Bills Digest no. 51,
2016–17
PDF version [651KB]
Claire Petrie
Law and Bills Digest Section
7
December 2016
Contents
Purpose of the Bill
Background
Visa revalidation
Longer-term visitor visa
Revalidation checks
Contactless immigration clearance
Contactless technology at airports
Biometric data and the Migration
Act
Committee consideration
Senate Standing
Committee on Legal and Constitutional Affairs
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Existing provisions
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Schedule 1—Revalidation check for
certain visas
Revalidation check framework
Effect of failure to pass
revalidation check
Public interest revalidation check
Schedule 2—Cessation of visas that
are not in effect
Schedule 3—Immigration clearance
Evidentiary requirements for
immigration clearance
Consequential and other amendments
Date introduced: 19
October 2016
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: Sections
1 to 3 upon Royal Assent. Schedules 1 to 3 commence on Proclamation or six
months after Royal Assent, whichever is sooner.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at December 2016.
Purpose of
the Bill
The purpose of the Migration Amendment (Visa Revalidation
and Other Measures) Bill 2016 (the Bill) is to amend the Migration Act 1958
(Cth)[1]
to:
- introduce
a new revalidation check framework for visas (initially, the ten-year visitor
visa)
- clarify
when a visa ‘ceases to be in effect’ under the Migration Act and
- enable
the use of contactless SmartGate technology during immigration clearance.
Background
Visa
revalidation
Longer-term
visitor visa
In his second reading speech for the Bill, Minister for
Immigration and Border Protection, Peter Dutton stated that the introduction of
a visa revalidation requirement would support the pilot of a proposed ten-year
validity visitor visa, noting:
Tourism is a vital part of the Australian
economy, providing employment for around 600,000 Australians and accounting for
more than $120 billion of economic activity. The government is committed to
boosting tourism across the nation, which in turn helps grow our domestic
economy.
The introduction of a 10-year visitor visa
will encourage repeat visits by genuine tourists and businesspeople choosing
Australia as their preferred destination. However, 10 years is a long time and
it is likely that an individual’s circumstances will change throughout the visa
validity period.[2]
The Explanatory Memorandum to the Bill further indicates that
a longer validity visitor visa is being created in response to the 2015 Our
North, Our Future: White Paper on Developing Northern Australia.[3]
The White Paper highlighted the Government’s commitment to ‘increase tourism in
the north and across Australia by targeting the world’s fastest growing
outbound tourist markets—China and India’.[4]
It noted that changes to Australia’s existing visa requirements could help to
boost tourism from these markets, and flagged a number of measures, including:
- allowing
electronic lodgement of visitor visa applications for visitors from China (from
2016) and India (from the end of 2017)
- trial
of a fast track service for visas, with a proposed 48-hour turnaround, for
visitors from China and
- trial
of a ten-year validity visa for Chinese visitors.[5]
Official statistics released by the Department of
Immigration and Border Protection (the Department) indicate that 4.8 million
visitor visas were granted in 2015–16 and that the number of visitor visa
grants to Chinese nationals has grown significantly over the past five years,
from 324,712 in 2010–11 to 801,761 in 2015–16:
The Department’s facilitation of legitimate visitors to
Australia provides benefits to the Australian community, including support to
the tourism industry and international business activity. The efficient
delivery of the visitor visa programme balances national security and community
protection with economic and trade interests.
...
Further innovations for the China visitor market have been
announced, including a trial of an online visitor visa lodgement option in
Chinese, and a 10-year validity visitor visa to reduce red tape for frequent
travellers. A ‘fast track’ visitor visa processing service for an additional
fee commenced as a trial for Chinese nationals in March 2016.[6]
Tourism Australia reports that visitors from China
generated $8.3 billion in total expenditure in 2015.[7]
The pilot ten-year visa for Chinese nationals was publicly
announced in a joint media release by the Minister for Immigration and Border
Protection, Peter Dutton, Minister for Trade and Investment, Andrew Robb and
Assistant Minister for Immigration and Border Protection, Michaelia Cash on 17
June 2015, the same day that Australia signed the Free Trade Agreement with
China.[8]
In announcing the initiative, Andrew Robb noted that ‘increased visitor numbers
in Australia translates into significant benefits for Australians and our economy.
