Chapter 2

Key issues

2.1        This chapter discusses the key provisions of the Migration Legislation Amendment (Visa Revalidation) Bill 2016 (the bill).

2.2        First it outlines the key issues raised by submitters to the inquiry, which overwhelmingly addressed provisions contained in Schedule 1 of the bill. It then provides an outline the provisions of Schedules 2 and 3 of the bill.

2.3        Lastly, this chapter sets out the committee's views and recommendations.

Schedule 1 - Revalidation check for certain visas

2.4        The Explanatory Memorandum outlines the proposed amendments that would be made by Schedule 1 of the bill, which would establish a visa revalidation framework within the Migration Act 1958 (the Migration Act ). This would include:

...a general power for the Minister to require, from time to time, a person who holds a visa of a prescribed kind to complete a revalidation check. There will be an additional personal non-compellable power for the Minister to determine by legislative instrument, if he or she thinks it is in the public interest, that a specified class of persons holding a visa of a prescribed kind must complete a revalidation check for the visa.

The amendments will provide that a person will pass a revalidation check if the Minister is satisfied that there is no adverse information relating to the person, or it is reasonable to disregard that adverse information. The consequences of a person failing to complete or pass a revalidation check may be that the visa will cease to be in effect, depending on their circumstances, by operation of law. If a person's visa has previously ceased to be in effect, they can subsequently complete and pass the revalidation check during the visa period and their visa will come back into effect.[1]

Support for the revalidation framework

2.5        The introduction of the visa revalidation framework would support the trial of a new 10-year multiple entry Visitor visa for Chinese nationals.[2]

2.6        The Department of Immigration and Border Protection (the department) submitted that the framework would deliver economic dividends for the Australian tourism sector by boosting the numbers of Chinese tourists and businesspeople coming to Australia.[3]

2.7        The department also noted that the provisions of the bill would simplify immigration processes for visitors, while maintaining the integrity of Australia's security system:

This framework simplifies visa processes for frequent travellers whilst managing specific, serious, or time critical risks to the Australian community and individual circumstances which may change through the visa validity period. The new framework will support the proposed trial of the new 10 year validity visitor visa to ensure that, among other things, only genuine visitors retain the right to travel to and enter Australia.[4]

2.8        The Migration Institute of Australia (MIA) recognised that it was reasonable to expect visas with longer periods of validity, including the new 10-year multiple entry visa, to be subject to revalidation checks, as:

Visa holders' personal circumstances can undergo any number of changes over time and the longer the visa validity, the greater the opportunity for unforeseen or undesirable changes to occur.

Revalidation at biannual intervals and through the processes specified in this Bill appear reasonable and appropriate without being overly onerous within the circumstances.[5]

Issues raised by submitters to the inquiry

2.9        Submitters raised a number of issues about the introduction of the visa revalidation scheme by Schedule 1 of the bill. These issues will be discussed in turn, and include:

Insufficient information about the new visa

2.10      The Law Council of Australia (Law Council) advised the committee that it was difficult to assess the potential impact of revalidation checks, given that:

...the visa referred to in the Explanatory Memorandum does not currently exist, and there are no details as to the criteria which must be satisfied for that visa, or the conditions which may or must be imposed. The Law Council is of the view that without this information, the breadth of the power conferred by Schedule 1 of the Bill cannot be fully appreciated.[6]

2.11      At the recent Supplementary Estimates hearing of this committee, the Secretary of the Department of Immigration and Border Protection, Mr Michael Pezzullo, and Acting Commissioner of the Australian Border Force, Mr Michael Outram, provided information about new types of visas, including the 10-year visa for Chinese visitors to Australia:

By the end of 2016, the Department will have implemented a number of new and innovative tourist visa products: first, a Lodgement in Simplified Chinese and second, a 10-year validity Visitor (Subclass 600) visa - which allows multiple entries and a three-month stay period. The visa will commence as a pilot in China for a fee of AUD $1000.[7]

2.12      The committee notes that the Law Council's submission includes an overview of the nature and conditions of the 10-year visa, which are all drawn from the Explanatory Memorandum, including that it:

