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MIGRATION AMENDMENT (SPECIAL CATEGORY VISAS AND SPECIAL RETURN CRITERION 5001) REGULATION 2015 (SLI NO 169 OF 2015)

EXPLANATORY STATEMENT

Select Legislative Instrument No. 169, 2015

Issued by the Minister for Immigration and Border Protection

Migration Amendment (Special Category Visas and Special Return Criterion 5001) Regulation 2015

The Migration Act 1958 (the Migration Act) is an Act to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens and other persons.

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the     Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the 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 Act.

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

The Migration Amendment (Special Category Visas and Special Return Criterion 5001) Regulation 2015 (the Regulation) amends regulation 5.15A of the Migration Regulations 1994 (the Migration Regulations) to declare, as a criterion of a special category visa, certain New Zealand citizens to be a class of persons for whom a visa other than a special category visa will be inappropriate. The Regulation also amends Special Return Criterion 5001 (SRC 5001) to ensure that a person whose visa has been cancelled personally by the Minister under section 501BA of the Migration Act 1958 cannot be granted another visa, for which SRC 5001 is a criterion if, after cancelling the visa, the Minister has not, acting personally, granted a permanent visa to the person.

Following commencement of the Migration Amendment (Character and General Visa Cancellation) Act 2014 in December 2014, a number of further amendments were required to the Migration Regulations.

The Regulation ensures that New Zealand citizens, in addition to other nationals, will be able to return to Australia if successful in having the mandatory cancellation of their visa revoked. The Regulation also ensures that non-citizens who have had their visas cancelled by the Minister personally under section 501BA of the Act (national interest ground) will be unable to satisfy the requirements set out in clause 5001 to be granted a visa (unless the Minister personally grants a permanent visa to the non-citizen), protecting the community from harm by non-citizens who have already been assessed as posing a risk.

A Statement of Compatibility with Human Rights has been completed for the Regulation, in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011.  The Statement's overall assessment is that the measures in the Regulation are for a legitimate purpose and are compatible with Australia's human rights obligations. A copy of the Statement is at Attachment B.

Details of the Regulation are set out in Attachment C.

The Office of Best Practice Regulation (the OBPR) has been consulted and advises that the changes is expected to have a nil or minor regulatory impact on businesses, individuals or community organisations. The OBPR consultation reference is 19191.

No consultation was required as the changes are either being made to ensure consistency with other provisions in the Migration Regulations, or are beneficial to a cohort of non-citizens.  The changes support, and are consequential to, the operation of the Migration Amendment (Character and General Visa Cancellation) Act 2014.

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

The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulation commences on the day after registration.

 

Authority:       Subsection 504(1) of the

            Migration Act 1958

 

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 31(3), which provides that the Migration Regulations 1994 (the Migration Regulations) may prescribe criteria for a visa or visas of a specified class;

 

*         subsection 32(2), which provides that a criterion for a special category visa is that the Minister is satisfied the applicant is a person of a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate;

 

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

 

*         subsection 41(1), which provides that the Migration Regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

 

 


 

ATTACHMENT B

 Statement of Compatibility with Human Rights

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

Migration Amendment (Special Category Visas and Special Return Criterion 5001) Regulation 2015

These regulation amendments are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview and reasons for this amendment

The regulation amendments in this Item are amendments arising out of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (the Migration Amendment Act).  The amendments made to the Migration Act 1958 (the Migration Act) by the Migration Amendment Act commenced on 11 December 2014.  The Migration Amendment Act introduced  subsection 501(3A) into the Migration Act, which provides for the mandatory cancellation of visas held by non-citizens in prison who do not pass certain limbs of the character test (specifically, because they have a substantial criminal record on the basis of being sentenced to death, sentenced to imprisonment for life or sentenced to a term of imprisonment of 12 months or more, or they have been convicted of, found guilty of, or have a charge proven against them for, a sexually-based offence involving a child).

Section 501BA of the Migration Act was also inserted by the Migration Amendment Act to allow the Minister to personally set aside, in the national interest, a  decision made by his delegate or the AAT under section 501CA to revoke a decision to cancel a visa under subsection 501(3A).  This provision was inserted into the Migration Act to ensure consistency with the Minister's other personal powers across the character provisions.