China is our largest source of tourism, already worth over $5 billion to the
Australian economy’.[9]
In May 2016, Minister for Tourism and International Education, Richard Colbeck,
noted that a ten-year visitor visa for China would be available online in
Simplified Chinese in 2016, with this being the first time Australia has
trialled visa application lodgement in a language other than English.[10]
The Department has indicated that the ten-year visa will
commence on 12 December 2016.[11]
It has introduced the framework for a new Frequent Traveller stream of the Subclass
600 (Visitor) visa through the Migration Legislation
Amendment (2016 Measures No. 5) Regulation 2016 (2016 Regulation), which
commenced on 19 November 2016. The 2016 Regulation specifies that the
Frequent Traveller stream visa will:
- have
an application fee of $1,000[12]
- apply
to persons intending to visit Australia as a tourist or on business[13]
and
- enable
the visa holder to travel to Australia on multiple occasions during a maximum
period of ten years, and to remain in Australia for up to three months at a
time (with a maximum of 12 months in any 24-month period).[14]
An applicant for a visa in the Frequent Traveller stream must
meet requirements specified by the Minister via legislative instrument, in
regards to:
- the
place at which, and manner by which, the application must be made
- the
applicant’s location, which must be outside Australia and at a place specified
by the Minister (if any) and
- the
kind of passport which the applicant must hold.[15]
The announcement of the new visa does not appear to have
been part of a reciprocal arrangement with China. However, China has entered
into reciprocal arrangements with a small number of countries for the offering
of ten-year multi-entry visas. In November 2014, the United States and China agreed
to a reciprocal arrangement to offer ten-year visas for nationals of each
country, covering travel for business and tourism purposes.[16]
China has subsequently entered into similar arrangements with Canada and
Israel.[17]
Singapore also offers ten-year visas for Chinese visitors.[18]
Revalidation
checks
The Bill introduces a legislative framework by which visa
holders may be required to undergo a ‘revalidation check’ at one or more points
during the visa period. The Explanatory Memorandum states that the framework
anticipates issues which may arise from the introduction of a longer-term visa:
The revalidation framework provides a mechanism to require
visa holders to routinely update the information they have previously provided
to the Department of Immigration and Border Protection through their secure
online account as their circumstances change, including contact and passport
details. The framework is also designed to manage the risks to the Australian
community that may arise in the context of longer validity Visitor visas,
including a person’s individual circumstances changing over time, or in the
event of a serious incident occurring overseas which may create a situation
where it is in the public interest to reassess a visa holder’s individual
circumstances in light of such an event. The amendments will allow the
government to ensure that visa holders continue to meet the health, character,
security and other requirements for entry to Australia.[19]
A requirement that a visa-holder’s eligibility be reassessed
during the course of the visa period appears to be relatively uncommon—for
example, it does not appear to be currently used by any of the countries which
have implemented ten-year visas for Chinese nationals. However, the United
States is in the process of introducing the Electronic
Visa Update System (EVUS), maintained by US Customs and Border Protection
within the Department of Homeland Security.[20]
From 29 November 2016, all international visitors holding ten-year business or
tourism visitor visas (currently available only to Chinese nationals) are
required to update biographical and other information from their visa
application via the EVUS every two years, or upon getting a new passport or
visa, whichever occurs first.[21]
A successful EVUS enrolment is required in addition to the visa, for a person
to travel to the United States.[22]
In issuing its Rule establishing the EVUS, Department of Homeland Security
stated:
While visas with a longer validity period provide an
opportunity for individuals to travel to the United States with greater ease,
they do not enable the U.S. Government to receive regularly updated biographic
and other information from repeat visitors who travel to the United States
multiple times over the span of the visa.
...
Having a means for regularly collecting updated information,
before the alien embarks on travel to the United States and without requiring
aliens to apply for a visa on a more frequent basis, would be valuable in
contributing to a robust traveler screening and verification process and would
cut down on the number of visa holders who are found inadmissible at ports of
entry.[23]
It has been reported that similar arrangements will be
implemented by China for US nationals holding ten-year visas, though details of
such arrangements have not yet been released.[24]
Contactless
immigration clearance
Contactless
technology at airports
A Department media release at the time of the 2015–16
Federal Budget announced that $93.7 million had been allocated to the Seamless
Traveller initiative, for the rollout of new technology, including contactless automatic
biometric processing, at air and sea ports. The media release stated:
Biometric capability will reduce manual processes allowing a
fast, seamless self-processing experience for up to 90 per cent of travellers
and enable border control officers to concentrate on passengers-of-interest.[25]
This new technology is intended to enhance the existing
use of facial recognition technology by airport SmartGates. Facial recognition
technology maps the underlying bone structure of the face, such as distances
between the eyes, nose, mouth and ears. SmartGates presently allow eligible
arriving and departing travellers to self-process through immigration clearance
by presenting their ePassport to an electronic ‘SmartGate kiosk’. The SmartGate
then captures the person’s image and uses a mathematical formula to compare this
with the person’s ePassport.[26]
The Department claims that facial recognition ‘is considered to be one of the
least intrusive biometric measures and has a high degree of accuracy when used
for one-to-one matching’.[27]
The arrivals SmartGate was originally introduced in 2007,
and has been followed by a rollout of similar technology at airport departures.[28]
The Department’s 2015–16 Annual Report provides the following overview
of the rollout of departures SmartGates:
In 2014 the Department was funded by $50.1 million to rollout
departures SmartGates as part of the Government’s counter-terrorism initiative.
SmartGates use facial biometrics technology to automate the manual checks
normally conducted by an Australian Border Force (ABF) officer. Automated
border processing is a critical enabler to managing increasing traveller
volumes and enables travellers, irrespective of passport type, to quickly and
seamlessly pass through departures processing. Unlike most overseas jurisdictions,
by using new technology automated processing in Australia is not restricted to
ePassport or registered/trusted travellers. The successful rollout of the
departures SmartGates has been delivered in close cooperation with industry.
Between July 2015 and June 2016, 77 departure SmartGates were
successfully rolled out and are now operational at seven of Australia’s eight
international airports (all Australian international airports will have
departure SmartGates once Adelaide begins operation of a further six in early
July 2016).
...
At 30 June 2016, approximately 6.9 million departing
travellers had been successfully processed through the gates with around 85 per
cent of all eligible travellers using the SmartGates to self-process through
the border.