2.13      The department clarified that the new Frequent Traveller stream of the Visitor (subclass 600) commenced on 19 November 2016, which will provide for the pilot of the longer multiple entry visas for Chinese nationals. It also directed the committee to further detail in the new regulations supporting this visa, which the Federal Executive Council endorsed on 10 November 2016.[9]

The revalidation framework is not limited to the new 10-year visa

2.14      Some particular submitters raised concerns that the bill does not explicitly link the scheme to any visa type, despite the claim it is designed to support the integrity of the new 10-year visitor visa. This means the revalidation framework could potentially be used to review and rescind other classes of visa. For example, the Law Council of Australia questioned 'whether the Bill is necessary, justified and proportionate to achieving a legitimate purpose', given that:

...the Bill has a substantially broader application than was intended or expressed in the Explanatory Memorandum or the Minister’s Second Reading Speech.[10]

2.15      The Andrew & Renata Kaldor Centre for International Refugee Law (Kaldor Centre) advised the committee that the revalidation framework 'has the potential to adversely impact on all visa holders'. Even though the Kaldor Centre noted that it was most likely that it could be used regarding holders of temporary visas, it noted the potential for it to be applied to all classes of visas, including permanent visas granted to refugees.[11]

2.16      The Law Council also advised the committee that ministerial powers under the proposed subsection 96B(1) may not be limited to the new visa:

The definition of a 'prescribed kind' of visa is not defined within the Bill, nor is it limited to the proposed new longer validity visitor visa. A 'prescribed kind' of visa could potentially be any visa as deemed by the Minister. As a visa of a 'prescribed kind' can be specified in regulations which then refer to an Instrument which defines the subclass or class of visa, the Bill has the potential to all classes of visas.[12]

2.17      Moreover, the Law Council noted there were no time limitations imposed by the amendments made by the bill, which made it possible that:

...these proposed powers could be exercised many years after a person has been granted permanent residence. The fact that that many people will have moved address in that period will meant that many people may not be aware that that a notice requiring them to complete a revalidation check has been issued. In practical terms their visas will then cease to be in effect when they travel internationally.[13]

2.18      The department provided further information about the scope of the bill's provisions, noting that only the new Subclass 600 (Visitor) visa will be prescribed for the purposes of requiring a revalidation check. The department explained why the power to prescribe which visa could be subject to a revalidation check process has not been limited, as follows:

Flexibility had been provided as other longer validity visa products may be implemented in the future. The revalidation framework may be an appropriate mechanism to manage identified risks in these products. Limiting the types of visas that can 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.[14]

2.19      The department also noted proposed regulations under the new provisions that would specify that:

For the purposes of subsection 96B(1) of the Act, a Subclass 600 (Visitor) visa in the Frequent Traveller stream is a prescribed kind of visa.

For the purposes of subsection 96E(1) of the Act, a Subclass 600 (Visitor) visa in the Frequent Traveller stream is a prescribed kind of visa.[15]

2.20      Moreover, the department made it clear there were no proposals to extend the new provisions to other visas, and that any future changes to the Migration Regulations 1994 would be subject to parliamentary scrutiny and disallowance:

It is not proposed that the amendments to the Migration Regulations 1994 (Migration Regulations) to prescribe these visas will include a power to make a legislative instrument to specify additional visas. Further, as any amendments to the Migration Regulations would themselves be subject to disallowance, there would be parliamentary oversight of any proposal to include such an instrument making power (or to add further visas to the Revalidation scheme).[16]

Lack of a robust definition of 'adverse information'

2.21      The Explanatory Memorandum provides some guidance regarding adverse information that could be used to inform a revalidation check, noting it may cover information that includes, but is not limited to, if a person:

2.22      The Law Council noted that Regulation 1.13A of the Migration Regulations 1994 defines 'adverse information' in broad terms, which include 'a wide range of activity, not just committed by the person themselves, but also a person associated with that person'.[18] It observed that, under the revalidation checks proposed by the bill:

The adverse information also does not need to relate to: (a) the criteria that the person met to be granted the visa in the first place; or (b) factors/matters which would potentially expose the person to visa cancellation under existing powers of the Act. Conceivably this could relate to something as simple as a parking fine. As drafted, the Law Council is concerned that 'adverse information' is too broad to be meet its intended purpose to protect the Australian community due to the risks associated with longer validity visitor visas.[19]

