Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT (2014 MEASURES NO. 2) REGULATION 2014 (SLI NO 199 OF 2014)

EXPLANATORY STATEMENT

 

Select Legislative Instrument No. 199, 2014

 

Issued by the Minister for Immigration and Border Protection

 

Migration Act 1958

 

Migration Amendment (2014 Measures No. 2) Regulation 2014

 

Subsection 504(1) of the Migration Act 1958 (the Migration Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act.

 

In addition, regulations may be made pursuant to the provisions of the Migration Act detailed in Attachment A.

 

The purpose of the Migration Amendment (2014 Measures No. 2) Regulation 2014 (the Regulation) is to amend the Migration Regulations 1994 (the Migration Regulations) to strengthen immigration policy.

 

In particular, the Regulation amends the Migration Regulations to:

 

*         remove the lengthy prescribed periods that an applicant outside Australia must be given to respond to a request for information or to an invitation to comment. The current statutory periods in paragraph 2.15(1)(c) of the Migration Regulations are significantly longer than the advertised service standards and complying with them could adversely impact the efficient administration of the department's visa programmes. The amendments  ensure that areas of the department that process visa applications made by applicants outside Australia are not locked into the rigidity of the prescribed periods. Subsection 58(2) of the Migration Act ensures that a "reasonable period" must still be provided to applicants;

 

*         broaden the definition of "managed fund" to include both statutory funds and benefit funds operated by friendly societies registered under the Life Insurance Act 1995.  The amended definition allows the Minister to specify investment products under the new category of managed funds as eligible investments products for visa applicants seeking a Subclass 188 (Business Innovation and Investment (Provisional)) visa and the subsequent Subclass 888 (Business Innovation and Investment (Permanent)) visa;

 

*         provide that it is a criterion for the grant of a visa that, if requested, a statement from an appropriate authority about a person's criminal history and a completed Form 80 (Personal particulars for assessment including character assessment) must be provided. A waiver of the requirement to provide the criminal history statement is available where the Minister is satisfied that it is not reasonable for the applicant to provide it;

 

*         provide that where a person has had a visa cancelled under section 501 of the Migration Act (character grounds), they cannot be granted a further visa (except in certain circumstances);

 

*         provide that where a person has had a visa cancelled under new subsections 116(1AA) (identity) or 116(1AB) (providing incorrect information) or the Minister's new 'set-aside and cancel' powers in sections 133A or 133C of the Migration Act, they cannot be granted a further visa for three years (except in certain circumstances); and

 

*         harmonise the manner and time periods in which a person can make representations in relation to visa cancellation decisions.

 

Statements of Compatibility with Human Rights (statements) have been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  The Statement's overall assessment in that the Regulation is compatible with human rights.  A copy of the Statements is at Attachment B.

 

Details of the Regulation are set out in Attachment C.

 

The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.

 

The Office of Best Practice Regulation (OBPR) has been consulted in relation to the amendments made by the Regulation:

*         regarding the amendments made by Schedule 1, OBPR advises that the changes have a minor impact on individuals and no further analysis (in the form of a Regulation Impact Statement) is required. The OBPR consultation reference is 16980;

*         regarding the amendments made by Schedule 2, OBPR advises that the changes are likely to have a nil or minor regulatory impact on business, community organisations or individuals and no further analysis (in the form of a Regulation Impact Statement) is required. The OBPR consultation reference is 17762; and

*         regarding the amendments made by Schedule 3, OBPR advises that the changes have a minor and machinery regulatory impact and no further analysis (in the form of a Regulation Impact Statement) is required. The OBPR consultation reference is 16910.

 

Other consultation was undertaken on the Regulation as outlined here:

*         regarding the amendments made by Schedule 1, no other consultation has been undertaken because the amendments are minor in nature and do not substantially alter existing arrangements, consistent with section 18 of the Legislative Instruments Act 2003 (the Legislative Instruments Act);

*         regarding the amendments made by Schedule 2, the Department has consulted with the Customer Owned Banking Association (COBA), which was acting on behalf of Friendly Societies of Australia.  COBA sought to include statutory funds and benefit funds as a category of managed funds in which investments products may be specified and invested into for the purpose of the Significant Investor programme.  Meetings were held with COBA to understand the nature of their request and its scope.  Issues raised by COBA were reviewed and considered in consultation with the Australian Securities and Investment Commission (ASIC) to ensure their feasibility.  ASIC did not raise any objections or concerns about the amendment.

*         regarding the amendments made by Schedule 3, consultation was undertaken in relation to the range of changes proposed by the Review of Character and General Visa Cancellation Framework  which encompassed both amendments to the Migration Act and to the Migration Regulations with the Attorney-General's Department, the Australian Federal Police and the Department of Prime Minister and Cabinet.

 

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act.

 

Schedule 1 to the Regulation applies in relation to the following invitations to a visa applicant given on or after 1 January 2015:

*         an invitation, under subsection 56(2) of the Migration Act, to give additional information;

*         an invitation, under paragraph 57(2)(c) of the Migration Act, to comment on information.

 

Schedule 2 to the Regulation applies in relation to the following applications for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:

*         an application made, but not finally determined, before 12 December 2014;

*         an application made on or after 12 December 2014.

 

Schedule 3, items 1 to 7, 12, 19 and 20, to the Regulation apply on or after 12 December 2014.

 

Schedule 3, items 8 to 11, 13 to 18 and 21, to the Regulation apply on the later of:

*         12 December 2014;

*         the day after sections 1 to 3 of the Migration Amendment (Character and General Visa Cancellation) Act 2014 commences.

However, the provisions do not commence at all if sections 1 to 3 of the Migration Amendment (Character and General Visa Cancellation) Act 2014 do not commence.

 

Schedule 4 to the Regulation applies on or after 12 December 2014.

 

 

 

Attachment A

 

 

AUTHORISING PROVISIONS

 

Subsection 504(1) of the Migration Act 1958 (the Migration Act) relevantly provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing all matters which by the Migration Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Migration Act.

