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2002
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT BILL (NO. 1)
2002
EXPLANATORY MEMORANDUM
(Circulated by
authority of the
Minister for Immigration and Multicultural and Indigenous
Affairs,
The Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT BILL (NO. 1)
2002
OUTLINE
1. The Migration Legislation Amendment
Bill (No. 1) 2002 (“the Bill”) is an omnibus Bill that amends the
Migration Act 1958 (“the Act”) to:
• clarify
certain visa related matters, by:
- providing that non-citizen children
born in Australia are immigration cleared for the purposes of their “birth
entry”;
- authorising, if certain requirements are satisfied, the
taking of security for compliance with conditions to be imposed on a visa before
it is granted;
- ensuring that non-citizens who leave and re-enter
Australia on a bridging visa that allows such travel are subject to the section
48 bar on further applications;
- providing that a bridging visa held by
a non-citizen ceases at the moment his or her substantive visa is
cancelled;
- ensuring that a special purpose visa ceases to be in effect
at a specified time if the Minister makes a declaration that it is undesirable
for the non-citizen to travel to, enter and remain in Australia and clarifying
that the rules of natural justice do not apply to the making of such a
declaration;
- imposing a time limit on a non-citizen in immigration
clearance to apply for revocation of the automatic cancellation of his or her
student visa and ensuring that a decision not to revoke the cancellation is not
merits reviewable;
• create a Deputy Principal Member position for
the Migration Review Tribunal;
• ensure that certain offence
provisions operate as they did prior to the application of the Criminal Code;
and
• make a minor technical amendment.
1. The Bill does not
make any substantial changes to the existing policy settings in the Act. The
amendments are designed to promote the integrity of the Act and ensure that
certain provisions operate as originally intended.
FINANCIAL IMPACT
STATEMENT
2. These amendments will have minimal financial impact.
MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2002
NOTES ON
INDIVIDUAL CLAUSES
Clause 1 Short title
1. The
short title by which this Act may be cited is the Migration Legislation
Amendment Act (No. 1) 2002.
Clause
2 Commencement
2. Subclause 2(1) contains a table setting out
the commencement information for the Act. The subclause also provides that each
provision of the Act specified in column 1 of the table commences, or is taken
to have commenced, on the day or at the time specified in column 2 of the
table.
3. The effect of items 1, 3, 5 and 7 of the table is that the
following provisions commence on the day on which the Act receives the Royal
Assent:
• Sections 1, 2 and 3 of the Act;
• Schedules 4
and 5 to the Act; and
• Items 3, 4, 5 and 7 of Schedule 6 to the
Act.
1. The effect of item 2 and 4 of the table is that the following
provisions commence on a day or days to be fixed by
Proclamation:
• Schedules 1, 2 and 3 to the Act;
and
• Items 1 and 2 of Schedule 6 to the Act.
1. The effect of
item 6 of the table is that item 6 of Schedule 6 to the Act commences
immediately after the Border Protection (Validation and Enforcement of
Powers) Act 2001.
2. The note in subclause 2(1) makes it clear that
the table only relates to the provisions of the Act as originally passed by the
Parliament and assented to. The table will not be expanded to deal with
provisions inserted into the Act after it receives the Royal
Assent.
3. Subclause 2(2) provides that column 3 of the table in
subclause 2(1) is for additional information that may be included in any
published version of the Act but which is not part of the Act.
4. Subclause 2(3) provides that if a provision covered by item 2 or 3 of
the table in subclause 2(1) does not commence within 6 months of this Act
receiving the Royal Assent, then it will commence on the first day after the end
of that period.
Clause 3 Schedule(s)
5. This clause
provides that each Act specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned. In
addition, any other item in a Schedule to this Act has effect according to its
terms.
SCHEDULE 1 – Immigration clearance status of
non-citizen children born in Australia
Item 1 After paragraph 172(1)(b)
6. This item inserts new
paragraph 172(1)(ba) after paragraph 172(1)(b) of the Act.
7. Section 172
deals with the immigration status of non-citizens on entry to Australia. It
outlines the circumstances in which a non-citizen is “immigration
cleared”, “in immigration clearance”, “refused
immigration clearance” or “bypasses immigration clearance”.
8. Subsection 172(1) sets out the circumstances in which a non-citizen
is “immigration cleared”. Currently, none of these circumstances
apply to non-citizen children born in Australia who are taken, under section 10
of the Act, to have entered Australia at the time of their birth. Nor are these
children explicitly exempted from the need to be immigration cleared on
“birth entry”.