Two necessary consequential amendments have been identified that must be made in order to give full effect to the substantive amendments made by that Act in 2014:

*         an amendment to Special Return Criterion 5001 (SRC 5001) in Schedule 5 to the Migration Regulations 1994 (the Regulations) to refer to a person whose visa has been cancelled under section 501BA of the Migration Act.  This amendment will ensure that a person whose visa is cancelled by the Minister personally under section 501BA of the Migration Act is permanently excluded from Australia unless the Minister has, acting personally, subsequently granted a permanent visa to the person; and

 

*         an amendment to regulation 5.15A of the Migration Regulations, to include a person who has been the subject of a decision under section 501CA to revoke the mandatory cancellation of their visa under subsection 501(3A), and who has not become a behaviour concern non-citizen (apart from having been removed from Australia) since lodging a request for revocation under section 501CA.  This amendment will ensure that a New Zealand citizen whose visa has been cancelled under subsection 501(3A) of the Migration Act and has had the cancellation of their visa revoked under section 501CA is not prevented from being granted a Subclass 444 (Special Category) visa.

 

 

Compatibility with human rights

The amendments are compatible with human rights do not change the framework within which the character cancellation powers function.  The practical effect of the amendment to SRC 5001 will ensure that appropriate exclusion periods apply consistently across the section 501 visa cancellation powers, including section 501BA.  The amendment to regulation 5.15A will ensure that New Zealand citizens who voluntarily returned offshore whilst their revocation request was decided, or who had their visa cancellation revoked onshore and subsequently travel offshore will be eligible for a Subclass 444 (Special Category) visa on their return to Australia.

Where a non-citizen's visa is cancelled or refused under section 501 of the Migration Act, they will be ineligible to make further visa applications (with limited exceptions) and will thus be liable for detention under section 189 of the Migration Act.  They may also be removed from Australia, and may be separated from the family unit. 

Each regulation amendment in this Item is aimed at ensuring consistency with the powers in the rest of the Migration Act in the interest of national security and maintaining public order and safety, by strengthening my department's ability to reduce any risk to the Australian community that a non-citizen may present. 

Respect for the family and children

Respect for the family is contained in Article 3 of the Convention on the Rights of the Child (CRC) and Articles 17(1), 23 (1), and 24 of the ICCPR.

'Article 3 CRC

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.'

'Article 17 ICCPR

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 ICCPR

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

'Article 24 ICCPR

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.'

Where a person's visa is cancelled on character grounds, if they depart or are removed from Australia they will be permanently excluded from applying for a visa to travel to and remain in Australia. This may result in the separation of the family unit.

The amendment to regulation 5.15A is compatible with human rights and is consistent with Article 3 of the Convention on the Rights of the Child (CRC) and Articles 12, 17(1), 23 (1), and 24 of the ICCPR.  This is because the amendment allows a New Zealand citizen whose visa cancellation decision has been revoked to re-enter or remain, as the case may be, in Australia.  This enables them to re-join or remain with family members in Australia. The amendment to SRC 5001 does not amend the existing visa cancellation framework, but extends the consequence of permanent exclusion to certain decisions made personally by the Minister, in line with the original intention of the amendments. 

The rights relating to families and children will be taken into account when making a decision to cancel a visa on character grounds under section 501BA.  The best interests of any child(ren) affected by the decision is a primary consideration, which will be weighed against factors such as the risk the person presents to the Australian community.  While rights relating to family and children generally weigh heavily against cancellation, 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.

My department takes all matters concerning families and children seriously.  The Government's position is that the application of migration laws which consider the individual circumstances of applicants and their relationships with family members is consistent with the above CRC and ICCPR provisions.  Further, as noted above, the Minister may, acting personally, subsequently grant a permanent visa to the person that will allow them to re-enter or remain in Australia.  Such a decision will take into account issues relating to family unity and the best interests of the child.

