Migration Legislation Amendment Act (No. 1) 2014

No. 106, 2014

An Act to amend the Migration Act 1958, and for other purposes

Contents

1 Short title 1

2 Commencement 2

3 Schedule(s) 2

Schedule 1—Applications for visas 3

Migration Act 1958 3

Schedule 2—Removal of unlawful non-citizens 7

Migration Act 1958 7

Schedule 3—Recovery of costs from certain persons 8

Migration Act 1958 8

Schedule 4—Authorised recipients 10

Migration Act 1958 10

Schedule 5—Crimes Act warrants etc. 14

Australian Citizenship Act 2007 14

Migration Act 1958 15

Schedule 6—Miscellaneous 17

Part 1—Procedural fairness requirements 17

Migration Act 1958 17

Part 2—Removing redundant references 18

Migration Act 1958 18

An Act to amend the Migration Act 1958, and for other purposes

[Assented to 24 September 2014]

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration Legislation Amendment Act (No. 1) 2014.

2 Commencement 1

Each provision of this Act 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.

Commencement information	Commencement information	Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	24 September 2014
2. Schedules 1 to 5	The day after this Act receives the Royal Assent.	25 September 2014
3. Schedule 6, Part 1	A single day to be fixed by Proclamation. However, if the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	1 January 2015 (F2014L01722)
4. Schedule 6, Part 2	The day after this Act receives the Royal Assent.	25 September 2014

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

2

Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Applications for visas

Migration Act 1958

1 Subsection 48(1)

Repeal the subsection, substitute:

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.

1

A non-citizen in the migration zone who:

a

does not hold a substantive visa; and

b

after last entering Australia:

i

was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

ii

held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

1A

A non-citizen in the migration zone who:

a

does not hold a substantive visa; and

b

after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not:

i

the application has been finally determined; or

ii

the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

iii

the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;

2 Subsection 48A(1)

Omit all the words after paragraph (b), substitute:

may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

3 After subsection 48A(1)

Insert:

(1AA) Subject to section 48B, if:

the non-citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone.

a

an application for a protection visa is made on a non-citizen’s behalf while the non-citizen is in the migration zone; and

b

the grant of the visa has been refused, whether or not:

i

the application has been finally determined; or

ii

the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or

iii

the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor;

4 Subsection 501E(1)

After “for a visa”, insert “, or have an application for a visa made on the person’s behalf,”.

5 After subsection 501E(1)

Insert:

1A

In relation to the Minister’s decision to refuse to grant a visa to the person, as mentioned in paragraph (1)(a), it does not matter whether:

a

the application for the visa was made on the person’s behalf; or

b

the person knew about, or understood the nature of, the application for the visa due to:

i

any mental impairment; or

ii

the fact that the person was, at the time the application was made, a minor.

6 Application 1

The amendment made by item 1 of this Schedule applies to an application for a visa that is made by or on behalf of a non-citizen on or after the day this item commences, even if:

a

(a) the refusal of a visa, as mentioned in subparagraph 48(1)(b)(i) of the Migration Act 1958, occurs before that day; or

b

(b) the cancellation of a visa, as mentioned in subparagraph 48(1)(b)(ii) of the Migration Act 1958, occurs before that day; or

c

(c) the refusal of a visa, as mentioned in paragraph 48(1A)(b) of the Migration Act 1958, occurs before that day.

2

The amendment made by item 2 of this Schedule applies in relation to:

a

(a) a decision to refuse to grant a protection visa to a non-citizen that is made before the day this item commences, if the further application for a protection visa mentioned in subsection 48A(1) of the Migration Act 1958 is made by or on behalf of the non-citizen on or after that day; or

b

a decision to refuse to grant a protection visa to a non-citizen that is made on or after the day this item commences, regardless of when the application for the visa to which the decision relates was made.

3

The amendment made by item 3 of this Schedule applies in relation to:

a

(a) a decision to refuse to grant a protection visa to a non-citizen that is made before the day this item commences, if the further application for a protection visa mentioned in subsection 48A(1AA) of the Migration Act 1958 (as inserted by that item) is made by or on behalf of the non-citizen on or after that day; or

b

a decision to refuse to grant a protection visa to a non-citizen that is made on or after the day this item commences, regardless of when the application for the visa to which the decision relates was made.

4

The amendments made by items 4 and 5 of this Schedule apply in relation to:

a

(a) a decision to refuse to grant a visa to a person that is made before the day this item commences, if an application for a visa mentioned in subsection 501E(1) of the Migration Act 1958 is made by or on behalf of the person on or after that day; or

b

a decision to refuse to grant a visa to a person that is made on or after the day this item commences, regardless of when the application for the visa to which the decision relates was made.