 

In addition, the following provisions of the Migration Act may apply:

 

*         subsection 40(1), which provides that the regulations may provide that visas or visas of a specified class may only be granted in specified circumstances;

 

*         subsection 58(2), which provides that, subject to subsection 58(4), the Migration Regulations may prescribe a period within which additional information or comments are to be given in response to the Minister's invitation to give further information or comments;

 

*         paragraph 109 (1)(c), which provides that the Minister, after having regard to any prescribed circumstances may cancel the visa;

 

*         paragraph 116(1)(g), which provides that, subject to subsections 116(2) and (3), the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder;

 

*         section 133D, which provides that the Migration Regulations may provide that, in determining for the purposes of subsection 133A(1) or 133C(1) whether a person; or a person included in a specified class of persons satisfies the Minister that a ground for cancelling the person's visa does not exist, any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the Migration Regulations;

 

*         paragraph 133F(3)(b),which provides that as soon as practicable after making the original decision, the Minister must invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the Migration Regulations, about revocation of the original decision;

 

*         paragraph 501C(3)(b), which provides that as soon as practicable after making the original decision, the Minister must -- except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection 501C(10)) -- invite the person to make representations to the Minister, within the period and in  the manner ascertained in accordance with the Migration Regulations, about revocation of the original decision;

 

*         paragraph 501CA(3)(b), which provides that as soon as practicable after making the original decision, the Minister must invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision; and

 

*         section 501D, which provides that the Migration Regulations may provide that, in determining for the purposes of section 501, 501A or 501B, whether a person or a person included in a specified class of persons, satisfies the Minister that the person passes the character test (as defined by section 501), any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the Migration Regulations.

 

 

 

 

 

Attachment B

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (2014 Measures No. 2) Regulation 2014

(the Regulation)

This Regulation is 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 Regulation - Schedule 1

This item amends the Migration Regulations 1994 (the Migration Regulations) to remove prescribed periods for responding to an invitation to provide further information or comment on certain information, for visa applicants outside Australia.

Sections 56 and 57 are part of the statutory code of procedure contained in the Migration Act 1958 (the Migration Act) for dealing fairly, quickly and efficiently with visa applications.  Section 56 provides the Minister with the discretion to obtain further information relevant to the consideration of a visa application.  Section 57 requires the Minister to give an applicant the opportunity to comment on certain information prior to a decision being made on the visa application.  

Section 58 of the Migration Act further provides, among other things, that the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.  

Regulation 2.15 of the Migration Regulations prescribes the period in which an applicant is to respond to an invitation to give further information or comment.  In particular, where the application is made by an applicant (other than an applicant for a Visitor (Class TV) visa) who is outside Australia, paragraph 2.15(1)(c) provides that the response period is 28 days after the applicant is notified of the invitation or, if the Minister so decides in the circumstances of the case, 70 days after the applicant is notified of the invitation.

The prescribed periods of 28 days or 70 days for an applicant outside Australia to respond to an invitation under sections 56 or 57 are inflexible.  Many of the departmental overseas posts have service delivery standards that are quicker than these prescribed periods, especially for temporary visas.  These prescribed periods therefore could significantly impact on the department's efficient administration of the offshore visa programme. 

This amendment enables the default of 'reasonable period' in section 58 of the Migration Act will give the Minister, and the department more broadly, the flexibility needed to manage visa applications made by applicants outside Australia more effectively and efficiently. 

 

 

Human rights implications

The amendment to repeal paragraph 2.15(1)(c) of the Migration Regulations has been assessed against the seven core human rights treaties.   

The human rights that are potentially engaged by this amendment are Articles 14(1) and 26 of the International Covenant on Civil and Political Rights (ICCPR).  

Article 14(1) of the ICCPR relevantly states that:

"All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law ... ... "

Article 26 of the ICCPR states that:

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

A close analysis of Article 14(1) reveals that it is not engaged by the amendment to remove prescribed periods. 

First, a decision on whether or not to grant a visa and the associated observance of the code of procedure involves an administrative process that is different and separate from a determination of criminal charge or a civil law suit. 

Second, a visa decision to which the periods prescribed in the code of procedure apply is made by my delegate or me in the course of administering the Migration Act or the Migration Regulations.  It does not involve any hearing before a tribunal or a court of law. 

Even if it could be said that Article 14(1) is relevant, in so far as the amendment affects the operation of the code of procedure relating to visa applications and therefore to that extent engages the right to a fair hearing, the amendment is compatible with Article 14(1). 

As for Article 26 which requires equality before the law, the amendment to remove prescribed periods in paragraph 2.15(1)(c) does not seek to deny an applicant who is outside Australia the opportunity to provide further information or comments in response to an invitation, nor does it result in discrimination against a particular cohort of visa applicants or a denial of equal protection of the law.  Rather, the amendment will simply provide my delegate or me with the flexibility to give an applicant outside Australia a period of time which is reasonable and appropriate in which to provide the further information or comments.  Whilst a 'reasonable period' might in many instances be shorter than the current 28 day or 70 day period prescribed in the Migration Regulations, there would be no practical disadvantage or injustice to the individual visa applicant concerned because the 'reasonable period' will be determined by reference to the circumstances of the visa applicant.  Indeed, allowing 'reasonable period' to apply instead of a prescribed period means that where appropriate, my delegate or I could also give the visa applicant a period longer than 28 days or 70 days in which to provide further information or comments.  This flexibility is desirable and will allow the offshore visa programme to be managed efficiently as well as fairly.

In conclusion, to the extent that the amendment might be argued as engaging Articles 14(1) and 26 of the ICCPR, the amendment is consistent with the human rights protected by those articles.   

Conclusion

To the extent that the amendment to the Migration Regulations described in this statement engages human rights, it is consistent with the human rights set out in the seven core human rights treaties.

 

Overview of the Regulation - Schedule 2

This item amends the Migration Regulations to broaden the definition of "managed fund" to include funds operated by friendly societies registered under the Life Insurance Act 1995. 

The Migration Regulations currently limits eligible investments made by applicants for the Subclass 188 (Business and Innovation and Investment (Provisional)) visa (a Subclass 188 visa) in the Significant Investor stream and the subsequent Subclass 888 (Business Innovation and Investment (Permanent)) visa (a Subclass 888 visa) in the Significant Investor stream, for managed funds, to managed investment schemes within the meaning of the Corporations Act 2001 (the Corporations Act).

The Assistant Minister's office was engaged by the Customer Owned Banking Association on behalf of friendly societies to clarify the limitation relating to managed funds and whether or not benefit funds and statutory funds operated by friendly societies registered under the Life Insurance Act 1995 (the Life Insurance Act) should also be included as a category of funds that could be invested into for the purpose of satisfying a criterion for the grant of a Subclass 188 visa in the Significant Investor Stream or a Subclass 888 visa also in the Significant Investor stream.

The Assistant Minister's office clarified that the managed funds should include both benefit funds and statutory funds operated by friendly societies registered under the Life Insurance Act.

Consequently, the amendments made by Schedule 2 of this legislative instrument will broaden the definition of "managed fund" to include both benefit funds and statutory funds operated by friendly societies registered under the Life Insurance Act as a new eligible category of funds, so that investment products under this new category of funds could be specified in a legislative instrument in writing to be investment products that could be invested into for the purpose of satisfying a criterion for the grant of a Subclass 188 visa in the Significant Investor stream and the subsequent Subclass 888 visa also in the Significant Investor stream.

