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SLI 2013 No. 156 Regulations as made
This regulation amends the Migration Regulations 1994 (‘the Principal Regulations’) to strengthen cancellation powers and create a new condition in relation to Bridging E (Class WE) visas (‘BVEs’). In particular, the regulation amends the Principal Regulations to create: • a discretionary power to cancel a BVE held by a person who is convicted of, or charged with, an offence in Australia or another country, or who is the subject of an Interpol notice relating to criminal conduct or to threat to public safety; and • a new discretionary visa condition to, when imposed, prohibit a person who has been granted a BVE from engaging in criminal conduct.
Administered by: Immigration and Citizenship
Made 28 Jun 2013
Registered 28 Jun 2013
Tabled HR 12 Nov 2013
Tabled Senate 12 Nov 2013
Date of repeal 30 Jun 2013
Repealed by Division 1 of Part 5A of the Legislative Instruments Act 2003

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 156

Issued by the Minister for Immigration and Citizenship

Migration  Act 1958

Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013

 

Subsection 504(1) of the Migration Act 1958 (‘the Act’) provides, in part, that the     Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, regulations may be made pursuant to the provisions of the Act listed in Attachment A.

The purpose of the Regulation is to amend the Migration Regulations 1994 (‘the Principal Regulations’) to strengthen cancellation powers and create a new condition in relation to Bridging E (Class WE) visas (‘BVEs’).

 

In particular, the Regulation amends the Principal Regulations to create:

 

·      a discretionary power to cancel a BVE held by a person who is convicted of, or charged with, an offence in Australia or another country, or who is the subject of an Interpol notice relating to criminal conduct or to threat to public safety;

 

·      a discretionary power to cancel a BVE where the Minister has been advised by an agency responsible for the regulation of law enforcement or security in Australia that the holder is under investigation by that agency and the head of that agency has advised the Minister that the holder should not hold a BVE; and

 

·      a new discretionary visa condition to, when imposed, prohibit a person who has been granted a BVE from engaging in criminal conduct.

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011.  The Statement’s overall assessment is that the Regulation is compatible with human rights.  A copy of the Statement is at Attachment B.

 

Details of the Regulation are set out in Attachment C.

The Office of Best Practice Regulation (the OBPR) has been consulted and advises that the changes do not have a regulatory impact on business or the non-for-profit sector and no further analysis is required.   The OBPR consultation reference is # 15088.

The Regulation is required as a matter of urgency at the direction of the Government to introduce a new visa condition and cancellation power for BVE holders. No further consultation beyond consultation with the Attorney General’s portfolio and the Department of the Prime Minister and Cabinet was undertaken.

 The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.

 

 

 

 

 

                                                                  Authority:     Subsection 504(1) of the

Migration Act 1958

 


ATTACHMENT A

 

 

Subsection 504(1) of the Migration Act 1958 (‘the Act’) provides, in part, that the     Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, the following provisions may apply:

 

  • subsection 31(1) of the Act, which provides that there are to be prescribed classes of visas;

·         subsection 41(1) of the Act, which provides that  visas, or visas of a specified class, are subject to specified conditions;

 

·         subsection 41(3) of the Act, provides that, in addition to any conditions specified under subsection 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection; and

 

·         Paragraph 116(1)(g) of the Act provides that the regulations prescribe the grounds for cancellation of a visa under section 116.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT B

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

This instrument involves six amendments to the Migration Regulations 1994 (the Regulations).

 

The purpose of these amendments is to strengthen cancellation powers and create a new condition in relation to the Bridging E (Class WE) visa (BVE) (either a Subclass 050 (Bridging (General)) visa (BVE 050) or a Subclass 051 (Bridging (Protection Visa Applicant)) visa (BVE 051)) where a holder engages in criminal conduct as described below. The Government has become increasingly concerned about unauthorised arrivals who engage in criminal conduct after being released into the community on BVEs while they wait for their claims for protection to be assessed.  The Government is also concerned about unauthorised arrivals who have been charged or convicted of an offence in another country or who are the subject of a notice issued by Interpol. Currently there is limited capacity for the Minister to cancel a BVE where concerns exist regarding the visa holder’s behaviour relating to criminal activity.

 

The first amendment is to subregulation 2.43(1) to create a discretionary power to cancel a BVE 050 or a BVE 051 where the Minister is satisfied that the holder:

·         has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country; or

·         has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or

·         is the subject of notice (however described) issued by Interpol for the purposes of  locating the holder or arresting the holder; or

·         is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:

    • has committed an offence against a law of another country; and
    • is likely to commit a similar offence; or
  • is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety.