The Department’s goal is to reach 90 per cent throughput by
2019.[29]
The Explanatory Memorandum states that contactless
technology is to be gradually rolled out for SmartGates in major airports from
May 2017 and that this will remove the need for travellers to present a
passport to verify their identity during immigration clearance.[30]
Instead, a person’s identity will be able to be verified on the basis of a
unique biometric identifier, such as a facial image, with a live image of the
person at the SmartGate matched against a previously verified image.[31]
The Department will use two databases for image verification:
- the
Australian Passport Office database, which holds images collected as part of
the Australian passport identity verification process and
- images
provided by the traveller to the SmartGate—these are stored in departmental
systems.[32]
Biometric
data and the Migration Act
A series of amendments to the Migration Act since
2004 have provided for the collection of biometric data (termed ‘personal
identifiers’) by immigration officials.[33]
Personal identifiers are defined to include fingerprints and handprints, height
and weight measurements, an image of a person’s face and shoulders, audio or
video recording of a person, iris scan and signature.[34]
Although collection of personal identifiers was originally restricted to the
data of non-citizens, provided when applying for a visa or passing through
immigration clearance, recent amendments have significantly expanded the scope
of these powers.[35]
In particular, the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014 (Cth) amended the Migration
Act to authorise the collection of biometric information of both citizens
and non-citizens at the border, by an automated border clearance system
(‘authorised system’) such as a SmartGate.[36]
Section 257A of the Migration Act, inserted by the Migration Amendment
(Strengthening Biometrics Integrity) Act 2015 (Cth), provides the
Minister and officers with a broad power to collect personal identifiers. This
power is limited in respect of Australian citizens, who may only be required to
provide personal identifiers when entering or departing Australia, or when
travelling on an overseas vessel from one port to another in Australia.[37]
As a result of these amendments, the Migration Act already
accommodates the collection of personal identifiers during the immigration
clearance process. The Bill does not significantly alter the scope of the power
to collect biometric data in this process. Instead, it amends the evidentiary
requirements for immigration clearance to provide that the presentation of
biometric data may be sufficient to satisfy such requirements, as an
alternative to the provision of documentary evidence (such as a passport).
Committee
consideration
Senate Standing Committee on Legal and Constitutional Affairs
On 10 November 2016, the Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs
for inquiry and report. Details are available at the inquiry
webpage.[38]
The Committee tabled its report on 28 November 2016, with the majority report
recommending that the Bill be passed.[39]
The Committee noted concerns from interest groups regarding the visa
revalidation system and the oversight mechanisms in place, but was satisfied
that the proposed measures are necessary and justified, and will ‘lead to good
outcomes for both the integrity of the Australian immigration system and the
national economy’.[40]
In regards to public interest revalidation checks, the Committee encouraged the
government to consider that the Ministerial exercise of powers in relation to
these checks be subject to disallowance by the Senate.[41]
The Australian Greens issued a Dissenting Report and
recommended that the Bill be rejected by the Senate.[42]
The Greens argued that the revalidation check provisions in the Bill would
grant a broad range of discretionary powers to the Minister, with insufficient
oversight. In particular, they noted that the Bill’s provisions were not tied
to the introduction of the new ten-year visa but could be applied to the holder
of any Australian visa, and raised concerns that key terms in the Bill, such as
‘revalidation check’, ‘public interest’ and ‘adverse information’, were not
sufficiently defined.[43]
They further argued that the Migration Act contains sufficient provision
to ensure that the trial of the ten-year visa does not compromise the
Australian visa system.[44]
No submissions to the inquiry raised concerns with
amendments proposed by Schedules 2 and 3 of the Bill.
Senate
Standing Committee for the Scrutiny of Bills
The Scrutiny of Bills Committee has raised concerns about
aspects of the revalidation check framework set out in Schedule 1 of the
Bill. The Committee’s Alert Digest No. 8 of 2016 notes that the Bill
does not limit the application of the revalidation check to the proposed ten-year
visitor visa, but instead confers a broad power on the Minister to require
revalidation checks for any category of visa, including spouse or family visas
or protection visas.[45]
The Alert Digest also draws attention to the Minister’s power, by
non-disallowable legislative instrument, to determine that a specified class of
persons holding a visa of a prescribed kind must complete a revalidation check
if the Minister thinks it is in the public interest to do so. It states:
... although it is (sic) may be accepted that in exercising
this power the Minister may consider a broad range of factors relevant to the
public interest and that there is a level of accountability to the Parliament
through the reporting requirements, it is not clear why it is not feasible to
provide for the Parliament to disallow the exercise of legislative power.[46]
The Minister’s response to the Committee’s comments is
included in the Tenth Report of 2016.[47]
The Minister states that the power to prescribe visas as subject to the
revalidation check process is not limited because other longer-validity visas
may be introduced in the future. The Minister further suggests that placing
limits on the visas that could be prescribed would restrict the ability to use
the revalidation framework to reduce red tape and manage risks associated with
newly developed or reformed visa products.[48]
With regards to the power to require a revalidation check be undertaken in the
public interest, the Minister states that the power is intended to be exercised
in circumstances requiring an immediate response. As implementation of such a
determination would be time-critical, it would not be appropriate for the
legislative instrument to be subject to disallowance.[49]
In response, the Committee has noted that it is not clear
why primary legislation cannot set limits on the types of visas to be
prescribed, and that the power to prescribe any type of visa is
‘inappropriately broad in scope’.[50]
The Committee also notes that the Minister’s power to require a revalidation
check in the public interest is not limited to circumstances where the Minister
identifies a risk to the Australian community.[51]
The Committee has requested that the key information provided by the Minister
be included in the Explanatory Memorandum.[52]
Further concerns raised by the Committee, and the
Minister’s response, are discussed under the ‘Key issues and provisions’
section below.
Policy
position of non-government parties/independents
Labor Senators on the Senate Legal and Constitutional
Affairs Legislation Committee supported the majority recommendation that the
Bill be passed. As indicated above, the Australian Greens issued a dissenting
report recommending that the Bill be rejected, due to the revalidation
framework provisions in Schedule 1.
At the time of writing, other non-government parties and
independent members of Parliament do not appear to have spoken publicly on the
Bill.
Position of
major interest groups
In submissions to the Senate inquiry, stakeholders and interest
groups raised concerns with the revalidation framework under Schedule 1 of
the Bill, in particular:
- the
broad Ministerial discretion to determine which visa types may be subject to a
revalidation check
- the
wide definition of ‘revalidation check’, not being limited to matters
considered as part of the original visa application
- the
lack of clarity regarding a mechanism for review of a decision that a person
has failed the revalidation check and
- the
absence of provision for notification of a failure to pass the revalidation
check.