9. To clarify the immigration status of these
non-citizen children, new paragraph 172(1)(ba) provides that a person is
immigration cleared if, and only if:
• he or she enters Australia
by virtue of the operation of section 10; and
• at the time of his
or her birth at least one of the person’s parents was immigration cleared
on his or her last entry into Australia.
1. New paragraph 172(1)(ba) only
provides immigration clearance to non-citizen children on birth entry to
Australia. It does not provide immigration clearance for any subsequent entry
to Australia.
2. This item provides that the amendment made by item 1 of this Schedule
applies to a non-citizen child born in Australia on or after 1 September 1994.
This date corresponds with the introduction of the concept of “immigration
clearance” into the Act by the Migration Reform Act 1992.
3. This item inserts new paragraph 172(1)(d) at the end of subsection 172(1)
of the Act.
4. Section 172 deals with the immigration status of
non-citizens on entry to Australia. It outlines the circumstances in which a
non-citizen is “immigration cleared”, “in immigration
clearance”, “refused immigration clearance” or “bypasses
immigration clearance”.
5. Subsection 172(1) sets out the
circumstances in which a non-citizen is “immigration
cleared”.
6. New paragraph 172(1)(d) provides that a person is also
immigration cleared if, and only if, he or she is in a prescribed class of
persons. The purpose of new paragraph 172(1)(d) is to provide flexibility to
prescribe in the Migration Regulations 1994 (“the
Regulations”), where necessary in the future, further classes of persons
who are immigration cleared for the purposes of section 172.
7. This item inserts new subsection 173(2) at the end of section 173 of
the Act.
8. Section 173 provides that if the holder of a visa enters
Australia in a way that contravenes section 43 of the Act, the visa ceases to be
in effect. In summary, section 43 provides that visa holders must enter at a
port or on a pre-cleared flight.
9. Under section 78, a non-citizen child
born in Australia is taken to have been granted a visa if, at the time of his or
her birth, at least one of the child’s parents holds a visa. This
non-citizen child is taken to have been granted the same visa as his or her
parents.
10. On a literal interpretation of section 173, a non-citizen
child’s visa taken to have been granted under section 78 would appear to
cease when the child enters Australia under section 10 in a way that
“contravenes” section 43.
11. New subsection 173(2) puts it
beyond doubt that a non-citizen child born in Australia who, under section 78,
is taken to have been granted a visa or visas at the time of his or her birth is
not to be taken to have entered Australia in a way that contravenes section 43
of the Act.
Item 5 Application Provision
12. This item
provides that the amendment made by item 4 of this Schedule applies to a
non-citizen child born in Australia on or after 1 September 1994 who is taken to
have been granted a visa or visas under section 78 of the Act. This date
corresponds with the introduction of the concept of “immigration
clearance” into the Act by the Migration Reform Act
1992.
SCHEDULE 2 – The taking of
securities
Migration Act 1958
Item
1 Subsection 269(1)
13. This item makes a consequential amendment to
subsection 269(1) of the Act as a result of the amendment contained in item 2 of
this Schedule, which inserts new subsection 269(1A) into the Act.
Item 2 After subsection 269(1)
14. This item inserts new
subsection 269(1A) after subsection 269(1) of the Act.
15. Subsection
269(1) provides that an authorised officer may require and take security for
compliance with the provisions of this Act or the regulations or with any
condition imposed in pursuance of, or for the purposes of, this Act or the
regulations.
16. In Tutugri v Minister for Immigration and
Multicultural Affairs [1999] FCA 1785, the Federal Court raised significant
doubts about the power of an authorised officer to request and take security for
compliance with conditions to be imposed on a visa before the visa is
granted. This is because a condition on a visa does not bind the applicant
until the visa is granted and a condition cannot be said to have been
“imposed” prior to grant.
17. New subsection 269(1A) seeks to
address this uncertainty. It provides that, in certain circumstances, an
authorised officer may require and take security under subsection 269(1), in
relation to an application for a visa before a visa is granted.
18. Under new subsection 269(1A), an authorised officer may do this only
if:
• the security is for compliance with conditions that will be
imposed on the visa in pursuance of, or for the purposes of, this Act or the
regulations, if the visa is granted; and
• the officer has indicated
those conditions to the visa applicant.
