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) of the Migration Act, which provides that the regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of subsection 31(3), may be a class provided for by section 32, 36, 37, 37A, or 38B but not by section 33, 34, 35, 38 or 38A);

 

*         paragraph 412(1)(c) of the Migration Act, which relevantly provides that an application for review of a Refugee Review Tribunal-reviewable decision must be accompanied by the prescribed fee (if any);

 

*         subsection 415(1) of the Migration Act, which provides that the Refugee Review Tribunal (RRT) may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by the Migration Act on the person who made the decision;

 

*         paragraph 415(2)(c) of the Migration Act, which provides that the RRT may, if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the RRT as are permitted by the regulations;

 

*         subparagraph 504(1)(a)(i) of the Migration Act, which relevantly provides that the Governor-General may make regulations making provision for and in relation to the charging and recovery of fees in respect of any matter under the Migration Act or the Migration Regulations, including fees payable in connection with the review of decisions made under the Migration Act or the Migration Regulations, whether or not such review is provided for by or under the Migration Act; and

 

*         paragraph 504(1)(b) of the Migration Act, which relevantly provides that the Governor-General may make regulations making provision for the remission, refund or waiver of fees of a kind referred to in paragraph 504(1)(a) or for exempting persons from making the payment of such fees.

 

 

ATTACHMENT B

 

Statement of Compatibility with Human Rights

 

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

 

Migration Amendment (Complementary Protection) Regulation 2014

 

Amendments to these Migration Regulations 1994 (the Migration Regulations) 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 of the amendments to the Migration Regulations

 

These amendments to the Migration Regulations are a consequence of, and contingent on the commencement of, the Migration Amendment (Protection and Other Measures) Bill 2014 (the Bill). The Bill, if legislated, will relevantly amend paragraph 36(2)(aa) of the Migration Act 1958 (the Migration Act) to clarify the risk threshold test to be applied when assessing a protection visa application based on whether a non-citizen engages Australia's non-refoulement obligations under the International Covenant on Civil and Political Rights (the ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT).

 

The Migration Regulations contain provisions that reflect the wording used in paragraph 36(2)(aa). Instead of amending the wording in the Migration Regulations to align with the new risk threshold test set out in new paragraph 36(2)(aa), these amendments simply refer back to paragraph 36(2)(aa).  This means that the criteria in the Migration Regulations will always be consistent with the test as set out in the Migration Act, noting that the criterion in the Migration Act would prevail over the Migration Regulations in the event of any inconsistency.

 

Human rights implications

 

Consequential changes to language to give effect to risk threshold

The amendments to the Migration Regulations are consequential to the changes to the risk threshold test made by Schedule 2 to the Bill. The legislative instrument merely amends provisions in the Migration Regulations to refer back to new paragraph 36(2)(aa), which contains the risk threshold test, and there is no change to the risk threshold test as a result of these consequential amendments. Therefore, the Statement of Compatibility with Human Rights made in relation to Schedule 2 to the Bill addresses the human rights implications of amending paragraph 36(2)(aa). Any future amendments to this criterion in the Migration Act will be accompanied by a Statement of Compatibility. 

 

Conclusion

 

The above amendments to the Migration Regulations are compatible with human rights.

 

The Hon. Scott Morrison MP, Minister for Immigration and Border Protection

 

ATTACHMENT C

 

 

Details of the Migration Amendment (Complementary Protection) Regulation 2014

 

Section 1 - Name of instrument

 

This section provides that the title of the instrument is the Migration Amendment (Complementary Protection) Regulation 2014 (the Regulation).

 

Section 2 - Commencement

 

This section provides that items 1 to 3 of Schedule 1 to the Regulation commence on the later of:

 

*         the day after this instrument is registered; and

*         the day items 1 to 4 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2014 commence.

 

However, the provisions do not commence at all if items 1 to 4 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2014 do not commence.

 

Items 4 and 5 of Schedule 1 to the Regulation commence on the later of:

 

*         the day after this instrument is registered; and

*         the day items 1 to 4 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2014 commence.

 

However, the provisions do not commence at all if:

 

*         Division 1 of Part 4 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 commences at or before that time; or

*         items 1 to 4 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2014 do not commence.

 

Item 6 of Schedule 1 to the Regulation commences on the later of:

 

*         the day after this instrument is registered; and

*         the day items 1 to 4 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2014 commence.

 

However, the provisions do not commence at all if items 1 to 4 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Act 2014 do not commence.

 

Section 3 - Authority

 

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

 

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

 

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.