The Kaldor Centre for International Refugee Law (Kaldor
Centre) submitted that the introduction of revalidation checks:
... undermines the long-standing rationale and stability of
Australia’s migration system, which is premised on the notion that once a
person has been issued a visa, he or she is entitled to have that visa be in
effect until the visa period expires (subject to any grounds for visa
cancellation).[53]
The Migration Institute of Australia, while acknowledging
that revalidation ‘at biannual intervals and through the processes specified in
this Bill appear reasonable and appropriate without being overly onerous’,
raised concerns with the broad power afforded to the Minister to determine a
revalidation check be required in the public interest, and recommended that
this be removed from the Bill.[54]
Existing
provisions
The Law Council of Australia pointed to existing
provisions under the Migration Act and associated regulations, which it
argued provide adequate powers to manage risks arising from the introduction of
longer validity visitor visas. These include:
- the
power to require a visa holder to inform of any changes to their contact
details
- cancellation
of a temporary visa where it is later determined that the decision to grant the
visa was based on a particular fact or circumstance that is no longer the case,
or where the decision was based on the existence of a particular fact or
circumstance which did not exist
- cancellation
of a temporary visa where the holder has not complied with the visa conditions
- cancellation
of a temporary or permanent visa where a bogus document, or false or misleading
information, was provided as part of the visa application and
- extensive
cancellation powers of the Minister in relation to protection, refugee and
humanitarian visas.[55]
In response to this submission, the Department has stated:
There is no existing head of power in the Migration Act
that is broad enough to require a visa holder to provide updated information on
their personal circumstances for the purpose of ascertaining the existence of
any such adverse information. This would be required to enable the Minister to
be satisfied that the visa holder continued to meet health, character,
security, genuine temporary entrant and other criteria that would normally be
considered at the time of visa grant over the visa period.[56]
Further comments made by interest groups are incorporated
into the discussion below.
Financial
implications
The Explanatory Memorandum contains the following
financial impact statement:
The amendments made by Schedule 1 to the Bill to establish a
visa revalidation framework and the proposed introduction of the longer
validity Visitor visa for Chinese nationals is expected to result in an increase
of revenue to the Commonwealth. The Visa Application Charge (VAC) of $1,000 for
the longer validity visa will have a net impact of $33.5 million in
administered revenue over the forward estimates from 2016–17.
The amendments made by Schedule 2 to the Bill will have a low
financial impact.
The amendment made by Schedule 3 to support the use of new
contactless automated immigration clearance technology will contribute towards
the achievement of the Seamless Traveller Initiative’s estimated saving of $32.9 million
per year in compliance costs.[57]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[58]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considered
the Bill in its ninth report of 2016.[59]
It noted that the Minister’s power to require certain visa holders to complete
a revalidation check, as provided for in Schedule 1, has the potential to
engage a number of human rights, depending on the type of visa prescribed:
As the power to prescribe the type of visa is unlimited, it
appears that it could enable the minister to prescribe any type of visa, including
a protection visa, spousal or other family visa or permanent visa as subject to
the revalidation check. This measure therefore has the potential to engage a number
of human rights, including Australia's non‑refoulement obligations, the
right to an effective remedy, the right to liberty and the right to protection
of the family.[60]
The Committee sought advice from the Minister as to why the
Bill does not appear to limit the type of visas which may be prescribed, and
whether, in light of the broad power to prescribe any type of visa, the measure
is compatible with the rights identified above.
The Committee further noted that the broad Ministerial
discretion to require any visa holder to complete a revalidation check engages
the right to equality and non-discrimination, and may not be proportionate to
achieving the stated objective of managing risks to the Australian community
through immigration channels.[61]
It stated that although the statement of compatibility provided that the power
will only be used based on objective assessments of risk, there is nothing in
the Bill to restrict the use of the power in this way. Accordingly, the
Committee sought advice from the Minister as to whether safeguards could be
included in the legislation, such as:
- the
Minister’s power to require a revalidation check be limited to long-term
visitor visas
- the
basis upon which a revalidation check may be required be made clear in the
legislation, rather than a matter of Ministerial discretion and
- a
requirement that the Minister’s power to require a person or class of persons
to complete a revalidation check be based on an objective assessment of an
increased risk to the Australian community.[62]
Key issues
and provisions
Schedule
1—Revalidation check for certain visas
Revalidation
check framework
Item 4 will insert new subdivision
BA—Revalidation check for certain visas into Division 3 of Part 2 of
the Migration Act. This subdivision establishes the framework for the
revalidation check process. Under the framework, the Minister may require a
visa holder to complete a revalidation check for their visa either:
- where
the person holds a visa of a prescribed kind (proposed section 96B) or
- where
the Minister issues a determination that a specified class of persons holding a
visa of a prescribed kind must complete such a check in the public interest (proposed
section 96E) (‘public interest revalidation check’).
Although the Explanatory Memorandum states that the
revalidation check scheme is intended to support the proposed introduction and
trial of a new longer validity visitor visa, the Bill itself does not link the
scheme to any particular visa type. It confers a broad discretion on the
Minister to prescribe in the regulations any kind of visa as being subject to
revalidation requirements. Regulations made to prescribe a visa for the
purposes of proposed subsections 96B(1) and 96E(1) will be subject
to Parliamentary scrutiny via the disallowance process.
