MIGRATION AMENDMENT (PERMANENT PROTECTION VISAS) REGULATION 2013 (SLI NO 106 OF 2013) EXPLANATORY STATEMENT

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MIGRATION AMENDMENT (PERMANENT PROTECTION VISAS) REGULATION 2013 (SLI NO 106 OF 2013)

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 106

Issued by the Minister for Immigration and Citizenship

Migration Act 1958

Migration Amendment (Permanent Protection Visas) 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 in Attachment A.

The purpose of the Regulation is to amend Migration Regulations 1994 ('the Principal Regulations') to introduce a new visa condition for the Subclass 866 (Protection) visa.

In particular, the Regulation amends the Principal Regulations to:

* impose a visa condition for the Subclass 866 (Protection) visa ('protection visa') to provide that the holder must not enter the country by reference to which the holder was found to be a person in respect of whom Australia has protection obligations, unless the Minister has approved the entry in writing. The visa condition will also apply to holders of a protection visa who received a grant on the basis of being a member of the same family unit as a person in respect of whom Australia has protection obligations.

Details of the Regulation are set out in Attachment C.

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 Regulation is compatible with human rights because it advances the protection of human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate. A copy of the Statement is at Attachment B.

The Office of Best Practice Regulation (the OBPR) has been consulted and advises that the changes do not have a regulatory impact on business or the non-for-profit sector and no further analysis is required. The OBPR consultation reference is #15071.

The Regulation is required as a matter of urgency at the direction of the Government to introduce a new visa condition for protection visa holders. No further consultation beyond consultation with Attorney Generals Department, Prime Minister and Cabinet and Department of Foreign Affairs and Trade was undertaken.

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

The Regulation commences on 3 June 2013.

ATTACHMENT A

In addition, the following provisions may apply:

subsection 31(1) of the Act, which provides that there are to be prescribed classes of visas;

* subsection 41(1) of the Act, which provides that visas, or visas of a specified class, are subject to specified conditions;

* subsection 41(3) of the Act provides that, in addition to any conditions specified under subsection 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.

ATTACHMENT B

Statement of Compatibility with Human Rights

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

Amendments to Migration Regulation 1994 (Relating to new visa condition for protection visas)

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

This Legislative Instrument seeks to amend the Migration Regulations 1994 to:

- Introduce a new visa condition that will allow a Protection Visa to be cancelled if the visa holders travels to the home country/country of feared harm;

- The visa holder is able to seek permission from the Department of Immigration and Citizenship if they wish to travel to their home country for exceptional or compassionate circumstances.

Human rights implications

The new condition that will be prescribed under section 41 of the Migration Act 1958 (Migration Act) for the visa subclass 866 Protection Visa will be that the visa holder must not travel to the visa holder's home country/country of feared persecution for the duration of the travel facility attached to the protection visa ie 5 years.

If the visa holder wishes to travel to their home country/country of feared persecution during this time, they will be able to seek permission to travel in exceptional circumstances. This means that protection visa holders who wish to knowingly put their life at risk in order to travel for urgent, personal reasons (eg attend a funeral) will still be able to travel.

If the visa holder breaches this condition, and did not have permission to travel, a discretion to cancel the visa under s116(1)(b) of the Migration Act will be enlivened.

The power to cancel a visa for a breach of this condition is discretionary and will allow the consideration of the individual circumstances of the person's case, in particular the reason for the person's travel, the duration of the person's stay and whether they have re-availed themselves of the protection of their home country.

In addition, s117(2) of the Migration Act specifies that a permanent visa (this includes a subclass 866 Protection Visa) cannot be cancelled under section 116 if the holder of the visa is in the migration zone; and was immigration cleared on last entering Australia.

Therefore, the cancellation power will generally be used for people who are not in Australia's jurisdiction. It is possible that cancellation could be considered for people who are in immigration clearance in Australia. If that were to occur, any non-refoulement obligations Australia may have under the CAT or the ICCPR will be considered as part of any subsequent removal process.

While the condition does not prevent the visa holder from leaving Australia, there is a possibility that visa holders may feel discouraged from travelling for legitimate purposes and this may raise issues relating to freedom of movement under Article 12 of the ICCPR, in particular the right to leave any country (Art 12(2)). The ability for a visa holder to seek permission to travel in compassionate or compelling circumstances will be clearly articulated in protection visa grant letters, and information about how to do this will be available on the Department's website.

However, the policy intent is that this visa condition will enable the Department to investigate and pursue cancellation action against people who have sought Australia's protection and, and then return to home countries to engage in business or criminal activity and/or who have re-availed themselves of the protection of the country in relation to which they were found to engage Australia's protection obligations.

