Bills Digest No. 70 2001-02
Migration Amendment (Excision from Migration Zone) (Consequential
Provisions) Bill 2001
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Migration Amendment (Excision from
Migration Zone) (Consequential Provisions) Bill 2001
Date Introduced: 18 September 2001
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: With the Migration Amendment
(Excision from Migration Zone) Act 2001
-
- amend the Migration Act 1958 to clarify the powers and
obligations relating to detention and movement of persons who
arrive unlawfully at certain places that are excised from
Australian territory for the purposes of the Migration Act
1958.
-
- amend the Migration Regulations 1994 to create a new class of
refugee and humanitarian visa for dealing with temporary movements
of persons seeking asylum.
A background to the measures contained in this
Bill appears in the Digest of the Migration Amendment (Excision
from Migration Zone) Bill 2001, Bills Digest No. 69, 2001-02.
Schedule 1
The measures in Schedule 1 of
this Bill complement those in the Migration Amendment (Excision
from Migration Zone) Bill 2001 (the Excision Bill) and the Border
Protection (Validation and Enforcement Powers) Bill 2001 (the
Validation Bill) in a number of ways.
Mandatory
Detention
Firstly, 'offshore entry persons' are exempted
from the mandatory detention provisions in section 189 of the
Migration Act 1958. However, if an officer knows or
reasonably suspects that a person in an excised offshore place is
an unlawful non-citizen, then the officer may detain that
person (new subsection 189(3)). An officer may
detain a person if s/he reasonably suspects that the person is a
non-citizen who is 'in Australia but outside the migration zone'
and is seeking to enter an excised offshore place without a visa
(new subsection 189(4)). This power overlaps with
the powers relating to the detention of ships and the detention of
persons aboard detained ships within the territorial
sea.(1) As with the Validation Bill, the powers are
extended to officers of the Australian Defence Force.
An 'offshore entry person' is a person who
entered an excised offshore place (for example, Christmas Island or
Ashmore and Cartier Islands) after the excision time for that place
(8 September 2001 for these places) and became an unlawful
non-citizen (a person who is present within the 'migration zone'
but does not have a visa) because of that entry.
Overseas
Processing
Secondly, an offshore entry person can be taken
from Australia to a declared country (new section
198A). The power to remove includes the power to place,
restrain or remove the person from a vehicle or vessel, with such
force as is necessary and reasonable, and can be exercised in or
outside Australia. A declared country is one which the Minister
declares:
-
- provides access to effective procedures for assessing the
refugee status of persons
-
- provides protection to these persons pending determination of
their refugee status
-
- provides protection to refugees pending voluntary return to
their country of origin or resettlement in another country,
and
-
- meets relevant human rights standards in providing that
protection.
It seems to be solely up to the Minister to
determine whether a country meets these criteria. It is not clear
whether such decisions will be reviewable by the courts.
Any detention under this provision is deemed not
to be 'immigration detention' for the purposes of the Migration
Act 1958 (new subsection 198A(4)). Thus, no
argument could be made, as was attempted by Mr Vadarlis in
Victorian Council for Civil Liberties Incorporated v the
Minister for Immigration and Multicultural Affairs, that the
persons who are detained are eligible to receive visa application
forms, legal advice, etc.
Privative
Clause
Thirdly, offshore entry persons are prevented
from continuing or instituting certain proceedings against the
Commonwealth in any court, excluding the original jurisdiction of
the High Court of Australia under section 75 of the Constitution
(new section 494AA).
Schedule 2
Background
Visas come in two broad categories:
permanent(2) and temporary.(3) The key
permanent visas under the refugee and humanitarian program fall
within the Refugee and Humanitarian (Migrant) (Class BA).
Class BA visas are set out in Schedule 1, item 1127 of the
Migration Regulations 1994. A person may apply offshore for a range
of subclasses of visa, based broadly on the criteria in the
following table.
|
200 (Refugee)
|
Applicant subject to persecution, is outside their country of
origin and can establish a compelling case, based on circumstances
including the degree of persecution
|
|
201 (In-country special humanitarian)
|
Applicant subject to persecution and is within their country of
origin
|
|
202 (Global special humanitarian)
|
Applicant subject to persecution and is outside their country of
origin
|
|
203 (Emergency Rescue)
|
Applicant subject to persecution, is either inside or outside
their country of origin and is in a life-threatening situation or
would be deported or imprisoned pending deportation
|
|
204 (Woman at Risk)
|
Applicant is a woman subject to persecution and is outside her
country of origin
|
A person subject to persecution and inside
Australia may apply onshore for a Protection Visa (Class XA). There
are two subclasses, temporary (785) and permanent (866). Class XA
visas are set out in Schedule 1, Part 4 (item 1401) of those
Regulations.
Schedule 2, item
1 of this Bill deletes item 1127 from the Regulations.
Schedule 2, items
2 and 3 reincorporate the Refugee and
Humanitarian (Migrant) (Class BA) criteria as Refugee and
Humanitarian (Class XB) (new item 1402) in
Part 4 under the new heading 'Protection, Refugee and Humanitarian
Visas'. A criterion is added to the 200 (Refugee), 202
(Global special humanitarian) and 204 (Woman at Risk)
subclasses. An applicant cannot, since fleeing persecution, have
lived for a week in a country in which he or she could have
obtained protection either through its refugee assessment
procedures or through an office of the United Nations High
Commissioner for Refugees in that country. (new clauses
200.212; 202.212 and 204.212). In effect,
if a person flees their country of origin to avoid persecution and
there is any protection regime in their country of first asylum,
whether domestic or international, they are prevented from applying
for any of the key protection, refugee and humanitarian
visas under the amended Migration Regulations 1994.