A revalidation check is defined as a check
as to whether there is any adverse information relating to a person who holds a
visa.[63]
A visa holder will pass the revalidation check if the Minister is satisfied
that there is no adverse information relating to the person, or that it is
reasonable to disregard any adverse information relating to the person.[64]
‘Adverse information’ is not defined in the Bill, and the Bill does not specify
the types of information a visa holder may be required to provide. When a
revalidation check is required, a written notice must be given to the visa
holder specifying how they are to complete the revalidation check.[65]
The Explanatory Memorandum notes:
Adverse information ... is to be given its ordinary general
meaning when considering whether the information relating to the person is
adverse. Whether the information is adverse will also depend on the
circumstances of each particular case and depend on the visa held by the person
as a revalidation check will generally be directed to determining whether the
person continues to meet the criteria for the visa that has been granted.[66]
The Scrutiny of Bills Committee has raised concerns about
the revalidation check requirements relating to adverse information, stating:
... it is not clear why information relating to the
person would be included in a revalidation check and what this means, over and
above information directly about the person. It is also not clear why it is
necessary to link the revalidation check to such a broad category of
information given that the legislation sets out in detail the criteria for the
grant of the initial visa. It is not clear to the committee why the
revalidation check is not linked to whether the person still meets the
requirements set out for the initial grant of the visa.[67]
The Law Council has raised concerns with the broad
definition of adverse information currently used in the Migration
Regulations in the context of employer sponsorship and nomination.[68]
It noted that this covers a wide range of activities committed not only by the
relevant person but also by an ‘associated’ person, and does not relate to
either the criteria for the grant of the visa or the matters which may expose a
person to visa cancellation under the existing provisions of the Migration
Act.[69]
The ANU College of Law Migration Law Program has also pointed to the broad
range of matters covered by this definition, and queried whether a similar
definition will be inserted into the Migration Regulations to apply in the
context of revalidation checks.[70]
The Explanatory Memorandum to the Bill does not provide clarification on this
issue.
In response to the concerns raised by the Scrutiny of
Bills Committee on this matter, the Minister advised that the revalidation
check is not intended to be a full reassessment of a visa holder’s ability to
meet the original requirements for grant of the visa. By not defining adverse
information, the Bill provides flexibility for the Minister to consider
information relating to the visa holder’s ongoing compliance with the
conditions of their visa, as well as any new grounds for visa cancellation
which are introduced in the future.[71]
Adverse information ‘relating to’ the visa holder could include consideration
of ‘the personal circumstances of the applicant in their home country and
general conditions in the home country that might encourage them to remain in
Australia’.[72]
In response, the Committee has noted that the provision’s drafting in regards
to adverse information provides little certainty to visa holders, and limited
scope for parliamentary scrutiny of the exercise of the power. It has requested
that the key information provided by the Minister be included in the
Explanatory Memorandum.[73]
Effect of
failure to pass revalidation check
Where a person does not complete the check within the
specified period, or does not pass the check at a particular time (the check
time), the person’s visa will cease to be in effect. This will occur:
- if
the person is in the migration zone at the end of the specified period or at
the check time, and leaves Australia after this time without having completed
and passed a revalidation check or
- if
the person is not in the migration zone at the end of the specified period or
at the check time.
The Minister must provide written notice to the person
informing them of the cessation.[74]
However, a visa which has ceased to be in effect because
of a failure to complete or pass a revalidation check within the specified
period may come into effect again if, at a particular time during the visa
period for the visa, the person passes a revalidation check for the visa.[75]
Visa holders may be required to complete revalidation checks on more than one
occasion during the visa period, including at a time when the visa is not in
effect.[76]
The Scrutiny of Bills Committee has stated that the Bill
and explanatory material are silent on the question of which decisions made
under the proposed visa revalidation provisions will be subject to merits
review.[77]
Similar concerns have been raised by the Kaldor Centre, which noted that
although a decision to cancel a visa may be subject to merits and judicial
review, a decision as to whether a person passes the revalidation check does
not appear to be.[78]
Furthermore, the Law Council has raised concerns that the visa holder may not
be provided with reasons or an opportunity to be heard following a decision
that a visa ceases to be in effect.[79]
In his response to the Scrutiny of Bills Committee, the
Minister has confirmed that a decision made under new subdivision BA
would not be subject to merits review. The Minister states that failure to pass
a revalidation check does not automatically result in cancellation of the
visa—this will be referred to a visa cancellation delegate to consider whether
a visa cancellation ground exists. If the delegate decides to cancel the visa,
this decision may be subject to merits review.[80]
The Committee has requested that the key information provided by the Minister
on this issue be included in the Explanatory Memorandum.[81]
Public
interest revalidation check
Proposed section 96E provides that where the
Minister thinks it is in the public interest to do so, the Minister may issue a
legislative instrument requiring a specified class of persons holding a visa of
a prescribed kind to complete a revalidation check for the visa. This is a
personal, non-delegable power.
‘Public interest’ is not defined under the Migration
Act, and the Bill does not provide guidance as to the circumstances in
which a revalidation check may be required in the public interest. The Minister
therefore has a broad discretion to issue a determination under this provision.
The Explanatory Memorandum notes that the public interest test:
... is intended to be broad and flexible to allow the Minister
to consider any factor that he or she considers relevant when deciding whether
to make a determination under new subsection 96E(1). For example, the Minister
may consider the public health and safety of the Australian community or
particular individuals, national security, the economic wellbeing of Australia,
the circumstances in a person’s home country, the risk of overstaying or other
factors, or combination of factors, designed to be relevant to the particular
circumstances.[82]
A determination made by the Minister under this provision
is not a disallowable instrument.[83]
The Bill provides an alternative mechanism for parliamentary transparency, by
requiring the Minister to provide to each House of Parliament a statement that
such a determination has been made, and which sets out the reasons for making
the determination. This must be done within 15 sitting days after either 1 July
of the relevant year (where the determination was made between 1 January and 30
June) or 1 January of the following year (where the determination was made
between 1 July and 31 December).[84]
The Minister must also give written notice of the determination to each person
included in the specified class.[85]
Schedule
2—Cessation of visas that are not in effect
Item 2 will insert proposed section 82A which
clarifies the operation of visa cessation provisions of the Migration Act
in relation to visas which are not in effect.