7 Saving of regulations

The amendment made by item 1 of this Schedule does not affect the validity of regulations in force for the purposes of Migration Act 1958 immediately before the commencement of that item.section 48 of the

Removal of unlawful non-citizens

Migration Act 1958

1 Paragraph 198(5)(b)

Repeal the paragraph, substitute:

regardless of whether the non-citizen has made a valid application for a bridging visa.

b

neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa;

2 After subsection 198(5)

Insert:

5A

Despite subsection (5), an officer must not remove an unlawful non-citizen if:

a

the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and

b

either:

i

the grant of the visa has not been refused; or

ii

the application has not been finally determined.

3 Application

The amendments made by this Schedule apply to the removal of a detainee on or after the day this item commences, even if the detainee was detained before that day.

Recovery of costs from certain persons

Migration Act 1958

1 Section 262 (heading)

Repeal the heading, substitute:

262 Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons 2 Paragraphs 262(1)(a) and (b)

Repeal the paragraphs, substitute:

a

is, or has been, detained under section 189; and

b

was on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against this Act or against a prescribed law in force in the Commonwealth or in a State or Territory, being a law relating to the control of fishing; and

ba

is convicted of the offence;

3 At the end of section 262

Add:

4

To avoid doubt, the liability to pay the Commonwealth an amount under subsection (1) may be enforced:

a

at the time the person is convicted of an offence mentioned in paragraph (1)(b); or

b

after the person has served the whole or a part of any sentence imposed upon the person because of his or her conviction of an offence mentioned in paragraph (1)(b).

4 Application 1

(1) The amendments made by this Schedule apply to a conviction for an offence against paragraph 262(1)(b) of the Migration Act 1958, as amended by this Schedule, that occurs on or after the day this item commences.

2

The amendments made by this Schedule also apply to costs incurred before the day this item commences in relation to a conviction mentioned in subitem (1).

5 Saving of regulations

The amendment made by item 2 of this Schedule does not affect the validity of regulations in force for the purposes of paragraph 262(1)(b) of the Migration Act 1958 immediately before the commencement of that item.

Authorised recipients

Migration Act 1958

1 Paragraph 379G(1)(b)

Omit “authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents”, substitute “authorised by the applicant to receive documents”.

2 After subsection 379G(1)

Insert:

1A

For the purposes of subsection (1):

a

paragraph (1)(a) is taken to also apply to an application for review of an MRT-reviewable decision where the application is not properly made under section 347; and

b

in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not properly made under that section).

3 Subsection 379G(3)

Omit “The applicant”, substitute “Subject to subsection (3A), the applicant (but not the authorised recipient)”.

4 After subsection 379G(3)

Insert:

3A

In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

5 Subsection 379G(4)

Repeal the subsection.

6 Paragraph 441G(1)(b)

Omit “authorised by the applicant to do things on behalf of the applicant that consist of, or include, receiving documents”, substitute “authorised by the applicant to receive documents”.

7 After subsection 441G(1)

Insert:

1A

For the purposes of subsection (1):

a

paragraph (1)(a) is taken to also apply to an application for review of an RRT-reviewable decision where the application is not a valid application under section 412; and

b

in connection with such an application, paragraph (1)(b) is taken to apply to a notice of a kind referred to in that paragraph as if the notice authorised the authorised recipient to receive documents in connection with the application (including a document notifying that recipient that the application is not a valid application under that section).

8 Subsection 441G(3)

Omit “The applicant”, substitute “Subject to subsection (3A), the applicant (but not the authorised recipient)”.

9 After subsection 441G(3)

Insert:

3A

In addition to the applicant being able to vary the notice under paragraph (1)(b) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

10 Subsection 441G(4)

Repeal the subsection.

11 Subsection 494D(1)

Omit “authorised by the first person to do things on behalf of the first person that consist of, or include, receiving documents in connection with matters arising under this Act or the regulations”, substitute “authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations”.

12 Subsection 494D(1)

After “any documents”, insert “in connection with those matters”.

13 Subsection 494D(3)

Omit “The first person”, substitute “Subject to subsection (3A), the first person (but not the authorised recipient)”.

14 After subsection 494D(3)

Insert:

3A

In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.

15 Subsection 494D(4)

Repeal the subsection.

16 Subsection 494D(5)

Omit “, or the requirement in subsection (4) to give a notice,”.

17 Application 1

(1) The amendment made by item 1 of this Schedule applies in relation to a notice given under paragraph 379G(1)(b) of the Migration Act 1958 on or after the commencement of that item.

2

The amendment made by item 2 of this Schedule applies in relation to:

a

an application purportedly made on or after the commencement of that item; and

b

an application purportedly made before that commencement, where the Migration Review Tribunal had not decided before that commencement that the application was not properly made.

3

(3) The amendments made by items 3 and 4 of this Schedule apply in relation to a notice given under paragraph 379G(1)(b) of the Migration Act 1958 before, on or after the commencement of those items.

