant:

                     (a)  is invited under section 425 to appear before the Tribunal; but

                     (b)  does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.

Tribunal may make a decision on the review or dismiss proceedings

          (1A)  The Tribunal may:

                     (a)  by written statement under section 430, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or

                     (b)  by written statement under section 426B, dismiss the application without any further consideration of the application or information before the Tribunal.

Note 1:       Under section 430A, the Tribunal must notify the applicant of a decision on the review.

Note 2:       Under section 426B, the Tribunal must notify the applicant of a decision to dismiss the application.

Reinstatement of application or confirmation of dismissal

          (1B)  If the Tribunal dismisses the application, the applicant may, within 7 days after receiving notice of the decision under section 426B, apply to the Tribunal for reinstatement of the application.

Note:          Section 441C sets out when a person (other than the Secretary) is taken to have received a document from the Tribunal for the purposes of this Part.

          (1C)  On application for reinstatement in accordance with subsection (1B), the Tribunal must:

                     (a)  if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 426B; or

                     (b)  confirm the decision to dismiss the application, by written statement under section 430.

Note 1:       Under section 426B, the Tribunal must notify the applicant of a decision to reinstate the application.

Note 2:       Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

          (1D)  If the Tribunal reinstates the application:

                     (a)  the application is taken never to have been dismissed; and

                     (b)  the Tribunal must conduct (or continue to conduct) the review accordingly.

          (1E)  If the applicant fails to apply for reinstatement within the 7‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 430.

Note:          Under section 430A, the Tribunal must notify the applicant of a decision to confirm the dismissal of the application.

           (1F)  If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.

          (1G)  To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).

Other measures to deal with failure of applicant to appear

27  After section 426A

Insert:

426B  Failure to appear—Tribunal’s decisions, written statements and notifying the applicant

Decisions to which this section applies

             (1)  This section applies in relation to the following decisions (each of which is a non‑appearance decision):

                     (a)  a decision to dismiss an application under paragraph 426A(1A)(b);

                     (b)  a decision to reinstate an application under paragraph 426A(1C)(a) and to give directions (if any) under that paragraph.

Note:          For similar provisions applying to a decision to confirm the dismissal of an application under section 426A, see sections 430 and 430A.

Written statement of decision

             (2)  If the Tribunal makes a non‑appearance decision, the Tribunal must make a written statement that:

                     (a)  sets out the decision; and

                     (b)  sets out the reasons for the decision; and

                     (c)  in the case of a decision to reinstate an application:

                              (i)  sets out the findings on any material questions of fact; and

                             (ii)  refers to the evidence or any other material on which the findings of fact were based; and

                     (d)  records the day and time the statement is made.

             (3)  A non‑appearance 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.

             (4)  The Tribunal has no power to vary or revoke a non‑appearance decision after the day and time the written statement is made.

Note:          However, if the application is reinstated, the application is taken never to have been dismissed (see subsection 426A(1D)).

Notice to applicant

             (5)  The Tribunal must notify the applicant of a non‑appearance decision by giving the applicant a copy of the written statement made under subsection (2). The copy must be given to the applicant:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 441A.

             (6)  In the case of a decision to dismiss the application, the copy of the statement must be given to the applicant together with a statement describing the effect of subsections 426A(1B) to (1F).

Notice to Secretary

             (7)  A copy of the written statement made under subsection (2) must also be given to the Secretary:

                     (a)  within 14 days after the day on which the decision is taken to have been made; and

                     (b)  by one of the methods specified in section 441B.

Validity etc. not affected by procedural irregularities

             (8)  The validity of a non‑appearance decision, and the operation of subsection (4), are not affected by:

                     (a)  a failure to record, under paragraph (2)(d), the day and time when the written statement was made; or

                     (b)  a failure to comply with subsection (5), (6) or (7).

28  Subsection 430(1)

After “decision on a review”, insert “(other than an oral decision)”.

29  Paragraphs 430(1)(e) and (f)

Repeal the paragraphs, substitute:

                     (e)  in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

                      (f)  records the day and time the statement is made.

