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2013-2014-2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (PROTECTION AND OTHER MEASURES)
BILL 2014
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Immigration and Border Protection,
the Hon. Peter Dutton MP)
1
Amendments to the Migration Amendment (Protection and Other Measures) Bill 2014
OUTLINE
The Migration Amendment (Protection and Other Measures) Bill 2014 (the Bill) amends the
Migration Act 1958 (the Migration Act) to implement a range of measures which increase
efficiency and enhance integrity in the onshore protection status determination process. The
measures in the Bill support an effective and coherent protection determination process which
responds to the challenging domestic asylum seeker landscape.
The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee
(the Committee) on 26 June 2014 for inquiry and report. The Committee reported on the Bill on
22 September 2014.
Relevantly, Recommendations 1 and 2 of the Committee report were:
Recommendation 1
The Committee recommends that the government only apply the amendments to applications
made on or after the commencement of the bill or the date on which the bill was first introduced
to parliament.
Recommendation 2
The Committee recommends that the government consider increasing the 7 day limit on
reinstatement of an application where an applicant fails to appear to 14 days.
Recommendation 1 relates to Schedule 2 to the Bill which contains amendments relating to
clarifying the threshold for Australia's protection obligations under the International Covenant
on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT). Schedule 2 inserts new section 6A and
amends paragraph 36(2)(aa) in the Migration Act to make clear that the Minister can only be
satisfied that Australia has protection obligations under the ICCPR or CAT (known as
"complementary protection") in respect of the non-citizen, if the Minister considers that it is
more likely than not that the non-citizen will suffer significant harm if removed from Australia to
a receiving country.
In line with the recommendation of the Committee, the new complementary protection risk
threshold inserted by Schedule 2 to the Bill will only apply to applications for visas made on or
after the commencement of Schedule 2 to the Bill.
Consequential amendments are also proposed to change the language of certain provisions in the
Migration Act to give effect to the risk threshold inserted by Schedule 2 to the Bill.
Recommendation 2 relates to Schedule 4 to the Bill which contains amendments relating to the
Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT). These
amendments apply to both Tribunals and seek to improve their processing and administration. In
particular, the Tribunals will be able to dismiss an application where an applicant fails to appear
before the Tribunal after being invited to do so. The Tribunals will have the power to reinstate
an application that has been dismissed for non-attendance, if the applicant seeks reinstatement
within a 7 day period and the Tribunal considers it appropriate to do so.
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The Government accepts the recommendation of the Committee and the amendments to
Schedule 4 to the Bill will increase the timeframe in which an applicant at review may apply for
a reinstatement of their application from within 7 days to within 14 days after receiving notice of
the decision to dismiss the application.
Schedule 2 to the Bill will also be amended to reinsert certain provisions which would be
removed by the Migration Amendment (Regaining Control Over Australia's Protection
Obligations) Bill 2013 (the Regaining Control Bill). These amendments are contingent on the
commencement of that Bill.
Schedule 3 to the Bill will also be amended to provide that holders of a temporary protection visa
are prevented from making a valid application for a visa unless the Minister determines that it is
in the public interest for them to do so. Temporary protection visas were reintroduced in the
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy
Caseload) Act 2014 (the Resolving the Asylum Legacy Caseload Act).
In summary, the amendments to the Bill:
make consequential changes to the language of several provisions to give effect to the
risk threshold for Australia's protection obligations under the ICCPR and CAT which
is inserted by Schedule 2 to the Bill;
make changes to the application provision to provide that the risk threshold inserted
by Schedule 2 to the Bill will apply to applications for a visa made on or after
commencement of that Schedule;
provide contingent amendments in Schedule 2 to the Bill to insert new paragraph
336F(5)(ca) and reinsert paragraphs 336F(5)(cb) and 336F(5)(cc) of the Migration Act
in the event that the Regaining Control Bill commences either before or after this
Bill;
amend Schedule 3 to provide that holders of a temporary protection visa are prevented
from making a valid application for a visa unless the Minister determines that it is in
the public interest for them to do so; and
amend Schedule 4 to increase the timeframe in which an application for reinstatement
may be made by an applicant who fails to appear before the MRT or the RRT from
7 days to 14 days.
