Bills Digest 53 1996-97 Migration Legislation Amendment Bill (No. 3) 1996

Numerical Index | Alphabetical Index

WARNING:
This Digest is prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest was available from 16 November 1996.

CONTENTS

• Passage History
• Purpose
• Background and Main Provisions
• Remarks
• Endnotes
• Contact Officer and Copyright Details

Passage History

Migration Legislation Amendment Bill (No. 3) 1996

Date Introduced: 16 October 1996
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: Schedule 1 will commence on a day to be fixed by Proclamation, or on the first day after the end of six months on which it receives Royal Assent. Schedules 2, 3 and 4 commence at Royal Assent.

Purpose

The Migration Legislation Amendment Bill (No. 3) 1996 (the Principal Bill) proposes to effect the following changes:

• to 'roll' the Health Services Charge and the English Education Charge into the one visa application fee. This is to be done by the amendment of the Migration (Health Services) Charge Act 1991 and the Immigration (Education) Charge Act 1992 (the Charge Act) so that applications for visas made after the commencement of the Migration (Visa Application) Charge Bill 1996 (anticipated to be proclaimed on 1 January 1997) will be subject to the one fee;
• amend the Immigration (Education) Act 1971, to sever the connection between this Act and the Immigration (Education) Charge Act 1992. This is necessitated by the 'rolling' of the English Education Charge into the visa application fee. In addition, amendments are being made to clarify that migrants have only one entitlement to 510 hours of English language tuition;
• amend the Migration (Health Services) Charge Act 1991, so that applications for visas made after the commencement of the Migration (Visa Application) Charge Bill 1996 are not subject to the Health Services Charge. (As indicated above, the charge will be incorporated into the visa application fee.);
• amend the power to make regulations under the Migration Act 1958 to provide the Minister for Immigration and Multicultural Affairs with greater flexibility to 'cap' various components of the Migration Program, including those parts of the Preferential Family category that are currently exempt from 'capping';
• repeal section 87 of the Migration Act 1958 to remove the legislative exemption to the Minister's power to determine the maximum number of visas that may be granted within a financial year;
• implement a legislative exemption to the Sex Discrimination Act 1984 to allow the Minister to prescribe a two-year cohabitation period in respect of applicants who apply offshore for migration on the basis of a de facto or interdependency relationship with an Australian citizen or lawful permanent resident.(1) Married couples will not have to meet this requirement; and
• amend section 21 of the Australian Citizenship Act 1948 and the Migration Act 1958 to enable the Minister to deprive a person of Australian citizenship where that citizenship was obtained as a result of 'migration-related fraud'.

Background and Main Provisions

The visa application charge

The amendments concerning the visa application fee are aimed at implementing the Government's policy of cost recovery in respect of immigration procedures and services. In Meeting Our Commitments, the Coalition stated that it would apply full cost recovery principles in the Adult Migrant English Program for those immigrants subject to the English Education Charge.(2) The incorporation of the English Education Charge and the Health Services Charge into a global visa application fee will make it procedurally easier for the Government to implement this policy.

Currently, in addition to their visa application fee, applicants for permanent residence are also required to pay separate fees and charges in respect of education and health services. These charges are:

• the English Education Charge; since 1 January 1993, 'non-exempt' applicants for a permanent visa who are 18 years of age or over and do not have functional English have been required to pay this charge; and
• the Health Services Charge; payable by all applicants for a permanent visa where that application has been made on or after 21 August 1991.

As mentioned, the Principal Bill, in conjunction with the Migration (Visa Application) Charge Bill 1996, proposes to implement a single visa application charge. This is intended to replace the existing system of visa application fees, the English Education Charge and the Health Services Charge. The visa application fee will be as prescribed by the Migration Regulations.

The new arrangements are to apply to the following classes of application:

• visa applications made after the Migration (Visa Application) Charge Bill 1996 comes into force (ie. when it is Proclaimed). The date of Proclamation is expected to be on 1 January 1997 (Item 27, Schedule 1 of the Bill refers); and
• visa applications made before the commencement of the Migration (Visa Application) Charge Bill, where the visa application fee has not been paid in full - see Item 28 of the Principal Bill. (Note: the Migration Act 1958 states that a visa application is not valid unless any relevant application fee has been paid in full).

