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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (CLARIFYING INTERNATIONAL OBLIGATIONS
FOR REMOVAL) BILL 2021
(Amendments to be moved on behalf of the Government)
SUPPLEMENTARY EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs, the Hon. Alex Hawke MP)
1
MIGRATION AMENDMENT (CLARIFYING INTERNATIONAL OBLIGATIONS
FOR REMOVAL) BILL 2021
OUTLINE
The government amendments to the Migration Amendment (Clarifying International
Obligations for Removal) Bill 2021 (the Bill) will:
ï‚· amend the Migration Act 1958 (the Migration Act) to provide access to merits review
for certain individuals who were previously determined to have engaged protection
obligations but are subsequently found by the Minister to no longer engage those
obligations;
ï‚· amend the Migration Act to ensure that an unlawful non-citizen will not be removed in
accordance with section 198 of the Migration Act where the Minister has decided that
the unlawful non-citizen no longer engages protection obligations before:
ï€- the period within which an application for merits review of that decision under Part
7 of the Migration Act could be made has ended without a valid application for
review having been made; or
ï€- a valid application for merits review of that decision under Part 7 was made within
the period but has been withdrawn; or
ï€- the Minister's decision is affirmed or taken to have been affirmed upon merits
review;
ï‚· amend the Intelligence Services Act 2001 to require the Parliamentary Joint Committee
on Intelligence and Security (PJCIS) to commence a review of the operation,
effectiveness and implications of the provisions amended or inserted by Schedule 1 to
the Bill, by the second anniversary of the commencement of the Migration Amendment
(Clarifying International Obligations for Removal) Act 2021.
The purpose of the amendments to the Migration Act is to ensure that in the rare
circumstances where an unlawful non-citizen is found by the Minister to no longer engage
protection obligations, that the non-citizen will have access to merits review in the Migration
and Refugee Division of the Administrative Appeals Tribunal. This amendment aligns with
the Government's policy intention that decisions that impact on the rights and interests of
individuals should be reviewable on their merits.
The purpose of the amendments is also to provide for the PJCIS to consider whether the
amendments made by Schedule 1 to the Bill are operating as intended and are effective in
ensuring that the removal from Australia of an unlawful non-citizen who has been found to
engage Australia's protection obligations through the protection visa process is not required
or authorised, unless relevant exceptions apply.
FINANCIAL IMPACT STATEMENT
These government amendments will have a low financial impact.
2
NOTES ON AMENDMENTS TO SCHEDULE 1
Amendment (1)
1. This amendment omits subparagraph 197C(3)(c)(ii) from item 3 of Schedule 1 to the
Bill and substitutes a new subparagraph 197C(3)(c)(ii) stating that a decision made under
new subsection 197D(2) (which is described below) in relation to the non-citizen is complete
within the meaning of new subsection 197D(6) (also described below). A decision made
under new subsection 197D(2) is a decision of the Minister in relation to an unlawful non-
citizen to whom paragraphs 197C(3)(a) and (b) apply in relation to a valid application for a
protection visa, where the Minister is satisfied that that non-citizen is no longer a person in
respect of whom any protection finding within the meaning of new subsection 197C(4), (5),
(6) or (7), would be made.
2. This amendment is consequential to the insertion of new section 197D by
amendment (3), described below.
3. New subsection 197C(3) operates (despite subsections 197C(1) and (2)) so that, if
those matters set out in paragraphs 197C(3)(a)-(c) are met, section 198 will not require or
authorise an officer to remove the unlawful non-citizen to a country. If any of those matters
set out in paragraph 197C(3)(c) apply (including a decision made by the Minister under new
subsection 197D(2) which is complete within the meaning of new subsection 197D(6)), then
section 197C(3) will no longer apply, meaning section 198 would require or authorise an
officer to remove that non-citizen to a country.
Amendment (2)
4. This amendment inserts a new subsection 197C(7A) after subsection 197C(7) in item
3 of Schedule 1 to the Bill. New subsection 197C(7A) provides that, for the purposes of new
subsection 197C(3), if an unlawful non-citizen has made more than one valid application for
a protection visa that has been finally determined, then new subsection 197C(3) applies only
in relation to the last such application.
5. This amendment clarifies that in circumstances where an unlawful non-citizen has
made more than one valid application for a protection visa, only the last such application is
relevant for the purposes of new subsection 197C(3).
Amendment (3)
6. This amendment inserts new items 3A to 3F in Schedule 1 to the Bill to provide for
merits review.