FINANCIAL IMPACT STATEMENT
The financial impact of the Bill is low. Any costs will be met from within existing resources of
the Department of Immigration and Border Protection.
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AMENDMENTS TO THE MIGRATION AMENDMENT (PROTECTION AND OTHER
MEASURES) BILL 2014
NOTES ON AMENDMENTS
Amendment (1) - Clause 2, page 2 (table item 6, column 1)
1. This amendment omits "item 5" and substitutes "items 5 to 5C" in table item 6 of the
commencement table on page 2 of the Bill.
2. Table item 6 of the Bill currently provides that item 5 of Schedule 2 to the Bill commences
the day after this Act receives the Royal Assent. However, if the Migration Amendment
(Regaining Control Over Australia's Protection Obligations) Act 2015 (the Regaining
Control Act) receives the Royal Assent before that day, the provision(s) do not commence
at all.
3. The purpose of this amendment is to ensure that items 5A, 5B and 5C, which are inserted
by amendment (4) below, commence at the same time as item 5 of Schedule 2 to the Bill.
This is because items 5A, 5B and 5C give effect to item 5 of Schedule 2 to the Bill.
4. This amendment is consequential to amendment (4) below.
Amendment (2) - Clause 2, page 2 (table item 8, column 1)
5. This amendment omits "Part 2" and substitutes "items 7 and 7A" in table item 8 of the
commencement table on page 2 of the Bill.
6. Table item 8 of the Bill currently provides that Part 2 of Schedule 2 to the Bill, which
contains contingent amendments to the Migration Act, commences immediately after the
commencement of Schedule 1 to the Regaining Control Act. However, if that Schedule
does not commence, the provision(s) do not commence at all.
7. The purpose of this amendment is to ensure that new item 7A, which is inserted by
amendment (7) below, commences at the same time as table item 8.
8. This amendment is consequential to amendment (7) below.
Amendment (3) - Clause 2, page 2 (after table item 8)
9. This amendment inserts new items 8A and 8B in the commencement table on page 2 of the
Bill. Amendment (2) and the insertion of table items 8A and 8B are necessary due to the
proposed division of amendments in Part 2 of Schedule 2 to the Bill.
10. The purpose of table item 8A is to provide for the commencement of new item 7B in
Schedule 2 to the Bill which is inserted by amendment (8) below. New item 7B is a
contingent amendment that will commence on the later of the day after this Act receives
the Royal Assent and immediately after the commencement of Schedule 1 to the
Regaining Control Act. However, if that Schedule does not commence, the provision(s)
do not commence at all.
11. This amendment is consequential to amendment (8) below.
12. The purpose of table item 8B is to provide for item 8 of Schedule 2 to the Bill to
commence at the same time as the provision(s) covered by table item 8, which is
immediately after the commencement of Schedule 1 to the Regaining Control Act
(however, if that Schedule does not commence, the provisions(s) do not commence at all).
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13. Item 8 provides for the application of amendments made by Part 2 of Schedule 2 to the
Bill. This preserves the same commencement time as in the current Bill for item 8 of
Schedule 2. This amendment is consequential to amendments (9) and (10) below.
Amendment (4) - Schedule 2, page 12 (after line 10)
14. This amendment inserts new items 5A, 5B and 5C after item 5 of Schedule 2 to the Bill.
These items repeal and substitute subsection 36(2B), and omit and substitute certain words
in paragraphs 36(4)(b) and 36(5A)(b) and subparagraph 336F(5)(ca)(ii).
15. New items 5A, 5B and 5C are consequential to items 4 and 5 of Schedule 2 to the Bill.
16. Item 4 of Schedule 2 to the Bill inserts new section 6A into the Migration Act which
makes clear that the Minister can only be satisfied that Australia has protection obligations
(under the ICCPR or CAT) in respect of the non-citizen, if the Minister considers that it is
more likely than not that the non-citizen will suffer significant harm if removed from
Australia to a receiving country.