Item 3 Application provision
1. This item provides that the
amendments made by items 1 and 2 of this Schedule apply in relation to all visa
applications made after the commencement of those items.
SCHEDULE
3 – Special purpose visas
Migration Act
1958
Item 1 Subsection 33(5)
2. This item repeals
subsection 33(5) of the Act and substitutes a new subsection 33(5) into the
Act.
3. Subsection 33(5) sets out when a special purpose visa ceases to
be in effect. New subsection 33(5) retains the status quo in relation to the
cessation of a special purpose visa except where the Minister has made a
declaration under subsection 33(9) of the Act.
4. Subsection 33(9)
provides that the Minister may make a written declaration, for the purposes of
section 33, that it is undesirable that a person, or any person in a class of
persons, travel to and enter Australia or remain in
Australia.
5. Currently, under subparagraphs 33(5)(a)(iii) and 35(b)(v),
a special purpose visa has effect until the end of the day on which a
subsection 33(9) declaration is made. As a consequence, a special purpose visa
holder cannot be detained under section 189 until he or she becomes an unlawful
non-citizen, that is, at the end of the day on which the subsection 33(9)
declaration is made.
6. Under new subparagraphs 33(5)(a)(iii) and
33(5)(b)(v), a special purpose visa will cease to be in effect at the time when
a subsection 33(9) declaration made by the Minister takes effect.
7. New
subsection 33(5A) provides that for the purposes of new subparagraphs
33(5)(iii)(a) and 33(5)(v)(b), the time when a declaration made by the Minister
under subsection 33(9) takes effect is:
• if the Minister specifies
a time in the declaration as the time the declaration takes effect - the time so
specified; or
• if the Minister does not specify a time in the
declaration as the time the declaration takes effect - the end of the day on
which the declaration is made.
1. These new cessation provisions will
provide flexibility and ensure that the status of a non-citizen whose special
purpose visa has ceased is clear.
Item 2 At the end of section
33
2. This item inserts new subsection 33(11) at the end of section
33 of the Act.
3. New subsection 33(11) of the Act puts it beyond doubt
that the rules of natural justice do not apply in relation to the making of a
declaration under subsection 33(9).
4. Subsection 33(9) provides that the
Minister may make a written declaration, for the purposes of section 33, that it
is undesirable that a person, or any person in a class of persons, travel to and
enter Australia or remain in Australia.
5. The purpose of new subsection
33(11) is to ensure that, as originally intended, quick action can be taken to
prevent the travel to, entry or stay in Australia of a special purpose visa
holder whose entry or stay is not in Australia’s interest. It also avoids
the operational difficulties associated with an obligation to afford natural
justice. In many cases, it is difficult or impossible, to contact persons who
may be the subject of subsection 33(9) (for example, a seafarer who has deserted
his or her vessel and who cannot be located). In other cases, the reasons for
making the declaration cannot be put to the person because of adverse
intelligence reports or time constraints.
SCHEDULE 4 –
Membership of the Migration Review Tribunal
6. This item inserts a definition of “Deputy Principal
Member” into section 337 of the Act.
7. Section 337 contains a
number of definitions of terms used in Part 5 of the Act which deals with review
of decisions by the Migration Review Tribunal (MRT). The MRT is the independent
review body that provides merits review of certain decisions relating to visas
made under the Act.
8. For the purposes of Part 5, “Deputy
Principal Member” means the Deputy Principal Member of the MRT. The
effect of this amendment is to align the executive structure of the MRT with the
existing structure of the Refugee Review Tribunal (RRT) which is the independent
review body that provides merits review of protection visa decisions made under
the Act.
Item 2 After paragraph 395(a)
9. This item
inserts new paragraph 395(aa) into the Act as a consequence of the amendment
made by item 1 of this Schedule.
10. Section 395 deals with the
membership of the MRT. The effect of new paragraph 395(aa) is that the MRT will
now consist of a Deputy Principal Member as well as the other persons provided
for in existing paragraphs 395(a), 395(b) and 395(c).
Item
3 Subsection 404(9) (definition of senior office)
11. This item amends the definition of “senior office” in
subsection 404(9) of the Act as a consequence of the amendment made by item 1 of
this Schedule.
12. Section 404 permits the Minister to appoint a person
to act in a “senior office” for the MRT in certain circumstances.