2.23      The Kaldor Centre argued that the broad definition of 'adverse information' in the bill, could:

...enable the government to impose surveillance measures on temporary, and possibly, permanent visa holders. It 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).[20]

2.24      Given this, the Kaldor Centre argued that the introduction of these provisions could have negative effects for recipients of refugee visas:

For example, [a requirement to complete a visa revalidation check] would require a refugee to respond to information relating to a change in circumstances in their country of origin, or a health problem, or a minor traffic infringement. It means that a refugee potentially has to continually validate his or her claims for protection, and information supplied may be used to cancel a visa. This is likely to have significant consequences for refugees' ability to adjust to life in Australia, to feel safe and well-integrated in the community, and to recover from trauma or general stress associated with the reasons for flight and/or experiences as an asylum seeker.[21]

2.25      The department provided further information to the committee about the nature and scope of 'adverse information' that could be considered by the Minister in making determinations. It highlighted that 'adverse information' had to be defined broadly to 'allow for flexibility in addressing future changes in both domestic and global circumstances', and commented that a Minister could 'disregard adverse information when reasonable'. It noted that conditions for accepting or disregarding adverse comment could include:

...circumstances relevant to the assessment of the genuine temporary entrant criteria, including consideration of both 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. These conditions include:

The extent of ministerial powers

2.26      The Explanatory Memorandum sets out the powers of the Minister to determine that certain visa holders must complete a 'public interest revalidation check' under new subsection 96E(1):

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, determined to be relevant to the particular circumstances.[23]

2.27      Additionally, proposed subsection 96B(1) states that:

The Minister may, from time to time, require a person who holds a visa of a prescribed kind (however described) to complete a revalidation check for the visa.[24]

2.28      The MIA expressed reservations about the extent of the personal powers that could be granted to the Minister by section 96E(1) of the bill, if enacted:

The MIA believes that circumstances could emerge that could provide the Minister at that time with unfettered power to determine classes of person who must submit to revalidation checks. For example, if the Government of the day held a majority in both the Upper and Lower Houses of the Federal Parliament, any legislative instrument changing the classes of persons specified in such an instrument, may have an easy path to approval.

At worst, the Minister's powers could be used to significantly skew this interpretation of the 'public interest' and to significantly and retrospectively change the eligibility characteristics for passing the revalidation test. Unlikely as it may seem at this time, this could be extrapolated to discriminate against large numbers of long term visa holders lawfully living in Australia, preventing them from revalidating their visas and requiring them to leave the country.[25]

2.29      The Law Council pointed out that the bill does not contain any threshold requirements for the Minister to invoke discretionary powers. It flagged concerns that the lack of a threshold for the exercise of ministerial discretion may be at odds with existing visa cancellation powers contained in the Migration Act:

...[under the amendments the Minister has] a power that can be used at large against any person who holds a visa of a 'prescribed kind', entirely at the discretion of the Minister.

This is at odds with all the visa cancellation powers which exist in the Migration Act under Subsections 109, 116, 133A, 133B, 134, 137Q, and 501 (and related powers). For each of those cancellation powers, the Migration Act prescribes specific adverse matters/facts of which the Minister must be satisfied before the discretion can be exercised.[26]

2.30      This concern was shared by the Kaldor Centre, which observed that bill does not define 'public interest' and that this 'in practice this would give the Minister considerable discretion to impose checks on any number of visa holders'.[27] The Law Council also noted this extension of the Minister's discretionary powers, and highlighted that the Migration Act itself does not contain a definition of 'public interest'.[28]

Ministerial accountability and the scrutiny of decisions

2.31      Proposed subsection 96E(3) of the bill sets out the provision that a Minister can make a determination it is in the public interest for certain a class of visa holders to complete a revalidation check (a public interest revalidation check). This stipulates that, following such determinations:

...the Minister must cause to be laid before each House of the Parliament a statement that:

2.32      The Explanatory Memorandum states that this:

...provides a mechanism for the Minister to ensure that there is public and political accountability to the Parliament regarding the exercise of the power in new subsection 96E(1), in particular over the reasons that the Minister thinks the making of the determination was in the public interest.[30]

