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Legislation Amendment (Temporary Safe Haven Visas) Bill
Date Introduced: 21 April 1999
Portfolio: Immigration and Multicultural Affairs
Commencement: Royal Assent, other than item 11
of Schedule 1, which will commence on 1 June 1999, immediately
after item 10 of Schedule 1 to the Migration Legislation
Amendment Act (No.1) 1998.
The Bill proposes:
- the creation of a class of visa, to be known as a 'temporary
safe haven visa'
- to prevent holders of temporary safe haven visas from applying
for a visa other than a temporary safe haven visa, and
- to prevent holders, or former holders, of temporary safe haven
visas from seeking merits review or judicial review of decisions by
On 15 April 1999, the Migration Regulations were
amended to prescribe new visa class UJ and new visa subclass 448 -
Kosovar Safe Haven (Temporary).(1)
On 5 April 1999, the Minister for Immigration
and Multicultural Affairs, the Hon Philip Ruddock MP, announced
that people currently in Australia (lawfully) who were affected by
the conflict in Kosovo would be able to apply to have their visas
extended. In his press release, the Minister indicated that
applications for extension of stay would be dealt with on a
On 6 April 1999, the Prime Minister announced
that the Government would give temporary sanctuary to 4,000 persons
displaced from the Kosovo region of the Republic of Yugoslavia.(3)
According to the Prime Minister's announcement, these people were
to be given temporary stay for 3 months in the first instance, with
possible further extension of that period depending '...on the
circumstances as they unfold in Kosovo'.
The Prime Minister stressed that these 4,000
entrants were being admitted separately, and in addition to, the
Government's Refugee program.
On 9 April 1999, the Minister for Immigration
and Multicultural Affairs, the Hon Philip Ruddock MP, announced
that officials of his Department, accompanied by a representative
of the United Nations High Commissioner for Refugees, were
travelling to the Former Yugoslavian Republic of Macedonia to begin
identifying people to bring to Australia. The Minister indicated
that Australia was seeking people who were forced to flee Kosovo
after 26 March 1999, were fit to travel, and voluntarily agreed to
be evacuated to Australia. At that stage, it was envisaged that the
people would be taken to a reception facility at East Hills (near
the Holsworthy army barracks) for medical screening before being
taken to accommodation centres around Australia. (The first group
of people was to be taken to the Brighton Barracks in Tasmania.)
The Minister also announced that legislation to
give effect to the Government's policy was 'at an advanced
On 10 April 1999, the Minister issued a press
release stating that Australia, in response to a request by the
United Nations High Commissioner for Refugees, was suspending its
plans to temporarily relocate displaced Kosovo Albanians.(6)
On 15 April 1999, regulations were made to
prescribe new visa class UJ and visa subclass 448 Kosovar Safe
Haven (Temporary).(7) The regulations were tabled in the Senate on
20 April 1999.
On 21 April 1999, the present Bill was
introduced into the Senate.
Clause 4 operates
retrospectively. It ensures that, if, during the period between 6
April 1999 and the commencement of this provision, a non-citizen
who holds a temporary safe haven visa and who has not left
Australia applies for a substantive visa and is not granted it,
that person no longer has a valid application. The effect of this
provision is to deny the applicant the right of merits review of
Clause 5 ensures that any visas
granted under Class UJ (a temporary safe haven visa) would be
subject to the provisions of this Act.
Item 3 of Schedule 1 inserts
new section 37A. This provision creates a new
class of temporary visas, to be known as temporary safe haven
visas. The Minister will have the power, by notice published in the
Gazette, to either extend, or shorten, the period of the
visa [new subsections 37A(2) and 37A(3)]. The
Minister does not have a duty to consider whether to extend the
term of a temporary safe haven visa [new subsection
37A(5)]; accordingly, a decision by the Minister not to
consider extending the term of a temporary safe haven visa is not
Item 12 amends
subsection 475(2), to exclude, from judicial
review by the Federal Court:
- a decision of the Minister not to exercise, or not to consider
the exercise of his power to extend the term of a temporary safe
haven visa under new subsection 37A(2), and
- a decision by the Minister to shorten the visa period of a
temporary safe haven visa under new subsection
Irrespective of any other provision of the
Principal Act, the visa will cease to have effect on the day
specified in the Gazette notice [new subsection
Item 4 of Schedule 1 will amend
paragraph 46(1)(d) of the Act, to provide that a person to whom
new section 91K applies is prevented from making a
valid visa application.
