The committee has sought further comment in relation to the following instruments

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The committee has sought further comment in relation to the following instruments

Migration Act 1958 - Determination of Granting of Protection Class XA Visas in 2013/2014 Financial Year - IMMI 14/026

FRLI: F2014L00224
Portfolio: Immigration and Border Protection
Tabled: House of Representatives and Senate, 6 March 2014

Summary of committee concerns

2.1        The committee seeks further information to determine the compatibility of this instrument with human rights.


2.2        This instrument operates to set the cap for the Protection (Class XA) visa (protection visa). It determines that the maximum number of protection visas that may be granted in the financial year 1 July 2013 to 30 June 2014 is 2773.[1] The instrument applies to all applicants who have applied for a protection visa, including applicants who have applied before the implementation of this cap.

2.3        The explanatory statement states that:

The purpose of this Legislative Instrument is to support the Government’s determination that no more than 2750 permanent Protection visas be granted to applicants who lawfully applied onshore under the onshore component of the 2013/2014 Humanitarian Programme. The figure of 2773 takes into account the temporary protection visas that were granted in 2013/2014.[2]

Compatibility with human rights

Statement of compatibility

2.4        The instrument is not accompanied by a statement of compatibility as it is not defined as a disallowable legislative instrument within the strict meaning of section 42 of the Legislative Instruments Act 2003.[3]

Committee view on compatibility

2.5        The committee notes that it had commented on a similar instrument in its Second Report of the 44th Parliament.[4] That instrument was subsequently revoked by the Minister but the committee took the opportunity to outline some of the human rights issues that the instrument gave rise to, as it was legislation that had come before the Parliament.

2.6                  The committee notes that a human rights compatibility assessment, addressing the committee's previously identified concerns, has not been provided for this instrument. The committee reiterates its view that legislative instruments which have the potential to limit human rights should be accompanied by a statement of compatibility, even if one is not technically required under the Human Rights (Parliamentary Scrutiny) Act 2011.[5]

2.7        The committee understands that there are approximately 5,800 persons in immigration detention, 3,300 people in community detention, and 22,900 people in the community on bridging visas.[6] The committee considers that to the extent that the instrument results in a freeze on processing, it may give rise to issues of compatibility with a number of human rights. 

2.8                  The committee intends to write to the Minister for Immigration and Border Protection to seek clarification on the following issues:

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