17. Item 5 of Schedule 2 to the Bill repeals paragraph 36(2)(aa) in section 36 of Subdivision A
of Division 3 of Part 2 of the Migration Act and substitutes new paragraph 36(2)(aa).
18. Current paragraph 36(2)(aa) provides that a criterion for a protection visa is that the
applicant is a non-citizen in Australia (other than a non-citizen mentioned in paragraph
36(2)(a) which relates to obligations under the Refugees Convention) in respect of whom
the Minister is satisfied Australia has protection obligations because the Minister has
substantial grounds for believing that, as a necessary and foreseeable consequence of the
non-citizen being removed from Australia to a receiving country, there is a real risk that
the non-citizen will suffer significant harm.
19. As result of the amendment in item 5 of Schedule 2 to the Bill, new paragraph 36(2)(aa)
will provide that a criterion for a protection visa is that the applicant for the visa is a
non-citizen in Australia (other than a non-citizen mentioned in paragraph 36(2)(a)) in
respect of whom the Minister is satisfied Australia has protection obligations because the
Minister considers that it is more likely than not that the non-citizen will suffer significant
harm if the non-citizen is removed from Australia to a receiving country.
20. Paragraph 36(2)(aa) is qualified by subsection 36(2B) and paragraphs 36(4)(b) and
36(5A)(b); and the language in current paragraph 36(2)(aa) is applied in subparagraph
336F(5)(ca)(ii) of the Migration Act. This amendment therefore changes the language of
those provisions to give effect to the risk threshold for Australia's protection obligations
under the ICCPR and CAT which is inserted by Schedule 2 to the Bill.
Amendment (5) - Schedule 2, item 6, page 12 (lines 22 to 26)
21. This amendment omits paragraphs (2)(a) and (2)(b) from item 6 of Schedule 2 to the Bill
and substitutes new paragraph (2)(a).
22. Item 6 provides for the application of amendments made by Part 1 of Schedule 2 to the
Bill. Current subitem 6(2) provides that subitem 6(1) covers the following assessments:
an assessment made on or after the day item 6 commences;
if an assessment is made as a result of an application for a visa - an assessment
that begins before the day item 6 commences, if the application has not been
finally determined before that day;
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if an assessment is made as part of an administrative process - an assessment that
begins before the day item 6 commences, if the administrative process has not
been completed before that day.
23. Amended subitem 6(2) will provide that subitem 6(1) covers the following assessments:
an assessment made on or after the day this item commences, whether:
o as a result of an application for a visa made on or after that day; or
o as part of an administrative process that begins on or after that day;
or otherwise;
if an assessment is made as part of an administrative process - an assessment that
begins before the day item 6 commences, if the administrative process has not
been completed before that day.
24. The effect of this amendment is that the new complementary protection risk threshold
inserted by Schedule 2 to the Bill will only apply to assessments made as a result of an
application for a visa made on or after commencement of Part 1 of Schedule 2 to the Bill.
The new threshold will not apply to an application for a visa made prior to the
commencement of Part 1 of Schedule 2 to the Bill.
25. The amendments in Schedule 2 will still apply to assessments made under an
administrative process that begin, but have not been completed, before commencement.
This aspect of item 6 remains unchanged.
Amendment (6) - Schedule 2, page 13 (after line 1)
26. This amendment inserts the heading "Division 1 - Amendments if this Act commences
before the Migration Amendment (Regaining Control Over Australia's Protection
Obligations) Act 2015" after the heading to Part 2 of Schedule 2 on page 13 of the Bill.
27. This amendment is consequential to amendments (7) and (8) below, which create various
contingent amendments that will commence depending on whether this Bill commences
before or after the Regaining Control Bill.