7. Item 3A inserts new section 197D into the Act after section 197C. Section 197D
provides for merits review of a decision that a person is no longer a person in respect of
whom a protection finding would be made. The combined effect of amendment (1) and
amendment (3) is to move the finding from subparagraph 197C(3)(c)(ii) to new subsection
197D(2), and provide a cross reference to it in subparagraph 197C(3)(c)(ii). Doing this, and
providing for the merits review provisions in new section 197D rather than adding them to
section 197C, reduces the length and complexity of section 197C.
3
8. New subsection 197D(1) provides that a decision made under new subsection
197D(2) may only be made for the purposes of new subsection 197C(3).
9. New subsection 197D(2) provides that if the Minister is satisfied that an unlawful
non-citizen to whom new paragraphs 197C(3)(a) and (b) apply in relation to a valid
application for a protection visa is no longer a person in respect of whom any protection
finding within the meaning of new subsection 197C(4), (5), (6) or (7) would be made, the
Minister may make a decision to that effect.
10. In practice, it would be rare that a person who has been found to engage protection
obligations, would no longer engage those obligations.
11. New subsection 197D(3) provides that, for the purposes of new subsection 197D(2), if
an unlawful non-citizen has made more than one valid application for a protection visa that
has been finally determined, subsection (2) applies only in relation to the last such
application.
12. New subsection 197D(4) provides that, if the Minister makes a decision under new
subsection 197D(2), the Minister must notify the non-citizen of the following matters:
ï‚· the decision;
ï‚· the reasons for the decision (other than non-disclosable information);
ï‚· that the decision is reviewable under Part 7 of the Migration Act;
ï‚· the period within which an application for review can be made;
ï‚· who can apply for review;
ï‚· where the application for review can be made.
13. New subsection 197D(4) also includes a note referring to section 494A of the
Migration Act. Section 494A provides that where a provision of the Migration Act or the
Migration Regulations 1994 (the Migration Regulations) requires or permits the Minister to
give a document to a person and that provision does not state that the document must be
given by one of the methods in section 494B or by a prescribed method, then the Minister
may give the documents to the person by any method the Minister considers appropriate
which may include one of the methods in section 494B. Methods under section 494B include
giving a document by hand, by prepaid post and transmission by fax, email or other
electronic means.
14. The purpose of new subsection 197D(4) is to ensure that, where the Minister makes a
decision under new subsection 197D(2), the Minister must notify the affected unlawful non-
citizen of those matters set out in that new subsection. The Minister's notification will put the
affected unlawful non-citizen on notice of the fact that the Minister has decided that the non-
citizen is no longer a person in respect of whom any protection finding within the meaning of
new subsection 197C(4), (5), (6) or (7) would be made, and that the decision is merits
reviewable.
15. New subsection 197D(5) provides that failure to comply with new subsection
197D(4) in relation to a decision does not affect the validity of the decision. The effect of this
amendment is that, even if there is a failure with regards to any of the notification
requirements, the decision itself will remain valid, even if the notification process may have
4
to be rectified in order to ensure correct notification. This is consistent with other provisions
within the Migration Act, for example subsection 66(4).
16. New subsection 197D(6) provides that, for the purposes of new subparagraph
197C(3)(c)(ii), a decision under new subsection 197D(2) is complete if any of the following
apply:
ï‚· the period within which an application for review of the decision under Part 7 of the
Migration Act can be made has ended without a valid application for review having
been made;
ï‚· a valid application for review of the decision under Part 7 was made within the period
but has been withdrawn;
ï‚· the decision is affirmed (or taken to have been affirmed) on review under Part 7.
17. The purpose of new subsection 197D(6) is to clarify when a decision made by the
Minister under new subsection 197D(2) is complete. New subsection 197D(6) provides that a
decision under new subsection 197D(2) is complete if any of paragraphs 197D(6)(a), (b) or
(c) apply. These new paragraphs effectively provide that a decision is complete where the
period for merits review of the Minister's decision under Part 7 has ended without a valid
review application being made, or where a valid application for review of the decision under
Part 7 was made within the period but has been withdrawn, or where the Minister's decision
has been affirmed (or taken to have been affirmed) by the AAT on review.
18. New item 3B amends section 408 so that after "circumstances" the following is
inserted: "or to decisions under subsection 197D(2)."