 

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

 

Schedule 1 - Amendments

 

Part 1 - Main Amendments

 

Migration Regulations 1994

 

The term "complementary protection" describes a category of protection for people who are not refugees as defined in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Refugees Convention) but who engage Australia's protection obligations under the International Covenant on Civil and Political Rights (the ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT).

 

The complementary protection provisions in the Migration Act allow for the consideration of claims raising Australia's protection obligations under the ICCPR and CAT and are therefore intended to reflect, and be consistent with, the government's interpretation of its protection obligations under those instruments.

 

The Full Federal Court's decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 found that the threshold to be applied to assessing complementary protection claims is whether there is a "real chance" of a non-citizen suffering significant harm if they were removed from Australia to a receiving country. The "real chance" threshold also applies to the assessment of claims under the Refugees Convention.

 

The amendments made in items 4 and 5 of Schedule 2 to the Migration Amendment (Protection and Other Measures) Bill 2014 (the Bill) are intended to clarify that the risk threshold to be applied when making such an assessment is whether a non-citizen is "more likely than not" to suffer significant harm if they were removed from Australia to a receiving country. The amendments in Schedule 2 to the Bill reflect the government's interpretation of Australia's protection obligations under the ICCPR and CAT and restore the original risk threshold test that was used when complementary protection provisions commenced in March 2012.

 

Paragraph 36(2)(aa) of the Migration Act provides a criterion for a protection visa. Item 5 in Schedule 2 to the Bill intends to amend paragraph 36(2)(aa) to insert the new risk threshold and provide  the applicant for the visa is a non-citizen in Australia (other than a non-citizen mentioned in paragraph 36(2)(a) (which relates to persons who engage Australia's protection obligations under the Refugees Convention)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister considers that it is more likely than not that the non-citizen will suffer significant harm if the non-citizen is removed from Australia to a receiving country.

                                                                                                            

The purpose of the items below is to ensure that provisions in the Migration Regulations 1994 (Migration Regulations) that apply the language of paragraph 36(2)(aa) are consequently amended to ensure they are consistent with the threshold articulated in new paragraph 36(2)(aa). This is achieved by amending the provisions to simply refer back to paragraph 36(2)(aa), rather than amending the wording of the provisions to reflect the language of new paragraph 36(2)(aa). This will ensure consistency between the provisions in the Migration Regulations and the risk threshold test articulated in the Migration Act.

 

Item 1 - paragraph 4.31B(3)(b)

 

This item repeals old paragraph 4.31B(3)(b) of the Migration Regulations and substitutes it with new paragraph 4.31B(3)(b).

 

Regulation 4.31B sets out fees for review by the Refugee Review Tribunal (RRT). The fee is payable within 7 days of the time when the notice of the decision of the Tribunal is taken to be received by the applicant in accordance with section 441C of the Migration Act (see current subregulation 4.31B(2)). However, the fee only applies to review applicants who are not successful at the RRT. If the RRT determines that the review applicant is a person to whom Australia has protection obligations then the fee is not payable (see current subregulation 4.31B(3)).

 

Old subregulation 4.31B(3) provided that no fee is payable if the RRT determines that the applicant for the visa that was the subject of the review is a person to whom Australia has protection obligations:

 

*         under the Refugees Convention; or

*         because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

 

New subregulation 4.31B(3) provides that no fee is payable if the RRT determines that the applicant for the visa that was the subject of the review is a person to whom Australia has protection obligations:

 

*         under the Refugees Convention; or

*         because the criterion mentioned in paragraph 36(2)(aa) of the Migration Act is satisfied in relation to the applicant.

 

The effect of this item is that the RRT must apply the risk threshold that is consistent with the Migration Act when assessing whether a review applicant engages Australia's protection obligations under the complementary protection framework.

 

Item 2 - subparagraph 4.31C(1)(aa)(ii)

 

This item amends subparagraph 4.31C(1)(aa)(ii) to omit all words after "because" and substitute it with "the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant; or". 

 

Current regulation 4.31C sets out when an RRT post-decision fee that has been paid may be refunded or when fees owed may be waived. One of those circumstances is where a review applicant is successful before judicial review proceedings and the court remits the decision to the RRT who determine that the review applicant is a person who engages Australia's protection obligations.  

 

Old paragraph 4.31C(1)(aa) provided that regulation 4.31C applies to a review of a decision if both:

 

*         on review by a court, the decision is remitted for reconsideration by the RRT; and

*         the RRT determines that the applicant for the visa that was the subject of the review is a person to whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm; or

 

New paragraph 4.31C(1)(aa) provides that regulation 4.31C applies to a review of a decision if both:

 

*         on review by a court, the decision is remitted for reconsideration by the RRT; and

*         the RRT determines that the applicant for the visa that was the subject of the review is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Migration Act is satisfied in relation to the applicant; or

 

The effect of this item is that the RRT must apply the risk threshold that is contained in the Migration Act under paragraph 36(2)(aa) when assessing whether a review applicant engages Australia's protection obligations under the complementary protection framework.