These applicants will not be bound to pay either the English Education Charge or the Health Services Charge.

Valid visa applications made before 1 January 1997 will still be subject to the English Education Charge and the Health Services Charge (as prescribed by the Immigration (Education) Charge Regulations 1993, and the Immigration (Health Services) Charge Regulations 1992).

Payment of the visa application fee

The Explanatory Memorandum to the Bill envisages that the visa application fee will be payable in instalments. An applicant will be required to pay the component of the fee representing the English Education Charge if he or she does not have 'functional English' (as determined by regulations made pursuant to subsection 5(2) of the Migration Act 1958).

Exemptions and concessions

Exemptions and concessions in relation to elements of the visa application fee will be left to be determined by the Migration Regulations. As relevant amendments to these regulations have not yet been Gazetted, it is not possible, at this stage, to discern whether there will be any change to the current exemptions and concessions. In this regard, it should be noted that the Minister for Immigration and Multicultural Affairs has previously announced publicly that migrants coming through the Humanitarian Program and the Preferential Family category of the Migration Program will continue to be exempt from the requirement to pay the English Education Charge.(3)

The legislative scheme

Item 19 of Schedule 1 inserts section 45A into the Migration Act 1958. This section provides that a non-citizen who makes an (otherwise valid) application for a visa is liable to pay a 'visa application charge' (the Charge). The amount of the Charge in respect of a class of visa is to be prescribed by the Migration Regulations. However, it must not exceed the 'visa application charge limit' (proposed section 45B).

The visa application charge limit is to be determined in accordance with proposed section 5 of the Migration (Visa Application) Charge Bill 1996. The mechanism for the calculation and imposition of the visa application charge limit has been introduced into a separate Bill to avoid possible problems arising out of the operation of section 55 of the Constitution.

• with respect to visa applications made in the financial year beginning 1 July 1996, the visa application charge limit is set at $12,500.

Proposed subsection 5(2) of the Charge Bill sets out a formula for the calculation of the visa application sets out a formula for the calculation of the visa application charge limit in subsequent years; generally, it will be indexed in accordance with movements in the Consumer Price Index.

Item 19 also inserts subsections 45C(1) and 45C(2), which state that regulations made under the Migration Act 1958 in relation to the Charge may provide for:

• the payment of the Charge in instalments;
• how and when the Charge is to be paid; and
• the categories of visa applicants who are to be exempt from paying some or all of the Charge.

In addition, the regulations may provide for the crediting of part or all of the charge paid in respect of one visa application against the charge payable in respect of another application.

Item 20 inserts subsection 46(1)(ba) after subsection 46(1)(b) of the Migration Act 1958. Section 46 specifies certain criteria that an application for a visa must meet before it is considered to be a valid visa application, and thus gives rise to an obligation on the part of the Minister to consider it.(4) Subsection 46(1)(ba) imposes an additional criterion; that, subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time the application has been paid.

• this amendment will allow regulations to be made which provide that a component of the visa application fee is to be paid at the time the application is made.

Item 26 amends subsection 5(1) of the Migration (Health Services) Charge Act 1991 to ensure that it no longer applies once the Migration (Visa Application) Charge Bill 1996 comes into force. This is to ensure that an applicant for a visa does not end up being liable for payment of both the health services charge 'component' of the visa application charge and the Health Services Charge.

Amendments to the Immigration (Education) Act 1971

The Immigration (Education) Act 1971 imposes an obligation upon the Commonwealth and the Minister for Immigration and Multicultural Affairs to provide 510 hours of English language tuition to newly arrived migrants who are assessed as not having 'functional English'. The Immigration (Education) Charge Act 1992 imposes a charge for English language tuition on migrants who applied to migrate to Australia after 1 January 1993.

English Language Programs

At the federal level, English language tuition is provided by both the Department of Immigration and Multicultural Affairs (DIMA) and the Department of Employment, Education, Training and Youth Affairs (DEETYA). DIMA is responsible for providing English language tuition to newly arrived migrants under the Adult Migrant English Program (AMEP). DEETYA is responsible for providing English language programs to job-seekers. The amendments in the Principal Bill operate in respect of AMEP.