 

The second amendment creates a discretionary power to cancel a BVE 050 or BVE 051 where the Minister has been advised by an agency responsible for the regulation of law enforcement or security in Australia that the holder is under investigation by that agency and the head of that agency has advised the Minister that the holder should not hold a BVE 050 or a BVE 051 visa.

 

Persons whose visas are cancelled as a result of the amendments will be able to seek merits review of the cancellation decision at the Migration Review Tribunal, except where a conclusive certificate has been issued by the Minister pursuant to section 339 of the Migration Act 1958 (the Act). Under section 339 of the Act, the Minister may issue a conclusive certificate in relation to the cancellation decision if the Minister believes that:

 

  • it would be contrary to the national interest to change the decision; or
  • it would be contrary to the national interest for the decision to be reviewed.

The third amendment inserts a new clause at the end of Division 050.6 of Schedule 2 of the Regulations. The new clause provides that, in addition to any condition imposed by another provision of the Schedule, condition 8564 may be imposed.  Condition 8564 would require that the visa holder must not engage in criminal conduct.

 

The effect of condition 8564 is that where it is imposed, a BVE 050 visa holder may have their visa cancelled under paragraph 116(1)(b) of the Act if they engage in criminal conduct. The condition would be discretionary such that the Minister may decide to impose it on a particular individual when granting a BVE 050.  The condition would only apply to BVE 050 visas that have been granted with the condition imposed.

 

Currently there is no condition in the Regulations which can be imposed on a visa holder that requires that they do not engage in criminal conduct. The purpose of this condition is to allow condition 8564 to be imposed on a BVE 050. 

 

The fourth amendment inserts a new clause at the end of Division 051.6 of Schedule 2 of the Regulations. The new clause provides provide that, in addition to any condition imposed by another provision of the Schedule, condition 8564 may be imposed.  Condition 8564 would require that the visa holder must not engage in criminal conduct.

 

The effect of condition 8564 is that where it is imposed, a BVE 051 visa holder may have their visa cancelled under paragraph 116(1)(b) if they engage in criminal conduct. The condition would be discretionary, in that, the Minister may decide to impose it on a particular individual when granting a BVE 051.  The new condition would only apply to BVE 051 visas that have been granted with the condition imposed.

 

Currently there is no condition in the Regulations which can be imposed on a visa holder that requires that they do not engage in criminal conduct. The purpose of this condition is to allow condition 8564 to be imposed on a BVE 051.

 

The fifth amendment inserts a new condition 8564 at the end of Schedule 8 of the Regulations. The new condition provides that a visa holder must not engage in criminal conduct.

 

Currently there is no condition in the Regulations that requires that a visa holder not engage in criminal conduct.

 

The purpose if this amendment is to provide the Minister with the ability, where the condition has been imposed, to cancel a person’s BVE if they have engaged in criminal conduct.

 

The sixth amendment would insert a new Part at the end of Schedule 13 which provides that the amendments made by Schedule 1 to the Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013 apply on and after the day that regulation commences.

 

The consequences of BVE cancellation on any of the above grounds are as follows:

  • The person may, depending on the circumstances of the case, be liable for removal as an unlawful non-citizen on the grounds set out in section 198 of the Act.
  • It may expose the person to being ‘taken’ to a regional processing country for processing of those claims in accordance with government policy.
  • The re-detention of an unauthorised arrival whose BVE has been cancelled will have the effect of restoring that person to the situation prior to their release from detention where they were subject to mandatory detention under the Act.  If the Minister does not intervene under section 195A of the Act to grant a further BVE, an unauthorised arrival is liable to remain in detention until their claims for protection are assessed and a substantive visa is granted, they chose to depart, or they are removed following finalisation of assessment processes and refusal of their claims. Cancellation of the BVE restores the former BVE holder to that situation.
  • The cancellation of BVEs held by persons who are not unauthorised arrivals places these people in the same situation as other unlawful non-citizens, that is they are liable for removal subject to the provisions of section 198 of the Act.

 

In respect of the above, the following is of note:

  • Detention of the individual will not expose the person to removal action where there are unassessed claims for protection or, under section 153(2) of the Act, where removal would be in breach of an order of the High Court, the Federal Court or the Federal Circuit Court.
  • It will not enliven any removal process where there are other visa applications on foot.
  • There are provisions in the migration legislation to ensure that a court can order removal to be suspended.