2.33      Some submitters recognised that the powers of the minister under the bill are not completely unfettered, as the amendments do contain some accountability and scrutiny mechanisms to ensure discretionary powers are not abused. For instance, despite its concerns over some elements of the bill, the MIA recognised that 'this Amendment contains a variety of checks and balances within the prescribed processes.[31]

2.34      The Law Council drew the committee's attention to potential limitations to the ability of the Parliament to apply appropriate scrutiny to Ministerial decisions made under new provisions proposed by the bill:

It is the current approach in migration matters for the regulations to refer to the wording such as 'those visa subclasses as specified in a legislative instrument'. An attempt to make regulations for the purposes of the 'prescribed kind' of visa in the Bill would be a decision made by the determination of the Minister. Consistent with section 44 of the Legislative Instruments Act 2003 (Cth), these regulations would not be disallowable. This potentially limits capacity to scrutinise the broader impacts of the Bill if passed.[32]

2.35      However, the Explanatory Memorandum states that parliamentary scrutiny of ministerial decisions would be possible under the tabling provisions:

While a legislative instrument made under new subsection 96E(1) is not subject to disallowance, the tabling provisions will still ensure that the Parliament can scrutinise the Minister’s decision and provide comment on such a determination through a motion of disapproval or other mechanism.[33]

2.36      The department clarified that any regulations applying revalidation checks to visas other than the new Frequent Traveller stream of the Visitor (subclass 600) would be subject to the disallowance process:

There would be Parliamentary scrutiny over which visas, or the types of visas, that were prescribed for the revalidation check framework through the disallowance process. If the Parliament considered it was inappropriate for a visa which has been prescribed to be subject to the revalidation check process, a motion could be moved to disallow that regulation.[34]

2.37      The department also noted that a flexible approach would provide for:

...consideration of the visa holder’s ongoing compliance with the conditions of their visa, as well as consideration of information relevant to any new grounds for visa cancellation that are introduced in the future under the Migration Act 1958 (the Migration Act).[35]

Reviews of findings under the visa revalidation framework

2.38      Some submitters observed that it is not clear whether adverse decisions made under the visa revalidation framework are reviewable. For instance, the Kaldor Centre noted:

While the ultimate decision to cancel a visa may be subject to administrative and judicial review, it does not appear that the decisions as to whether a person passes the revalidation check would be.[36]

2.39      The Law Council also raised concerns that there was no explicit acknowledgement in the bills that natural justice would be afforded to visa holders subject to negative assessments, who wished to seek a review of decisions.[37] It set out the issues this may raise, as follows:

While not specifically excluding natural justice, the Law Council is concerned that the revalidation check under proposed section 96B may give rise to natural justice issues. Under proposed section 96D it is not clear that the long term validity visa holder would be provided with reasons or be heard following a decision that a 'visa ceases to be in effect'.[38]

2.40      Given this, the Law Council recommended that the bill be amended: expressly provide that natural justice is afforded to those affected by a visa revalidation decision and that administrative review rights are not curtailed. This would require that the Minister inform the person subject to the visa revalidation of the nature and precise content of any ‘adverse information’ on which a decision is based and allow opportunity for the person to respond.[39]

2.41      Regarding the provision of natural justice to individuals undergoing visa revalidation checks, the department commented:

The cancellation powers in the Migration Act include a mechanism to provide natural justice to a visa holder in relation to adverse information, either in the form of a NOICC (Notice of Intention to Consider Cancellation) or through the request for revocation of visa cancellation process. This means that where the Department of Immigration and Border Protection (the Department) is aware of such information, adequate powers exist to take appropriate action.[40]

Existing powers under the Migration Act

2.42      The Law Council advised the committee that the Migration Act and Regulations may already provide adequate powers to address any concerns about safeguarding the integrity of Australian immigration system when the new 10-month visitor visa is introduced, citing provisions that:

A visa holder can be required to inform of any change of their contact details – see for example conditions 8505, 8506 and 8513.

A temporary visa can be cancelled if it is later determined that:

  1. the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
  2. the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.

A temporary visa can also be cancelled if the holder has not complied with the conditions of their visa.

Any visa (whether temporary or permanent) can be cancelled on the basis that a bogus document, or false or misleading information in a material particular, was provided as part of a visa application (Public Interest Criteria 4020).