Accordingly, the power to specify investment products that could be invested into for the purpose of satisfying a criterion for the grant of either a Subclass 188 visa or a Subclass 888 visa is discretionary.

 

Human rights implications

This amendment does not engage any of the applicable rights or freedoms.

 

Conclusion

This amendment is compatible with human rights as it does not raise any human rights issues.

 

Overview of the Regulation - Schedule 3

This item amends the Migration Regulations as a consequence of, and support to, the Migration Amendment (Character and General Visa Cancellation) Act 2014 (the Act).

The amendments made by the Act will provide for better identification and coverage of non-citizens who have engaged in criminal or fraudulent behaviour, or other behaviour of concern, for consideration of visa cancellation or refusal. 

These amendments to the Migration Regulations are complementary to the Act and provide my department with the necessary legislative and regulatory tools to meet the Government's commitment to protecting the community from the risk of harm by non-citizens, and maintaining the integrity of the Migration programme. 

Australia's temporary visa framework provides non-citizens with the ability to remain in Australia for a particular duration and purpose.  Temporary migration provides a range of mutual benefits to Australia and non-citizens by providing, for example: Australian businesses with access to a temporary skilled and unskilled workforce; young people with the ability to work and travel around Australia; and overseas students with the ability to undertake study in Australia.  Visas granted under these programmes are done so with the expectation that the visa holder will make a positive contribution to Australian society, respect community values, and obey Australia's laws.  These amendments to the Migration Regulations are in that context. 

These amendments contain a number of contingent amendments that are for the purpose of giving full effect to the amendments made by the Act.  In addition, there are some standalone regulation amendments that will provide for additional prescribed cancellation grounds, a stronger exclusion period framework, and consequences for visa applicants who do not comply with reasonable requests made by my department for documentation or information sought for the purposes of determining whether or not they satisfy certain legislative criteria for the grant of a visa.

*         Amendments to regulation 2.43 of the Migration Regulations include a new provision for: a lower visa cancellation threshold under section 116(1)(g) of the Migration Act 1958 (the 'Migration Act') for certain temporary visa holders who are convicted of an offence against a Commonwealth, State or Territory law; and a cancellation ground under section 116(1)(g) for certain temporary visa holders who are subject to notices issued by Interpol for certain purposes (either warning or intelligence related).  These two new prescribed grounds for visa cancellation provide a lower threshold for consideration of visa cancellation for some temporary visa holders whose conduct falls short of what is expected.

 

*         The temporary migration framework provides that a non-citizen can be granted a Subclass 771 (Transit) visa to enable transit through Australia's international transport hubs, with an ability to enter and remain in Australia for no longer than 72 hours.  Given the relatively low threshold of evidence required to obtain a Subclass 771 (Transit) visa, it is crucial that the visa can be cancelled where border officers have concerns regarding the intention of the visa holder to only transit Australia.  An amendment to regulation 2.43 to prescribe a new cancellation ground for Subclass 771 (Transit) visa holders provides an appropriate response to maintain the integrity of the Transit visa programme. 

 

*         Section 109 of the Migration Act requires a delegate to have regard to any prescribed circumstances prior to making a decision to cancel a visa due to a visa holder failing to comply with sections 101, 102, 103, 104, 105 of 107(2) of the Migration Act, with those prescribed circumstances being set out in regulation 2.41.  An existing prescribed circumstance is 'correct information', which requires a complex assessment about its likely effect on a decision to grant a visa.  However, it is more appropriate that such a visa cancellation decision reflect the relevance of the correct information, rather than a subjective assessment about what its impact would have been on the original decision.  Amending regulation 2.41(1)(c) will require a delegate to consider whether a decision to grant a visa or immigration clear a visa holder was based on incorrect information or a bogus document.

 

 

*         Special Return Criterion (SRC) 5001 of Schedule 5 to the Migration Regulations is imposed, by relevant criteria in Schedule 2 to the Migration Regulations, on certain visa subclasses.  If it is imposed on an applicant's visa subclass, the applicant must not have had their visa cancelled under sections 501(6)(a), 501(6)(c)(i) or 501(6)(c)(i) and (ii) of the Migration Act.  Given the changes to section 501 in the Act to strengthen the provisions in the character test in section 501 of the Act, the Government considers it is appropriate that SRC 5001 be amended to refer to any person whose visa has been cancelled under any part of section 501, 501A or 501B of the Migration Act.  It is also considered appropriate that the effect of Public Interest Criteria (PIC) 4013 be extended to refer to the amended section 116(1)(e), new sections 116(1AA) and 116(1AB), and the Minister's new powers in section 133A and 133C of the Act to personally cancel visas under section 109 or 116 of the Migration Act.

 

*         PIC 4001 and 4002 are imposed on certain visa subclasses by relevant criteria in Schedule 2 to the Migration Regulations.  Applicants for those visa subclasses are required to satisfy those PICs, which relate to an applicant satisfying the Minister that they pass the character test, and to being assessed by the Australian Security Intelligence Organisation to be a risk to security.  Within the existing regulatory framework for PIC 4001 and PIC 4002, there is no ability for a section 65 delegate to set a time limit within which a visa applicant is to provide a statement (however described) from an appropriate authority that provides evidence about whether or not the person has a criminal record or a completed form 80, to satisfy PIC 4001 and 4002, or to be able to refuse a visa application if the requested documentation or information is not provided within a specified timeframe.  The absence of such a requirement has meant that where a person fails to cooperate and provide documentation or information necessary for an assessment against PIC 4001 or PIC 4002, a delegate cannot be satisfied that the applicant does or does not meet the requirements and cannot refuse the visa on this basis.  This leaves the situation where visa applications remain undecided unless there are other grounds upon which an application can be refused, because a delegate cannot be satisfied that legislative criteria have been met to require a grant of the visa.  Regulation 2.03AA provides a mechanism by which a visa application can be refused where an applicant fails to provide requested documentation or information.

Human Rights

This Statement of Compatibility addresses the potential human rights implications that may result from these amendments if they lead to an adverse outcome for a non-citizen.  Some other parts of these amendments provide either a positive or neutral affect for a non-citizen and will not be addressed in this Statement. 

Some human rights obligations which appear in international human rights treaties contain express limitation clauses which set out the specific parameters within which the rights may be limited.  These clauses include prescribed purposes that may justify the limitation of the right, such as national security, public order, public health, public safety, public morals, and the protection of the rights and freedoms of others. 

The Act is aimed at further enhancing the Migration Act's powers in the interests of national security and maintaining public order and safety, by strengthening my department's ability to identify, assess and reduce any risk to the Australian community that a non-citizen may present.  These amendments to the Migration Regulations support the Act while also providing additional mechanisms to address national security, the maintenance of public order and safety, and the protection of the rights and freedoms of others.