To be eligible to receive English language tuition under AMEP, an applicant must either: be a migrant who arrived in Australia after 1991, or a temporary resident with a Gazetted temporary visa, or a migrant who has been granted permanent residence in Australia since 1 July 1991. In addition, an applicant must usually be 18 years of age or over, and must not already have used up their 510 hour entitlement to tuition.

The obligation of the Commonwealth and the Minister to provide the 510 hours of tuition ceases when:

• a person is determined to have attained 'functional English'; or
• the person fails to register for an AMEP program within three months of the commencement date of the visa (or when the person first arrived in Australia); or
• the person fails to commence an AMEP course within 12 months after the commencement date of the visa; or
• the 510 hour entitlement has not been used up by the end of 36 months after the commencement date of the visa.

The most significant amendments appear to be those proposed by Items 7 and 12 of Schedule 1 to the Principal Bill. Item 7 amends paragraph 4B(c) to ensure that the Minister's obligation to provide 510 hours of English tuition is limited only to those people who did not have functional English at the time of making the visa application.

Item 12 inserts paragraphs 4C(d) and 4C(e), which provide that the Commonwealth's obligation to provide English language tuition is limited to applicants who did not have functional English at the time of the making of the visa application. New paragraph 4C(e) provides for the making of regulations excluding persons from being provided with English tuition.

Item 13 of the Principal Bill inserts paragraph 4C(f), to clarify that the Commonwealth does not have an obligation to provide English language tuition where the person has previously been entitled to 510 hours of such tuition.

Schedule 2 - Capping of elements of the Migration Program

Power to impose limits on the maximum number of visas that may be granted in a particular financial year

Section 85 of the Migration Act 1958 currently provides for the Minister to determine the maximum number of visas for a specified class or classes which are to be granted in a specified financial year. Section 86 provides that, once the maximum number of visas in a specified class or classes has been granted, no more visas of that class or class may be granted in that financial year.

Section 87 provides for a legislative exemption to section 86; it states that section 86 does not prevent a visa being granted to a person who applies for it on the ground that he or she is the spouse, dependent child, or aged parent of an Australian citizen or lawful permanent resident of Australia.

In addition, section 84 gives the Minister the power to suspend the processing of visa applications in a specified class or classes, except in relation to persons whose application was made on the ground that he or she is a spouse, a dependent child, or aged parent of a citizen or lawful permanent resident of Australia (subsection 84(3)).

• the Bill proposes the repeal of section 87 and subsection 84(3). The implications of this will be discussed in detail later in the Digest.

The 'cap and kill' power

Subsection 39(1) of the Migration Act 1958 permits a prescribed criterion for visas of a specified class or classes (other than protection visas) to be that the grant of the visa would not cause the number of visas to be granted in a particular financial year to exceed the number determined by the Minister and published in the Gazette. Subsection 39(2) currently provides that any applications beyond the maximum number made during that financial year are taken not to have been made.

Disallowance

At present, determinations made by the Minister under section 85 and subsection 39(1) are not subject to disallowance. The Bill does not propose to change this situation. However, the DIMA has advised that these determinations constitute 'legislative instruments' in accordance with the Legislative Instruments Bill 1996. Thus, should the Legislative Instruments Bill be passed, these determinations will become disallowable instruments.

Item 4 of Schedule 2 proposes to repeal subsection 39(1), and substitute subsections 39(1), (1A) and (1B). The Bill also makes consequential amendments to subsection 39(2).

New subsection 39(1) provides that the Minister may, by notice in the Gazette, impose either or both:

• a numerical limit on the number of visas of a specified class or classes that may be granted in a specified financial year;
• a date after which no more visas of a specified class or classes may be granted.

Protection visas will continue to be exempt from determinations made under section 39(1).

Proposed subsections 39(1A) and (1B) respectively provide that, subject to the determinations being revoked under section 39(3), that no more visas of a specified class or classes may be granted in a financial year, if:

• the maximum number of visas in the specified class or classes for that financial year has been granted; and/or
• the date after which no more visas of the specified class or classes may be granted has passed.

Proposed subsection 39(3) provides that the Minister may, by notice in the Gazette, revoke a determination made under subsection 39(1), even if the maximum number of visas of a specified class has been granted, or the date after which visas will not be processed has passed. Subsection 39(4) provides that a determination that has been revoked may be replaced by a new determination.

