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This is a Bill, not an Act. For current law, see the Acts databases.
1998-99
The Parliament of
the
Commonwealth of
Australia
THE
SENATE
Presented and read a first
time
Migration
Legislation Amendment (Temporary Safe Haven Visas) Bill
1999
No. ,
1999
(Immigration and Multicultural
Affairs)
A Bill for an Act to amend the
Migration Act 1958, and for related purposes
ISBN: 0642
393087
Contents
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Migration Legislation Amendment
(Temporary Safe Haven Visas) Act 1999.
(1) Subject to
subsection (2), this Act commences on the day on which it receives the Royal
Assent.
(2) Item 11 of Schedule 1 commences immediately after the commencement of
item 10 of Schedule 1 to the Migration Legislation Amendment Act (No. 1)
1998.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
(1) If during the period beginning on 6 April 1999 and ending immediately
before the commencement of this section:
(a) a non-citizen is in Australia; and
(b) the non-citizen:
(i) holds a temporary visa that falls within Class UJ under the
regulations; or
(ii) has not left Australia since ceasing to hold such a visa;
and
(c) the non-citizen makes an application for a visa; and
(d) the non-citizen is not granted a substantive visa as a result of the
application;
then the application ceases to be a valid application on the commencement
of this section, despite any provision of the Migration Act 1958 or any
other law.
(2) To avoid doubt:
(a) subsection (1) applies even if the application, or a decision in
relation to the application, is the subject of a review by, or an appeal or
application to, a review officer, body, tribunal or court; and
(b) no visa may be granted to the non-citizen as a direct, or indirect,
result of the application.
A visa that falls within Class UJ under the regulations is taken to be a
temporary safe haven visa on the commencement of this section.
1 Subsection 31(2)
After “37”, insert “, 37A”.
2 Subsection 31(3)
Omit “or 37”, substitute “, 37 or 37A”.
3 After section 37
Insert:
(1) There is a class of temporary visas to travel to, enter and remain in
Australia, to be known as temporary safe haven visas.
Note: A temporary safe haven visa is granted to a person to
give the person temporary safe haven in Australia.
(2) The Minister may, by notice in the Gazette, extend the visa
period of a temporary safe haven visa so that the visa ceases to be in effect on
the day specified in the notice.
(3) The Minister may, by notice in the Gazette, shorten the visa
period of a temporary safe haven visa so that the visa ceases to be in effect on
the day specified in the notice if, in the Minister’s opinion, temporary
safe haven in Australia is no longer necessary for the holder of the
visa.
(4) If a notice under subsection (2) or (3) is published in the
Gazette and has not been revoked, then the visa ceases to be in effect on
the day specified in the notice, despite any other provision of this
Act.
(5) The Minister does not have a duty to consider whether to exercise the
power under subsection (2) in respect of any non-citizen, whether he or she is
requested to do so by the non-citizen or by any other person, or in any other
circumstances.
4 Paragraph 46(1)(d)
Before “161”, insert “91K (temporary safe haven
visa),”.
5 Subparagraph
65(1)(a)(iii)
Before “501”, insert “500A (refusal or cancellation of
temporary safe haven visas),”.
6 Subdivision AI of Division 3 of Part 2
(heading)
Repeal the heading, substitute:
7 After Subdivision AI of Division 3 of Part
2
Insert:
This Subdivision is enacted because the Parliament considers that a
non-citizen who holds a temporary safe haven visa, or who has not left Australia
since ceasing to hold such a visa, should not be allowed to apply for a visa
other than another temporary safe haven visa. Any such non-citizen who ceases to
hold a visa will be subject to removal under Division 8.
Note: For temporary safe haven visas, see section
37A.
This Subdivision applies to a non-citizen in Australia at a particular
time if, at that time, the non-citizen:
(a) holds a temporary safe haven visa; or
(b) has not left Australia since ceasing to hold a temporary safe haven
visa.
Despite any other provision of this Act but subject to section 91L, if
this Subdivision applies to a non-citizen at a particular time and, at that
time, the non-citizen applies, or purports to apply, for a visa (other than a
temporary safe haven visa), then that application is not a valid
application.
(1) If the Minister thinks that it is in the public interest to do so, the
Minister may, by written notice given to a particular non-citizen, determine
that section 91K does not apply to an application for a visa made by the
non-citizen in the period starting when the notice is given and ending at the
end of the seventh working day after the day that the notice is given.
(2) The power under subsection (1) may only be exercised by the Minister
personally.
(3) If the Minister makes a determination under subsection (1), he or she
is to cause to be laid before each House of the Parliament a statement
that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to
the Minister’s reasons for thinking that his or her actions are in the
public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non-citizen; or
(b) any information that may identify the non-citizen; or
(c) if the Minister thinks that it would not be in the public interest to
publish the name of another person connected in any way with the matter
concerned—the name of that other person or any information that may
identify that other person.
(5) A statement under subsection (3) is to be laid before each House of
the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive)
in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December
(inclusive) in a year—1 January in the following year.
(6) The Minister does not have a duty to consider whether to exercise the
power under subsection (1) in respect of any non-citizen, whether he or she is
requested to do so by the non-citizen or by any other person, or in any other
circumstances.