 

Human rights implications

Article 3(1) of the CAT and Articles 6 and 7 of the ICCPR – non-refoulement

 

The amendments potentially engage Article 3(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT) and Articles 6, and 7 of the ICCPR.

 

These obligations would only be engaged in circumstances where the cancellation of a BVE results in the removal of an individual. This will not necessarily be the outcome in all cases.

 

Individuals would not be subject to removal unless and until their claims for protection had been assessed according to law.

 

 

Article 9(1) of the ICCPR – prohibition on arbitrary detention

 

Article 9(1) of the ICCPR states that:

1.      Every person has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

 

Australia takes its obligations to people in detention very seriously.  The Australian Government’s position is that the detention of individuals requesting protection is neither unlawful nor arbitrary per se under international law.  Continuing detention may become arbitrary after a certain period of time without proper justification.  The determining factor, however, is not the length of detention, but whether the grounds for the detention are justifiable.

In the context of Article 9, ‘arbitrary’ means that detention must have a legitimate purpose within the framework of the ICCPR in its entirety.  Detention must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose to be achieved.

As stated above, a BVE may be cancelled by virtue of these amendments. The objective of this proposal is to ensure the safety of the Australian which is a legitimate objective under the ICCPR. 

Further, comprehensive policy guidance will be provided to decision-makers to assist decision makers to exercise their discretion. An additional safety mechanism in relation to the use of this discretion is that a person whose BVE has been cancelled will have access to merits review unless the Minister issues a conclusive certificate under s 339 of the Act.  A person whose BVE is cancelled will also have access to judicial review.

 

Before a BVE is cancelled, a person will be notified of the Department’s intention to cancel the visa by way of a Notice of Intention to Consider Cancellation. This is a statutory requirement under section 116 of the Act.

 

The BVE holder is given the opportunity to provide reasons why the visa should not be cancelled. Where the former BVE holder is onshore, the decision to cancel will be subject to merits review unless the Minister issues a conclusive certificate under section 339 of the Act.  Judicial review is also available.

The amendments also potentially engage Article 37(b) of the CRC. Article 37(b) provides that:

No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

Section 4AA of the Act reflects the content of Article 37(b) while providing lawful grounds for the detention of children at domestic law.  Section 4AA of the Act states that:

1.      The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.

2.      For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.

As with the detention of adult unlawful non-citizens, the detention of children must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable and proportional in relation to the purpose to be achieved.

The detention of children whose BVEs may be cancelled in accordance with these amendments is lawful by virtue of existing section 4AA of the Act. The objective in cancelling the BVE of a child who has engaged in or is suspected of being engaged in criminal behaviour has as its objective the protection of the Australian community.

Questions of proportionality may be addressed in the exercise of discretion by the decision maker. Policy guidance will be made available to decision makers and will cover issues such as:

·         Australia’s obligations under the CRC;

·         obligations under other international legal instruments;

·         the age of the visa holder and any vulnerabilities;

·         the family situation of the visa holder;

·         practical considerations around detaining the visa holder in light of their family situation (including whether a community detention placement is available and/or appropriate); and

·         the requirement that a minor should only be detained as a measure of last resort.

In light of the above considerations, the amendments are not inconsistent with Article 9(1) of the ICCPR and Article 37(b) of the CRC. 

 

Article 17(1) and Article 23(1) of the ICCPR and Article 16(1) of the CRC – prohibition of the unlawful and arbitrary interference with family and protection of the family unit

Article 17(1) of the ICCPR states that:

1.      No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 16(1) of the CRC largely replicates Article 17(1) of the ICCPR, however in so doing, makes the obligation specific to children.

Article 23(1) of the ICCPR provides that:

1.      The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The United Nations Human Rights Committee has noted that Articles 17 and 23 of the ICCPR “must be read against Australia’s right, under international law, to take reasonable steps to control the entry, residence and expulsion of aliens”.

A well-known feature of Australia’s migration framework is that unlawful non-citizens (i.e. non-citizens who do not hold a valid visa) will be subject to mandatory detention. Legislative amendments that contemplate cancellation of a visa and subsequent detention add to a suite of existing laws that are well-established, generally applicable and predictable. This will be the case also for the amendments.  Further, the amendments present a reasonable response to achieving a legitimate purpose under the Covenant – the safety of the Australian community. Any questions of proportionality will be resolved by way of comprehensive policy guidelines on matters to be taken into account when exercising the discretion to cancel a BVE, including consideration of family relationships and the effect of separation on children.

