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FRLI ID:
F2012L02236
Tabled in the
House of Representatives and the Senate on 26 November 2012
Portfolio:
Immigration and Citizenship
Migration Regulations 1994 - Specification under
schedule 4, part 1, Public Interest Criterion 4021 - Class of Passports -
November 2012
F2012L02241
Tabled in the
House of Representatives and the Senate on 26 November 2012
Portfolio:
Immigration and Citizenship
Committee view
2.1
The committee seeks further clarification from the Minister for
Immigration and Citizenship on the potential rights impacts of these
instruments and the classes of visas to which new Public Interest Criterion
4021 applies.
Overview
2.2
The Migration Legislation Amendment Regulation 2012 (No. 5)
amends the Migration Regulations 1994 and the Australian Citizenship
Regulations 2007. Most relevantly, it introduces a Public Interest
Criterion (PIC 4021) requiring applicants to present a valid travel document at
time of visa grant. To satisfy PIC 4021 the visa applicant must either:
(a) ... hold a valid passport that:
(i) was issued to the applicant by
an official source; and
(ii) is in the form issued by the
official source; and
(iii) is not in a class of
passports specified by the Minister in an instrument in writing for this
clause; or
(b) [it must be found that] it would be unreasonable to
require the applicant to hold a passport.
2.3
This requirement applies to a large number of visa categories under the
Migration Regulations, however it is not clear from the explanatory statement
which visa categories PIC 4021 applies to (and whether it applies to protection
or humanitarian visas).
2.4
The Specification by the Minister for Immigration and Citizenship under Schedule
4, Part 1, Public Interest Criterion 4021 of the Migration Regulations 1994,
prescribes the types of passports and travel documents that will not be
considered to be valid for the purposes of meeting PIC 4021. The purpose of
the instrument is stated as being 'to prevent non-citizens, holding
unacceptable travel documents, being granted a visa'.[1]
2.5
The Specification prescribes two types of passports or travel documents
as those that will not be valid:
(a) passports or documents having certain characteristics (including
documents that have been damaged so that it is not possible to confirm
conclusively the holder's identity); and
(b) 33 specified travel documents, including those from particular countries
(such as Somalia) or specific types of travel documents (for example, a
Democratic Republic of the Congo diplomatic and service 32-page passport
bearing particular words).
Compatibility with human rights
2.6
The Migration Legislation Amendment Regulation 2012 (No. 5)
includes a statement of compatibility that provides an overview of the
instrument and states that article 12 of the International Covenant on Civil
and Political Rights (ICCPR), the right to freedom of movement, is the only
right that is relevant to the proposed amendment. It concludes that the
measures:
...are aimed at the legitimate purpose of managing Australia's
borders consistently with Australia's foreign policy objectives as well as
national security objectives of ensuring the identity of persons entering
Australia. The measures also provide the power to make exceptions where
circumstances warrant special consideration.[2]
2.7
The Specification under Schedule 4, Part 1, Public Interest Criterion
4021 is exempt from disallowance under section 44 of the Legislative
Instruments Act 2003, so a statement of compatibility is not required under
the Human Rights (Parliamentary Scrutiny) Act 2011. However, the
committee's role extends to examining all legislative instruments for
compatibility with human rights.[3]
2.8
As these instruments specify that travel documents from certain
countries will not be considered to be a valid passport for the purposes of
granting a visa, this may engage the right to non-discrimination under article
26 of the International Covenant on Civil and Political Rights. Although PIC
4021 provides an exception if it 'would be unreasonable to require the
applicant to hold a passport', this still treats people holding travel
documents from certain countries differently to those from other nations.
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