Amendment (7) - Schedule 2, page 14 (after line 25), after item 7
Amendment (8) - Schedule 2, page 14 after proposed item 7A
28. These amendments inserts items 7A and 7B after item 7 in Part 2 of Schedule 2 to the Bill.
29. Part 2 of Schedule 2 to the Bill contains items which are contingent on the commencement
of the Regaining Control Bill. Item 16 in that Bill repeals paragraphs 336F(5)(ca),
336F(5)(cb) and 336F(5)(cc) of the Migration Act.
30. In the event the Regaining Control Bill commences before or after the commencement of
this Bill, resulting in the repeal of paragraphs 336F(5)(ca), 336F(5)(cb) and 336F(5)(cc),
items 7A and 7B will insert new paragraph 336F(5)(ca) and reinsert paragraphs
336F(5)(cb) and 336F(5)(cc). These paragraphs relate to authorising the disclosure of
identifying information to foreign countries in respect of unauthorised maritime arrivals
who seek to engage Australia's protection obligations under the ICCPR and the CAT.
31. The purpose of this amendment is to ensure that in the event that the Regaining Control
Bill passes and repeals paragraphs 336F(5)(ca), 336F(5)(cb) and 336F(5)(cc), these
provisions are reinserted by this Bill and reflect the "more likely than not" threshold. This
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is because even if the Regaining Control Bill passes and removes the criterion for grant of
a protection visa on complementary protection grounds, the "more likely than not"
threshold is intended to apply in the context of administrative assessments of protection
obligations under the ICCPR and the CAT. As such, the requirements relating to
identifying information in paragraph 336F(5)(ca), as amended to reflect the "more likely
than not" threshold, as well as paragraphs 336F(5)(cb) and 336F(5)(cc), are intended to
apply to persons seeking to engage Australia's protection obligations under the ICCPR and
the CAT. This is irrespective of whether the Regaining Control Bill passes.
32. If this Bill commences first, item 7A will operate to insert new paragraph 336F(5)(ca) and
reinsert paragraphs 336F(5)(cb) and 336F(5)(cc) immediately after the commencement of
Schedule 1 to the Regaining Control Bill. If the Regaining Control Bill commences first,
item 7B will operate to insert new paragraph 336F(5)(ca) and reinsert paragraphs
336F(5)(cb) and 336F(5)(cc) on the later of the day after this Bill receives the Royal
Assent and immediately after the commencement of Schedule 1 to the Regaining Control
Bill. However, if Schedule 1 to the Regaining Control Bill does not commence, the
provisions do not commence at all.
33. Amendment (8) also inserts the heading "Division 2 - Amendments if this Act commences
after the Migration Amendment (Regaining Control Over Australia's Protection
Obligations) Act 2015" after proposed item 7A.
Amendment (9) -Schedule 2, Part 2, page 14, after proposed Division 2
34. This amendment inserts the heading "Division 3 - Application provision" after proposed
Division 2. Due to the division of contingent amendments in Part 2 of Schedule 2 to the
Bill, this insertion creates a signpost for item 8. Item 8 provides for the application of
amendments made by Part 2 of Schedule 2 to the Bill.
Amendment (10) - Schedule 2, item 8, page 15 (lines 1 to 5)
35. This amendment omits paragraphs (2)(a) and (2)(b) from item 8 of Schedule 2 to the Bill
and substitutes new paragraph (2)(a).
36. Item 8 provides for the application of amendments made by Part 2 of Schedule 2 to the
Bill. Part 2 of Schedule 2 to the Bill sets out contingent amendments in the event that the
Regaining Control Bill commences.
37. Current subitem 8(2) provides that subitem 8(1) covers the following assessments:
an assessment made on or after the day item 8 commences;
if an assessment is made as a result of an application for a visa - an assessment
that begins before the day item 8 commences, if the application has not been
finally determined before that day;
if an assessment is made as part of an administrative process - an assessment that
begins before the day item 8 commences, if the administrative process has not
been completed before that day.