The amendment to the definition of “senior office” in subsection
404(9) will ensure that the Minister’s appointment power in section 404
may also be used in relation to the office of Deputy Principal Member.
13. This item amends section 405 of the Act as a consequence of the
amendment made by item 1 of this Schedule.
14. In summary, section 405
permits the Principal Member of the MRT to delegate to a Senior Member of the
MRT all or any of his or her powers under section 381 of the Act to refer
decisions to the Administrative Review Tribunal. The amendment to section 405
will ensure that the Principal Member of the MRT may also delegate his or her
powers under section 381 to the Deputy Principal Member of the MRT.
SCHEDULE 5 – Criminal Code harmonisation
amendments
Migration Act 1958
Item
1 Subsection 229(1)
Item 2 Paragraphs 229(1)(a) to
(e)
15. These items amend subsection 229(1) of the Act.
16. In summary, subsection 229(1) makes it an offence for the master,
owner, agent, charterer and operator of a vessel to bring a non-citizen into
Australia unless the non-citizen, when entering Australia satisfies paragraphs
229(1)(a), (b), (c), (d) or (e).
17. Currently, it is unclear whether
the matters in paragraphs 229(1)(a) to (e) constitute matters of exception or
elements of the offence in subsection 229(1).
18. It is considered that
the matters in paragraphs 229(1)(a) to (e) are elements of the offence in
subsection 229(1) for two reasons.
19. Firstly, the existence of the
defences in subsection 229(5) implies that the matters in paragraphs 229(1)(a)
to (e) are not intended to be exceptions to the offence in subsection 229(1).
20. Further, if those matters were exceptions, for which the defendant
would bear an evidential burden, they would co-exist with the defences in
subsection 229(5), for which the defendant would bear a legal burden. If that
were the case, it would be unlikely that a defendant would raise the matters in
subsection 229(5) because they impose a legal burden (rather than an evidential
burden) on the defendant.
21. Secondly, if the matters in paragraphs
229(1)(a) to (e) were matters of exception, then the subsection 229(1) absolute
liability offence would be a very wide offence. This is not intended to be the
case.
22. For these reasons, these items amend subsection 229(1) to
clarify that the matters in paragraphs 229(1)(a) to (e) are elements of the
offence in subsection 229(1).
23. The prosecution bears the legal burden
of proving all the elements of the subsection 229(1) offence, including the
matters in paragraphs 229(1)(a) to 229(1)(e). This means that the prosecution
must prove the existence of the matters in paragraphs 229(1)(a) to 229(1)(e)
beyond reasonable doubt.
Item 3 After subsection
229(3)
24. This item inserts new subsection 229(4) into the Act as a
consequence of the amendments made to subsection 229(1) by items 1 and 2 of this
Schedule.
25. Currently, subsection 229(1) makes it an offence for the
master, owner, agent, charterer and operator of a vessel to bring a non-citizen
into Australia unless the non-citizen, when entering Australia satisfies
paragraphs 229(1)(a), (b), (c), (d) or (e).
26. New subsection 229(4)
makes it clear that the defendant bears an evidential burden in relation to
establishing that subsection 42(1) does not apply to a person because of
subsection 42(2) or (2A) or regulations made under subsection
42(3).
27. This means that the defendant must adduce or point to evidence
that suggests a reasonable possibility that the matters in subsections 42(2),
42(2A) or 42(3) exist. If the defendant does this, then the prosecution is
required to prove beyond reasonable doubt that the matter does not
exist.
Item 4 After subsection 232(1A)
28. This item
inserts new subsection 232(1B) into the Act.
29. The effect of subsection
232(1) is that the master, owner, agent and charterer of a vessel is guilty of
an offence if a non-citizen on the vessel enters Australia without a visa and
upon that entry becomes an unlawful non-citizen.
30. An element of the
offence in subsection 232(1) is that the non-citizen “is a person to whom
subsection 42(1) applies”. Subsection 42(1) provides that a non-citizen
must not travel to Australia without a visa that is in
effect.
31. However, subsection 42(1) is subject to subsections 42(2),
42(2A) and 42(3) which provide a number of exceptions to the requirement that a
non-citizen must not travel to Australia without a visa.
32. The purpose
of new subsection 232(1B) is to put it beyond doubt that the matters in
subsections 42(2), 42(2A) and 42(3) are exceptions to the requirement in
subsection 42(1). It does this by clarifying that the defendant bears an
evidential burden in relation to establishing that subsection 42(1) does not
apply to the relevant person because of subsection 42(2) or 42(2A) or
regulations made under subsection 42(3).