Currently, section 82 sets out the various circumstances
when a visa will cease to be in effect. These include: upon cancellation; when
the holder leaves Australia because of a deportation order; in the case of a
bridging visa, when another visa for the person comes into effect; or in the
case of a visa to travel to and enter Australia during a particular period or
until a particular date, if the holder leaves Australia after that period or
date. Additionally, sections 173 and 174 provide, respectively, that a visa
ceases to have effect if the holder enters Australia in contravention of the Migration
Act, or does not comply with immigration clearance requirements.
Proposed section 82A provides that a visa will cease
to take effect if sections 82, 173 or 174 apply at a particular time, even if
the visa is not in effect at that time. This provision recognises that in
certain circumstances, a visa may be held but not in effect during the visa
period.[86]
This may occur where the visa has been granted but not yet taken effect, or
where the visa has ceased to be in effect but may come into effect again during
the visa period (the possibility of which is provided for in proposed
sections 96D and 96H at item 4 of Schedule 1 to the Bill, for
example). The amendment ensures that in such cases, a cessation provision under
section 82, 173 or 174 will nonetheless apply.
An exception is proposed in relation to subsection 82(8).[87]
This subsection provides that a visa to remain in, but not re-enter, Australia
that is granted to a non-citizen in Australia ceases to be in effect if the
holder leaves Australia. The Explanatory Memorandum states that the effect of exempting
this provision from the operation of proposed section 82A is that if a
person travels outside of Australia on another, valid visa, and has a visa with
a travel facility allowing them to return, they will continue to hold any other
visas permitting them to remain in Australia which are not in effect at the
time of their departure. The Explanatory Memorandum notes:
A common example of where this may occur is in the case of a
bridging visa that has been granted to a person in association with an
undecided application for another substantive visa, where a non-citizen might
travel offshore and return to Australia whilst holding a different substantive
visa.
...
The policy intention is that the bridging visa that is out of
effect should continue to be held by the person, so that if a decision has not
been made on the undecided application when the person’s substantive visa
ceases following their return to Australia, the bridging visa will come into
effect to maintain the person’s lawful status until a decision is made on the
outstanding application.[88]
Schedule
3—Immigration clearance
Evidentiary
requirements for immigration clearance
Schedule 3 of the Bill will amend the Migration Act
to accommodate the use of contactless technology in the immigration clearance
process. Section 166 sets out the evidentiary requirements for immigration clearance
when entering Australia. The section currently provides that a person entering
Australia must present to a clearance authority (which can be a clearance
officer or an authorised system):[89]
- if
the person is a citizen, the person’s Australian passport or prescribed other
evidence of the person’s identity and Australian citizenship or
- if
the person is a non-citizen, evidence of the person’s identity and of a visa
that is in effect and held by the person.[90]
Where the person presents this evidence to an authorised
system, paragraph 166(1)(d) currently requires them to provide a photograph or
other image of their face and shoulders. The person must also supply any
information required by the Migration Act or regulations and comply with
any requirement by a clearance officer to provide personal identifiers to a
clearance authority.[91]
Items 4 to 9 will amend section 166 to set out a
number of alternative means by which a person may satisfy the evidentiary
requirements for immigration clearance. [92]
Item 8 substitutes proposed paragraph 166(1)(d) to require a
person to provide one or more personal identifiers to an authorised system.
Unlike the existing provision, this is not limited to a particular type of identifier
but can include any one or more of the personal identifiers set out under
subsection 5A(1).
Items 23 to 25 will amend subsection 172(3) to
provide that a person is refused immigration clearance if the person is with a
clearance officer for the purposes of section 166 and refuses or is unable to
do a thing required under subsection 166(1).
The effect of the proposed amendments is that a person
entering Australia may not need to present documentary evidence of their
identity, such as a passport and/or visa, but may alternatively satisfy
immigration clearance requirements by presenting a personal identifier, such as
their facial image, to an automated system.
The Schedule will also amend the following references to
the presentation of travel documents or evidence of identity during immigration
clearance:
- section
170, which sets out evidentiary requirements for persons travelling on an
overseas vessel from one port to another port, and passing through Australian
immigration clearance (items 12 to 21) and
- section
175, which sets out evidentiary requirements for persons departing Australia (items
26 to 31).
As with the proposed amendments to section 166, the proposed
amendments to these sections provide for alternative mechanisms by which a
person may satisfy immigration clearance requirements, which include the
provision of personal identifiers to an automated system.
Consequential
and other amendments
Items 1 to 3 will amend section 32 of the Migration
Act in relation to special category visas. Section 32 currently provides
that New Zealand citizens may satisfy part of the criterion for a special
category visa where they hold, and have presented to an officer or authorised
system, an in-force New Zealand passport. In most circumstances this visa is granted
during the immigration clearance process.[93]
Item 2 will insert proposed subsection 32(2A) which amends this
criterion to require New Zealand citizens to either present their passport to
an officer or authorised system, or provide one or more personal identifiers to
an authorised system.
The Schedule makes a number of minor consequential
amendments. For example, section 190 specifies that for the purposes of section
189 (which provides for the detention of unlawful non-citizens), an officer may
suspect on reasonable grounds that a person is an unlawful non-citizen if the
person fails to meet certain evidentiary requirements at immigration clearance.
Item 32 will repeal paragraph 190(1)(b) and substitutes a proposed new
paragraph, which incorporates consequential amendments based on the changes
made to subsection 166(1).
Section 271 sets out documents which will constitute prima
facie evidence of certain matters in the course of migration proceedings. Items
33 and 34 will amend this section to provide that evidence that a person
who, when entering Australia, failed to produce an Australian passport to an
officer or authorised entry system when required to do so, is prima facie
evidence that the person was a non-citizen at the time of entry.[94]
[1]. Migration Act 1958.