Conclusion

These amendments are for a legitimate purpose and are compatible with human rights.  They strengthen the existing character cancellation framework and are consistent with the original intent of the provisions to provide the Government with sufficient capability to address character and integrity concerns.  To the extent that these amendments may limit human rights, the Government considers those limitations as reasonable, proportionate and necessary.  

 

Minister for Immigration and Border Protection

 


 

ATTACHMENT C

Details of the Migration Amendment (Special Category Visas and Special Return Criterion 5001) Regulation 2015

Section 1 -€“ Name

This section provides that the title of the Regulation is the Migration Amendment (Special Category Visas and Special Return Criterion 5001) Regulation 2015 (the Regulation). 

Section 2 - Commencement

Subsection 2(1) 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. Any other statement in column 2 has effect according to its terms.

The table provides that the whole of the instrument commences on the day after it is registered on the Federal Register of Legislative Instruments.

The note to subsection 2(1) provides that this table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

Subsection 2(2) also provides that any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

The purpose of this section is to provide for when the amendments made by the Regulation commence.

Section 3 - Authority

This section provides that the 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 - Schedules

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 the Regulation are to operate.

 

 

 

 

Schedule 1 - Amendments

Migration Regulations 1994

Item 1 - Regulation 1.03 (definition of special return criterion)

This item omits 'Part 1 of' in the definition of special return criterion in regulation 1.03 of Division 1.2 of Part 1 of the Migration Regulations 1994 (the Migration Regulations).

Regulation 1.03 had relevantly provided that a special return criterion means a criterion set out in a clause of Part 1 of Schedule 5 of the Migration Regulations. This amendment will remove references to a Part 1 in Schedule 5 because that schedule is not separated into parts.

Item 2 - Regulation 5.15A

This item repeals and substitutes regulation 5.15A in Division 5.3 of Part 5 of the Migration Regulations.

A special category visa is a visa created by section 32 of the Act. Paragraph 32(2)(c) of the Act provides that a criterion for a special category visa is that the Minister is satisfied the applicant is a person of a class of persons declared by the regulations, to be persons for whom a visa of another class will be inappropriate.

Previously, regulation 5.15A declared a class of persons who, for the purposes of paragraph 32(2)(c) of the Act, have particular attributes to be a class of persons for whom a visa of a class other than Special Category (Temporary) (Class TY) visa will be inappropriate. These attributes are that the person:

*         is a New Zealand citizen who holds, and has presented to an officer, a New Zealand passport that is in force; and

*         is not a health concern non-citizen; and

*         is a behaviour concern non-citizen only because of having been excluded from a country other than Australia in circumstances that, in the opinion of the Minister, do not warrant the exclusion of the person from Australia.  

Subsection 5(1) of the Act relevantly provides that a behaviour concern non-citizen means, amongst others, a non-citizen who has been removed or deported from Australia or removed or deported from another country.

This amendment adds a new class of persons for the purposes of paragraph 32(2)(c) of the Act. This amendment relevantly provides that, for paragraph 32(2)(c), a person is in a class of persons for whom a visa of a class other than a special category visa will be inappropriate if the person, in addition to having the first two attributes listed above, also meets the following:

*         the Minister has, under subsection 501(3A) of the Act (person serving sentence of imprisonment), cancelled a visa held by the person; and

*         the person has made representations to the Minister in accordance with the invitation given by the Minister under subsection 501CA(3) of the Act; and

*         the decision to cancel the visa is revoked under subsection 501CA(4) of the Act; and

*         the Minister has not, under subsection 501BA(2) of the Act, set aside the decision to revoke the cancellation of the visa; and

*         since the person made the representations to the Minister mentioned in paragraph (b), no new grounds have arisen for the person to fall within the definition of behaviour concern non-citizen in subsection 5(1) of the Act, unless the only new ground that has arisen is the person's removal or deportation from Australia because of the decision to cancel the visa.

Subsection 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because:

*         the person has a substantial criminal record, or has committed sexually based offences involving a child; and

*         the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

Section 501CA of the Act provides for the revocation of visa cancellation decisions made under subsection 501(3A) for persons serving sentences of imprisonment.