33. This is consistent with
subsection 13.3(3) of the Criminal Code, which provides that a defendant
bears an evidential burden in relation to any matters of exception to an
offence.
34. This means that the defendant must adduce or point to
evidence that suggests a reasonable possibility that the matters in subsections
42(2), 42(2A) or 42(3) exist. If the defendant does this, then the prosecution
is required to prove beyond reasonable doubt that the matter does not
exist.
Item 5 At the end of section 232A
35. This item
inserts new subsection 232A(2) into the Act.
36. In summary, section 232A
makes it an offence to bring a group of 5 or more non-citizens into Australia if
they have no lawful right to come to Australia.
37. An element of the
offence in section 232A is that the non-citizens are people “to whom
subsection 42(1) applies”. Subsection 42(1) provides that a non-citizen
must not travel to Australia without a visa that is in
effect.
38. However, subsection 42(1) is subject to subsections 42(2),
42(2A) and 42(3) which provide a number of exceptions to the requirement that a
non-citizen must not travel to Australia without a visa.
39. The purpose
of new subsection 232A(2) is to put it beyond doubt that the matters in
subsections 42(2), 42(2A) and 42(3) are exceptions to the requirement in
subsection 42(1). It does this by clarifying that the defendant bears an
evidential burden in relation to establishing that subsection 42(1) does not
apply to the relevant person because of subsection 42(2) or 42(2A) or
regulations made under subsection 42(3).
40. This is consistent with subsection 13.3(3) of the Criminal Code, which provides that a defendant bears an evidential burden in relation to any matters of exception to an offence.
41. This means that the defendant must adduce or point to evidence that
suggests a reasonable possibility that the matters in subsections 42(2), 42(2A)
or 42(3) exist. If the defendant does this, then the prosecution is required to
prove beyond reasonable doubt that the matter does not exist.
Item
6 After subsection 233(1)
42. This item inserts new subsection
233(1A) into the Act, which applies to the offence in paragraph
233(1)(a).
43. Paragraph 233(1)(a) makes it an offence for a person to
take part in the bringing or coming to Australia of a non-citizen under
circumstances from which it might reasonably have been inferred that the
non-citizen intended to enter Australia in contravention of the Act.
44. It is a circumstance of the offence in paragraph 233(1)(a) that the
bringing or coming to Australia of a non-citizen is under circumstances from
which it might reasonably be inferred that the non-citizen intended to enter
Australia in contravention of the Act.
45. Prior to the application of
Chapter 2 of the Criminal Code to all offences against the Act, strict
liability applied to the physical element of circumstance of the offence in
paragraph 233(1)(a): see for example Rutu and Ladijlu v Dalla Costa
(1997) 93 A Crim R 425 and R v Ampi Hungan [2000] NTSC 84. This was the
case despite the fact that the offence is punishable by imprisonment for 10
years or 1, 000 penalty units or both.
46. “Strict liability”
is defined in section 6.1 of the Criminal Code and means that the
prosecution does not need to prove any fault element in relation to an offence.
However, the defence of mistake of fact is available to a defendant (see section
9.2 of the Criminal Code).
47. If an offence is intended to be one
of strict liability, it must expressly state it. This is because there is a
strong presumption that proof of fault is required in relation to an offence:
see for example R v He Kaw Teh (1984-85) 157 CLR 523. At the time the
Criminal Code was applied to the Act, no provision was made for strict
liability to apply to the physical element of circumstance of the offence in
paragraph 233(1)(a).
48. As a result, pursuant to subsection 5.6(2) of
the Criminal Code, the default fault element of
“recklessness” applies to the circumstance of the offence in
paragraph 233(1)(a). This represents a change to the offence as it had been
construed prior to the application of the Criminal Code to the
Act.
49. The stated purpose of the Migration Legislation Amendment
(Application of Criminal Code) Act 2001 was to ensure that, in applying the
Criminal Code, the relevant offences would continue to have the same
meaning and operate in the same way as they did prior to the application of the
Criminal Code.
50. New subsection 233(1A) makes it clear that strict liability applies to the physical element of circumstance of the offence in paragraph 233(1)(a). In this way, it ensures that the offence in paragraph 233(1)(a) operates as it did prior to the application of the Criminal Code.
Item 7 At the end of section 241
51. This item inserts new
subsection 241(3) into the Act.