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38. Amended subitem 8(2) will provide that subitem 8(1) covers the following assessments:
an assessment made on or after the day item 8 commences, whether:
o as a result of an application for a visa made on or after that day; or
o as part of an administrative process that begins on or after that day;
or otherwise;
if an assessment is made as part of an administrative process - an assessment that
begins before the day item 8 commences, if the administrative process has not
been completed before that day.
39. The effect of this amendment is that the new complementary protection risk threshold
inserted by Schedule 2 to the Bill will only apply to assessments made as a result of an
application for a visa made on or after commencement of Part 2 of Schedule 2 to the Bill.
The new threshold will not apply to an application for a visa made prior to the
commencement of Part 2 of Schedule 2 to the Bill.
40. The amendments in Schedule 2 will still apply to assessments made under an
administrative process that begin, but have not been completed, before commencement.
This aspect of item 8 remains unchanged.
41. Part 2 of Schedule 2 to the Bill commences immediately after the commencement of
Schedule 1 of the Regaining Control Bill. However, if that Schedule does not commence,
the provision(s) do not commence at all.
Amendment (11) - Schedule 3, item 1, page 16 (lines 7 to 10)
Amendment (12) - Schedule 3, item 6, page 17 (lines 11 to 14)
42. These amendments omit paragraph (b) of items 1 and 6 of Schedule 3 to the Bill and
substitutes new paragraph (b).
43. Items 1 and 6 of Schedule 3 to the Bill currently amend paragraphs 46A(1)(b) and
46B(1)(b) to ensure that an unauthorised maritime arrival or a transitory person who is in
Australia and is an unlawful non-citizen, a bridging visa holder or the holder of a
prescribed temporary visa will be prevented from making a valid application for a visa
unless the Minister determines that it is in the public interest to allow them to do so.
44. The Resolving the Asylum Legacy Caseload Act reintroduced temporary protection visas.
As a consequence, the intention is that paragraphs 46A(1)(b) and 46B(1)(b) are further
amended to ensure that the holder of a temporary protection visa is also prevented from
making a valid application for a visa unless the Minister determines that it is in the public
interest to allow them to do so.
45. New paragraph 46A(1)(b) will provide in effect that an application for a visa is not a valid
application if it is made by an unauthorised maritime arrival who is an unlawful non-
citizen, or holds a bridging visa or a temporary protection visa, or a temporary visa of a
kind (however described) prescribed for the purposes of subparagraph 46A(1)(b)(ii).
46. New paragraph 46B(1)(b) will provide in effect that an application for a visa is not a valid
application if it is made by a transitory person who is an unlawful non-citizen, or holds a
bridging visa or a temporary protection visa, or a temporary visa of a kind (however
described) prescribed for the purposes of subparagraph 46B(1)(b)(ii).
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47. A note is also inserted after both subsections 46A(1) and 46B(1) advising that temporary
protection visas are provided for by subsection 35A(3) of the Migration Act.
Amendment (13) - Schedule 3, item 15, page 19 (line 23)
48. This amendment omits "class" and substitutes "kind" in subitem 15(3) of Part 2 of
Schedule 3 on page 19 of the Bill. This is to ensure consistency with the terminology used
in new subparagraph 46A(1)(b)(ii) inserted by amendment (11).
Amendment (14) - Schedule 3, item 15, page 19 (line 29)
49. This amendment inserts "granted before 2 December 2013" at the end of paragraph (3)(c)
in item 15 of Part 2 of Schedule 3 on page 19 of the Bill.
50. The effect of this amendment is that for the purposes of subitem 15(2) of Schedule 3 to the
Bill, section 46A of the amended Act applies as if a temporary protection visa granted
before 2 December 2013 were a kind of temporary visa prescribed for the purposes of
subparagraph 46A(1)(b)(ii) of the amended Act on and after the commencement time.
Amended Act means the Migration Act as in force on and after the commencement time.
51. This amendment recognises that the Resolving the Asylum Legacy Caseload Act
reintroduced temporary protection visas and as such, it is necessary to specify that
paragraph 15(3)(c) of Schedule 3 to the Bill is intended to refer to temporary protection
visas granted before 2 December 2013.