 

Item 3 - paragraph 4.33(4)(a)

 

This item amends paragraph 4.33(4)(a) to omit all words after "because" and substitute it with "the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant; and".

 

Current section 415 of the Migration Act sets out the powers of the RRT. Paragraph 415(2)(c) provides that the RRT may, if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the RRT as are permitted by the regulations.

 

Regulation 4.33 sets out the permissible directions or recommendations of the RRT for the purposes of paragraph 415(2)(c) of the Migration Act.

 

Current subregulation 4.33(1) provides that for the purposes of paragraph 415(2)(c) of the Migration Act, an application for a Protection (Class XA) visa is prescribed.

 

Old paragraph 4.33(4)(a) provided that for paragraph 415(2)(c) of the Migration Act and paragraph 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT-reviewable decision by section 452 of the Migration Act) it is a permissible direction that the applicant satisfies each matter, specified in the direction, that relates to establishing whether the applicant is a person to whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

 

New paragraph 4.33(4)(a) provides that for paragraph 415(2)(c) of the Migration Act and paragraph 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT-reviewable decision by section 452 of the Migration Act) it is a permissible direction that the applicant satisfies each matter, specified in the direction, that relates to establishing whether the applicant is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Migration Act is satisfied in relation to the applicant.

 

The effect of this item is that the RRT must apply the risk threshold that is contained in the Migration Act under paragraph 36(2)(aa) when assessing whether a review applicant engages Australia's protection obligations under the complementary protection framework.

 

Item 4 - subclause 866.211(4) of Schedule 2

 

This item repeals old subclause 866.211(4) of Schedule 2 to the Migration Regulations and substitutes it with new subclause 866.211(4).

 

Clause 866.21 provides the criteria that must be satisfied at time of application for a Subclass 866 (Protection (Class XA)) visa (Subclass 866 visa).

 

Old subclause 866.211(4) provided that the applicant claims to be a person to whom Australia has protection obligations because the applicant claims that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

 

New subclause 866.211(4) provides that the applicant:

 

*         claims that the criterion mentioned in paragraph 36(2)(aa) of the Migration Act is satisfied in relation to the applicant ; and

*         makes specific claims as to why that criterion is satisfied.

 

A new note inserted under new subclause 866.211(4) provides that paragraph 36(2)(aa) of the Migration Act sets out criterion for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

 

The effect of this item is that decision-makers assessing a Subclass 866 visa application will apply the risk threshold that is contained in the Migration Act under paragraph 36(2)(aa). 

 

Item 5 - subclause 866.221(4) of Schedule 2

 

This item repeals old subclause 866.221(4) of Schedule 2 to the Migration Regulations and substitutes it with new subclause 866.221(4).

 

Clause 866.22 provides the criteria that must be satisfied at time of decision for a Subclass 866 visa.

 

Old subclause 866.221(4) provided that the Minister is satisfied that the applicant:

*         is not a person to whom Australia has protection obligations under the Refugees Convention; and

*         is a person to whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

 

The note under old subclause 866.221(4) provided to see paragraph 36(2)(aa) of the Migration Act.

 

New subclause 866.221(4) provides that the Minister is satisfied that:

 

*         the applicant is not a person to whom Australia has protection obligations under the Refugees Convention; and

*         the criterion mentioned in paragraph 36(2)(aa) of the Migration Act is satisfied in relation to the applicant.

 

The effect of this item is that decision-makers assessing a Subclass 866 visa application will apply the risk threshold that is contained in the Migration Act under paragraph 36(2)(aa). 

 

Part 2 - Application and transitional provisions

 

Migration Regulations 1994

 

Item 6 - at the end of Schedule 13

 

This item amends Schedule 13 to the Migration Regulations to insert new Part 36 entitled "Amendments made by the Migration Amendment (Complementary Protection) Regulation 2014".

 

New clause 3601 entitled "Operation of Part 1 of Schedule 1" provides that the amendments of these Migration Regulations made by Part 1 of Schedule 1 to the Regulation apply in relation to the following applications for a visa:

 

*         if items 1 to 4 of Schedule 2 to the Regulation commence before this regulation-- - an application made on or after the commence of those items, but not finally determined before the commencement of this regulation;

*         an application made on or after the commencement of this regulation.  

 

 

The effect and purpose of this item is to clarify to whom these amendments apply.