52. Subsection 241(1) makes it an offence
for a person to make arrangements that make it look as if two people are de
facto spouses for the purposes of the regulations where that person knows
or believes on reasonable grounds that they are not de facto
spouses.
53. Because of the structure of the offence, this therefore
means that the prosecution must prove that the defendant knew the two people
were not de facto spouses for the purposes of the regulations. Given that
the definition of de facto spouse in the Regulations at Regulation 1.15A(2) is
complex, this may prove an extremely difficult task for the
prosecution.
54. New subsection 241(3) makes it clear that strict
liability applies to this element of the offence in subsection
241(1).
55. “Strict liability” is defined in section 6.1 of
the Criminal Code and means that the prosecution does not need to prove
any fault element in relation to an offence. However, the defence of mistake of
fact is available to a defendant (see section 9.2 of the Criminal
Code).
56. The purpose of this amendment is to make it clear that the
prosecution is required only to prove that the de facto relationship was not
genuine, and that the defendant knew, or reasonably believed, that this was the
case.
Item 8 Subsection 268BJ(1)
57. This item amends
subsection 268BJ(1) of the Act, which makes it an offence for a person to give
or show false or misleading documents to an authorised officer in the
course of complying with a production or attendance notice.
58. Under
subsection 5(1) of the Act, an authorised officer is defined to mean an
officer authorised in writing by the Minister or Secretary for the purposes of a
provision of the Act.
59. Currently, the fault element applicable to the
conduct element of the offence in subsection 268BJ(1) requires proof that the
person was aware that they were giving or showing a false or misleading document
to an authorised officer.
60. This could make it difficult to
enforce the offence in practice, because it may be difficult for the prosecution
to demonstrate that the defendant was aware that the person they were giving or
showing false or misleading documents to was an authorised officer within
the meaning of the Act.
61. For example, the required fault element could
not be established if the evidence established that the defendant was aware that
the person to whom he or she gave the false or misleading document was an
officer of the Department, but not that he or she was aware that the officer had
been authorised in writing by the Minister or Secretary for the purposes of
section 268BJ.
62. The purpose of the amendment to subsection 268BJ(1) is
to ensure that the offence it creates can be effectively enforced. This is
achieved by ensuring that it is not an element of the offence that the person
was aware that they were giving or showing a false or misleading document to an
authorised officer.
Item 9 Section 268CM
63. This
item amends section 268CM of the Act, which makes it an offence for a person to
give false or misleading information whilst complying or purporting to comply
with section 268CJ or 268CK of the Act.
64. Currently, the wording of the
offence in section 268CM is inconsistent with the nature of the powers in
sections 268CJ and 268CK of the Act.
65. In summary, section 268CJ allows
an authorised officer to enter the premises of an education provider with
consent and ask the occupier or another person on the premises
to:
• answer any questions that are relevant to a visa monitoring
purpose (as defined in section 268AA); or
• give or show the officer
any document that is relevant to the matter.
1. There is no obligation
for an occupier to comply with the request of the authorised officer to answer
questions or to give or show documents.
2. Section 268CK, by comparison,
allows an authorised officer to require an occupier or another person on the
premises to answer questions or to give or show a document for visa monitoring
purposes.
3. The purpose of the amendment to section 268CM is to ensure
that the wording of the offence it creates is in line
with:
• section 268CJ – which does not require a
person to comply with a request made under the section; and
• section
268CK – which does require a person to comply with a request made
under the section.
Item 10 Subsection 268CN(1)
1. This item
amends subsection 268CN(1) of the Act, which makes it an offence for a person to
give or show false or misleading documents to an authorised officer in
the course of complying with a production or attendance notice.
2. Under
subsection 5(1) of the Act, an authorised officer is defined to mean an
officer authorised in writing by the Minister or Secretary for the purposes of a
provision of the Act.
3. Currently, the fault element applicable to the
conduct element of the offence requires proof that the person was aware that
they were giving or showing a false or misleading document to an authorised
officer.
4. This could make it difficult to enforce the offence in
practice, because it may be difficult for the prosecution to demonstrate that
the defendant was aware that the person they were giving or showing false or
misleading documents to was an authorised officer within the meaning of
the Act.
5. For example, the required fault element could not be
established if the evidence established that the defendant was aware that the
person to whom he or she gave the false or misleading document was an officer of
the Department, but not that he or she was aware that the officer had been
authorised in writing by the Minister or Secretary for the purposes of section
268CN.