With respect to protection, refugee and humanitarian visas, the Minister has extensive cancellation powers under subsections 5H(2), 36(1C), 36(2C) and section 501 of the Migration Act.[41]

2.43      The Law Council also noted that similar regimes for the automatic cancellation of certain visas, such as the provisions enacted by the Migration Legislation Amendment (Student Visas) Act 2012, had been abandoned by the Commonwealth. It suggested that '[a]utomatic cessation of visas is an inefficient tool for managing visa compliance, consistent with the commentary in the Knight Review [Strategic Review of the Student Visa Program (2011)]'.[42]

2.44      In response to these concerns, the department stated that:

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.[43]

The short timeframe for inquiry into the bill

2.45      The Law Council considered that 'one week is insufficient time for consultation on the Bill, which will grant substantial additional powers to the Minister'. It noted that a longer reporting time 'would have enabled [the committee] to obtain the views of a much wider range of organisations and individuals affected by the Bill'.[44]

Schedule 2 – Cessation of visas that are not in effect

2.46      Currently, section 82 of the Migration Act sets out when a visa ceases to be in effect, including in cases when:

2.47      The Explanatory Memorandum further outlines examples in which amendments introduced by proposed 82A would apply, as well as the policy intention of these legislative changes:

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.[45]

2.48      Submitters raised no concerns specifically addressing provisions contained in Schedule 2 of the bill.

Schedule 3 – Contactless immigration clearance

2.49      The department set out the advantages of contactless technology in enhancing the use of SmartGates in immigration processes:

These immigration clearance measures·amend the Migration Act to enable the use of 'contactless' technology to clear travellers through the automated immigration clearance system, SmartGate, which is an authorised clearance authority under the Migration Act. Contactless technology is an enhancement to SmartGates at both departure and arrival, and uses leading edge technology to confirm a traveller's identity, removing the SmartGate's reliance on document based checks to confirm identity.[46]

2.50      The department emphasised that the use of SmartGates was voluntary, and that individuals could choose to be processed by an immigration officer.[47] Moreover, the department highlighted both the security and economic benefits of the improvement of automated immigration clearance systems:

With increased automation, Australian Border Force resources can be diverted from manual processing tasks to focus on managing border threats and minimising vulnerabilities. This enhancement provides stronger security measures and contributes to the economic development of Australia through faster and more efficient traveller facilitation.[48]

2.51      No concerns about Schedule 3 were raised by submitters to the inquiry.

Committee view

2.52      The committee is satisfied that the provisions of the bill would achieve the stated goals of supporting the trial of 10-year multiple entry visas for Chinese nationals wishing to visit Australia for tourism and business purposes.

2.53      Tourism is one of Australia's largest sectors, contributing around $120 billion to our national economy. Within this, China is Australia's largest source of tourists, who contribute over $5 billion to the Australian economy annually.[49]

2.54      Expediting visas for Chinese visitors will clearly deliver benefits for the tourism industry in the future, and through this contribute substantially to the Australian economy more generally.[50]

2.55      The committee understands that the bill's proposed provisions would also assist in streamlining the Australian immigration system, which faces significant challenges in the near future, exemplified by forecasts that suggest there will be a 25 per cent increase to the number of visitors to Australia over the next four years.

2.56      Given this, the committee considers that the bill will go some way to making it more convenient for many visa holders to enter Australia, as well as reducing red tape and costs for the Commonwealth.

2.57      The committee understands that concerns have been raised by submitters to the inquiry about the visa revalidation system introduced by the bill. Additionally, the committee has considered evidence that argues the bill does not include robust mechanisms to ensure that determinations made by the minister are subject to appropriate scrutiny and accountability.

2.58      However, the committee is 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.

2.59      The committee notes that any decision made by the minister to make determinations for certain classes of visa holders to be subject to public interest revalidation checks requires that the minister table a statement in both Houses of Parliament justifying the decision. This provision would ensure that decisions made by the Minister are subject to appropriate scrutiny by Parliament.

2.60      The committee encourages government to consider that public interest revalidation checks made by the Minister be subject to disallowance by the Senate.

Recommendation 1

2.61      The committee recommends that the Senate pass the bill.

Senator the Hon Ian Macdonald

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