Depending on the circumstances of the case there may also be scope for family members to choose to reside with the unlawful non-citizen in detention. The amendments cannot be said to give rise to the unlawful or arbitrary interference with family and as such are consistent with Articles 17(1) and 23(1) of the ICCPR or Article 16(1) of the CRC.

 

Article 3(1) of the CRC – Best interests of the child

Article 3(1) of the CRC states that:

1.      In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

Article 3(1) of the CRC therefore obliges the Department, in all decisions relating to children, to consider the best interests of the child as a primary consideration. This obligation would arise in relation to any decision to cancel a BVE held by the child themselves or a BVE held by a parent of the child. In the former circumstance, the effect would be that the child may be detained pursuant to the Act and may be separated from their family unit. In the latter, the effect may be that the parent is detained pursuant to the Act, resulting in the separation of the family unit.

The best interests of the child are a, not the, primary consideration to be taken into account in decisions affecting a child and may be outweighed by other countervailing considerations including the safety of the Australian community. However, as noted above under Article 37(b) of the CRC, comprehensive policy guidance in respect of children’s issues will be available to decision-makers to assist them in exercising their discretion. 

On the basis that the best interests of the child can be considered as a primary consideration in the exercise of the discretion to cancel a BVE, the amendments are consistent with Article 3(1) of the CRC.

 

Conclusion

In relation to Article 3(1) of the CAT, Articles 6, 7, 9, 17 and 23 of the ICCPR and Articles 3(1), 16(1) and 37(b) of the CRC, the amendments are consistent with Australia’s obligations under the respective international human rights treaties.

The amendments are therefore compatible with human rights.

 

The Hon. Brendan O’Connor MP, Minister for Immigration and Citizenship

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT C

 

Details of the Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013

 

Section 1 – Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013.

 

Section 2 – Commencement

 

This section provides that the Regulation commences on the day after it is registered.

 

The purpose of this section is to provide for when the amendments made by the Regulation commences.

 

Section 3 – Authority

 

This section provides that the Regulation is made under the Migration Act 1958 (‘the Act’).

 

The purpose of this section is to set out the Act under which the Regulation is made.

 

Section 4 – Schedule(s)

 

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

 

The purpose of this section is to provide for how the amendments in the Regulation operate.

 

Schedule 1 – Amendments

 

Item 1 – At the end of Subregulation 2.43(1)

 

This item inserts new paragraph 2.43(1)(p) and new paragraph 2.43(1)(q), to provide  new prescribed grounds of cancellation of a Subclass 050 (Bridging (General)) visa (‘Subclass 050 visa’) or a Subclass 051 (Bridging (Protection Visa Applicant)) (‘Subclass 051 visa’)  under paragraph 116(1)(g) of the Act.

 

Section 116(1) gives the Minister discretion to cancel visas on grounds specified in the section or prescribed in the Principal Regulations.

 

A Subclass 050 visa is intended to allow an unlawful non-citizen to lawfully remain in Australia temporarily for a specific purpose.

 

A Subclass 051 visa is intended to allow an unlawful non-citizen to lawfully remain in Australia temporarily while their Protection visa application is being assessed.

 

Paragraph 2.43(1)(p) allows the Minister to exercise this discretion in the case of the holder of a Subclass 050 visa or a Subclass 051 visa, where the Minister is satisfied that the holder:

 

·         has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country; or

 

·         has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or

 

·         is the subject of  a notice (however described) issued by Interpol for the purposes of locating the holder or arresting the holder; or

 

·         is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:

 

    • has committed an offence against a law of another country; and

 

    • is likely to commit a similar offence; or

 

  • is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety.

New paragraph 2.43(1)(q) allows the Minister to exercise this discretion in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa where the Minister has been advised by an agency responsible for the regulation of law enforcement or security in Australia that the holder is under investigation by that agency and the head of that agency has advised the Minister that the holder should not hold a BVE.

The effect of this amendment is that the Minister will have a discretionary power to cancel a BVE where the holder: has been charged or convicted of an offence in Australia or another country; or alternatively is subject to an Interpol notice as outlined above; or alternatively, the holder is under investigation by an agency responsible for the regulation of law enforcement or security in Australia and the head of that agency has advised the Minister that the holder should not hold a BVE.

The Government has become increasingly concerned about BVE holders who engage in criminal conduct or represent a risk to public safety.  Previously there was limited capacity for the Minister to cancel a BVE where concerns exist regarding the visa holder’s conduct relating to criminal activity.