Amendment (15) - Schedule 3, item 16, page 20 (line 13)
52. This amendment omits "class" and substitutes "kind" in subitem 16(3) of Part 2 of
Schedule 3 on page 20 of the Bill. This is to ensure consistency with the terminology used
in new subparagraph 46B(1)(b)(ii) inserted by amendment (12).
Amendment (16) - Schedule 3, item 16, page 20 (line 19)
53. This amendment inserts "granted before 2 December 2013" at the end of paragraph (3)(c)
in item 16 of Part 2 of Schedule 3 on page 20 of the Bill.
54. The effect of this amendment is that for the purposes of subitem 16(2) of Schedule 3 to the
Bill, section 46B of the amended Act applies as if a temporary protection visa granted
before 2 December 2013 were a kind of temporary visa prescribed for the purposes of
subparagraph 46B(1)(b)(ii) of the amended Act on and after the commencement time.
Amended Act means the Migration Act as in force on and after the commencement time.
55. This amendment recognises that the Resolving the Asylum Legacy Caseload Act
reintroduced temporary protection visas and as such, it is necessary to specify that
paragraph 16(3)(c) of Schedule 3 to the Bill is intended to refer to temporary protection
visas granted before 2 December 2013.
Amendment (17) - Schedule 4, item 11, page 23 (line 30)
56. This amendment omits "7 days" and substitutes "14 days" in item 11 of Part 1 of Schedule
4 on page 23 of the Bill.
57. The effect of this amendment is that new subsection 362B(1B) inserted by item 11 of Part
1 of Schedule 4 to the Bill will provide that if the Tribunal dismisses the application for
review, the applicant may, within 14 days after receiving notice of the decision under
section 362C, apply to the Tribunal for reinstatement of the application.
9
58. This amendment implements Recommendation 2 of the Committee report that the
Government consider increasing the limit on reinstatement of an application where an
applicant fails to appear from 7 days to 14 days.
Amendment (18) - Schedule 4, item 11, page 24 (lines 20 and 21)
59. This amendment omits "7-day period" and substitutes "14-day period" in item 11 of Part 1
of Schedule 4 on page 24 of the Bill.
60. The effect of this amendment is that new subsection 362B(1E) inserted by item 11 of Part
1 of Schedule 4 to the Bill will provide that if the applicant fails to apply for reinstatement
within the 14-day period mentioned in subsection 362B(1B), the Tribunal must confirm
the decision to dismiss the application, by written statement under section 368.
61. This amendment implements Recommendation 2 of the Committee report that the
Government consider increasing the limit on reinstatement of an application where an
applicant fails to appear from 7 days to 14 days.
Amendment (19) - Schedule 4, item 26, page 32 (line 3)
62. This amendment omits "7 days" and substitutes "14 days" in item 26 of Part 1 of Schedule
4 on page 32 of the Bill.
63. The effect of this amendment is that new subsection 426A(1B) inserted by item 26 of Part
1 of Schedule 4 to the Bill will provide that if the Tribunal dismisses the application for
review, the applicant may, within 14 days after receiving notice of the decision under
section 426B, apply to the Tribunal for reinstatement of the application.
64. This amendment implements Recommendation 2 of the Committee report that the
Government consider increasing the limit on reinstatement of an application where an
applicant fails to appear from 7 days to 14 days.
Amendment (20) - Schedule 4, item 26, page 32 (lines 24 and 25)
65. This amendment omits "7-day period" and substitutes "14-day period" in item 26 of Part 1
of Schedule 4 on page 32 of the Bill.
66. The effect of this amendment is that new subsection 426A(1E) inserted by item 26 of Part
1 of Schedule 4 to the Bill will provide that if the applicant fails to apply for reinstatement
within the 14-day period mentioned in subsection 426A(1B), the Tribunal must confirm
the decision to dismiss the application, by written statement under section 430.