[2]. P
Dutton, ‘Second
reading speech: Migration Amendment (Visa Revalidation and Other Measures) Bill
2016’, House of Representatives, Debates, 19 October 2016, p. 2433.
[3]. Explanatory
Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill
2016, p. 2; Australian Government, Our
north, our future: white paper on developing Northern Australia, White
paper, 2015.
[4]. Australian
Government, Our north, our future, op. cit., p. 77.
[5]. Ibid.,
p. 78.
[6]. Department
of Immigration and Border Protection (DIBP), ‘Part 3: annual performance
statements’, Annual
report 2015–16, DIBP, Canberra, September 2016, p. 61.
[7]. Tourism
Australia (TA), ‘Greater
China’, TA Corporate website.
[8]. P
Dutton (Minister for Immigration and Border Protection), A Robb (Minister for
Trade and Investment) and M Cash (Assistant Minister for Immigration and Border
Protection), New
pilot visa to boost Australian tourism, media release, 17 June 2015.
[9]. Ibid.
[10]. R
Colbeck (Minister for Tourism and International Education), 2016
budget to drive future tourism growth, media release, 4 May 2016.
[11]. Department
representative presenting at the Migration Institute of Australia National
Conference, 18 November 2016, Brisbane.
[12]. Migration Legislation
Amendment (2016 Measures No. 5) Regulation 2016 (Cth), Schedule 1, clause
7.
[13]. Ibid.,
Schedule 1, clause 10.
[14]. Ibid.,
Schedule 1, clause 12.
[15]. Ibid.,
Schedule 1, clause 8.
[16]. US
Department of State, The United States
and China to extend visas for short-term business travellers, tourists and
students, fact sheet, Bureau of Public Affairs, 10 November 2014;
J Diamond, ‘New
visa policy elevates U.S.–China relations’, CNN, (online edition),
10 November 2014.
[17]. B
Smith, ‘Canada,
China agree on 10-year, multi-entry visa’, The PIE News, (online edition),
12 March 2015; R Ahren, ‘Israel
and China to sign 10-year multiple entry visa deal’, The Times of Israel,
(online edition), 27 March 2016.
[18]. ‘Multiple
journey visa validity extended for Chinese visitors’, Channel NewsAsia,
(online edition), updated 16 May 2015.
[19]. Explanatory
Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill
2016, op. cit., p. 2.
[20]. U.S.
Customs and Border Protection, ‘Enroll in
a new Electronic Visa Update System (EVUS)’, Department of Homeland
Security website.
[21]. Ibid.;
‘Establishment
of the Electronic Visa Update System (EVUS) (US)’, 81 FR 72481, Federal
Register, 81(203), 20 October 2016, p. 72,481.
[22]. U.S.
Customs and Border Protection, ‘Electronic
Visa Update System (EVUS): frequently asked questions’, Department of
Homeland Security website, last published 29 November 2016.
[23]. Department
of Homeland Security, ‘Establishment of the Electronic Visa Update System (EVUS)’,
op. cit.
[24]. Z
Yunbi, ‘FM:
China–US visa arrangement “not nullified”’, ChinaDaily.com.cn,
(online edition), 5 March 2016.
[25]. P
Dutton (Minister for Immigration and Border Protection), Benefits
for consumers, travellers and industry from red tape cuts and new technology,
media release, 12 May 2015.
[26]. DIBP,
‘Arrivals
SmartGate: frequently asked questions’, DIBP website. An ePassport is
embedded with a microchip which contains the same personal information that is
on the photo page of the ePassport, including a digitised photograph.
[27]. Ibid.
[28]. DIBP,
‘What
is the difference between SmartGate at arrivals and at departures?’, DIBP
website.
[29]. DIBP,
‘Part 3: annual performance statements’, op. cit., p. 41.
[30]. Explanatory
Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill
2016, op. cit., p. 3.
[31]. Ibid.,
pp. 39–40.
[32]. Ibid.,
p. 40.
[33]. For
an overview of amendments made to the Migration Act in relation to
biometrics, see MA Neilsen, Migration
Amendment (Strengthening Biometrics Integrity) Bill 2015, Bills digest,
111, 2014–15, Parliamentary Library, Canberra, 2015.
[34]. Migration
Act, section 5A.
[35]. In
particular, see the Counter-Terrorism
Legislation Amendment (Foreign Fighters) Act 2014 (Cth); and Migration Amendment
(Strengthening Biometrics Integrity) Act 2015 (Cth).
[36]. Neilsen,
Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, Bills
digest, op. cit., pp. 3–4.
[37]. Migration
Act, subsection 257A(3).
[38]. Inquiry
homepage, Senate Legal and Constitutional Affairs Legislation Committee, ‘Migration
Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions]’.
[39]. Senate
Legal and Constitutional Affairs Legislation Committee, Migration
Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions],
The Senate, Canberra, November 2016.
[40]. Ibid.,
p. 22.
[41]. Ibid.,
p. 23.
[42]. Australian
Greens, Dissenting
report, Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016
[Provisions], The Senate, Canberra, November 2016, p. 25.
[43]. Ibid.,
p. 26.
[44]. Ibid.,
p. 27.
[45]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 8, 2016, The Senate, 9 November 2016, p. 26.
[46]. Ibid.,
p. 27.
[47]. Senate
Standing Committee for the Scrutiny of Bills, Report,
10, 2016, The Senate, 30 November 2016, pp. 648–657.
[48]. Ibid.,
pp. 652–653.
[49]. Ibid.,
p. 655.
[50]. Ibid.,
p. 653.
[51]. Ibid.,
p. 656.
[52]. Ibid.,
pp. 653–656.
