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MIGRATION AMENDMENT (CONVERSION OF PROTECTION VISA APPLICATIONS) REGULATION 2015 (SLI NO 164 OF 2015)
EXPLANATORY STATEMENT
Select Legislative Instrument No. 164, 2015
Issued by the Minister for Immigration and Border Protection
Migration Act 1958
Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015
Subsection 504(1) of the Migration Act 1958 (the Migration Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted to be prescribed, or 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 (Conversion of Protection Visa Applications) Regulation 2015 (the Regulation) is to amend the Migration Regulations 1994 (the Migration Regulations) to remove any doubt about one aspect of the amendments made to the Migration Regulations by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Legacy Act).
The Legacy Act inserted regulation 2.08F into the Migration Regulations. The intended effect of regulation 2.08F is that any application made by certain prescribed applicants, including an unauthorised arrival, for a permanent Protection visa (PPV), which was not finalised on 16 December 2014, would be converted into an application for a Temporary Protection visa (TPV). The conversion was intended to occur on 16 December 2014 if the application was still being considered by the Minister on that date or, if the application had already been refused and was being reviewed by a tribunal or court, the conversion would occur if and when the tribunal or court found in the applicant's favour and remitted the matter to the Minister.
The conversion of unfinalised PPV applications made by unauthorised arrivals into TPV applications is one of the many key measures for implementing the government's policy in combating people smuggling. The conversion ensures that applicants who are found to engage Australia's protection obligations will only be granted a TPV instead of a PPV, thereby removing an incentive for asylum seekers to use irregular channels including dangerous journey to Australia by sea to seek protection.
The Regulation amends regulation 2.08F to remove any doubt about the effect of regulation 2.08F.
A Statement of Compatibility with Human Rights (the Statement) has been completed, in accordance with Human Rights (Parliamentary Scrutiny) Act 2011, for the Schedule to the Regulation. The Statement's overall assessment is that the Regulation is compatible with human rights. A copy of the Statement is at Attachment B.
The Office of Best Practice Regulation (the OBPR) has been consulted in relation to the amendments made by the Regulation. The OBPR considers that the proposal is expected to have nil or minor regulatory impacts on businesses, individuals or community organisations. The OBPR consultation reference number for this proposal is 19167.
No consultations were undertaken for the purpose of section 17 of the Legislative Instruments Act 2003 as the amendments do not have any effect on business or competition, and the amendments merely remove any doubt about the operation of the existing law.
The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulation may be exercised.
Details of the Regulation are set out in Attachment C.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.
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 apply:
* Subsection 45AA(1) provides that section 45AA applies if (a) a person has made a valid application (a pre-conversion application) for a visa (a pre-conversion visa) of a particular class; and (b) the pre-conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre-conversion application; and (c) since the application was made, one or more of the following events has occurred: (i) the requirements for making a valid application for that class of visa change; (ii) the criteria for grant of that class of visa change; (iii) that class of visa ceases to exist; and (d) had the application been made after the event (or events) occurred, because of that event (or those events): (i) the application would not have been valid; or (ii) that class of visa could not have been granted to the person;
* Subsection 45AA(2) provides that, to avoid doubt, section 45AA may apply in relation to: (a) classes of visas, including protection visas and any other classes of visas provided for by this Act or the regulations; and (b) classes of applicants, including applicants having a particular status; and (c) applicants for a visa who are taken to have applied for the visa by the operation of this Act or the regulations;
* Subsection 45AA(3) provides that, for the purposes of the Act, a regulation (a conversion regulation) may provide that, despite anything else in the Act, a pre-conversion application for a pre-conversion visa: is taken not to be, and never to have been, a valid application for the pre-conversion visa; and is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre-conversion visa;
* Subsection 45AA(4) provides that, without limiting subsection 45AA(3), a conversion regulation may: (a) prescribe a class or classes of pre-conversion visas; and (b) prescribe a class of applicants for pre-conversion visas; and (c) prescribe a time (the conversion time) when the regulation is to start to apply in relation to a pre-conversion application, including different conversion times depending on the occurrence of different events
* Subsection 45AA(8) provides that, to avoid doubt: (a) subsection 12(2) of the Legislative Instruments Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and (b) subsection 7(2) of the Acts Interpretation Act 1901, including that subsection as applied by section 13 of the Legislative Instruments Act 2003, does not apply in relation to the enactment of this section or the making of a conversion regulation (including a conversion regulation enacted by the Parliament);
In addition to the above provisions, section 21 in Division 2 of Part 2 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 provides that the amendment of the Migration Act made by Division 1 of Part 2, to insert section 45AA of the Migration Act, applies in relation to an application for a pre-conversion visa made before, on or after the commencement of Part 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 (Conversion of Protection Visa Applications) Regulation 2015
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
The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the Legacy Act), which commenced on 16 December 2014, inserted regulation 2.08F of the Migration Regulations1994. The intended effect of regulation 2.08F is that any application made by certain prescribed applicants, including an unauthorised arrival, for a permanent Protection visa (PPV), which was not finalised on 16 December 2014, would be converted into an application for a Temporary Protection visa (TPV). The conversion was intended to occur on 16 December 2014 if the application was still being considered by the Minister on that date or, if the application had already been refused and was being reviewed by a tribunal or court, the conversion would occur if and when the tribunal or court found in the applicant's favour and remitted the matter to the Minister.