This amendment expands the declared classes of New Zealand citizens for whom only a special category visa will be appropriate. The new class of persons will specifically cover those New Zealand citizens who have been convicted of, or had a charge proven against them for, a sexually based offence involving a child, or have a substantial criminal record. This class of persons will have been imprisoned for an offence, and had the decision to cancel their visa revoked (that is, the cancellation is taken to have never occurred).   

In effect, this amendment allows this new class of persons to be eligible for a special category visa, despite their removal or deportation from Australia after their visa was cancelled, provided that no grounds other than their removal or deportation from Australia have arisen for them to fall within the definition of behaviour concern non-citizen.

The purpose of this amendment is to remove any impediments for a New Zealand citizen who wishes to return to New Zealand to await the outcome of their revocation request under section 501CA, and to facilitate their ability to return to Australia if they are successful in having the mandatory cancellation of their visa revoked. Previously, the definition of behaviour concern non-citizen means that a New Zealand citizen who:

*         has had their visa mandatorily cancelled and has sought revocation of that decision;

*         requests to be voluntarily removed from Australia while awaiting the outcome of their revocation request; and

*         is successful in having the mandatory cancellation revoked;

is ineligible to be granted a special category visa if they wish to return to Australia. 

This is in contrast to a former permanent resident of Australia, who in the same scenario, will either have their permanent visa reinstated while outside Australia, or will be eligible to apply for a visa to return to Australia.

This amendment will ensure that New Zealand citizens will be able to return to Australia if they are successful in having the mandatory cancellation of their visa revoked, despite their status as a behaviour concern non-citizen.   

 

Item 3 - Division 444.2 of Schedule 2 (note)

This item repeals and substitutes the note under Division 444.2 of Schedule 2 to the Migration Regulations.

The note under Division 444.2 had previously contained a detailed description of the applicable criteria for a Subclass 444 (Special Category) visa that is in addition to those criteria in Schedule 2 to the Migration Regulations. The note had referred to the relevant provisions containing the additional criteria and recited those provisions.

The new note provides that the only criteria are those set out in section 32 of the Act and in regulation 5.15A.

The purpose and effect of this amendment is to simplify the note and direct the readers to the relevant provisions, rather than reciting those provisions in the note.

Item 5 - At the end of clause 5001 of Schedule 5

This item adds a new paragraph (d) at the end of clause 5001 of Schedule 5 to the Migration Regulations.

Schedule 5 to the Regulations contains the special return criteria. Applicants for a visa with a special return criterion will be required to meet the requirements of that criterion to be granted a visa. Accordingly, for visas that have clause 5001 as a criterion of that visa, then a person cannot be granted that visa unless they meet the relevant criteria.

The amendment inserts a new paragraph 5001(d) which provides, as a criterion for the relevant visa, that the applicant is not a person whose visa has been cancelled under section 501BA of the Act if the Minister has not, acting personally, granted a permanent visa to the person after that cancellation.

The powers in section 501BA may only be exercised by the Minister personally. This section allows the Minister to personally cancel a person's visa in circumstances where:

*         the person's visa was cancelled for failing to meet the character test due to having substantial criminal records or committing sexually based offences involving a child; and

*         a decision was made to revoke the cancellation of this person's visa.

In exercising his power under section 501BA, the Minister will be, in effect, cancelling the person's visa for the second time.

This amendment will prevent a person who falls within the circumstances described in paragraph 5001(d) from being granted a visa to which clause 5001 is a criterion.

The purpose of this amendment is to ensure that all non-citizens who have had their visa cancelled on character-related grounds are unable to satisfy clause 5001 and therefore cannot be granted a further visa, unless the Minister subsequently grants a permanent visa to the person.

 

 

Item 5 - Schedule 13

This item amends Schedule 13 to the Migration Regulations to insert, after Part 46, new Part 47 entitled "Amendments made by Migration Amendment (Special Category Visas and Special Return Criterion 5001) Regulation 2015", which contains new clause 4701.

New Clause 4701 provides that the amendment to the Migration Regulations made by Schedule 1 to the Regulation apply in relation to an application for a visa made on or after the day that the Regulation commences.

The purpose and effect of these amendments is to clarify to whom the amendments in Schedule 1 to this Regulation applies.

 

 


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