4

The amendments made by items 5, 10, 15 and 16 of this Schedule apply in relation to communications that occur on or after the commencement of those items (whether the authorisation of the authorised recipient occurred before, on or after that commencement).

5

(5) The amendment made by item 6 of this Schedule applies in relation to a notice given under paragraph 441G(1)(b) of the Migration Act 1958 on or after the commencement of that item.

6

The amendment made by item 7 of this Schedule applies in relation to:

a

an application purportedly made on or after the commencement of that item; and

b

an application purportedly made before that commencement, where the Refugee Review Tribunal had not decided before that commencement that the application was not a valid application.

7

(7) The amendments made by items 8 and 9 of this Schedule apply in relation to a notice given under paragraph 441G(1)(b) of the Migration Act 1958 before, on or after the commencement of those items.

8

(8) The amendments made by items 11 and 12 of this Schedule apply in relation to a notice given under subsection 494D(1) of the Migration Act 1958 on or after the commencement of those items.

9

(9) The amendments made by items 13 and 14 of this Schedule apply in relation to a notice given under subsection 494D(1) of the Migration Act 1958 before, on or after the commencement of those items.

Crimes Act warrants etc.

Australian Citizenship Act 2007

1 After section 51

Insert:

51A Things seized under Crimes Act search warrant and information about such things 1

This section applies to the following:

a

(a) a thing seized (warrant material) under a search warrant issued under Division 2 of Part 1AA of the Crimes Act 1914;

b

(b) information (warrant information) that is about, or obtained from, warrant material.

2

(2) A constable or Commonwealth officer who, under subsection 3ZQU(1) of the Crimes Act 1914, may use or make available warrant material, is authorised to make available warrant material or warrant information:

a

to a person covered by subsection (4); and

b

for a purpose mentioned in subsection (3).

3

A person covered by subsection (4) is authorised to receive and use warrant material and warrant information, or make it available to another person covered by subsection (4), for the following purposes:

a

making a decision, or assisting in making a decision, to approve or refuse to approve a person becoming an Australian citizen;

b

making a decision, or assisting in making a decision, to revoke a person’s Australian citizenship;

c

making a decision, or assisting in making a decision, to cancel an approval given to a person under section 24.

Note: Subsection 3ZQU(4) of the Crimes Act 1914 contemplates that another law of the Commonwealth may require or authorise the use or making available of a document or other thing to persons, or for purposes, in addition to those listed in subsection 3ZQU(1) of that Act.

Migration Act 1958

4

The following persons are covered by this subsection:

a

the Minister;

b

the Secretary;

c

an APS employee in the Department whose duties include making decisions, or assisting in making decisions, in relation to Australian citizenship.

2 After section 488A

Insert:

488AA Things seized under Crimes Act search warrant and information about such things 1

This section applies to the following:

a

(a) a thing seized (warrant material) under a search warrant issued under Division 2 of Part 1AA of the Crimes Act 1914;

b

(b) information (warrant information) that is about, or obtained from, warrant material.

2

(2) A constable or Commonwealth officer who, under subsection 3ZQU(1) of the Crimes Act 1914, may use or make available warrant material, is authorised to make available warrant material or warrant information:

a

to a person covered by subsection (4); and

b

for a purpose mentioned in subsection (3).

3

A person covered by subsection (4) is authorised to receive and use warrant material and warrant information, or make it available to another person covered by subsection (4), for the following purposes:

a

making a decision, or assisting in making a decision, to grant or refuse to grant a visa;

b

making a decision, or assisting in making a decision, to cancel a visa;

c

making a decision, or assisting in making a decision, to revoke a cancellation of a visa;

d

making a decision in relation to the detention, removal or deportation of a non-citizen from Australia.

Note: Subsection 3ZQU(4) of the Crimes Act 1914 contemplates that another law of the Commonwealth may require or authorise the use or making available of a document or other thing to persons, or for purposes, in addition to those listed in subsection 3ZQU(1) of that Act.

4

The following persons are covered by this subsection:

a

the Minister;

b

an officer, including the Secretary.

3 Application

The amendments made by this Schedule apply in relation to search warrants issued under Crimes Act 1914 on or after the commencement of this Schedule.Division 2 of Part 1AA of the

Miscellaneous

Migration Act 1958

1 Subsection 57(2)

Omit “Subject to subsection (3), the”, substitute “The”.

2 Subsection 57(3)

Repeal the subsection.

3 Application

The amendments made by this Part apply in relation to applications for visas that are made on or after the commencement of this Part.

Migration Act 1958

4 Subsections 379C(6), 379D(5), 441C(6), 441D(5) and 494C(6)

Repeal the subsections.

[Minister’s second reading speech made in—

House of Representatives on 27 March 2014

Senate on 19 June 2014]

(62/14)