The purpose of this amendment is to allow the Minister to cancel a BVE where he or she is satisfied a visa holder: has been convicted of a criminal offence or has been charged with a criminal offence either in Australia or another country; or alternatively, is subject to an Interpol notice as outlined above; or alternatively, is under investigation by an agency responsible for the regulation of law enforcement or security in Australia and the head of that agency has advised the Minister that the holder should not hold a BVE.

While the new cancellation grounds capture a wide range of criminal offences, a decision to cancel will be based on the individual merits of a client’s case, including the severity of an offence.  The discretion to cancel a BVE might not be exercised, for example, where Australia has obligations under international law towards the client or their family or where there are compelling grounds to not cancel, such as if the client is a minor, a carer or otherwise vulnerable. The discretion to cancel might also not be exercised, for example, where there are grounds to consider that a charge has been improperly brought by the state from which the person is seeking protection.

 

Persons whose visas are cancelled under section 116 on the basis of the new prescribed ground will generally be able to seek merits review of the cancellation decision at the Migration Review Tribunal.

 

Item 2 – At the end of Division 050.6 of Schedule 2

 

This item inserts new clause 050.618 in Schedule 2 to the Principal Regulations.

Clause 050.618 provides that, in addition to any condition imposed by another provision of the Division, condition 8564 may be imposed.

 

A Subclass 050 visa is intended to allow an unlawful non-citizen to lawfully remain in Australia temporarily for a specific purpose.

 

Condition 8564 requires that the visa holder must not engage in criminal conduct.

 

The effect of the condition 8564 is that a Subclass 050 visa holder may have their visa cancelled if they engage in criminal conduct. The condition is discretionary, in that the Minister may decide to impose it on a particular individual when granting a Subclass 050 visa.  The new condition only applies to the holder of a Subclass 050 visa granted with the condition imposed. If imposed, the visa holder would be subject to the condition, and may have their visa cancelled under paragraph 116(1)(b) of the Act if the condition is breached.

 

The Government has become increasingly concerned about BVE holders who engage in criminal conduct or represent a risk to public safety. Previously, there was no condition in the Principal Regulations which could be imposed on a visa holder that requires that they do not engage in criminal conduct.

 

The purpose of this condition is to allow condition 8564 to be imposed on a Subclass 050 visa.  This sends a strong message to Subclass 050 visa holders about the behaviour expected of them when they are in the Australian Community.  

 

Item 3 – At the end of Division 051.6 of Schedule 2

 

This item inserts new clause 051.613  in Schedule 2 to the Principal Regulations.

 

New clause 051.613 provides that, in addition to any condition imposed by another provision of the Division, condition 8564 may be imposed.  Condition 8564 requires that the visa holder must not engage in criminal conduct.

 

A Subclass 051 visa is intended to allow an unlawful non-citizen to lawfully remain in Australia temporarily while their Protection visa application is being assessed.

 

The effect of the new condition 8564 is that a Subclass 051 visa holder may have their visa cancelled if they engage in criminal conduct. The condition is discretionary, in that, the Minister may decide to impose it on a particular individual when granting a Subclass 051 visa.  The new condition only applies to the holder of a Subclass 051 visa granted with the condition imposed. If imposed, the visa holder would be subject to the condition, and may have their visa cancelled under paragraph 116(1)(b) of the Act if the condition is breached.

 

The Government has become increasingly concerned about BVE holders who engage in criminal conduct or represent a risk to public safety. Previously, there was no condition in the Principal Regulations which could be imposed on a visa holder that required that they do not engage in criminal conduct.

 

The purpose of this condition is to allow condition 8564 to be imposed on a Subclass 051 visa.  This sends a strong message to Subclass 051 visa holders about the behaviour expected of them when they are out in the community.

 

Item  4 – At the end of Schedule 8

 

This item inserts new condition 8564 in Schedule 8 to the Principal Regulations.

 

New condition 8564 provides that a visa holder must not engage in criminal conduct.

 

Paragraph 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa.

 

The Government has become increasingly concerned about BVE holders who engage in criminal conduct or represent a risk to public safety. Previously, there was no condition that could be applied on a visa holder which required that they do not engage in criminal conduct.

 

The purpose of this amendment is to provide the Minister with a condition under which he or she can consider cancelling a person’s BVE if they have engaged in criminal conduct.

 

Item 5 – At the end of Schedule 13

 

This amendment inserts Part 16A - Amendments made by the Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013.

 

The title of new item 16A01 is ‘Operation of Schedule 1’.

 

Item 16A01 provides that the amendments made by Schedule 1 to the Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013 apply in relation to a visa granted on or after the day that the regulation commences.