The effect of the amendments to regulation 2.43 may be that greater numbers of visa holders will be liable to have their visas considered for visa cancellation, which may result in an increase in visa cancellations.  The amendments to SRC 5001 and PIC 4013 may lead to a larger number of refusals of visa applications, and the creation of regulation 2.03AA may result in a greater number of visa refusal decisions for non-citizens who are in Australia. 

The effect of these amendments may lead to the separation of a child from a parent and/or the separation of the family unit, the detention of a non-citizen, and the removal of the person from Australia.  However, these amendments do not change the existing framework within which the character and general cancellation powers function.  Generally, where the powers are enlivened, discretion exists to cancel or refuse a visa, a process that will continue to form part of the visa decision making framework.  A person will generally continue to be afforded with procedural fairness prior to a decision being made, or be invited to make representations about revoking the cancellation decision where a decision has been made without notice.  As part of either process, the decision-maker will be required to take any information provided by the person, and a number of other considerations such as Australia's international obligations, into consideration.  Where a section 65 delegate refuses a visa application, that decision may be subject to merits review under Part 5 or Part 7 of the Migration Act. 

Rights relating to families and children

 

Convention on the Rights of the Child

'Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.'

International Covenant on Civil and Political Rights (ICCPR)

'Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.'

'Article 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

'Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.'

My department takes all matters concerning families and children seriously.  The effect of visa cancellation, visa refusal, and any subsequent detention, removal or exclusion could result in the separation of the family unit.  However, the Government's position is that the application of migration laws which consider the individual circumstances of visa applicants or visa holders and their relationships with family members is consistent with the rights outlined above.

Where a non-citizen's visa is being considered for cancellation, the rights relating to families and children will be taken into account as part of the decision and will be weighed against factors such as the risk the person presents to the Australian community.  

Where a non-citizen's visa is cancelled or refused while they are in Australia, they will become an unlawful non-citizen and be liable for detention under section 189 of the Migration Act.  However, depending on the circumstances of the case, a non-citizen who has parental or familial obligations may be eligible to apply for a Bridging visa to remain lawfully in the Australian community while they exercise any rights they may have to review, and/or while removal arrangements are made.      

Delegates and Tribunal members making a decision where section 501 of the Migration Act is relevant are bound by a Ministerial Direction made under section 499 of the Migration Act which requires a balancing exercise of countervailing considerations.  A similar process for the mandatory cancellation revocation decisions will be included in a Direction.  While rights relating to family and children generally weigh heavily against visa cancellation or refusal, there will be circumstances where this will be outweighed by the risk to the Australian community due to the seriousness of the person's criminal record or past behaviour or associations.  The effect of this regulation amendment is that a person cancelled under any part of section 501 will be unable to satisfy SRC 5001 if that is the criteria for the grant of a visa for which they subsequently apply.  Where a person is unable to satisfy SRC 5001, their visa application must be refused.

Further, a person who has their visa cancelled under sections 109 or 116 of the Migration Act may be required to meet PIC 4013 for the grant of a visa for which they subsequently apply.  PIC 4013 prevents the grant of a visa to a person cancelled under section 109 or under certain grounds of section 116 for 3 years from the cancellation decision date.  PIC 4013 can be waived in compassionate or compelling circumstances.

Detention and removal

Where a person's visa is cancelled or refused as a result of these amendments and they are in Australia, they will become an unlawful non-citizen, be liable to be detained under section 189 of the Migration Act, and may be removed from Australia.

Right to security of the person and freedom from arbitrary detention.

The right to security of the person and freedom from arbitrary detention is contained in Article 9 of the ICCPR.

'Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Australia takes its obligations to people in immigration detention very seriously.  The Australian Government's position is that the detention of individuals is neither unlawful nor arbitrary per se under international law.  Continuing detention may become arbitrary after a certain period of time without proper justification.  The determining factor, however, is not the length of detention, but whether the grounds for the detention are justifiable.

In the context of Article 9, detention that is not 'arbitrary' must have a legitimate purpose within the framework of the ICCPR in its entirety.  Detention must be predictable in the sense of the rule of law (it must not be capricious) and it must be reasonable (or proportional) in relation to the purpose to be achieved.

The object of the Migration Act is to 'regulate, in the national interest, the coming into, and presence in, Australia of non-citizens'.  The UN Human Rights Committee has recognised in the ICCPR context that "The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party.  It is in principle a matter for the State to decide who it will admit to its territory [ ... ] Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment" (CCPR General Comment 15, 11 April 1986).

This regulation amendment does not limit a person's right to security of the person and freedom from arbitrary detention.  Australia's migration framework states that unlawful non-citizens (i.e. non-citizens who do not hold a visa that is in effect) will be subject to mandatory detention.  Regulation amendments that extend the grounds upon which a person's visa may be cancelled or refused, the result of which may be subsequent detention, add to a number of existing laws that are well-established, generally applicable and predictable.  This will be the case also for these amendments.  While these amendments widen the scope of people who may have their visa application considered for refusal or who may have their visa considered for cancellation, they present a reasonable response to achieving a legitimate purpose under the ICCPR - the safety of the Australian community and integrity of the migration programme.  The new powers enable my department to better target cohorts of people with bona fide criminality concerns or those who do not cooperate with a reasonable request to provide documentation or information, and where deemed necessary for their removal from the Australian community, through their detention and subsequent removal from Australia.  Any questions of proportionality will be resolved by way of comprehensive policy guidelines on matters to be taken into account when exercising the discretion to cancel a person's visa or refuse a person's visa application.

The detention of a person under these circumstances is considered neither unlawful nor arbitrary under international law.  The Government has processes in place to mitigate any risk of a person's detention becoming indefinite or arbitrary through: internal administrative review processes; Commonwealth Ombudsman Own Motion enquiry processes, reporting and Parliamentary tabling; and, ultimately the use of the Minister's personal intervention powers to grant a visa or residence determination where it is considered in the public interest. 

Further, where a person's visa is cancelled under these amendments, they may continue to be eligible to apply for a Bridging visa which, if granted, would prevent the person from becoming an unlawful non-citizen liable for immigration detention.   

Australia's non-refoulement obligations

Article 3(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) states:

'No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.'

Articles 6 and 7 of the ICCPR also impose on Australia an implied non refoulement obligation.  Article 6 of the ICCPR states:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 7 of the ICCPR states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

My department recognises these non-refoulement obligations are absolute and does not seek to resile from or limit Australia's obligations.  Non-refoulement obligations are considered as part of a decision to refuse a visa application or cancel a visa under character grounds.   Anyone who is found to engage Australia's non-refoulement obligations during the cancellation decision or visa refusal decision or Ministerial Intervention processes prior to removal from Australia, will not be removed in breach of those obligations.  The amendments to the Migration Regulations do not engage Australia's non-refoulement obligations. 

