This chapter discusses the key provisions of the Migration Legislation
Amendment (Visa Revalidation) Bill 2016 (the bill).
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.
Lastly, this chapter sets out the committee's views and recommendations.
Schedule 1 - Revalidation check for certain visas
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
...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
Support for the revalidation framework
The introduction of the visa revalidation framework would support the trial
of a new 10-year multiple entry Visitor visa for Chinese nationals.
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.
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
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.
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.
Issues raised by submitters to the
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:
claims there is currently insufficient information available
about the nature, conditions and implementation of the new 10-year visa for
allegations that the bill does not limit the revalidation scheme to
holders of the new 10-year multiple entry visa, which means revalidation tests
could be extended to other classes of visa in the future;
the suggestion that 'adverse information', which can be used by
the Minister of Immigration and Border Protection (the Minister) to determine
revalidation checks for certain visa holders, is insufficiently defined in the
bill and supporting regulations;
the view that ministerial powers to determine 'public interest
revalidation checks' may not be subject to robust accountability and scrutiny
mechanisms in the Migration Act;
claims the bill lacks provisions for reviews of decisions made
under the visa revalidation framework, and concerns that natural justice is not
guaranteed to be afforded to individuals subject to negative visa revalidation
the perception that there may already be existing powers in the
Migration Act to address potential security and public interest concerns
regarding 10-year visitor visas.
Insufficient information about the new visa
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.
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.
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:
- is a 10 year
visa, applying to tourism and business visitor activities;
- will allow for
multiple entries and up to a three-month stay period after each entry during
the validity period of the visa (with no more than 12 months cumulative
stay in a 24 month period;
- will initially
only be available to applications who are nationals of the People’s Republic of
- costs AUD1000 as
the visa application charge; and
- will be marketed
as a premium product to attract high value frequent travellers.
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.
The revalidation framework is not
limited to the new 10-year visa
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
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.
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.
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.
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.
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
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
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
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
Lack of a robust definition of 'adverse
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:
has been convicted of an offence since the grant of the visa;
may present a health concern to the Australian community;
no longer intends to stay in Australia for temporary or tourism
may present a security risk to the Australian community.
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'.
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.
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).
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.
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
- economic disruption, including shortages, famine, or high
levels of unemployment, or natural disasters in the applicant’s home country;
- civil disruption, including war, lawlessness or political
upheaval in the applicant’s home country; or
- emerging public health and safety risks identified in the
visa holder’s country of citizenship or long term residence.
The extent of ministerial powers
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.
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.
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.
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
...[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.
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'.
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'.
Ministerial accountability and the
scrutiny of decisions
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:
states that the Minister has made the determination; and
sets out the Minister’s reasons for making the determination,
referring in particular to the Minister’s reasons for thinking that the making
of the determination is in the public interest.
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.
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.
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
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.
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
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).
Reviews of findings under the visa
Some submitters observed that it is not clear whether adverse decisions
made under the visa revalidation framework are reviewable. For instance, the Kaldor
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.
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
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'.
Given this, the Law Council recommended that the bill be amended:
...to 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.
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
Existing powers under the Migration
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:
- 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
- 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
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.
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)]'.
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.
The short timeframe for inquiry
into the bill
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'.
Schedule 2 – Cessation of visas that are not in effect
Currently, section 82 of the Migration Act sets out when a visa ceases
to be in effect, including in cases when:
a visa holder leaves Australia because of a deportation order;
a bridging visa ceases because the holder has another type of
visa come into effect; or
the holder of a visa valid for a particular period or date leaves
Australia after that period or date.
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
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
Submitters raised no concerns specifically addressing provisions
contained in Schedule 2 of the bill.
Schedule 3 – Contactless immigration clearance
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.
The department emphasised that the use of SmartGates was voluntary, and
that individuals could choose to be processed by an immigration officer.
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
No concerns about Schedule 3 were raised by submitters to the inquiry.
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.
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
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.
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.
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.
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.
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.
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
The committee encourages government to consider that public
interest revalidation checks made by the Minister be subject to disallowance by
The committee recommends that the Senate pass the bill.
Senator the Hon Ian Macdonald
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