6. The purpose of the amendment to subsection 268CN(1) is to
ensure that the offence it creates can be effectively enforced. This is achieved
by ensuring that it is not an element of the offence that the person was aware
that they were giving or showing false or misleading documents to an
authorised officer.
Item 11 Subsection 268CN(1)
7. This item amends subsection
268CN(1) of the Act, which makes it an offence for a person to give or show
false or misleading documents whilst complying or purporting to comply with
section 268CJ or 268CK of the Act.
8. Currently, the wording of the
offence in subsection 268CN(1) is inconsistent with the nature of the powers in
sections 268CJ and 268CK of the Act.
9. In summary, section 268CJ allows an authorised officer to enter the premises of an education provider with consent and ask the occupier or another person on the premises to:
• answer any questions that are relevant to a visa monitoring
purpose (as defined in section 268AA); or
• give or show the officer
any document that is relevant to the matter.
1. There is no obligation
for an occupier to comply with the request of the authorised officer to answer
questions or to give or show documents.
2. Section 268CK, by comparison,
allows an authorised officer to require an occupier or another person on the
premises to answer questions or to give or show a document for visa monitoring
purposes.
3. The purpose of the amendment to subsection 268CN(1) is to
ensure that the wording of the offence it creates is in line
with:
• section 268CJ – which does not require a
person to comply with a request made under the section; and
• section
268CK – which does require a person to comply with a request made
under the section.
SCHEDULE 6 – Minor
amendments
Migration Act 1958
Item 1 At
the end of section 48
1. This item inserts new subsection 48(3) at
the end of section 48 of the Act.
2. In summary, subsection 48(1)
provides that a non-citizen who does not hold a substantive visa and who after
last entering Australia was refused a visa may only apply for a prescribed class
of visa.
3. The effect of subsection 48(1) is that it prevents
non-citizens refused a visa from applying for another visa in Australia other
than certain prescribed visas.
4. Currently, a non-citizen who leaves and
re-enters Australia, as a holder of a bridging visa that allows such travel, is
able to circumvent the section 48 bar on further visa applications. This is
because, on re-entering Australia, the non-citizen has not had a visa refused
“after last entering Australia”. As a result, such a
non-citizen can apply for a visa of a class other than those prescribed in the
Regulations. It was never intended that these bridging visa holders would not
be subject to the section 48 bar.
5. The purpose of new subsection 48(3)
is to address this situation by providing that a non-citizen who, while holding
a bridging visa, leaves and re-enters the migration zone, is taken to have been
continuously in the migration zone despite that travel. This ensures that the
section 48 bar on further visa applications applies, as originally intended, to
a non-citizen who leaves and re-enters Australia as a holder of a bridging visa
that allows such travel.
Item 2 Application of
amendment
6. This item provides that section 48, as amended by item 1
of this Schedule, applies to all visa applications made or purported to be made
after the commencement of that item (the commencement time),
regardless of:
• whether the bridging visa mentioned in subsection
48(3) was granted before or after the commencement time; and
• whether
the travel mentioned in subsection 48(3) took place before or after the
commencement time.
1. In effect, this means that a non-citizen is subject
to the section 48 bar on making further visa applications in the following
circumstances:
• where he or she leaves and re-enters Australia
before the commencement time on a bridging visa that allows such travel
and applies for a subsequent visa after the commencement
time;
• where he or she leaves Australia before the commencement
time, re-enters Australia after the commencement time on a bridging that
allows such travel, and applies for a subsequent visa after the
commencement time; and
• where he or she leaves and re-enters Australia
after the commencement time on a bridging visa that allows such travel
and applies for a subsequent visa after the commencement
time.
Item 3 After subsection 82(7)
1. This items inserts
new subsection 82(7A) after subsection 82(7) of the Act.
2. Under section
73 of the Act a bridging visa may be granted to an eligible non-citizen to
permit the non-citizen to remain in, or to travel to, enter and remain in,
Australia. A bridging visa has effect during a specified period or until a
specified event happens.
3. Schedule 2 of the Regulations specifies the
events which will result in cessation of a bridging visa, such as the
cancellation of a substantive visa held by a bridging visa
holder.
4. Section 82 sets out the general rules for determining when
visas cease to be in effect and qualifies the manner in which section 73 and
Schedule 2 of the Regulations should be interpreted.