Conclusion

These Regulation amendments are for a legitimate purpose and are compatible with human rights.  These amendments are designed to strengthen and support the Act and are consistent with the original intent of the provisions to provide the Government with sufficient capability to address character and integrity concerns.  These amendments address the changes in the environment relating to the entry and stay of non-citizens in Australia since the mid to late 1990s, and reflect this Government's and the Australian community's low tolerance for criminal, non-compliant or fraudulent behaviour of those who are given the privilege of holding a visa to enter and/or remain in Australia.  To the extent that these amendments may limit human rights, the Government considers those limitations as reasonable, proportionate and necessary.  

 

The Hon. Scott Morrison MP

 Minister for Immigration and Border Protection

 

 

 

Attachment C

Section 1 - Name of Regulation

 

This section provides that the title of the Regulation is the Migration Amendment (2014 Measures No. 2) Regulation 2014 (the Regulation).

 

Section 2 - Commencement

 

This section provides that each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table and that any other statement in column 2 has effect according to its terms.

 

Schedule 1commences on 1 January 2015.

 

Schedule 2 commences on 12 December 2014.

 

Schedule 3, items 1 to 7, 12, 19 and 20, commence on 12 December 2014.

 

Schedule 3, items 8 to 11, 13 to 18 and 21, commence on the later of:

*         the day after this instrument is registered;

*         the day after sections 1 to 3 of the Migration Amendment (Character and General Visa Cancellation) Act 2014 commences.

However, the provisions do not commence at all if the Migration Amendment (Character and General Visa Cancellation) Act 2014 does not commence.

 

Schedule 4 commences on 12 December 2014. 

 

Section 3 - Authority

 

This section provides that this regulation is made under the Migration Act 1958 (the Migration Act).

 

The purpose of this section is to set out the Act under which the Regulation is made.

 

Section 4 - Schedule

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

 

The purpose of this section is to provide for how the amendments in this Regulation operate.

Schedule 1 - Response times

 

Item 1 - Paragraph 2.15(1)(c)

 

This item repeals paragraph 2.15(1)(c) of Part 2 Division 2.3 of the Migration Regulations 1994 (the Migration Regulations). 

 

Old paragraph 2.15(1)(c) provides that an applicant who is outside Australian has 28 days or, if the Minister considers it appropriate in the circumstances, 70 days after notification, to respond to an invitation to comment or a request for information. This legislative framework prescribes a much longer response period than the advertised service standards for applicants outside Australia. Consequently, this could adversely impact the efficiency in the department's visa processing areas.

 

New paragraph 2.15(1)(c) removes the abovementioned requirement of 28 days or 70 days to respond to an invitation to comment or a request for information.

 

The effect of this amendment is to enable the Minister to specify a "reasonable period" in which comments or information must be given as per subsection 58(2) of the Migration Act. The department would then describe what constitutes a "reasonable period" in policy. Therefore, this would improve the efficiency of visa processing to avoid unnecessary response time prescribed by the old subclause 2.15(1)(c).

 

The purpose of this amendment is to provide for flexibility regarding the period in which an applicant outside Australia must respond to an invitation to provide comments or to provide further information. This consequently improves the efficiency and effectiveness of the departmental visa processing areas, particularly for overseas posts.

 

Item 2 - At the end of Schedule 13

 

This item amends Schedule 13 to the Migration Regulations to insert a new Part 38, entitled "Amendments made by the Migration Amendment (2014 Measures No. 2) Regulation 2014", which contains a new clause 3801.

 

The new clause 3801 provides that the amendments of the Migration Regulations made by Part 1 Schedule 1 to the Migration Amendment (2014 Measures No. 2) Regulation 2014 apply in relation to the following invitations to a visa applicant made on or after 1 January 2015:

*         an invitation, under subsection 56(2) of the Migration Act, to give additional information;

*         an invitation, under paragraph 57(2)(c) of the Migration Act, to comment on information.

 

The purpose and effect of this amendment is to clarify to whom the amendments in Schedule 1 of the Migration Regulations applies.

Schedule 2 - Significant investor

Item 1 - Regulation 1.03 (definition of managed fund)

This item repeals and substitutes the definition of "managed fund" under regulation 1.03 of Part 1 of the Migration Regulations 1994 (the Migration Regulations).

Substituted definition of "managed fund" is provided to mean an investment to which all of the following apply:

The purpose of this amendment is to broaden the definition of "managed fund" to include both statutory funds and benefit funds that are operated by friendly societies registered under the Life Insurance Act 1995.

This amendment has the effect of allowing the Minister to specify, in a legislative instrument, eligible investment products offered by relevant friendly societies as a type of "complying investment" in which investors could invest into to satisfy a criterion for the grant of a Subclass 188 (Business Innovation and Investment (Provisional)) visa or the subsequent Subclass 888 (Business Innovation and Investment (Permanent)) visa.

Following these amendments, the Minister may specify investment products under the category of a managed investment scheme, a benefit fund, or a statutory fund operated by relevant friendly societies, but is not required to do so.

Schedule 3 - Character and general visa cancellation

 

Item [1] - Subregulation 2.03(1) and Item [2] -  Subregulation 2.03A(1)

 

This item amends subregulation 2.03(1) of Division 2.1 of Part 2 of the Migration Regulations omits "regulation 2.03A" and inserts "regulations 2.03A and 2.03AA".

 

This item amends subregulation 2.03A(1) of Division 2.1 of Part 2 of the Migration Regulations omits "regulation 2.03" and  inserts "regulations 2.03 and 2.03AA".

 

Previously, subregulation 2.03(1) provided that, for the purposes of subsection 31(3) of the Migration Act (which deals with criteria for the grant of a visa) and subject to regulation 2.03A, the prescribed criteria for the grant of a visa of a particular class are:

*         the primary criteria set out in a relevant Part of Schedule 2; or

*         if a relevant Part of Schedule 2 sets out secondary criteria, those secondary criteria.                            

Previously, subregulation 2.03A(1) provided that, In addition to the criteria prescribed by regulation 2.03, if a person claims to be in a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed criteria.

 

The effect of these amendments is to include references in existing subregulations 2.03(1) and 2.03A(1) to new regulation 2.03AA, in addition to existing references to regulation 2.03A.  These amendments are consequential to item [3], below.

 

Item [3]  - After regulation 2.03A

 

This item inserts new regulation 2.03AA (criteria applicable to character tests and security assessments) after regulation 2.03A of Division 2.1 of Part 2 of the Migration Regulations. New regulation 2.03AA inserts new criteria applicable to character, security and other assessments. 