The consideration of cancellation if the visa condition is breached will be discretionary, and compliance activity will be directed to clients that present the highest risk.

In addition, as noted above, policies and procedures will be put in place to ensure individual circumstances are considered. Permission can be requested to travel for compelling or compassionate reasons. It is not intended that visas will be cancelled where the visa holder has travelled for a short duration and for a legitimate reason such as visiting a dying relative. In addition, the condition will not affect travel to countries other than country in relation to which Australia's protection obligations were found to have been engaged. That is, if the visa holder travels to a third country, for example for a holiday or to visit relatives, this will not be a breach of this new condition.

The potential effect of the condition as a limitation on travel is therefore considered to be reasonable in the circumstances and proportionate to Australia's legitimate aim of offering protection to genuine refugees and those fearing significant harm, while also protecting the integrity of the protection visa regime by enabling cancellation of a protection visa where circumstances indicate the person does not, or no longer, requires Australia's protection. As noted above, if the visa of a person within Australia's jurisdiction is cancelled, removal would not proceed if to do so would breach Australia's non-refoulement obligations.

Conclusion

The Legislative Instrument is compatible with human rights because to the extent that it limits the ability of non-citizens to travel to a country they claim to fear returning to, the limitation is reasonable, necessary and proportionate to the legitimate aim of maintaining the integrity of Australia's protection regime.

ATTACHMENT C

Details of the Migration Amendment (Permanent Protection Visas) Regulation 2013)

Section 1 - Name of Regulation

This section provides that the title of the Regulation is the Migration Amendment (Permanent Protection Visas) Regulation 2013.

Section 2 - Commencement

This section provides that the Regulation commences on 3 June 2013. This provides sufficient time after the Regulation is made on 30 May 2013 to make arrangements for the Minister to sign an instrument of delegation prior to the Regulation coming into effect.

Section 3 - Authority

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

Item [1] - Division 866.6 of Schedule 2

This item repeals and substitutes Division 866.6 of Schedule 2.

Substituted Division 866.6 provides that new condition 8559 must be imposed.

The effect of new condition 8559 is to require a Subclass 866 (Protection) visa ('protection visa') holder to seek approval from the Minister in writing prior to entering the country by reference to which the visa holder was found to be a person in respect of whom Australia has protection obligations ('the country'). The new condition also requires a member of the family unit of that holder to whom Australia has protection obligations to seek approval from the Minister in writing prior to entering the country.

Visa holders to whom this amendment applies have been granted a protection visa on the basis of well-founded fear of persecution, or are a member of the family unit of the visa holder who has been granted a protection visa on the basis of well-founded fear of persecution. The purpose of the new condition is to ensure that any travel to the country:

* by the holder; and

* any travel by a member of the family unit to the country from which the protection visa holder sought protection from

is appropriate. This will protect the integrity of the protection visa program.

Item [2] - At the end of Schedule 8

This amendment inserts new condition 8559 in Schedule 8 to the Principal Regulations.

New condition 8559 provides that a visa holder must not enter the country by reference to which the holder, or for a member of the family unit of the holder of a protection visa - the other holder, was found to be a person in respect of whom Australia has protection obligations, unless the Minister has approved the entry in writing.

Paragraph 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. Subsection 117(2) provides that a permanent visa cannot be cancelled under section 116 of the Act if the holder of the visa is in the migration zone or was immigration cleared on last entering Australia. If a protection visa holder is offshore and does not comply with the condition, the Minister may cancel the visa under paragraph 116(1)(b) of the Act.

The Government has become concerned about a small percentage of protection visa holders who have been granted a protection visa on the basis of well-founded fear of persecution but who later travel to the country from which they sought protection. The effect of the new condition is to address integrity concerns with the protection visa program by allowing a protection visa holder, or a member of the family unit of the holder of a protection visa in respect of whom Australia has protection obligations, to enter that country only in appropriate circumstances. For example, where the protection visa holder may be willing to put their life at risk in their home country for a short period of time to attend a funeral, or to visit sick and dying family members. In such cases, the protection visa holder can seek permission to travel to the country.

Item 3 - At the end of Schedule 13

This amendment inserts Part 15 - Amendments made by the Migration Amendment (Permanent Protection Visas) Regulation 2013.

This title of new item 1501 is 'Operation of Schedule 1'.

New item 1501 provides that the amendments made by Schedule 1 to the Migration Amendment (Permanent Protection Visas) Regulation 2013 apply in relation to a visa granted on or after 3 June 2013.

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