The conversion of PPV applications into TPV applications complements the other legislative changes, also made by the Legacy Act on 16 December 2014, that prevent certain prescribed applicants including unauthorised arrivals from applying for PPVs. From 16 December 2014, those prescribed applicants may only apply for a TPV.
In view of the large legacy caseload of PPV applications made by prescribed applicants (including unauthorised arrivals) which were not finalised on 16 December 2014 the conversion of those applications into TPV applications is an important element of the Government's intention to maintain strong policies to combat people smuggling and deter asylum seekers from using irregular channels to gain permanent residence, especially the dangerous journey to Australia by sea.
The purpose of the Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 (the Regulation) is to make technical amendments to remove any doubt about the effect of regulation 2.08F.
Firstly, the Regulation clarifies that any remedy provided by a Court after 16 December 2014, which requires the Minister to reconsider a PPV application, will trigger the conversion of the PPV application to a TPV application under subregulation 2.08F(3).
Secondly, the Regulation ensures that a PPV application remitted to the Minister in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 is also converted.
Finally, the Regulation removes any doubt that a PPV application which was not decided by the Minister before 16 December 2014 (due to, for example, a remittal from the Tribunal or a Court) is converted to a TPV application.
It is noted that the Regulation does not have any retrospective effect beyond the retrospectivity expressly authorised by the Migration Act (subsection 45AA(3) and subsection 45AA(8)) and reflected in subregulation 2.08F(1) (which has not been amended). The effect of the conversion from a PPV application to a TPV application is that the visa application is taken not to be, and never to have been, a valid application for a PPV, and is taken to be, and to always have been, a valid application for a TPV.
Human rights implications
The changes made by the Regulation are consistent with the Government's original policy intention in the RALC Act that certain prescribed applicants, including anyone who arrives in Australia without lawful authority, should only be granted a TPV if found to engage Australia's protection obligations. The human rights compatibility of these conversion arrangements and of TPVs is addressed in the Statement of Compatibility for that Act. As the main concern is the possibility of refoulement, this is addressed below.
Non-refoulement Obligations
Australia has obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) not to return a person to a country in certain circumstances.
Article 3 of the 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.
Non-refoulement obligations also arise, by implication, in relation to Articles 6 and 7 of the ICCPR. Article 6 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 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.
Regulation 2.08F engages the non-refoulement obligations in Articles 6 and 7 of the ICCPR and Article 3 of CAT. That regulation and the technical amendments to regulation 2.08F set out in the Regulation will not result in the return or removal of persons found to engage Australia's protection obligations in contravention of its non-refoulement obligations. The position of the Government has always been that grant of a permanent protection visa is not the only way of giving protection to persons who engage Australia's international protection obligations and that grant of a temporary protection visa is an alternative that is compatible with these obligations.
Conclusion
The above amendment to the Migration Regulations is compatible with human rights because it is consistent with Australia's human rights obligations and to the extent that it may also limit human rights, those limitations are reasonable, necessary and proportionate.
Minister for Immigration and Border Protection
ATTACHMENT C
Details of the Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015
Section 1 - Name of Regulation
This section provides that the title of the Regulation is the Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 (the Regulation).
Section 2 - Commencement
This section provides that the Regulation commences on the day after it is registered on the Federal Register of Legislative Instruments.
Section 3 - Authority
This section provides that the Regulation is made under the Migration Act 1958 (the Migration Act).