 

Subregulation 2.03AA(1) provides that in addition to the criteria prescribed by regulations 2.03 and 2.03A, if a person is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa, the criterion in subregulation (2) is prescribed.

 

Subregulation 2.03AA(2) provides that if the Minister has requested the following documents or information, the person has provided the documents or information:

*         a statement (however described) provided by an appropriate authority in a country where the person resides, or has resided, that provides evidence about whether or not the person has a criminal history; and

*         a completed approved form 80.

 

The Note following after subregulation 2.03AA(2) provides that a police force is an example of an appropriate authority for the purposes of paragraph 2.03AA(2)(a).

 

Subregulation 2.03AA(3) provides that the Minister may waive the requirement in paragraph (2)(a) if the Minister is satisfied that it is not reasonable for the person to provide a statement. 

 

The effect of the amendment in item [3] is to make it a criterion that a person who is required to satisfy public interest criteria 4001 or 4002 for the grant of a visa is also required to provide a statement from an appropriate authority about criminal history and a completed approved form 80 if requested to do so.  This applies unless the requirement was waived for that person in relation to that application.

 

The power to waive the requirement to provide a statement by an appropriate authority that provides evidence about whether or not the person has a criminal history allows for a person's individual circumstances to be taken into account when considering whether or not it is reasonable to require the person to provide a statement in relation to an application for a visa.  For example, if the person has resided in a country that is currently affected by a civil conflict, it may not be reasonable to expect a person to be able to provide the statement from that country.  In that case, the requirement of that person to provide a statement from that country may be waived.

 

Item [4]  - Paragraph 2.41(c)

This item omits paragraph 2.41(c) in Division 2.9 of Part 2 of the Migration Regulations, and substitutes  new paragraph 2.41(c).

Regulation 2.41 (Whether to cancel visas - incorrect information or bogus document (Act, s109(1)(c)) prescribes, for the purposes of paragraph 109(1)(c) of the Migration Act, circumstances to which the Minister must have regard when considering whether to cancel a visa for breach of an obligation to provide correct information in an application for a visa, or in a passenger card.

Old paragraph 2.41(c) prescribed as a circumstance to which the Minister must have regard,"the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document".

New paragraph 2.41(c)  provides that, for the purposes of paragraph 109(1)(c) of the Migration Act, one of the prescribed circumtances to which the Minster must have regard is "whether the decision to grant a visa or immigration clear the visa holder was based, wholly or in part, on the incorrect information or bogus document".

The effect  of new paragraph 2.41(c) is to make clear that when considering whether to cancel a visa under section 109 of the Migration Act, a circumstance to which the Minister must have regard is to be an assessment of whether the incorrect information or bogus document was the basis, or part of the basis,  for the decision to grant the visa or immigration clear the person, rather than, as currently, a subjective assessment of the "likely effect" of the incorrect information or bogus document on the decision to grant the visa or immigration clear the person.

 

Item [5] - After paragraph 2.43(1)(o)

 

This item inserts new paragraphs 2.43(1)(oa) and (ob) in regulation 2.43 of Subdivision 2.9.2 of Division 2.9 of Part 2 of the Migration Regulations.

 

Regulation 2.43 (Grounds for cancellation of visa (Migration Act, s116)) of the Migration Regulations prescribes grounds under paragraph 116(1)(g) of the Migration Act which  provides that subject to subsections 116(2) and (3), the Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling the visa applies to the holder. 

 

New paragraph 2.43(1)(oa) provides, in the case of the holder of a temporary visa (other than a Subclass 050 Bridging (General) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)----that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any)).

 

The effect of this amendment is that it is a ground for considering cancellation of a temporary visa (other than a Subclass 050 Bridging (General) visa), a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa) under section 116 of the Migration Act if the Minister is satisfied that holder of a temporary visa has been convicted of an offence against a law of the Commonwealth, a State, or a Territory regardless of the penalty imposed, if any.  This ground will apply if the holder of the temporary visa is convicted of the offence at any time during their stay in Australia, not necessarily while holding the temporary visa that is now subject to consideration for cancellation.  The conviction may have occurred while the person held any visa or while the person was not a visa holder.

 

New paragraph 2.43(1)(ob) provides, in the case of the holder of a temporary visa (other than a Subclass 050 Bridging (General) visa), a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa) --that the Minister is satisfied that the holder is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning or intelligence:

*         that the holder has committed an offence against a law of another country and is likely to commit a similar offence; or

*         that the holder is a serious and immediate threat to public safety.

 

The effect of this amendment is that it is a ground for considering cancellation of a temporary visa (other than a Subclass 050 Bridging (General) visa), a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa) under section 116 of the Migration Act if the Minister is satisfied that holder of a temporary visa is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder has committed an offence against a law of another country and is likely to commit a similar offence; or is a serious and immediate threat to public safety.  This ground would not apply if the person was no longer the subject of such a notice, for example if the notice had been withdrawn by Interpol.

 

Item [6]  - At the end of Subparagraph 2.43(1)(p)(i)

 

This item adds the words "(other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa))" at the end of subparagraph 2.43(1)(p)(ii) of  Subdivision 2.9.2 of Division 2.9 of Part 2 of the Migration Regulations.

 

Subparagraph 2.43(1)(p)(ii) provides that for the purposes of paragraph 116(1)(g) of the Migration Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country.

 

The effect of this amendment is to make it clear that a prescribed ground for the cancellation of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa is that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country.  This ground will apply if the holder of the bridging visa is convicted of the offence at any time during their stay in Australia, not necessarily while holding the bridging visa that is now subject to consideration for cancellation However, this would not apply if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa), inserted by item [5], above. 

 

Item [7] - At end of subregulation 2.43(1)

 

This item adds at the end of subregulation 2.43(1) of Subdivision 2.9.2 of Division 2.9 of Part 2 of the Migration Regulations, new paragraph 2.43(1)(r).

 

New paragraph 2.43(1)(r) provides that, in the case of the holder of a Subclass 771 (Transit) visa - that, despite the grant of the visa, the Minister reasonably suspects that the visa holder:

 

The effect of new paragraph 2.43(1)(r) is that it is a ground for considering the cancellation of a Subclass 771 (Transit) visa under section 116 of the Migration Act if the Minister reasonably suspects that the holder of the visa does not intend to transit Australia and then depart for another destination. 

