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2002
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION LEGISLATION AMENDMENT (TRANSITIONAL MOVEMENT)
BILL 2002
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
(Government)
(Circulated by
authority of the
Minister for Immigration and Multicultural and Indigenous
Affairs,
The Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT (TRANSITIONAL MOVEMENT) BILL
2002
OUTLINE
1. The Migration Legislation Amendment
(Transitional Movement) Bill 2002 (“the Bill”) amends the
Migration Act 1958 (“the Act”) to allow transitory persons to
be brought to Australia without a visa for a temporary purpose.
2. The
purpose of these amendments is to entitle certain transitory persons brought to
Australia under proposed section 198B to request an assessment of whether or not
they are covered by the definition of a “refugee” in Article 1A of
the Refugees Convention, as amended by the Refugees Protocol.
3. A
transitory person will only be entitled to an assessment where he or she has
been held in detention in Australia for a continuous period of 6 months or more
and he or she has cooperated with relevant authorities in relation to certain
matters.
4. This assessment is to be made by the Refugee Review Tribunal
(“the RRT”).
FINANCIAL IMPACT
STATEMENT
5. There will be a modest financial impact on the RRT,
related to the costs associated with the conduct of these assessments.
NOTES ON AMENDMENT
Amendment (1)
1. This
amendment inserts new sections 198C and 198D into item 5 of Schedule 1 to the
Bill.
Section 198C Certain transitory persons entitled to assessment
of refugee status
2. New section 198C entitles certain transitory
persons in Australia to make a request to the RRT for an assessment of their
refugee status.
3. Under new subsection 198C(1), a transitory person who
is brought to Australia under proposed section 198B and remains in Australia for
a continuous period of 6 months is entitled to make a request for an assessment
under new section 198C.
4. New subsection 198C(2) provides that a
transitory person, who satisfies new subsection 198C(1), may make a request to
the RRT for an assessment of whether he or she is covered by the definition of a
“refugee” in Article 1A of the Refugees Convention as amended by the
Refugees Protocol.
5. In broad terms, Article 1A of the Refugees
Convention, as amended by the Refugees Protocol, provides that inter
alia, a “refugee” is someone who:
• is outside his
or her country of nationality;
• has a well founded fear of persecution
for reasons of race, religion, nationality, membership of a particular social
group, or political opinion; and
• is unable or unwilling (because of
this fear) to avail himself or herself of the protection of that
country.
6. New subsections 198C(3) and 198C(4) set out certain
procedures the RRT must follow in relation to the assessment of whether a
transitory person is covered by the definition of a “refugee” in
Article 1A of the Refugees Convention, as amended by the Refugees
Protocol.
7. Under new subsection 198C(3), the RRT must notify the
Secretary that it has received a request under new subsection 198C(2) and cannot
commence its assessment earlier than 14 days after notifying the Secretary of
the request.
8. “Secretary” is defined in section 5 of the
Act to mean “the Secretary to the Department.”
9. Under new
subsection 198C(4), the RRT cannot commence, or continue, its assessment at any
time when a certificate by the Secretary is in force under new section 198D.
New section 198D allows the Secretary to issue a certificate stating that a
transitory person has engaged in uncooperative conduct in relation to certain
matters.
10. New subsection 198C(5) deals with the way in which the RRT
is to conduct its assessment of whether a transitory person is covered by the
definition of a “refugee” in Article 1A of the Refugees Convention
as amended by the Refugees Protocol.
11. Under new subsection 198C(5),
Divisions 4, 6, 7 and 7A of Part 7 of the Act apply for the purposes of the
assessment in the same way as they apply to a review by the RRT under Part 7 of
the Act. Part 7 of the Act provides the legislative framework for merits review
of protection visa decisions. Divisions 4, 6, 7 and 7A of Part 7 of the Act
provide the procedural structures for the conduct of such
reviews.
12. New subsection 198C(6) provides that the RRT must notify the
transitory person and the Minister of its decision, subject to section 441G of
the Act. Section 441G allows a person to give written notice to the RRT of
another person who is authorised to do things on behalf of the applicant that
consist of, or include, receiving documents. This means that, where relevant,
the RRT is obliged to notify the person’s “authorised
recipient” of its decision.
13. New subsection 198C(7) makes it
clear that the decision of the RRT as to whether a transitory person is covered
by the definition of a “refugee” in Article 1A of the Refugees
Convention, as amended by the Refugees Protocol, is final and cannot be
challenged in any court. However, this is not intended to affect the
jurisdiction of the High Court under section 75 of the
Constitution.
14. New subsection 198C(8) sets out the results for a
transitory person who is assessed by the RRT to be covered by the definition of
a “refugee” in Article 1A of the Refugees Convention as amended by
the Refugees Protocol.
15. Under new paragraph 198C(8)(a), the Minister
must determine a class of visa in relation to the person for the purposes of new
subsection 198C(8). Under new paragraph 198C(8)(b), if the person makes an
application for a visa of that class, proposed new section 46B does not apply to
the application.
16. Proposed new subsection 46B(1), as contained in item
3 of Schedule 1 to the Bill, bars a transitory person, who is in Australia and
is an unlawful non-citizen, from making a valid application for a
visa.
17. New subsection 198C(9) provides that a transitory person who
has made a request for an assessment under new section 198C is not entitled to
make any further requests while he or she remains in Australia.
Section 198D Certificate of non-cooperation
18. New
section 198D allows the Secretary to issue a certificate stating that a
transitory person has engaged in uncooperative conduct in certain
circumstances.
19. Under new subsection 198D(1), the Secretary may issue
a certificate to the RRT to the effect that a transitory person has engaged in
uncooperative conduct either before or after the person was brought to
Australia, if satisfied that this is the case. Under new subsection 198C(4),
the RRT cannot commence, or continue, an assessment at any time when such a
certificate is in effect.
20. New subsection 198D(2) makes it clear that
the Secretary’s decision to issue, revoke or vary a certificate under new
subsection 198D(1) is final and cannot be challenged in any court. However,
this is not intended to affect the jurisdiction of the High Court under section
75 of the Constitution.
21. The note to new subsection 198D(2) refers to
subsection 33(3) of the Acts Interpretation Act 1901, which allows a
certificate to be revoked or varied.
22. New subsection 198D(3) defines
“uncooperative conduct” for the purposes of new section 198D to mean
refusing or failing to cooperate with relevant authorities in connection with
any of the following:
• attempts to return the person to a country
where the person formerly resided;
• attempts to facilitate the entry
or stay of the person in another country;
• the detention of the person
in a country in respect of which a declaration is in force under subsection
198A(3).