Section 4 - Schedule(s)
This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulation has effect according to its terms.
Schedule 1 - Amendments
Item [1] - Subparagraph 2.08F(3)(b)(i)
This item makes an editorial change to subparagraph 2.08F(3)(b)(i) in Division 2.2 of Part 2 of the Migration Regulations 1994 (the Migration Regulations), by replacing "Tribunal" with "Administrative Appeals Tribunal" (AAT). The meaning of the subparagraph is not altered.
The purpose of the amendment is to provide greater clarity in the subparagraph. Although "Tribunal" is defined in section 5 of the Migration Act to mean the AAT, a full reference to the name of the Tribunal has been inserted in subregulation 2.08F(3) to avoid confusion arising from new subregulation 2.08F(4) which refers to both the AAT and the Refugee Review Tribunal (RRT).
Item [2] - Subparagraph 2.08F(3)(b)(iii)
This item repeals subparagraph 2.08F(3)(b)(iii) in Division 2.2 of Part 2 of the Migration Regulations and substitutes new subparagraphs 2.08F(3)(b)(ii), 2.08F(3)(b)(iii), 2.08F(3)(b)(iv) and 2.08F(3)(b)(v).
The purpose of the amendment is to clarify that an application for a permanent Protection visa (PPV) is converted into an application for a TPV upon remittal by a tribunal or Court as follows:
* existing subparagraph 2.08F(3)(b)(i) refers to a remittal from the AAT in accordance with paragraph 415(2)(c) of the Migration Act. This is the source of authority for AAT (and, prior to 1 July 2015, RRT) remittals in cases where the AAT finds that the applicant is a refugee or satisfies specified criteria for the grant of a PPV;
* new subparagraph 2.08F(3)(b)(ii) ensures that a remittal from the AAT in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1976 also operates to convert a PPV application to a TPV application; and
* new subparagraphs 2.08F(3)(b)(iii), (iv) and (v) clarify the intention that any judicial remedy or combination of judicial remedies, granted after 16 December 2014, which requires the Minister to reconsider a PPV application, triggers the conversion of the PPV application into a TPV application. Subparagraph 2.08F(3)(b)(iii) covers the remedy of the writ of mandamus. Subparagraph 2.08F(3)(b)(iv) covers the remedies of declaration and injunction. Subparagraph 2.08F(3)(b)(v) covers the remedy of the writ of certiorari.
Item [3] - At the end of regulation 2.08F
This item adds new subregulation 2.08F(4) in Division 2.2 of Part 2 of the Migration Regulations. The purpose of the new subregulation is to remove any doubt about the effect of subregulation 2.08F(3). In particular, new subregulation 2.08F(4) clarifies the effect of paragraph 2.08F(3)(a). Paragraph 2.08F(3)(a) has the effect that an application for a PPV, which had not been decided by the Minister under section 65 of the Migration Act prior to 16 December 2014, is converted into an application for a TPV on that day.
Paragraph 2.08F(3)(a) is intended to convert all PPV applications which were awaiting a decision by the Minister on 16 December 2014, including PPV applications in relation to which the Minister had previously made a decision that had been successfully challenged in a tribunal or court with the result that the visa application was again before the Minister.
New subregulation 2.08F(4) puts the effect of paragraph 2.08F(3)(a) beyond doubt. It ensures that an application for a PPV is converted into an application for a TPV on 16 December 2014 if the Minister had made a decision prior to that date, but the visa application was awaiting a further decision by the Minister on 16 December 2014 as a result of the following circumstances:
* The Refugee Review Tribunal had remitted the matter to the Minister (subparagraph 2.08F(4)(b)(i));
* The AAT had remitted the matter to the Minister (subparagraph 2.08F(4)(b)(ii)); and
* A court had granted a remedy in relation to the matter, whether the remedy was a writ of certiorari or mandamus or the issuing of a declaration or injunction, or some combination of these remedies (subparagraphs 2.08F(4)(b)(iii), (iv) and (v)).
Item [4] - Schedule 13
This item inserts a new Part 46 into Schedule 13 to the Migration Regulations. The new Part 46 contains one item - item 4601 - which sets out the transitional provisions relating to the amendments made by Schedule 1 of this Regulation.
The purpose of item 4601 is to ensure that there is no doubt that the amendments apply in relation to any PPV application, including a PPV application that is the subject of a proceeding in any court that has not been concluded when the amendments take effect.
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