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Migration
Amendment (Permanent Protection Visas) Regulation 2013
FRLI: F2013L00890
Portfolio: Immigration and
Citizenship Summary of committee view
2.1
The committee
seeks further information in order to assess this instrument's compatibility
with:
- the right to
non-discrimination; and
- the right to
privacy and family.
2.2
The committee
also seeks clarification as to what, if any, review rights a person may have
should their protection visa be cancelled when they are overseas. Overview
2.3
This instrument
amends the Migration Regulations 1994 to impose a visa condition for the
Subclass 866 (Protection) visa ('protection visa').
2.4
The visa
condition provides that the holder of a protection visa must not enter the
country by reference to which the holder was found to be a person in respect of
whom Australia has protection obligations, unless the Minister has approved the
entry in writing.
2.5
The visa
condition will also apply to holders of a protection visa who received a grant
on the basis of being a member of the same family unit as a person in respect
of whom Australia has protection obligations.
2.6
The changes will
enable the Minister to cancel protection visas where the visa holder travels to
the country from which they claimed persecution.
2.7
The amendments
apply in relation to a visa granted on or after 3 June 2013. Compatibility with human
rights
2.8
The instrument
is accompanied by a self-contained statement of compatibility that states that
it is compatible with human rights because, to the extent that it may limit
human rights, those limitations are reasonable, necessary and proportionate.
2.9
The statement of
compatibility states that the amendments engage and limit the right to freedom
of movement in article 12 of the International Covenant on Civil and Political
Rights (ICCPR). It argues that any limitation on this right is reasonable,
necessary and proportionate for the following reasons:
- The limitation
is aimed at the legitimate objective of offering protection to genuine refugees
and those fearing significant harm, while also protecting the integrity of the
protection visa regime by enabling cancellation of a protection visa where
circumstances indicate the person does not, or no longer, requires Australia’s
protection.
- If the visa
holder wishes to travel to their home country/country of feared persecution
during this time, they will be able to seek permission to travel in exceptional
circumstances. This means that protection visa holders who wish to knowingly
put their life at risk in order to travel for urgent, personal reasons (e.g.
attend a funeral) will still be able to travel.
- The power to
cancel a visa for a breach of this condition under s 116(1)(b) of the Migration
Act 1958 is discretionary and will allow the consideration of the
individual circumstances of the person’s case, in particular the reason for the
person’s travel, the duration of the person’s stay and whether they have
re-availed themselves of the protection of their home country.
2.10
The statement
notes that the cancellation power 'will generally be used for people who are
not in Australia's jurisdiction.' This is because s 117 of the Migration Act
1958 specifies that a permanent visa (which includes a protection visa) cannot
be cancelled under s 116 of the Migration Act 1958 if the visa holder is
in the migration zone and was immigration cleared on last entering Australia.
2.11
The statement
further notes that if the visa of a person within Australia’s jurisdiction (e.g.
if the person is in immigration clearance in Australia) is cancelled, removal
would not proceed if to do so would breach Australia's non-refoulement
obligations.
2.12
The committee
notes that a protection visa is a permanent visa for a person in Australia
found to be a person to whom Australia has protection obligations. Those
granted protection visas are entitled to remain in Australia indefinitely and
have access to all the benefits of a permanent resident, including, prior to
these amendments, the unconditional right to travel and re-enter Australia.
2.13
Given the potentially
serious impacts on the person and their family, if the person is subject to a
visa cancellation, the committee is concerned that the Minister's discretionary
powers in this regard are very broad and the Minister's decisions would appear
to be subject to limited review.
2.14
The
committee intends to write to the Minister for Immigration and Citizenship to
seek further information as to how this instrument is compatible with:
- the right to
non-discrimination in article 26 of the ICCPR, given that it subjects
protection visa holders to additional restrictions compared to other permanent
visa holders;
- the right to
privacy and family in article 17 of the ICCPR, given that a person's visa
cancellation could result in separation from their family members who remain in
the Australia, or alternatively could result in significant upheaval for family
members if they are also required to leave Australia to join the person whose
visa has been cancelled.
2.15
In
addition, the committee seeks clarification as to whether a person who has
their visa cancelled while they are temporarily overseas has access to any
review rights.
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