A visa application that is not valid in
accordance with section 46 of the Act cannot be considered by the
Minister [subsection 47(3)]. As the
non-consideration of a visa is not a decision to refuse to grant
the visa [subsection 47(4)], it cannot be the
subject of merits review, either internally (by the Migration
Internal Review Office), or externally (by the Immigration Review
Item 5 of Schedule 1 amends
paragraph 65(1)(a)(iii) of the Act, to prevent the
Minister from granting a valid application for a visa to a person
if he or she falls within the class of people to whom new
section 91K applies.
Item 7 of Schedule 1 inserts
new Subdivision AJ, concerning holders of
temporary safe haven visas. New section 91H
explains the policy rationale behind the enactment of the
Subdivision, and provides that a person who ceases to hold a
temporary safe haven visa is subject to removal from Australia
under Division 8 of the Principal Act.
New section 91J provides that
new Subdivision AJ applies to a non-citizen in
Australia who holds a temporary safe haven visa, or has not left
Australia since ceasing to hold such a visa.
New section 91K states that
non-citizens to whom the subdivision applies are unable to make
valid applications for visas other than a temporary safe haven
New section 91L allows the
Minister, if he or she considers it is in the public interest to do
so, to determine that the prohibition in section 91K does not apply
to a visa made by particular non-citizen. Only the Minister may
exercise this power [new subsection 91L(2)], and
there is no duty on him or her to consider whether he or she should
do so [new subsection 91L(6)].
Any determinations made have to be laid before
both Houses of Parliament, and time limits for tabling apply
[new subsections 91L(3), (4) and (5)].
Item 13 amends
paragraph 475(2)(e) of the Principal Act to
provide that a decision by the Minister not to make a determination
under section 91L, or a decision not to consider
making such a determination, cannot be
judicially-reviewed by the Federal Court.
Item 8 amends section 118 of
the Principal Act to provide that the power to cancel a temporary
safe haven visa does not affect or limit any other visa
cancellation powers contained in the Act.
Item 9 amends section
198 to impose an obligation on an officer to remove, as
soon as reasonably practicable, an unlawful non-citizen if:
- The non-citizen is in immigration detention; and
- Subdivision AJ applies to him or her; and
- The Minister has either not made a determination under
subsection 91L(1), or the person has made a valid application for a
substantive visa that is capable of being granted in the migration
zone before the period of the determination (7 days) expired.
Item 10 amends section
337 to provide that a decision by the Minister to refuse
to grant, or to cancel, a temporary safe haven visa is neither
internally reviewable, nor reviewable by the Immigration Review
Item 11 amends section
338, as amended by Item 10 of
Schedule 1 to the Migration Legislation
Amendment Act (No.1) 1998 (the Amendment Act). When this
section commences (on 1 June 1999), it will set out the types of
decision capable of external merits review by the Migration Review
Tribunal. Item 11 amends subsection
338(1) to exclude a decision to refuse to grant, or to
cancel, a temporary safe haven visa. This Item will commence after
the commencement of Schedule 1 to the Amendment Act.
Item 14 inserts new
subsection 500A(1), to give the Minister power to cancel a
temporary safe haven visa if, in the Minister's opinion, the
- has had an association with another person or organisation that
the Minister reasonably suspects has been or is involved in
- the Minister is of the opinion that the person is not of good
character (having regard to past and/or present criminal conduct,
- the Minister considers that there is a significant risk that
the person, if allowed to enter or remain in Australia, would:
engage in criminal conduct in Australia, harass, stalk, molest or
intimidate another person in Australia, vilify a segment of the
Australian community, or incite discord in the Australia
The Minister may also cancel a visa if he or she
considers that the person is a threat to national security, or the
person's presence in Australia will jeopardise Australia's
New subsection 500A(3) provides
that the Minister may refuse to grant to a person a temporary safe
haven visa if the person has been sentenced to death or life
imprisonment, or the person has been sentenced to a term of
imprisonment for at least 12 months.
The powers in subsections 500A(1) and
500A(3) may only be exercised by the Minister personally.
Where the Minister refuses to grant, or cancels, a temporary safe
haven visa under these provisions, a statement must be tabled
before both Houses of Parliament [new subsection
500A(7)]. Tabling requirements apply - new
subsections 500A(7), (8) and (9).
New subsection 500A(10)
requires the Minister to notify the person of his or her decision.
However, the failure to notify the person does not affect the
validity of the decision. The rules of natural justice (ie
informing the person of the allegations, and giving them an
opportunity to respond to them) and the code of procedure in
Subdivision AB of Division 3 of Part 2 are expressly excluded. The
code of procedure, which is designed to ensure that visa
applications are dealt with fairly, efficiently and quickly,
imposes certain obligations on decision makers. The requirements
include informing the applicant of reasons why a visa is not to be
granted, and inviting the applicant to provide information as to
why he or she should be granted a visa.