Despite the power to revoke a determination, subsection 39(2) will still operate to deem applications beyond the maximum number, or that reach the 'head' of the queue after the date on which no more applications will be granted, as never having been made. It would appear that where an applicant has paid the required visa application fee and the application, by virtue of subsection 39(2), is deemed never to have been made, that this would give rise to a right on the part of the applicant to seek a refund of any visa application fee paid. This is particularly so, given that there appears to be nothing in the Migration Act 1958 or Migration Regulations which purports to stop an applicant from seeking a refund of his or her visa application fee.

Item 6 repeals existing subsection 84(3), to remove the legislative exemption to the Minister's power to suspend the processing of visa applications in relation to spouse, dependent child, or aged parent visa subclasses.

Item 8 proposes the amendment of section 85 along similar terms to proposed subsection 39(1), ie the Minister may place limits on the grant of visas of a specified class or classes in the terms proposed in subsection 39(1), above.

Schedule 3 - Amendments related to marital status

These amendments are to allow the Government to make regulations under the Migration Act 1958 providing that a prospective migrant who applies for a permanent visa on the basis of his or her de facto relationship with an Australian citizen or lawful permanent resident must satisfy a two-year cohabitation requirement before he or she is granted a permanent visa. The imposition of a two-year cohabitation requirement is in fulfilment of a Government electoral commitment.(5)

Legislative exemption to the Sex Discrimination Act 1984

Item 1 of Schedule 3 inserts section 507 to the Migration Act 1958. This section creates a legislative exemption from the Sex Discrimination Act 1984 (SDA), to the extent which it applies to the status or condition of being married or being the de facto spouse of another person, in relation to regulations, or the making thereof, which specify the nature and incidents of the relationship between a person and another person, or the period for which a relationship of a specified kind must have existed, before the person is taken to be the de facto spouse of the other person. Proposed paragraph 507(b) extends the legislative exemption so that it applies in connection to the administration of those regulations.

The legislative exemption has been sought to enable the Government to fulfil its policy objective in the area of applications by spouses. An applicant who is a de facto spouse of an Australian citizen or permanent resident will be required to cohabit with their partner for a period of two years before a permanent visa will be granted. On the other hand, an applicant who is married to an Australian citizen or permanent resident will not be required to satisfy a cohabitation requirement. The Government's rationale for this is that, '...it is unnecessary to impose a two year requirement on married couples because of the different legal consequences of marriage.'(6) In the absence of a legislative exemption from the SDA, this differential treatment would be unlawful, as it would constitute discrimination on the grounds of marital status.(7)

The Minister has foreshadowed exceptions to the two-year cohabitation requirement in relation to de facto couples in certain circumstances; eg. where there are children born of the relationship.(8)

Schedule 4 - Deprivation of Citizenship on the basis of 'migration-related fraud'

Power of the Minister to deprive a person of his or her citizenship

At present, section 21 of the Australian Citizenship Act 1948 gives the Minister the discretion to deprive persons of their citizenship, on one of the following grounds:

• where the person has been convicted under section 50 of the Act, which currently makes it an offence for a person to, for a purpose of, or related to an application for citizenship, make, or cause or permit to be made, a representation or statement that is false or misleading in a material particular, or to conceal a material circumstance; or
• where, at any time after lodging the application for citizenship, the person has been convicted of an offence in a foreign country, or under a law of the Commonwealth, State or Territory, and has been sentenced to death, or to imprisonment for a period of twelve months or more. This provision relates to offences committed at any time before the grant of citizenship, including any time before the making of the citizenship application; or
• where the Minister is satisfied that it would be contrary to the public interest to allow the person to continue to be an Australian citizen; and

the Minister is satisfied that it would be contrary to the public interest for the person to continue to remain an Australian citizen.

Subsection 52(2A) of the Act provides for applications to be made to the Administrative Appeals Tribunal for review of the Minister's decision to deprive someone of their citizenship on the basis of the grounds listed in section 21.

The current provisions have been the subject of criticism, as they do not allow the Minister to deprive a person of his or her citizenship in the situation where the application for citizenship was legitimately made, but the person had attained permanent residency (as opposed to citizenship) as a result of misrepresentation or fraud.(9)

Item 2 inserts a new ground into the Australian Citizenship Act 1948 (migration-related fraud) on the basis of which [subparagraph 21(1)(a)(iii)] which the Minister may deprive a person who has previously been granted Australian citizenship, of that citizenship. A person may seek a review of the Minister's decision under subparagraph 21(1)(a)(iii) in the Administrative Appeals Tribunal (section 52A).