67. This amendment implements Recommendation 2 of the Committee report that the
Government consider increasing the limit on reinstatement of an application where an
applicant fails to appear from 7 days to 14 days.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Amendments to the
Migration Amendment (Protection and Other Measures) Bill 2014
Amendments to this Bill are compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the amendments to the Bill
This Statement of Compatibility with Human Rights relates to amendments to the Bill only, and
is therefore supplementary to, and to be read in conjunction with, the original Statement of
Compatibility with Human Rights, tabled with the Bill. Specifically, amendments to the Bill will
amend the Migration Act to:
make consequential changes to the language of several provisions to give effect to the
risk threshold for Australia's non-refoulement obligations under the ICCPR and CAT
which is inserted by Schedule 2 to the Bill;
make changes to the application provision to provide that the risk threshold inserted
by Schedule 2 to the Bill will apply to applications for a visa made on or after
commencement of that Schedule and will not apply to applications that are not finally
determined;
amend Schedule 3 to provide that holders of a temporary protection visa are prevented
from making a valid application for a visa unless the Minister determines that it is in
the public interest for them to do so; and
amend Schedule 4 to increase the timeframe in which an application for reinstatement
may be made by an applicant who fails to appear before the before the MRT or the
RRT from seven to fourteen days.
These amendments to the Bill implement recommendations of the Senate Legal and
Constitutional Affairs Legislation Committee, as stated in their report of 22 September 2014
regarding the Bill, and give effect to further consequential amendments.
11
Human rights implications
Schedule 2: consequential changes to language to give effect to risk threshold
These consequential changes give effect to the risk threshold for Australia's non refoulement
obligations under the ICCPR and CAT, inserted by Schedule 2 of the Bill. As there is no change
to the risk threshold expressed in the Bill as a result of these consequential changes, the initial
Statement of Compatibility with Human Rights with regard to the risk threshold addresses
human rights implications of this provision.
Schedule 2: application provision (Committee recommendation)
The application provision for Schedule 2 will be amended so that the "more likely than not" risk
threshold will not apply to applications for a visa that are not finally determined prior to the new
risk threshold commencing. Those applications will be considered under the threshold that
existed prior to commencement of Schedule 2 to the Bill.
This amendment gives effect to a recommendation of the Senate Legal and Constitutional Affairs
Legislation Committee, stated in its report of 22 September 2014 regarding the Bill. As a result
of that recommendation, Schedule 2 will apply to applications for a visa made on or after
commencement of the Schedule.
Schedule 3: consequential change affecting holders of a temporary protection visa
The consequential changes to Schedule 3 have arisen from the Migration and Maritime Powers
Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Amendments to Schedule 3 are consequential to the reintroduction of the temporary protection
visa. The amendments prevent a holder of a temporary protection visa from making a valid
application for a visa unless the Minister determines that it is in the public interest for them to do
so.
The amendments are consistent with the stated intention of Schedule 3. Schedule 3 of the Bill
introduces amendments to simplify the legal framework for the operation of application bars for
unauthorised maritime arrivals and transitory persons. It extends the bar on making valid visa
applications to unauthorised maritime arrivals who hold temporary visas. The human rights
implications regarding Schedule 3 are addressed in the initial Statement of Compatibility with
Human Rights.
Schedule 4: increased timeframe for reinstatement before MRT or RRT (Committee
recommendation)
Schedule 4 will be amended to increase the timeframe in which an application for reinstatement
may be made by an applicant who fails to appear before the MRT and RRT from seven days to
fourteen days. This amendment gives effect to a recommendation stated in the 22 September
2014 report of the Senate Legal and Constitutional Affairs Legislation Committee regarding the
Bill.
12
The purpose of Schedule 4 is to improve the processing and administration of the MRT/RRT and
the human rights implications, addressed in the initial Statement of Compatibility with Human
Rights, remain unchanged by this amendment.
Conclusion
The above amendments to the Migration Amendment (Protection and Other Measures) Bill 2014
are compatible with human rights.
The Hon. Peter Dutton MP, Minister for Immigration and Border Protection
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