New subsection 500A(12)
provides that where the Minister refuses to grant a temporary safe
haven visa to a person under subsection 500A(1) or (3), the
Minister is taken to have refused to grant a temporary safe haven
visa to each immediate family member of that person.
New subsection 500A(13)
provides that if a person's temporary safe haven visa is cancelled
under subsection 500A(1) or (3), the temporary safe haven visas of
each member of the immediate family of that person are
For the purposes of subsections 500A(12)
and (13), 'immediate family' means a spouse, child or
parent of the person whose visa is refused or cancelled.(8)
The proposals contained in the Bill illustrate
some of the tensions between the Government's clearly expressed
policy that the stay of people displaced from Kosovo be a temporary
one, and the principles of international refugee law.
Government exclude a holder of a temporary safe haven visa from
making an application for a protection visa?
The Bill purports to prevent a holder of a
temporary safe haven visa present in Australia from making an
application for a substantive visa, including a protection visa
(that is, an application for refugee status), unless the Minister
otherwise determines under section 91L.
In relation to people who are off-shore,
Australia can choose to offer protection to whomsoever it chooses,
irrespective of whether that person meets the definition of
'refugee' in the UN Convention Relating to the Status of
Refugees (the Refugee Convention).(9) However, once a person
enters Australia and applies for refugee status, the obligation
arises to protect that person until their application for refugee
status has been determined.
By preventing a holder of a temporary safe haven
visa from applying for a protection visa, the Bill ensures that
Australia's obligations under the Refugee Convention are not
invoked. This has potentially serious implications, particularly in
the context of deciding whether it is safe to send the holders of
temporary safe haven visas back to their country of origin.
principle of non-refoulment of persons
The Bill will allow the Minister, by notice in
the Gazette, to shorten the period of a temporary safe
haven visa. A decision to do so will not be subject to either
merits review, or judicial review. Given that temporary safe haven
visas will be granted for a period of three months in the first
instance, such a provision would appear to be unnecessary. In
addition, the knowledge that the Minister may shorten the period of
a temporary safe haven visa at any time has the potential to
provoke anxiety amongst the visa holders.
The Refugee Convention imposes on States Parties
the obligation of 'non-refoulment'. In other words, a State who is
party to the Convention is obliged to ensure that a refugee (within
the terms of the Convention) is not sent back to their country of
origin if there is a real chance that the person will face
persecution on the basis of their race, religion, nationality,
political opinion or membership of a particular social group. The
principle of non-refoulment also applies in cases where a person's
application for refugee status has not yet been determined.
As holders of temporary safe haven visas will
not be entitled to apply for a protection visa, they will not be
considered as if they were applicants for refugee status, and,
arguably, Australia is not obliged to observe the principle of
non-refoulment in respect of them.
This is somewhat problematic, given that it is
arguable that, but for their having been granted a temporary safe
haven visa, people displaced from Kosovo would otherwise be able to
successfully apply for the grant of a protection visa, on the basis
of a well-founded fear of persecution for the reason of their
membership of a particular social or religious group.(10)
It should be noted that Bill allows the Minister
for Immigration and Multicultural Affairs to extend the term of a
temporary safe haven visa, and to determine that the holder of a
temporary safe haven visa may apply for a substantive visa. It is
hoped that the Minister will give consideration to these options,
particularly given that it is unlikely that the people displaced
from Kosovo will be able to be safely returned there for a
significant period of time.
- Migration Amendment Regulations 1999 (No. 2) SR 1999 No. 58.
- The Hon Philip Ruddock MP, 'Extension of stay', Press
release, 5 April 1999.
- The Hon John Howard MP, Transcript of press
conference, Parliament House, 6 April 1998.
- The Hon Philip Ruddock MP, 'Arrangements for Kosovo Temporary
Entrants', Transcript of press conference, 9 April 1999.
- The Hon Philip Ruddock MP, 'Temporary relocation arrangements
paused', Press release, 10 April 1999.
- Migration Amendment Regulations 1999 (No. 2) SR 1999 No. 58.
- Migration Regulations 1994, reg. 1.12AA
- Article 1A(2) of the Refugee Convention states that a
refugee is any person who:
'...owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, or
membership of a particular social group or political opinion, is
outside the country of his nationality and is unable to, owing to
such fear, is unwilling to avail himself of the protection of that
country; or who, not having a nationality and being outside the
country of his former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to
Article 1A(2) needs to be read with the
Protocol Relating to the Status of Refugees, which extends
the operation of the definition to events occurring after 1 January
- In a number of cases, the Refugee Review Tribunal has held that
Kosovo Albanian protection visa applicants are refugees, and
remitted their applications to the Department for reconsideration -
V98/08948 (24 September 1998); V97/06872 (12 March 1998) and
N98/25024 (21 October 1998).
23 April 1999
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