30  At the end of subsection 430(1)

Add:

Note:          Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

31  Paragraph 430(4)(a)

Repeal the paragraph, substitute:

                     (a)  a failure to record, under paragraph (1)(f), the day and time when the written statement was made; or

32  Section 430D

Repeal the section, substitute:

430D  Refugee Review Tribunal’s oral decision and oral statement

How and when oral decisions are taken to have been made

             (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.

Statement in relation to oral decision

             (2)  If the Tribunal makes an oral decision on a review, the Tribunal must:

                     (a)  make an oral statement that:

                              (i)  describes the decision of the Tribunal on the review; and

                             (ii)  describes the reasons for the decision; and

                            (iii)  describes the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  identifies the day and time the decision is given orally; or

                     (b)  make a written statement that:

                              (i)  sets out the decision of the Tribunal on the review; and

                             (ii)  sets out the reasons for the decision; and

                            (iii)  sets out the findings on any material questions of fact; and

                            (iv)  refers to the evidence or any other material on which the findings of fact were based; and

                             (v)  records the day and time the decision is given orally.

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

Written statement to be provided on request of applicant

             (4)  If the Tribunal makes an oral statement under paragraph (2)(a) and, within the period prescribed by regulation, the applicant makes a written request for the oral statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the applicant by one of the methods specified in section 441A; and

                             (ii)  to the Secretary by one of the methods specified in section 441B.

Written statement to be provided on request of Minister

             (5)  If the Tribunal makes an oral statement under paragraph (2)(a) and, at any time after the oral statement is made, the Minister makes a written request for the oral statement to be provided in writing, the Tribunal must:

                     (a)  reduce the oral statement to writing; and

                     (b)  within 14 days after the day the request is received by the Tribunal, give a copy of the written statement:

                              (i)  to the Secretary by one of the methods specified in section 441B; and

                             (ii)  to the applicant by one of the methods specified in section 441A.

Return of documents etc.

             (6)  After the Tribunal makes a statement under subsection (2), the Tribunal must:

                     (a)  return to the Secretary any document that the Secretary has provided in relation to the review; and

                     (b)  give the Secretary a copy of any other document that contains evidence or material on which the findings of fact were based.

Validity etc. not affected by procedural irregularities

             (7)  The validity of a decision on a review, and the operation of subsection (3), are not affected by:

                     (a)  a failure to identify or record, under subsection (2), the day and time when the decision was given orally; or

                     (b)  a failure to comply with subsection (4), (5) or (6).

Note:          Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under section 430. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

33  Subsection 477(3) (paragraphs (b) and (c) of the definition of date of the migration decision)

Repeal the paragraphs, substitute:

                     (b)  in the case of a migration decision made by the Migration Review Tribunal—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

                     (c)  in the case of a migration decision made by the Refugee Review Tribunal—the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or

Part 2Application

 34  Application of amendments

General rule

(1)       Subject to subitem (2), the amendments of the Migration Act 1958 made by Part 1 apply in relation to an application to the Migration Review Tribunal or the Refugee Review Tribunal for review of a decision if:

                     (a)  the application is made on or after the commencement of this Schedule; or

                     (b)  the application was made before the commencement of this Schedule, but a decision on the review had not been made as at the commencement of this Schedule.

Amendments relating to dismissal of Tribunal applications

(2)       The amendments of the Migration Act 1958 made by Part 1 that are covered by subitem (3) apply in relation to an application to the Migration Review Tribunal or the Refugee Review Tribunal for review of a decision if:

                     (a)  the application is made on or after the commencement of this Schedule; or

                     (b)  both:

                              (i)  the application was made before the commencement of this Schedule, but a decision on the review had not been made as at the commencement of this Schedule; and

                             (ii)  on or after the commencement of this Schedule, the applicant is invited to appear before the Migration Review Tribunal under section 360 of that Act, or the Refugee Review Tribunal under section 425 of that Act, as the case may be, for the purposes of the review.

(3)       The following amendments of the Migration Act 1958 made by Part 1 of this Schedule are covered by this subitem:

                     (a)  amendments of sections 337, 349, 359AA, 359A, 362B, 410, 415, 424AA, 424A and 426A;

                     (b)  the insertion of new sections 362C and 426B.