8 After paragraph 118(e)
Insert:
(ea) section 500A (refusal or cancellation of temporary safe haven visas);
or
9 At the end of section 198
Add:
(8) An officer must remove as soon as reasonably practicable an unlawful
non-citizen if:
(a) the non-citizen is a detainee; and
(b) Subdivision AJ of Division 3 of this Part applies to the non-citizen;
and
(c) either:
(i) the Minister has not given a notice under subsection 91L(1) to the
non-citizen; or
(ii) the Minister has given such a notice but the period mentioned in that
subsection has ended and the non-citizen has not, during that period, made a
valid application for a substantive visa that can be granted when the applicant
is in the migration zone.
10 Section 337 (at the end of the definition of
Part 5 reviewable decision)
Add “but does not include a decision to refuse to grant, or to
cancel, a temporary safe haven visa”.
11 At the end of subsection
338(1)
Add:
; or (c) the decision is to refuse to grant, or to cancel, a temporary
safe haven visa.
12 After paragraph
475(2)(d)
Insert:
(da) a decision of the Minister not to exercise, or not to consider the
exercise of, his or her power to extend the visa period of a temporary safe
haven visa under subsection 37A(2);
(db) a decision of the Minister to shorten the visa period of a temporary
safe haven visa under subsection 37A(3);
After “91F”, insert “, 91L”.
14 After section 500
Insert:
Refusal or cancellation of temporary safe haven visas
(1) The Minister may refuse to grant to a person a temporary safe haven
visa, or may cancel a person’s temporary safe haven visa if, in the
Minister’s opinion:
(a) the person has or has had an association with someone else, or with a
group or organisation, whom the Minister reasonably suspects has been or is
involved in criminal conduct; or
(b) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(c) in the event the person were allowed to enter or to remain in
Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia (see
subsection (2)); or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that
community; or
(v) represent a danger to the Australian community or to a segment of that
community, whether by way of being liable to become involved in activities that
are disruptive to, or in violence threatening harm to, that community or
segment, or in any other way; or
(d) the person is a threat to national security; or
(e) the person’s presence in Australia would prejudice
Australia’s international relations.
(2) For the purposes of subsection (1), conduct may amount to harassment
or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person;
or
(b) it consists only of damage, or threatened damage, to property
belonging to, in the possession of, or used by, the person.
Refusal or cancellation of temporary safe haven visas
(3) The Minister may refuse to grant to a person a temporary safe haven
visa, or may cancel a person’s temporary safe haven visa if:
(a) the person has been sentenced to death (see subsection (4));
or
(b) the person has been sentenced to imprisonment for life (see subsection
(4)); or
(c) the person has been sentenced to a term of imprisonment of 12 months
or more (see subsections (4) and (5)).
(4) For the purposes of subsection (3), a sentence imposed on a person is
to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified;
or
(b) the person has been pardoned in relation to the conviction
concerned.
(5) For the purposes of subsection (3), if a person has been convicted of
an offence and the court orders the person to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal
to the number of days the person is required to participate in the scheme or
program.
Minister to exercise power personally
(6) The powers under subsections (1) and (3) may only be exercised by the
Minister personally.
Minister to table decision
(7) If the Minister makes a decision under subsection (1) or (3) to refuse
to grant, or to cancel, a temporary safe haven visa, the Minister is to cause to
be laid before each House of the Parliament a statement that:
(a) sets out the decision; and
(b) sets out the reasons for the decision.
(8) A statement under subsection (7) is not to include:
(a) the name of the non-citizen; or
(b) any information that may identify the non-citizen; or
(c) if the Minister thinks that it would not be in the public interest to
publish the name of another person connected in any way with the matter
concerned—the name of that other person or any information that may
identify that other person.
(9) A statement under subsection (7) is to be laid before each House of
the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a
year—1 July in that year; or
(b) if the decision is made between 1 July and 31 December (inclusive) in
a year—1 January in the following year.
Minister to notify person of decision
(10) If the Minister makes a decision under subsection (1) or (3) to
refuse to grant a person a temporary safe haven visa, or to cancel a
person’s temporary safe haven visa, the Minister must notify the person of
the decision. However, failure to do so does not affect the validity of the
decision.
Natural justice and code of procedure not to apply to
decision
(11) The rules of natural justice, and the code of procedure set out in
Subdivision AB of Division 3 of Part 2, do not apply to a decision under
subsection (1) or (3).
Automatic refusal to grant visa to an immediate family
member
(12) If the Minister refuses to grant a person a temporary safe haven visa
under subsection (1) or (3), then the Minister is also taken to have refused to
grant a temporary safe haven visa to each immediate family member of the person.
The immediate family member need not be notified of the refusal.
Automatic cancellation of immediate family member’s
visa
(13) If a person’s temporary safe haven visa is cancelled under
subsection (1) or (3), then a temporary safe haven visa held by each immediate
family member of the person is also cancelled. The immediate family member need
not be notified of the cancellation.
Definitions
(14) In this section:
court includes a court martial or similar military
tribunal.
immediate family member of a person means another person who
is a member of the immediate family of the person (within the meaning of the
regulations).
imprisonment includes any form of punitive detention in a
facility or institution.
sentence includes any form of determination of the punishment
for an offence.