5. Subsection 82(7)
provides that a visa to remain in Australia (whether also a visa to travel to
and enter Australia) during a particular period, or until a particular date,
ceases to be in effect at the end of that period or on that date. Under
subsection 82(10), the term “particular date” is defined to include
the date an event happens.
6. Broadly speaking, therefore, a bridging
visa to remain in Australia until a specified event happens, ceases to be in
effect on the date that the event happens. If the event is the cancellation of
the substantive visa, the bridging visa ceases to be in effect on the date the
substantive visa is cancelled.
7. It is unclear, however, at what
time on that date the visa ceases to be in effect. The most favourable
interpretation is that the bridging visa ceases at the end of the day on
which the event occurs.
8. In practical terms, this means that a
non-citizen whose substantive visa has been cancelled cannot be detained until
the day after cancellation, when his or her bridging visa ceases to have effect.
9. The original intention was that a bridging visa would cease at the
same time as the cancellation of a non-citizen’s substantive visa in order
to enable the immediate lawful detention of the non-citizen.
10. The
purpose of new subsection 82(7A) is to give effect to the original policy
intention. It ensures that if a substantive visa held by the holder of a
bridging visa is cancelled, the person’s bridging visa ceases immediately
upon cancellation of the substantive visa.
Item 4 Application of
amendment
11. This item provides that new subsection 82(7A), as
inserted by item 3 of this Schedule, applies in relation to all bridging visas
that are held at any time after the commencement of that item, regardless of
whether the bridging visas were granted before or after that
time.
Item 5 After subsection 137K(3)
12. This item
inserts new subsection 137K(3A) after subsection 137K(3) of the
Act.
13. Under subsection 137K(1), a non-citizen whose visa has been
automatically cancelled under section 137J may apply in writing to the Minister
for revocation of the cancellation. Subsections 137K(2), 137K(3) and 137K(4)
impose time limits for making such an application.
14. Currently, section
137K does not impose a specific time limit on a non-citizen in immigration
clearance seeking revocation of the automatic cancellation of his or her student
visa. A specific time limit for the making of a revocation application in
immigration clearance is required so that the application may be considered
immediately and the non-citizen removed if a decision is made not to
revoke the automatic visa cancellation.
15. New subsection 137K(3A)
introduces a specific time limit in relation to a non-citizen in immigration
clearance that applies in addition to the restriction in subsection 137K(2). It
provides that a non-citizen who is in immigration clearance cannot apply for
revocation after the end of the period prescribed in the regulations. New
subsection 137K(3A) also requires the regulations to specify when that
prescribed period begins to run.
16. It is intended to amend the
Regulations to provide that the prescribed period for the making of a revocation
application by a non-citizen in immigration clearance commences immediately
after the non-citizen is told of the cancellation of his or her student visa and
that he or she may apply for revocation of the cancellation under section
137K.
Item 6 Subsection 245B(11) (second
occurring)
17. This item makes a technical amendment to renumber the
second occurring subsection 245B(11) as subsection 245B(12).
18. The
Border Protection (Validation and Enforcement of Powers) Act 2001
inserted a new subsection 245B(11) into the Act with effect from 27 September
2001.
19. However, the Migration Legislation Amendment (Application of
the Criminal Code) Act 2001 also inserted a subsection 245B(11) into the Act
with effect from 19 September 2001.
20. This amendment ensures that the
second occurring subsection 245B(11), as inserted by the Border Protection
(Validation and Enforcement of Powers) Act 2001, is correctly numbered as
subsection 245B(12).
Item 7 Subsection 338(3A)
21. This
item amends subsection 338(3A) of the Act, which provides that a decision under
section 137L not to revoke the cancellation of a non-citizen’s student
visa is an MRT-reviewable decision if the non-citizen was in the migration zone
when the decision was made.
22. The effect of subsection 338(3A) is that
it would not be possible to immediately remove a non-citizen if his or her
application for revocation was refused in immigration clearance and no other
grounds for admission into Australia existed.
23. It was never intended
to provide review rights to a non-citizen in immigration clearance. Further, no
other decision made in immigration clearance is subject to review under the
Act.
24. The amendment to subsection 338(3A), therefore, ensures that a
decision under section 137L not to revoke the automatic cancellation of a
non-citizen’s student visa, which was made while the non-citizen was in
immigration clearance, is not an MRT-reviewable decision.