19. Section 408 sets out a simplified outline of Part 7 of the Migration Act. Part 7
provides for the review of Part 7-reviewable decisions (as defined in section 411) by the
Administrative Appeals Tribunal (AAT). Section 408 sets out that Part 7-reviewable
decisions relate to the grant or cancellation of protection visa in some circumstances.
20. This amendment expands the scope of the simplified outline of Part 7 to provide that
Part 7-reviewable decisions also include decisions made under new subsection 197D(2) on
the basis that such decisions relate neither to the grant nor cancellation of protection visas.
This is to ensure that in the rare circumstances a person is found to no longer be owed
protection obligations, that merits review will be available, in line with the Government's
policy that decisions that impact the rights and interests of individuals should be reviewable
on their merits.
21. New item 3C amends subsection 411(1) to add new paragraph 411(1)(e) which
provides for a new Part 7-reviewable decision being a decision under new subsection
197D(2) that an unlawful non-citizen is no longer a person in respect of whom a protection
finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made. Subsection
411(1) defines which decisions are Part 7-reviewable decisions and therefore capable of
merits review by the AAT in accordance with Part 7 and any applicable regulations in the
Migration Regulations.
22. The purpose of this amendment is to ensure that a decision made under new
subsection 197D(2) is a Part 7-reviewable decision, meaning that such decision, subject to the
provisions of Part 7 and the Migration Regulations, is reviewable by the AAT.
5
23. New item 3D adds new section 419 at the end of Division 2 of Part 7 of the Migration
Act.
24. New subsection 419(1) provides that, if an application for review of a Part
7-reviewable decision is made under section 412 and that Part 7-reviewable decision is a
decision of a kind mentioned in paragraph 411(1)(e), then, subject to new subsection 419(2),
the AAT must make its decision on review, and notify the applicant of the decision, within
the prescribed period.
25. The effect of this amendment is that, where the Minister has made a decision under
new subsection 197D(2) and the affected unlawful non-citizen has applied for review of that
decision in accordance with, and in compliance with, section 412 and any regulations made in
the Migration Regulations under subsection 412(4), the AAT must make its decision on
review, and notify the applicant of the decision, within the prescribed period.
26. This amendment ensures that, where an application for review of a decision made
under subsection 197D(2) has been made, the AAT must make a decision on review and
notify the unlawful non-citizen within the prescribed period. The period will be prescribed in
the Migration Regulations.
27. New subsection 419(2) provides that the AAT may, with the agreement of the
applicant, extend the period in subsection (1) for the purposes of a particular application. The
effect of this amendment to allow the AAT to extend the period within which it must make a
decision on review of a decision made under new subsection 197D(2), but only where the
applicant (that is, the affected unlawful non-citizen) agrees to an extension.
28. This provision provides flexibility if the decision on review is particularly complex or
other circumstances arise which may result in the AAT not being able to notify the applicant
of its decision within the prescribed period. However, any extension to such period must be
agreed to by the affected unlawful non-citizen.
29. New item 3E amends subsection 423A(1) so that it omits "an RRT-reviewable
decision (the primary decision) in relation to a protection visa" and, instead, substitutes "a
Part 7-reviewable decision (the primary decision)".
30. In brief, section 423A provides for how the AAT is to deal with new claims or new
evidence if an application for review has been made to the AAT in accordance with Part 7.
Section 423A currently refers to "an RRT-reviewable decision", which is a term no longer
used in Part 7 of the Act. Item 135 of Part 2 of Schedule 2 to the Tribunals Amalgamation Act
2015 sought to replace all references to an "RRT-reviewable decision" with a "Part 7-
reviewable decision" in Part 7 of the Migration Act. This amendment rectifies this oversight.
31. New item 3F amends both paragraphs 423A(1)(a) and (b) so that they omit "in the
application before" and instead substitute "before".
32. The effect of these amendments is to expand the effect of section 423A in relation to
how the AAT is to deal with new claims raised and new evidence presented by the applicant
to include a decision under new subsection 197D(2).
Amendment (4)
6
33. This amendment adds a new Schedule 2 to the Bill, to be known as Schedule 2--
Review of amendments.
34. Item 1 of Schedule 2 amends the Intelligence Services Act 2001 to insert new
paragraph 29(1)(cf) after current paragraph 29(1)(ce) of that Act.
35. New paragraph 29(1)(cf) provides that the PJCIS is to commence, by the second
anniversary of the commencement of the Migration Amendment (Clarifying International
Obligations for Removal) Act 2021, a review of the operation, effectiveness and implications
of the amendments made by Schedule 1 to that Act.