Item 3 inserts subsection 21(1A), which sets out when a person will have been taken to have obtained a certificate of Australian citizenship as a result of migration-related fraud. Where, at any time (including after the grant of the certificate of citizenship) a person has been prosecuted and convicted of an offence against any of the following provisions of the Migration Act 1958:

• section 234 - which makes it an offence, in connection with entry into Australia or with an application for a visa, for a person to present or cause to be presented, forged documents, make or cause to be made, false or misleading statements, or present, or cause to be presented, false or misleading documents;
• section 236, which makes it an offence to use or possess another person's visa; and
• sections 243 and 244, which respectively make it offences to apply for a visa on the basis of a de facto or interdependency relationship where the applicant does not intend to have a genuine and continuing relationship with the other person.

In addition, conviction for certain offences under the Crimes Act 1914 (Commonwealth) also constitute grounds for 'migration-related fraud'. These are: section 29A, which makes it an offence to, among other things, obtain a 'benefit' from the Commonwealth through false pretences, section 29B, which makes it an offence to make a false representation to the Commonwealth with a view to obtaining, among other things, a 'benefit', and section 29D, which makes it an offence to defraud the Commonwealth. The Explanatory Memorandum to the Principal Bill suggests that an Australian visa is such a 'benefit'.(10)

As well, the act or omission that constituted the offence must be connected with the person's entry into Australia or the grant to the person of a visa or of a permission to enter and remain in Australia. Where the Minister is satisfied that the act or omission that constituted the offence was not in any way (whether directly or indirectly) material to the person becoming a permanent resident [proposed subsection 21(1B)], then the person will not be liable for deprivation of citizenship on the basis of migration-related fraud.

Hence, for example, a person who commits social security fraud after having legitimately entered Australia and was convicted of an offence under sections 29A, B or D, would not be liable for deprivation of citizenship on the ground of 'migration-related fraud', as the offence was not in any way material to the person becoming a permanent resident.

• however, if the person has been convicted of one of these offences (which was committed at any time before the grant of the certificate - including before the grant of the application) and had been sentenced to a period of imprisonment for 12 months or more, he or she would still be liable for deportation under section 21(1)(ii) of the Australian Citizenship Act 1948.

Item 5 amends section 50, which currently makes it an offence for a person to, for a purpose of, or related to, the Australian Citizenship Act 1948, to make, or cause or permit to be made, a representation or statement that is false in a material particular. Currently, subsection 50(2) imposes a 10-year time limit (from the commission of the offence) for the commencement of prosecutions. Item 5 inserts subsection 50(3), to remove the time limit in respect of persons who apply for and are granted, Australian citizenship after the commencement of that subsection (at Royal Assent). Hence, the provision will operate prospectively.

Item 7 adds subsection 492(2) to the Migration Act 1958. The effect of this amendment is to, after the commencement of the subsection, to remove the time limit for prosecution of a person for an offence against section 234, 236, 243 or 244 of the Act. Currently, section 492 imposes a five-year time limit for the commencement of prosecutions for offences against the Migration Act 1958 or the Migration Regulations. This amendment will apply prospectively.

Remarks

Amendments to the citizenship provisions

The addition of the new ground for the deprivation of citizenship and the removal of the time limitation on prosecution for offences under section 50A of the Australian Citizenship Act 1948 may, if they are enforced, lead to persons becoming stateless. This particularly applies to Australian citizens who were previously nationals of States that are no longer in existence. Historically, Governments have been reluctant to use the deprivation provisions where it would result in a person being left stateless, as this would entail a breach of Australia's international obligations.

It is a principle of international law that a State may deprive a person of his or her nationality, provided that it is not done arbitrarily (ie. that the deprivation must be carried out in accordance with the law, and not done, for instance, on the basis of grounds such as membership of a particular ethnic, cultural, religious or social group). However, the right of a State to deprive a person of his or her nationality is subject to the qualification that the person is not to be left stateless as a result.

The right of States to determine which persons may be its nationals is set out in Article 1 of the Convention on Certain Questions Relating to the Conflict of Nationality Laws (1930). Article 1 states: