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MIGRATION AMENDMENT (UNAUTHORISED MARITIME ARRIVALS AND OTHER MEASURES) REGULATION 2013 (SLI NO 95 OF 2013)

 

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2013 No. 95

 

Issued by the Minister for Immigration and Citizenship

 

Migration Act 1958

 

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Regulation 2013

 

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 outlined in Attachment A.

The purpose of the Regulation is to amend the Migration Regulations 1994 (the Principal Regulations) to further implement recommendation 14 in the Report of the Expert Panel on Asylum Seekers (the Report).

 

Recommendation 14 of the Report recommended that the Act be amended so that arrival anywhere in Australia by irregular maritime means will not provide individuals with a different lawful status than those who arrive in an excised offshore place.  Currently an unlawful non-citizen who enters Australia by sea at a place other than an excised offshore place is not prevented from making a visa application and is not liable to be transferred to a regional processing country.  This recommendation has been implemented by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (the Amending Act).

 

The Regulation is a consequential amendment resulting from the Amending Act.

 

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 compatible with human rights and do not raise any human rights issues. A copy of the Statement is at Attachment B.

 

Details of the Regulation are set out in Attachment C.

 

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 later of:

*         the day after this regulation is registered; and

ATTACHMENT A

 

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, the following provisions may apply:

 

*         paragraph 5AA(3)(c) of the Act provides that a person is an excluded maritime arrival if the person is included in a prescribed class of persons; and

 

*         paragraph 46(2)(a) of the Act provides that an application for a visa is valid if it is an application for a visa of a class prescribed for the purposes of subsection 46(2).

 

 

 

 

 

 


ATTACHMENT B

 

Statement of Compatibility with Human Rights

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

 

Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Regulation 2013

 

This Legislative Instrument 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 Legislative Instrument

On 20 May 2013, the Migration Amendment (Unauthorised Maritime Arrivals) Act 2013 received the Royal Assent. This Act will amend the Migration Act 1958 (the Act) to implement recommendation 14 from the Expert Panel on Asylum Seekers Report (the report) and to implement other measures to strengthen the regional processing framework.

Recommendation 14 of the report recommended that the Act be amended so that arrival anywhere in Australia by irregular maritime means would not provide individuals with a different lawful status than those who arrive at an excised offshore place.  The purpose of this recommendation was to ensure that the introduction of processing outside Australia did not encourage asylum seekers to avoid these arrangements by attempting to unlawfully enter at the Australian mainland and consequently expose them to danger. 

To give effect to the recommendation, the Act will expand the scope of persons that will fall within the provisions introduced by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 to provide that all arrivals in Australia by irregular maritime means will have the same legal status regardless of where they arrive, unless they are an excluded class or otherwise exempted.  This means that all arrivals in Australia by irregular maritime means cannot make a valid application for a visa unless the Minister personally thinks it is in the public interest to do so. 

It is proposed to amend the following:

*         Division 1.2 of Part 1 of the Regulations which sets out definitions relevant to the Regulations as a whole;

*         Division 2.2 of Part 2 of the Regulations which relates to the requirements for visa applications;

*         Item 1402 of the Regulations which outlines the visa validity requirements for a Refugee and Humanitarian (Class XB) visa;

*         Schedule 2 of the Regulations relating to the criteria to be met for the grant of a Refugee and Humanitarian (Class XB) visa.

The amendments to the Migration Regulations 1994 (the Regulations) are required to maintain the ability of persons holding an Electronic Travel Authority (ETA) eligible passport to apply for an ETA visa in immigration clearance, thus preventing them from becoming an unauthorised maritime arrival.

The effect of this amendment would be that a person who would otherwise be an unauthorised maritime arrival, who enters Australia on or after the day this regulation commences and holds and produces an ETA-eligible passport or at the time of entry into Australia is accompanied by another person who holds and produces an ETA-eligible passport and is included in that ETA-eligible passport, will instead be an excluded maritime arrival. Thus, such persons will not be liable to regional processing arrangements.

Human rights implications

Human rights implications relating to unauthorised maritime arrivals have been canvassed extensively in previous Statements of Compatibility with Human Rights.

The amendments seek only to maintain the policy position relating to eligible ETA passport holders and as such, do not engage any of the human rights articulated in the seven core international human rights treaties.

Conclusion

This Legislative Instrument is compatible with human rights insofar as the amendments seek only to maintain the current policy position relating to ETA passport holders and as such, do not engage any of the human rights articulated in the seven core human rights treaties.

 

The Hon. Brendan O'Connor MP, Minister for Immigration and Citizenship

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ATTACHMENT C

 

 

Details of the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Regulation 2013

 

Section 1 - Name of Regulation

 

This section provides that the title of the regulation is the Migration Amendment

(Unauthorised Maritime Arrivals and Other Measures) Regulation 2013.

 

Section 2 - Commencement

 

This section provides that the regulation commences on the later of:

 

 

However, the regulation does not commence at all if item 8 of Schedule 1 to the UMA Act does not commence.

 

Item 8 of Schedule 1 to the UMA Act inserts section 5AA into the Migration Act 1958 ("the Act").   Section 5AA of the Act provides the meaning of unauthorised maritime arrival.

 

Item 8 of Schedule 1 to the UMA Act commences on a single day to be fixed by Proclamation.

 

Section 3 - Authority

 

This section provides that this regulation is made under the Act.

 

Section 4 - Schedule(s)

 

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.

 


Schedule 1 - Amendments

Part 1 - General amendments

Migration Regulations 1994

Item 1 - At the end of regulation 1.11B

 

This item adds new subregulation 1.11B(3) at the end of regulation 1.11B of Division 1.2 of Part 1 to the Principal Regulations.

 

Currently, subregulation 1.11B(1) provides that a passport is an ETA-eligible passport in relation to an application for a visa if:

 

Currently, subregulation 1.11B(2) provides that a passport is an ETA-eligible passport in relation to a visa of a particular Subclass if:

 

New subregulation 1.11B(3) provides that a passport is an ETA-eligible passport for the purposes of regulation 1.15J if it is a valid passport of a kind specified for paragraph 1.11B(1)(a).

 

The purpose of this amendment is to provide a definition of ETA-eligible passport applicable to new regulation 1.15J which is inserted by item 2 of Schedule 1 to the Regulation.

 

Current subregulations 1.11B(1) and 1.11B(2) apply in relation to an application for a visa or an application for a particular Subclass.  As new regulation 1.15J will not relate to an application for a visa or a visa of a particular Subclass, new subregulation 1.11B(3) would be required.

 

Item 2 - At the end of Division 1.2

 

This item adds new regulation 1.15J at the end of Division 1.2 of Part 1 to the Principal Regulations.

 

New regulation 1.15J, for the purposes of paragraph 5AA(3)(c) of the Act, prescribes the following classes of persons:

 

 

Note 1 to new regulation 1.15J would provide that a person who is in one of these classes is an excluded maritime arrival and is not an unauthorised maritime arrival and refers to section 5AA of the Act.

 

Note 2 to new regulation 1.15J would provide that subregulation 1.11B(3) sets out which passports are ETA-eligible passports for the purposes of this regulation.

 

Subsection 5AA(1) of the Act provides that for the purposes of the Act, a person is an unauthorised maritime arrival if:

 

Unlawful non-citizen is defined in section 14 of the Act as a non-citizen in the migration zone who is not a lawful non-citizen.

 

Subsection 5AA(3) of the Act provides that a person is an excluded maritime arrival if the person:

 

The purpose of this amendment is to prescribe a class of persons for the purposes of paragraph 5AA(3)(c) of the Act.  A person prescribed under this class of persons is an excluded maritime arrival and as such would not be an unauthorised maritime arrival.

 

As such, the effect of this amendment is that a person who would otherwise be an unauthorised maritime arrival, who enters Australia on or after the day this regulation commences and holds and produces an ETA-eligible passport or at the time of entry into Australia is accompanied by another person who holds and produces an ETA-eligible passport and is included in that ETA-eligible passport, instead will be an excluded maritime arrival.

 

These persons are prescribed as excluded maritime arrivals because under the existing visa framework they may be able to apply for an Electronic Travel Authority (Class UD) visa in immigration clearance.  This amendment maintains the existing visa framework.

 

Currently subsection 172(2) of the Act provides that a person is in immigration clearance if the person is with an officer or at an authorised system for the purposes of section 166 of the Act (which deals with, amongst other things, persons who enter Australia are required to present certain evidence of identity) and has not been refused immigration clearance.

 

Item 3 - Subregulation 2.07AM(2)

 

This item omits "(XB)" in subregulation 2.07AM(2) in Division 2.2 of Part 2 to the Principal Regulations and substitute "(Class XB)".

 

The purpose of this amendment is to clarify that the reference in subregulation 2.07AM(2) is a reference to a Refugee and Humanitarian (Class XB) visa.

 

Item 4 - Paragraph 2.07AM(3)(a)

 

This item repeals paragraph 2.07AM(3)(a) in Division 2.2 of Part 2 to the Principal Regulations and substitutes  a new paragraph 2.07AM(3)(a).

 

Currently, paragraph 2.07AM(3)(a) provides that the person is an irregular maritime arrival for the purposes of meeting the requirements of making a valid application for a Refugee and Humanitarian (Class XB) visa.

 

New paragraph 2.07AM(3)(a) provides that the person is a person mentioned in subregulation 2.07AM(5).

 

This is a consequential amendment as a result of the amendment in Item 5 of Schedule 1 to the Regulation.

 

Item 5 - Subregulation 2.07AM(5)

 

This item repeals current subregulation 2.07AM(5) of Division 2.2 of Part 2 to the Principal Regulations and substitutes a new subregulation 2.07AM(5).

 

Currently, subregulation 2.07AM(5) defines an irregular maritime arrival for the purposes of regulation 2.07AM as a person who, on or after 13 August 2012 became an offshore entry person or was taken to a place outside Australia under paragraph 245F(9)(b) of the Act.

 

Prior to the commencement of the UMA Act, offshore entry person was defined in subsection 5(1) of the Act as a person who has, at any time, entered Australia at an excised offshore place after the excision time for that offshore place and became an unlawful non-citizen because of that entry.

 

The UMA Act repeals the definition of offshore entry person and inserts the new term of unauthorised maritime arrival.  The amendment repeals the term offshore entry person from subregulation 2.07AM(5) and include the term unauthorised maritime arrival in new subregulation 2.07AM(5).

 

New paragraph 2.07AM(5)(a) will provide that for new paragraph 2.07AM(3)(a), the person is:

 

New paragraph 2.07AM(5)(a)  maintains the effect of current paragraph 2.07AM(5)(a) by capturing the same persons but without using the term offshore entry person.  The terms excised offshore place and excision time are defined in subsection 5(1) of the Act and are not amended by the UMA Act.

 

New paragraph 2.07AM(5)(b) provides that for new paragraph 2.07AM(3)(a), the person is a person who on or after 13 August 2012, was taken to a place outside Australia under paragraph 245F(9)(b) of the Act.

 

Paragraph 245F(9)(b) of the Act provides that if an officer detains a ship or aircraft under section 245F of the Act the officer may take the person or cause the person to be taken to a place outside Australia.  Paragraph 245F(9)(b) of the Act provides an officer with the authority to take people intercepted at sea to a place outside Australia.

 

New paragraph 2.07AM(5)(b)  maintains the effect of current paragraph 2.07AM(5)(b).

 

New paragraph 2.07AM(5)(c) provides that for paragraph 2.07AM(3)(a), the person is a person who, on or after the commencement of this paragraph, is an unauthorised maritime arrival.

 

New paragraph 2.07AM(5)(c) includes unauthorised maritime arrivals as a person in the description of subregulation 2.07AM(5).  The definition of unauthorised maritime arrival in section 5AA of the Act includes a person who entered Australia by sea at an excised offshore place at any time after the excision time for that place, if they are not an excluded maritime arrival.

 

The note following new subregulation 2.07AM(5) provides that for new paragraph 2.07AM(5)(c), see section 5AA of the Act.

 

Item 6 - Item 1402 of Schedule 1 (note after the heading)

 

This item repeals the note following the heading in item 1402 of Schedule 1 to the Principal Regulations and substitutes a new note.

 

The current note following the heading in item 1402 of Schedule 1 to the Principal Regulations states that subregulation 2.07AM(3) sets out the requirements for the making of applications by persons who are irregular maritime arrivals.

 

The new note following the heading in item 1402 of Schedule 1 to the Principal Regulations provides that subregulation 2.07AM(3) sets out requirements for the making of applications by persons who are mentioned in subregulation 2.07AM(5).

 

This is a consequential amendment as a result of the amendment in item 5 of Schedule 1 to the Regulation.

 

Item 7 - Paragraph 1402(3)(ba) of Schedule 1

 

This item repeals paragraph 1402(3)(ba) of Schedule 1 to the Principal Regulations and substitute a new paragraph 1402(3)(ba).

 

Current paragraph 1402(3)(ba) of Schedule 1 to the Principal Regulations provides that the applicant must not be an irregular maritime arrival.

 

New paragraph 1402(3)(ba) of Schedule 1 to the Principal Regulations provides that the applicant must not be a person mentioned in subregulation 2.07AM(5).

 

This is a consequential amendment as a result of the amendment in item 5 of Schedule 1 to the Regulation.

 

Item 8 - Subitem 1402(5) of Schedule 1

 

This item repeals subitem 1402(5) of Schedule 1 to the Principal Regulations.

 

Current subitem 1402(5) of Schedule 1 to the Principal Regulations provides that in item 1402 irregular maritime arrival means a person who, on or after 13 August 2012 became an offshore entry person or was taken to a place outside Australia under paragraph 245F(9)(b) of the Act.

 

This subitem is repealed as following the amendment in item 7 of Schedule 1 to the Regulation, item 1402 of Schedule 1 to the Principal Regulations does not have any reference to an irregular maritime arrival.  New paragraph 1402(3)(ba) of Schedule 1 to the Principal Regulations refers to a person mentioned in subregulation 2.07AM(5) rather than referring to an irregular maritime arrival.  Therefore the definition of irregular maritime arrival for item 1402 of Schedule 1 to the Principal Regulations is no longer required.

 

Item 9  -  Amendments of listed provisions - definition of irregular maritime arrival

 

This item repeals the definition of irregular maritime arrival in clause 200.111,
clause 202.111, clause 203.111 and clause 204.111 of Schedule 2 to the Principal Regulations.

 

Currently, clause 200.111, clause 202.111, clause 203.111 and clause 204.111 provide that for Part 200, Part 202, Part 203 and Part 204 of Schedule 2 to the Principal Regulations respectively, irregular maritime arrival means a person who, on or after 13 August 2012 became an offshore entry person or was taken to a place outside Australia under paragraph 245F(9)(b) of the Act.

 

The definition of irregular maritime arrival in clause 200.111, clause 202.111, clause 203.111 and clause 204.111 of Schedule 2 to the Principal Regulations are no longer required as the amendments in item 10 of Schedule 1 to the Regulation below omit references to an irregular maritime arrival within each of the relevant Parts of Schedule 2 to the Principal Regulations.

 

Part 2 - Further amendments of listed provisions

 

Migration Regulations 1994

 

Item 10 - Amendments of listed provisions - references to irregular maritime arrival

 

This item omits an irregular maritime arrival and substitute a person mentioned in subregulation 2.07AM(5) in paragraph 200.211(2)(e), paragraph 202.211(2)(e), subparagraph 202.225(a)(ii), paragraph 203.211(2)(e) and paragraph 204.211(2)(e) of Schedule 2 to the Principal Regulations.

 

Currently paragraph 200.211(2)(e), paragraph 202.211(2)(e), paragraph 203.211(2)(e) and paragraph 204.211(2)(e) of Schedule 2 to the Principal Regulations provide that the proposer is not an irregular maritime arrival.

 

Current subparagraph 202.225(a)(ii) of Schedule 2 to the Principal Regulations provides that the applicant is proposed for entry to Australia, in accordance with approved form 681 by a person who is not an irregular maritime arrival.

 

The purpose of this amendment is to maintain the existing policy intention in relation to the Refugee and Humanitarian (Class XB) visa while also including a person who is an unauthorised maritime arrival.  The current policy is that a criterion for grant of a Refugee and Humanitarian (Class XB) visa is that for applicants who are proposed by a member of their immediate family, the proposer cannot be an irregular maritime arrival.

 

The amendment provides that a criterion for grant of a Refugee and Humanitarian (Class XB) visa is that for applicants who are proposed by a member of their immediate family, the proposer cannot be a person mentioned in subregulation 2.07AM(5) which would be inserted by item 5 of Schedule 1 of the Regulation above.


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