In addition to these amendments, two new visa
subclasses are added:
|
447 (Secondary Movement Offshore Entry (Temporary))
|
Applicant subject to persecution, discrimination amounting to
gross violation of human rights or is a woman at risk and
is an 'offshore entry person'
|
|
451 (Secondary Movement Relocation (Temporary))
|
Applicant subject to persecution, discrimination amounting to
gross violation of human rights or is a woman at risk and is
not an 'offshore entry person'
|
'Offshore entry person' is a status created by
the Migration Amendment (Excision from Migration Zone) Bill 2001.
It is a person who entered an excised offshore place after the
excision time for that place and became an unlawful non-citizen
because of that entry.
The visas permit the holder to travel to and
enter Australia on 1 occasion (as specified by the Minister) and
remain in Australia for 3 years (Subclass 447) or 5 years (Subclass
451) or, if the holder applies for a visa in this period, until an
application is finally determined.
In effect,
-
- a person who has fled their country of origin to avoid
persecution, but has been prevented from applying for a visa by
virtue of the measures in Schedule 2,
items 2 and 3, or
-
- a person who has arrived in an offshore excision place and has
been prevented from applying for a visa by virtue of the Excision
Bill (at the particular discretion of the Minister pursuant to a
notice issued under proposed section
46A(2)).
may apply for a secondary movement visa to enter
Australia once and for a limited period.
Privative
Clause
New section 494AA will prevent
certain proceedings against the Commonwealth from being instituted
or continued. The original jurisdiction of the High Court is not
affected.
The proceedings covered by new section
494AA include proceedings relating to the offshore entry,
the status or the detention of an offshore entry person, during any
part of 'the ineligibility period'. The ' ineligibility period' is
defined to be the period from the time of the offshore entry until
when the person next ceases to be an unlawful non-citizen. For the
purposes of this provision, an 'offshore entry' is an entry into an
excised offshore place (eg Christmas Island) after the excision
time for that place (8 September 2001).
Declaring
Countries
New section 198A refers to
'persons seeking asylum' and 'persons who are given refugee status'
in describing the ministerial power to declare countries for the
overseas processing of offshore entry persons. Significantly, the
Minister does not have to be satisfied that certain factors are
present before he or she declares a country. The declaration will
simply declare that the factors exist. One factor that is not
required is that a country is a signatory of the Refugees
Convention and therefore under the obligation not to
refoule.
A New Refugee and Humanitarian
Regime
It seems clear that the amendments proposed to
the Migration Regulations 1994 seek to establish a new regime for
conducting the refugee and humanitarian program. In his Second
Reading Speech the Minister for Immigration and Multicultural
Affairs stated that the new visa conditions and subclasses were
intended to 'implement a visa regime aimed at deterring further
movement from, or the bypassing of, other safe countries' by
'creating further disincentives to unauthorised arrival in
Australia [by boat]'.(4) Moreover, '[u]nauthorised
arrivals and those who leave their countries of first asylum will
be able to be granted only temporary visas for
Australia'.(5) The amendments will operate in this
way:
-
- a person who flees their country of origin to avoid
persecution, but who lives for a week in a country in which he or
she could have obtained protection, and
-
- a person who enters Australia by boat via Christmas Island,
Ashmore and Cartier Islands, or Cocos (Keeling) Islands (at the
discretion of the Minister).
will only be permitted to apply for a temporary
visa and, like the other applicants in the (offshore) humanitarian
and refugee program, will need to demonstrate a compelling case,
etc. In addition, as the Minister has indicated, 'their period of
stay ... will be limited to [between three and five] years, after
which their situation will be reassessed'.(6) Within
this time a visa application ought to be finally determined. At the
same time, conceivably, the circumstances giving rise to their
persecution may have materially changed.
-
- Under the Acts Interpretation Act 1901 'Australia'
includes the territorial sea. Thus, presence in the territorial sea
amounts to presence in Australia for the purposes of Australian
law. On this basis, the powers in this Bill overlap with the powers
to detain aboard ships in the territorial sea.
- The Migration Regulations describe a permanent visa as 'a visa
which gives the visa holder permission to remain in Australia
indefinitely. This permission may also carry with it a permission
to travel to and enter Australia. If it does, the permission to
remain in Australia is subject to the requirement that the person
be in Australia at the time of the grant of the visa or have
entered Australia within the period allowed for travel and entry'.
- The Migration Regulations describe a temporary visa as 'a visa
which may be granted subject to various conditions and gives
permission to remain in Australia for a limited period of time.
This visa may also give permission to travel to and enter Australia
during a particular period and to remain for a specified period
only if entry is made within the period allowed for travel and
entry'.
- The Hon. Philip Ruddock, MP, Migration Amendment (Excision from
Migration Zone) Consequential Provisions) Bill 2001, Second Reading
Speech, House of Representatives, Debates, 18/09/01, p.
30381.
- Ibid.
- Ibid.
Dy Spooner and Nathan Hancocok
26 September 2001
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ISSN 1328-8091
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