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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 15 Oct 2015
Introduced HR 14 Oct 2015
Table of contents.

2013‑2014‑2015

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Migration Amendment (Complementary Protection and Other Measures) Bill 2015

 

No.      , 2015

 

(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............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Part 1—Amendments                                                                                                    3

Migration Act 1958                                                                                                     3

Part 2—Application and savings provisions                                                      9

 

 


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 (Complementary Protection and Other Measures) Act 2015.

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

Provisions

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

A single day to be fixed by Proclamation.

However, if the provisions 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  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

Part 1Amendments

Migration Act 1958

1  Subsection 5(1) (subparagraph (b)(iii) of the definition of fast track decision)

Repeal the subparagraph, substitute:

                            (iii)  subsection 36(2C).

2  Subsection 5(1) (definition of significant harm)

Omit “36(2A)”, substitute “5LAA(3)”.

3  Paragraph 5H(1)(a)

Omit “the country of his or her nationality and, owing to a well‑founded fear of persecution”, substitute “the person’s receiving country and, owing to a well‑founded fear of persecution in relation to that country”.

4  Paragraph 5H(1)(b)

Omit “the country of his or her former habitual residence and owing to a well‑founded fear of persecution”, substitute “the person’s receiving country and, owing to a well‑founded fear of persecution in relation to that country”.

5  Subsection 5J(1)

After “persecution”, insert “in relation to a country”.

6  Paragraph 5J(1)(b)

Omit “returned to the receiving country”, substitute “were in the country”.

7  Paragraph 5J(1)(c)

Omit “a receiving country”, substitute “the country”.

8  Subsection 5J(2)

Repeal the subsection (not including the note), substitute:

             (2)  A person does not have a well‑founded fear of persecution in relation to a country if effective protection measures against persecution are available to the person in the country.

9  Subsection 5J(3)

After “persecution”, insert “in relation to a country”.

10  Subsection 5J(3)

Omit “a receiving country”, substitute “the country”.

11  After section 5L

Insert:

5LAA  Real risk that a person will suffer significant harm

             (1)  For the purposes of the application of this Act and the regulations to a particular person, there is a real risk that the person will suffer significant harm in a country if:

                     (a)  the real risk relates to all areas of the country; and

                     (b)  the real risk is faced by the person personally.

             (2)  For the purposes of paragraph (1)(b), if the real risk is faced by the population of the country generally, the person must be at a particular risk for the risk to be faced by the person personally.

             (3)  A person will suffer significant harm if:

                     (a)  the person will be arbitrarily deprived of his or her life; or

                     (b)  the death penalty will be carried out on the person; or

                     (c)  the person will be subjected to torture; or

                     (d)  the person will be subjected to cruel or inhuman treatment or punishment; or

                     (e)  the person will be subjected to degrading treatment or punishment.

             (4)  There is not a real risk that a person will suffer significant harm in a country if effective protection measures against significant harm are available to the person in the country.

Note:          For effective protection measures, see section 5LA.

             (5)  There is not a real risk that a person will suffer significant harm in a country if the person could take reasonable steps to modify his or her behaviour so as to avoid a real risk that the person will suffer significant harm in the country, other than a modification that would:

                     (a)  conflict with a characteristic that is fundamental to the person’s identity or conscience; or

                     (b)  conceal an innate or immutable characteristic of the person; or

                     (c)  without limiting paragraph (a) or (b), require the person to do any of the following:

                              (i)  alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

                             (ii)  conceal his or her true race, ethnicity, nationality or country of origin;

                            (iii)  alter his or her political beliefs or conceal his or her true political beliefs;

                            (iv)  conceal a physical, psychological or intellectual disability;

                             (v)  enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

                            (vi)  alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

12  Subsection 5LA(1)

Omit “are available to the person in a receiving country”, substitute “against persecution or significant harm are available to the person in a country”.

13  Paragraph 5LA(1)(a)

After “persecution”, insert “or significant harm (as the case requires)”.

14  Subsection 5LA(2)

After “persecution”, insert “or significant harm”.

15  Paragraph 36(2)(aa)

After “significant harm”, insert “in the receiving country or another country (see section 5LAA)”.

16  Subsections 36(2A), (2B) and (2C)

Repeal the subsections, substitute:

Ineligibility for grant of protection visa

          (2C)  A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if the Minister has serious reasons for considering that:

                     (a)  the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

                     (b)  the non‑citizen committed a serious non‑political crime before entering Australia; or

                     (c)  the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations.

17  Subsection 36(3)

After “protection obligations”, insert “because of a matter mentioned in paragraph (2)(a) or (aa)”.

18  Subsection 36(4)

Omit “in respect of which”, substitute “if”.

19  Paragraph 36(4)(a)

Repeal the paragraph, substitute:

                     (a)  the non‑citizen has a well‑founded fear of persecution in relation to the country (see section 5J); or

20  Paragraph 36(4)(b)

Omit “in relation to the country”, substitute “in the country (see section 5LAA)”.

21  Subsection 36(5)

Repeal the subsection, substitute:

             (5)  Subsection (3) does not apply in relation to a country if:

                     (a)  the non‑citizen has a well‑founded fear that the country will send the non‑citizen to another country; and

                     (b)  the non‑citizen has a well‑founded fear of persecution in relation to the other country (see section 5J).

22  Paragraph 36(5A)(a)

Omit “return”, substitute “send”.

23  Paragraph 36(5A)(b)

Omit “in relation to the other country”, substitute “in the other country (see section 5LAA)”.

24  After paragraph 336F(5)(c)

Insert:

                  (caa)  the person is an unauthorised maritime arrival:

                              (i)  who makes a claim for protection as a refugee; and

                             (ii)  who, following assessment of his or her claim, is found to be a person in respect of whom there are reasonable grounds for considering that he or she is a danger to Australia’s security or is a person who, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community; or

25  Paragraph 411(1)(c)

Omit all the words after “relying”, substitute “on subsection 5H(2) or 36(1B), (1C) or (2C)”.

26  Subparagraph 411(1)(d)(i)

After “36(1C)”, insert “or (2C)”.

27  Subparagraph 411(1)(d)(ii)

Omit “1979); or”, substitute “1979).”.

28  Subparagraph 411(1)(d)(iii)

Repeal the subparagraph.

29  Paragraph 500(1)(c)

Omit all the words after “relying”, substitute “on subsection 5H(2) or 36(1C) or (2C)”.

30  Paragraph 500(4)(c)

Omit all the words after “relying”, substitute “on subsection 5H(2) or 36(1C) or (2C)”.

31  Subparagraph 502(1)(a)(ii)

After “36(1C)”, insert “or (2C)”.

32  Paragraph 503(1)(c)

After “36(1C)”, insert “or (2C)”.

Part 2Application and savings provisions

33  Application of amendments

(1)       The amendments made by Part 1 apply in relation to a protection obligations assessment that is made as a result of an application for a visa that is made, or an administrative process that starts, on or after the day this item commences.

(2)       For the purposes of subitem (1), a protection obligations assessment is 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.

34  Savings provision—prescribed international instruments

Regulations in force for the purposes of subparagraph 36(2C)(a)(i) of the Migration Act 1958 immediately before the commencement of this item continue in force, at and after that commencement, for the purposes of paragraph 36(2C)(a) of that Act.