 

For example, a visa holder's tickets or documentation presented at the time of application or at the time of decision may differ to that presented in immigration clearance to such an extent that it is no longer clear that transiting Australia is the genuine purpose of the visa.  Where the Subclass 771 (Transit) visa holder is in immigration clearance and it is not clear that the visa holder has concluded arrangements for travel to a destination outside Australia, this item provides the ground for considering cancellation of the visa on the basis of a reasonable suspicion that the person did not intend, at the time of grant, to transit Australia or has ceased to have that intention since arrival in Australia.

 

Item [8] - After regulation 2.49

 

This item inserts new regulation 2.49A (Additional personal powers for the Minister to cancel visas - period to submit information, material and representations) in Subdivision 2.9.2 of Division 2.9 of Part 2 of the Migration Regulations.

 

The purpose of new regulation 2.49A is to prescribe for the purposes of section 133D of the Migration Act the period and  manner in which a person may submit to the Minister information or material relevant to the Minister's consideration of whether a ground for cancelling the person's visa exists for the purposes of subsections 133A(1) or 133C(1) of the Migration Act; and to prescribe for the purposes of paragraph 133F(3)(b) of the Migration Act the period and manner in which a person may make representations about revocation of a decision of the Minister to cancel the person's visa under subsection 133A(3) or 133C(3) of the Migration Act.

New subregulation 2.49A(1) provides that for section 133D of the Migration Act, information or material submitted by or on behalf of a person to satisfy the Minister that a ground for cancelling the person's visa does not exist must not be considered by the Minister unless the information or material:

New subregulation 2.49A(2) provides that, for paragraph 133F(3)(b) of the Migration Act, a representation must:

 

Item [9] - Regulation 2.52 (heading)

 

This item repeals the heading of regulation 2.52 of Subdivision 2.9.3 of Division 2.9 of Part 2 of the Migration Regulations, and inserts a new heading "Refusal or cancellation of visa--representations in respect of revocation of decision by Minister (Migration Act, s 501C and 501CA)".

This item is a technical amendment to incorporate a reference to representations made to the Minister in respect of revocation of a decision to refuse or cancel a visa under section 501C or 501CA of the Migration Act, as a consequence of the amendment made to regulation 2.52 by the following items. 

 

Item [10] - Subregulation 2.52(1)

 

This item omits the words "paragraph 501C(3)(b)" and substitutes "paragraph 501C(3)(b) and 501CA(3)(b)" in subregulation 2.52(1) of Subdivision 2.9.3 of Division 2.9 of Part 2 of the Migration Regulations.

 

Subregulation 2.52(1) provided that regulation 2.52 applied to representations made to the Minister under paragraph 501C(3)(b) of the Migration Act.  The effect of this amendment is to provide that regulation 2.52 also applies to representations made to the Minister under paragraph 501CA(3)(b) of the Migration Act.

 

Item [11] - Subregulation 2.52(2)

 

This item repeals subregulation 2.52(2) and substitutes new subregulation 2.52(2) into regulation 2.52 of Subdivision 2.9.3 of Division 2.9 of Part 2 of the Migration Regulations.

 

Old subregulation 2.52(2) provided that (for representations made to the Minister under paragraph 501C(3)(b) of the Migration Act) the representations must be made within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Migration Act.

New subregulation 2.52(2) provides that the representations must be made:

The effect of this amendment is to prescribe, for the purposes of paragraph 501CA(3)(b) of the Migration Act, the time period of 28 days within which a person must make representations to the Minister after having been given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Migration Act, in addition to the matters prescribed for a representation under paragraph 501C(3)(b) of the Migration Act.

 

Item [12] - Paragraph 2.53(1)(b)

 

This item omits "14" and substitutes "28" in paragraph 2.53(1)(b) in regulation 2.53 of Subdivision 2.9.3 of Division 2.9 of Part 2 of the Migration Regulations.

 

Previously, paragraph 2.53(1)(b) provided that for section 501D of the Migration Act, information or material must be received within 14 days after the person is invited by the Minister or the Department of Immigration and Border Control to submit information or material.

 

The effect of this amendment is to extend the time period within which a person may submit information or material in response to an invitation under section 501D of the Migration Act from 14 days to 28 days after the person is invited to do so.

 

Item [13] - After paragraph 2.55(1)(a)

 

This item inserts new paragraph 2.55(1)(ab) in subregulation 2.55(1) of Division 2.10 of Part 2 of the Migration Regulations.

 

New paragraph 2.55(1)(ab) provides that regulation 2.55 applies to the giving of a document under subsection 133E(2) of the Migration Act relating to a decision to cancel a visa under subsection 133A(1) or 133C(1) of the Migration Act.

 

The effect of this item is that regulation 2.55 (which deals with giving of documents relating to proposed cancellation, cancellation or revocation of cancellation) applies to the giving of a document or documents under subsection 133E(2) of the Migration Act relating to a decision to cancel a visa under subsection 133A(1) or subsection 133C(1) of the Migration Act.

 

Item [14] - Subregulation 2.55(4)

 

This item omits the words "paragraph (1)(b)" and substitutes "paragraph (1)(ab) or (b)" in subregulation 2.55(4) of Division 2.10 of Part 2 of the Migration Regulations.

 

Subregulation 2.55 (4) provides that, subject to subregulation (4A), for a document mentioned in paragraph (1)(b):

o   Immigration must try to find the person; and

o   the Minister must give the document in one of the ways mentioned in                    subregulation (3).

 

The effect of this amendment is to make subregulation 2.55(4) apply to a document mentioned in new paragraph 2.55(1)(ab) as well as a document mentioned paragraph 2.55(1)(b), consequential to the insertion of new paragraph 2.55(1)(ab) by item [13], above.

 

Item [15]  - Paragraph 2.55(4A)(a)

 

This item omits "paragraph (1)(b)" and substitutes "paragraph (1)(ab) or (b)" in paragraph 2.55(4A)(a) of Division 2.10 of Part 2 of the Migration Regulations.

 

Previously paragraph 2.55 (4A)(a) provided that, if the person is a minor the Minister must give a document mentioned in paragraph 2.55(1)(b) in one of the ways mentioned in subregulation (3A).

 

The effect of this amendment is to make paragraph 2.55(4A)(a) apply to a document mentioned in new paragraph 2.55(1)(ab) as well as a document mentioned paragraph 2.55(1)(b), consequential to the insertion of new paragraph 2.55(1)(ab) by item [13], above.

 

Item [16]  - Paragraph 4013(1A)(a) of Schedule 4

 

This item repeals paragraph 4013(1A)(a) of Schedule 4 to the Migration Regulations, and substitutes a new paragraph 4013(1A)(a).

 

Old paragraph 4013(1A)(a) provided that a person is affected by a risk factor if a visa previously held by the person was cancelled under section 109 or paragraph 116(1)(d) of the Migration Act.