36. The purpose of this amendment is for the PJCIS to consider whether the amendments
made by Schedule 1 to the Bill are operating as intended and are effective in ensuring that the
removal of an unlawful non-citizen who has been found to engage Australia's protection
obligations through the protection visa process is not required or authorised, unless relevant
exceptions apply.
37. The review by PJCIS will also apply to the new merits review provisions described
above to ensure that they are operating as intended.
7
Statement of Compatibility with Human Rights
Prepared in accordance with part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
The government 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 Legislative Amendment
The government amendments to the Migration Amendment (Clarifying International
Obligations for Removal) Bill 2021 (the Bill) will:
ï‚· amend the Migration Act 1958 (the Migration Act) to provide access to merits review for
certain individuals who were previously determined to have engaged protection
obligations but in respect of whom the Minister has decided that they no longer engage
those obligations;
ï‚· amend the Migration Act to ensure that an unlawful non-citizen will not be removed in
accordance with section 198 because the Minister decided that the unlawful non-citizen
no longer engages protection obligations until:
ï€- after the Minister's decision is affirmed or taken to have been affirmed upon merits
review;
ï€- the period within which an application for merits review of that decision under Part 7
of the Migration Act could be made has ended without a valid application for review
having been made; or
ï€- a valid application for merits review of that decision under Part 7 was made within
the period but has been withdrawn; and
ï‚· amend the Intelligence Services Act 2001 to require the Parliamentary Joint Committee
on Intelligence and Security (PJCIS) to commence a review of the operation,
effectiveness and implications of the provisions amended or inserted by Schedule 1 to
the Bill, by the second anniversary of the commencement of the Migration Amendment
(Clarifying International Obligations for Removal) Act 2021.
Human rights implications
The human rights implications of the Bill were outlined in the Statement of Compatibility
with Human Rights that accompanied the Bill. The Bill is anticipated to operate in relation to
the very small cohort of serious character/national security concern detainees who enliven
Australia's non-refoulement obligations. The government amendments to the Bill are
intended to introduce further assurance and accountability mechanisms.
Merits review amendment
In particular, the introduction of merits review where a decision is made under new sub-
section 197D(2), and the protection from the obligation to remove as soon as reasonably
practicable while that merits review is completed, will act as an additional safeguard in
relation to rights relating to non-refoulement, which are promoted by the Bill.
8
The primary purpose of the Bill is to clarify that the duty to remove under section 198 of the
Migration Act should not be enlivened where to do so would be in breach of non-refoulement
obligations, as identified in a protection visa assessment process. The Bill does permit the
removal powers in section 198 of the Migration Act to operate where:
ï‚· the decision in which the protection finding was made has been quashed or set aside;
ï‚· the non-citizen is no longer a person in respect of whom a protection finding would be
made; or
ï‚· the non-citizen requests, in writing, to be removed.
The government amendments to the Bill will amend the Migration Act to provide access to
merits review for individuals in the second category above. That is, the new merits review
right will be available to unlawful non-citizens who were previously determined to have
engaged protection obligations (but who were not granted a visa, or had that visa cancelled,
including because of character or security concerns) and are now found, under new section
197D, to no longer engage those obligations. Further, the person will not be subject to
removal while merits review of that decision is ongoing. This additional review mechanism
will further strengthen protections from removal where a person may engage non-refoulement
obligations under the Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment and the International Covenant on Civil and Political Rights, as
well as under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
The government amendments also clarify that where a person has had more than one
protection visa application that has been finally determined, whether their removal is
authorised under the Act will depend on whether a protection finding was made in their most
recent application. This is consistent with non-refoulement obligations since removal will be
authorised only if the most recent protection visa application decision, which is already
merits reviewable under the Migration Act, has not resulted in a protection finding.
Review of legislation amendment
The government amendments to the Bill also amend the Intelligence Services Act 2001 to
require the PJCIS to commence a review of the operation, effectiveness and implications of
the provisions amended or inserted by Schedule 1 to the Bill, by the second anniversary of
the commencement of the Migration Amendment (Clarifying International Obligations for
Removal) Act 2021.
The amendment to the Intelligence Services Act 2001 to require the PJCIS to commence a
review of the legislation does not specifically engage human rights but will act as a further
safeguard to ensure that the legislation is fit for purpose, including in its implications for
affected individuals.
Conclusion
The government amendments to the Bill are compatible with human rights because they are
consistent with Australia's human rights obligations.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the
Hon. Alex Hawke MP
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