[53]. Kaldor
Centre, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the provisions of the Migration Amendment (Visa Revalidation and Other
Measures) Bill 2016 [Provisions], 21 November 2016, p. 2.
[54]. Migration
Institute of Australia (MIA), Submission
to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the provisions of the Migration Amendment (Visa Revalidation and Other
Measures) Bill 2016 [Provisions], 22 November 2016, p. 3.
[55]. Law
Council of Australia, Submission
to the Senate Legal and Constitutional Affairs Legislation Committee,
Inquiry into the provisions of the Migration Amendment (Visa Revalidation and
Other Measures) Bill 2016 [Provisions], 22 November 2016, pp. 13–14.
[56]. DIBP,
Response
to the Law Council submission by DIBP, to the Senate Legal and
Constitutional Affairs Legislation Committee, Inquiry into the provisions of
the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016
[Provisions], 2016.
[57]. Explanatory
Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill
2016, op. cit., p. 3.
[58]. The
Statement of Compatibility with Human Rights can be found at page 48 of the
Explanatory Memorandum to the Bill.
[59]. Parliamentary
Joint Committee on Human Rights, Report
9 of 2016, 22 November 2016, pp. 9–14.
[60]. Ibid.,
p. 10.
[61]. Ibid.,
p. 12.
[62]. Ibid.,
pp. 12–14.
[63]. Proposed
subsection 96A(1).
[64]. Proposed
subsection 96A(2).
[65]. Proposed
subsections 96B(2)–(3) and 96F(2)–(3). Where a revalidation check is
required under proposed section 96B, a visa holder must be given at least 14
days after the date of the written notice to complete the check (proposed
subsection 96B(4)). No minimum timeframe for compliance is specified where
a public interest revalidation check determination is issued under proposed
section 96E.
[66]. Explanatory
Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill
2016, op. cit., p. 11.
[67]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, 8, 2016, op.
cit., p. 25.
[68]. Adverse
information is currently defined under section 1.13A of the Migration Regulations
1994 in relation to a person’s suitability as an approved sponsor or
nominator. The definition provides that adverse information will
include information that the person, or a person associated with a person, has
been found guilty of an offence, the subject of administrative action or is
under investigation for an alleged contravention of a law relating to one of
the following matters: discrimination; immigration; industrial relations;
occupational health and safety; people smuggling and related offences; slavery,
sexual servitude and deceptive recruiting; taxation; terrorism; and trafficking
in persons and debt bondage. It will also include information that the person,
or a person associated with the person, has become insolvent.
[69]. Law
Council of Australia, Submission to the Senate Legal and Constitutional Affairs
Legislation Committee, op. cit., p. 10.
[70]. Australian
National University (ANU) College of Law Migration Program, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the provisions of the Migration Amendment (Visa Revalidation and Other
Measures) Bill 2016 [Provisions], 18 November 2016, p. 2.
[71]. Senate
Standing Committee for the Scrutiny of Bills, Report, 10, 2016, op.
cit., pp. 649–650.
[72]. Ibid.,
p. 650.
[73]. Ibid.,
pp. 651–652.
[74]. Proposed
sections 96D and 96H.
[75]. Proposed
subsections 96D(5) and 96H(5).
[76]. Proposed
section 96J.
[77]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, 8, 2016, op.
cit., p. 27.
[78]. Kaldor
Centre, Submission to the Senate Legal and Constitutional Affairs Legislation
Committee, op. cit., p. 3.
[79]. Law
Council of Australia, Submission to the Senate Legal and Constitutional Affairs
Legislation Committee, op. cit., p. 11.
[80]. Senate
Standing Committee for the Scrutiny of Bills, Report, 10, 2016, op.
cit., pp. 656–657.
[81]. Ibid.,
p. 657.
[82]. Explanatory
Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill
2016, op. cit., p. 21.
[83]. Legislation
(Exemptions and Other Matters) Regulation 2015, Part 4, section 10.
Relevantly, item 20 specifies that section 42 of the Legislation Act 2003
(relating to disallowance of legislative instruments) does not apply to an
instrument (other than a regulation) made under Part 2 of Migration Act.
[84]. Proposed
subsection 96E(5).
[85]. Proposed
section 96F.
[86]. Visa
period is defined under section 5 of the Migration Act as the
period beginning when the visa is granted and ending (i) in the case of a visa other
than a bridging visa, when the visa ceases to be in effect; or (ii) in the case
of a bridging visa, when the visa ceases to be in effect other than under
subsection 82(3) (which provides that a bridging visa ceases to be in effect if
another visa for the non-citizen comes into effect).
[87]. Proposed
paragraph 82A(c).
[88]. Explanatory
Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill
2016, op. cit., p. 37.
[89]. Migration
Act, section 165. A clearance officer means an officer
or other person authorised by the Minister to perform duties for the purposes
of Division 5 of Part 2 of the Migration Act. Under section 5, an authorised
system, when used in a provision of the Migration Act, means an
automated system authorised in writing by the Minister or the Secretary for the
purposes of that provision.
[90]. Migration
Act, paragraph 166(1)(a).
[91]. Ibid.,
paragraphs 166(1)(b) and (c).
[92]. Item
4 amends subsection 166(1) to provide that a person entering Australia
must, without unreasonable delay, ‘do any one or more of the following things
as required by one or more clearance authorities’. Paragraphs 166(1)(a)–(d)
then set out different ways by which a person may provide evidence of identity
for the purposes of immigration clearance.
[93]. DIBP,
‘Special category visa
(subclass 444)’, DIBP website.
[94]. Item
35 will insert into subsection 271(4) a definition of authorised
entry system, which means an authorised system for the purposes of
section 32, 166, 170 or 172, or paragraph (b) of the definition of clearance
authority in section 165.
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