 

New paragraph 4013(1A)(a) provides that a person is affected by a risk factor if a visa previously held by the person was cancelled under section 109, paragraph 116(1)(d), subsection 116(1AA) or (1AB), or section 133A of the Migration Act.

 

Public Interest Criterion 4013 deals with 'risk factors' associated with considering granting a visa to an applicant who has had a previous visa cancelled, and sets out a temporary exclusion period for those applicants.  Broadly, subclause 4013(1) provides that if the applicant is affected by a risk factor they cannot be granted a visa unless 3 years have passed since the cancellation of the previously held visa.

 

Subsections 116(1AA) and 116(1AB) of the Migration Act deal with cancellation of a visa on the grounds that the holder of the visa provided incorrect information or bogus documents.

 

Subsection 116(1AA) provides the Minister with the discretion to cancel a visa if the Minister is not satisfied as to the visa holder's identity.

 

Subsection 116(1AB) provides the Minister with the discretion to cancel a visa if the Minister is satisfied that incorrect information was given by or on behalf of the visa holder to  certain persons or bodies for the purposes of a function of, or a purpose under or in relation to the Migration Act.

 

Section 133A of the Migration Act sets out the Minister's new power to set aside a decision of a delegate, the MRT, the RRT or the AAT (not to cancel a visa under section 109 of the Migration Act) and to then make a new decision to cancel a visa on section 109 grounds.

 

The effect of this item is to incorporate references to subsections 116(1AA) and (1AB) and section 133A of the Migration Act into existing paragraph 4013(1A)(a).

 

Item [17]  - At the end of subclause 4013(1A) of Schedule 4

 

This item inserts a new paragraph 4013(1A)(c) in subclause 4013(1A) of Schedule 4 to the Migration Regulations.

 

Consequential to the amendment made by item [16] above, subclause 4013(1A) provides that a person is affected by a risk factor if a visa previously held by the person was cancelled:

 

New paragraph 4013(1A)(c) provides that a person is affected by a risk factor if a visa previously held by the person was cancelled under section 133C of the Migration Act because the Minister was satisfied that the ground mentioned in paragraph 116(1)(d) or subsection 116(1AA) or (1AB) of the Migration Act applied to the person.

 

This amendment makes it clear that a person is affected by a risk factor if a visa previously held by the person was cancelled under subsection 116(1AA), 116(1AB) or section 133A of the Migration Act.   

 

Item [18]  - Subclause 4013(2) of Schedule 4

 

This item omits the words "section 116 or 128" and substitutes the words "section 116, 128 or 133C" in subclause 4013(2) of Schedule 4 to the Migration Regulations.

 

Previously, subclause 4013(2) provided that a person is affected by a risk factor if a visa previously held by the person was cancelled under section 116 or 128 of the Migration Act.

Section 133C of the Migration Act provides the Minister with personal powers to set aside a decision of a delegate or Tribunal that a ground for cancellation of a visa did not exist, or not to exercise the power in section 116 of the Migration Act to cancel the visa despite the existence of the ground, and cancel the visa on a ground in section 116.

 

The effect of this amendment is that a person is affected by a risk factor if a visa previously held by the person was cancelled under section 133C of the Migration Act.

 

Item [19]  - Paragraph 4013(2)(d) of Schedule 4

 

This item omits the words "or (o)" and substitutes the words "(o), (oa) or (ob)" in paragraph 4013(2)(d) of Schedule 4 to the Migration Regulations.

 

Previously paragraph 4013(2)(d) provided that a person is affected by a risk factor if a visa previously held by the person was cancelled under section 116 or 128 of the Migration Act  because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (m) or (o) applied to the person.

 

The effect of this amendment is to include references to new paragraphs 2.43(1)(oa) and 2.43(1)(ob), inserted by item [5] above, in existing paragraph 4013(2)(d) of Schedule 4 to the Migration Regulations.

 

Item [20] - At the end of clause 4013 of Schedule 4

 

This item adds at the end of Clause 4013 of Schedule 4 to the Migration Regulations, a new subclause 4013(3).

 

New subclause 4013(3) provides that a person is affected by a risk factor if a visa previously held by the person was cancelled because the Minister was satisfied that a ground mentioned in paragraph 116(1)(e) of the Migration Act applied to the person.

 

The effect of this amendment is that a person is affected by a risk factor if a visa previously held by the person was cancelled under paragraph 116(1)(e) of the Migration Act.

 

Item [21] - Paragraph 5001(c) of Schedule 5

 

This item repeals paragraph 5001(c) of Clause 5001 of Schedule 5 to the Migration Regulations and substitutes new paragraph 5001(c).

 

New paragraph 5001(c) provides that a person satisfies Special Return Criterion 5001  if the person is not a person whose visa has been cancelled under section 501, 501A or 501B of the Migration Act, if:

 

The effect of this amendment is that, under Special Return Criterion 5001, a permanent exclusion period applies to all visas cancelled under sections 501, 501A and 501B of the Migration Act, if the cancellation has not been revoked under subsection 501C(4) of the Migration Act, or if, after the cancellation of a visa, the Minister has not subsequently personally granted a permanent visa to the person. 

Schedule 4 - Application and transitional provisions

Item 1 - at Schedule 13.

This item amends Schedule 13 to the Migration Regulations to insert new Part 38, entitled "Amendments made by the Migration Amendment Act (2014 Measures No. 2) Regulation 2014", which contains new clauses 3801, 3802, and 3803.

New clause 3801 provides that the amendments of the Migration Regulations made by Schedule 1 to the Regulation apply in relation to the following invitations to a visa applicant given on or after 1 January 2015:

*         an invitation, under subsection 56(2) of the Migration Act, to give additional information;

*         an invitation, under paragraph 57(2)(c) of the Migration Act, to comment on information.

New clause 3802 provides that the amendments of the Migration Regulations made by Schedule 2 to the Regulation apply in relation to the following applications for a Subclass 188 (Business Innovation and Investment (Provisional)) visa:

*         an application made, but not finally determined, before 12 December 2014;

*         an application made on or after 12 December 2014.

New subclause 3803(1) provides that the amendments of the Migration Regulations made by items 1 to 3 of Schedule 3 to the Regulation apply in relation to the following applications for a visa:

*         an application made, but not finally determined, before the commencement of the items;

*         an application made on or after the commencement of the items.

New subclause 3803(2) provides that the amendments of the Migration Regulations made by items 4 to 12 and 16 to 21 of Schedule 3 to the Regulation apply in relation to a decision to grant or not to grant a visa, or to cancel a visa, made on or after the commencement of the items.

New subclause 3803(3) provides that the amendments of the Migration Regulations made by items 13, 14 and 15 of Schedule 3 apply in relation to a decision to cancel a visa made on or after the commencement of the items.

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