Migration Amendment (Clarifying International Obligations for Removal) Act 2021

No. 35, 2021

An Act to amend the Migration Act 1958 to clarify obligations in relation to removal of unlawful non-citizens, and for related purposes

Contents

1 Short title 2

2 Commencement 2

3 Schedules 2

Schedule 1—Amendments 3

Migration Act 1958 3

Schedule 2—Review of amendments 10

Intelligence Services Act 2001 10

An Act to amend the Migration Act 1958 to clarify obligations in relation to removal of unlawful non-citizens, and for related purposes

[Assented to 24 May 2021]

The Parliament of Australia enacts:
1 Short title

This Act is the Migration Amendment (Clarifying International Obligations for Removal) Act 2021.
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
Provisions Commencement Date/Details
1. The whole of this Act The day after this Act receives the Royal Assent. 25 May 2021

Note: This table relates only to the provisions of this Act as originally enacted.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 Schedules

Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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

Migration Act 1958

 1 After section 36

Insert:

 36A Consideration of protection obligations 1

In considering a valid application for a protection visa made by a non-citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:

 a

the non-citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);

 b

the non-citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;

 c

the non-citizen:

 i

satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and

 ii

would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non-citizen is a non-citizen mentioned in paragraph 36(2)(a).

 2

The Minister must do so:

 a

before deciding whether to grant or refuse to grant the visa; and

 b

before considering whether the non-citizen satisfies any other criteria for the grant of the visa; and

 c

before considering whether the grant of the visa is prevented by any provision of the Act or regulations; and

 d

without regard to subsections 36(2C) and (3).

 3

Subsection (1) does not apply if:

 a

(a) the non-citizen (the family applicant) is a member of the same family unit as another non-citizen (the family visa holder) who holds a protection visa of the same class as the visa the family applicant is applying for; and

 b

the family applicant’s application for a protection visa was made before the family visa holder was granted their visa; and

 c

the family visa holder is a non-citizen mentioned in paragraph 36(2)(a) or (aa).

 2 Section 197C (heading)

Repeal the heading, substitute:

 197C Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198 3 At the end of section 197C

Add:

 3

Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:

 a

the non-citizen has made a valid application for a protection visa that has been finally determined; and

 b

in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and

 c

none of the following apply:

 i

the decision in which the protection finding was made has been quashed or set aside;

 ii

a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);

 iii

the non-citizen has asked the Minister, in writing, to be removed to the country.

 4

(4) For the purposes of subsection (3), a protection finding is made for a non-citizen with respect to a country if a record was made in relation to the non-citizen under section 36A that the Minister is satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with respect to the country.

 5

(5) For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country if the Minister was satisfied of any of the following (however expressed and including impliedly):

 a

the non-citizen satisfied the criterion in paragraph 36(2)(a) with respect to the country and also satisfied the criterion in subsection 36(1C);

 b

the non-citizen satisfied the criterion in paragraph 36(2)(aa) with respect to the country;

 c

the non-citizen:

 i

would have satisfied the criterion in paragraph 36(2)(a) with respect to the country except that subsection 36(3) applied in respect of the non-citizen; and

 ii

satisfied the criterion in subsection 36(1C);

 d

the non-citizen:

 i

satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and

 ii

would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a);

 e

the non-citizen:

 i

satisfied the criterion in paragraph 36(2)(a) with respect to the country but did not satisfy the criterion in subsection 36(1C); and

 ii

would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that the non-citizen was a non-citizen mentioned in paragraph 36(2)(a) and subsection 36(2C) or (3) applied in respect of the non-citizen;

 f

the non-citizen would have satisfied the criterion in paragraph 36(2)(aa) with respect to the country except that subsection 36(2C) or (3) applied in respect of the non-citizen.

 6

(6) For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country if:

 a

the Minister was satisfied (however expressed and including impliedly) that, because subsection 36(4), (5) or (5A) applied to the non-citizen in relation to the country, subsection 36(3) did not apply in relation to the country; and

 b

a protection finding within the meaning of subsection (4) or (5) was made for the non-citizen with respect to another country.

 7

(7) For the purposes of subsection (3), a protection finding is also made for a non-citizen with respect to a country in circumstances prescribed by the regulations.

 7A

For the purposes of subsection (3), if an unlawful non-citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.

 8

For the purposes of subsection (5), it is irrelevant whether or not the non-citizen satisfied any other criteria for the grant of a protection visa.

 9

For the purposes of subparagraph (3)(c)(iii), a non-citizen who withdraws their written request to be removed to a country is taken not to have made that request.

 3A After section 197C

Insert:

 197D Decision that protection finding would no longer be made 1

A decision under subsection (2) of this section may only be made for the purposes of subsection 197C(3).

 2

If the Minister is satisfied that an unlawful non-citizen to whom paragraphs 197C(3)(a) and (b) apply in relation to a valid application for a protection visa is no longer a person in respect of whom any protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made, the Minister may make a decision to that effect.

 3

For the purposes of subsection (2), if an unlawful non-citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.

 4

If the Minister makes a decision under subsection (2) in relation to an unlawful non-citizen, the Minister must, in writing, notify the non-citizen of the following matters:

 a

the decision;

 b

the reasons (other than non-disclosable information) for the decision;

 c

that the decision is reviewable under Part 7;

 d

the period within which an application for review can be made;

 e

who can apply for review;

 f

where the application for review can be made.

Note: For the method by which the notification may be given, see section 494A.

 5

Failure to comply with subsection (4) in relation to a decision does not affect the validity of the decision.

 6

For the purposes of subparagraph 197C(3)(c)(ii), a decision under subsection (2) of this section is complete if any of the following apply:

 a

the period within which an application for review of the decision under Part 7 can be made has ended without a valid application for review having been made;

 b

a valid application for review of the decision under Part 7 was made within the period but has been withdrawn;

 c

the decision is affirmed (or taken to have been affirmed) on review under Part 7.

 3B Section 408 (paragraph beginning “Part 7-reviewable decisions”)

After “circumstances”, insert “or to decisions under subsection 197D(2)”.

 3C At the end of subsection 411(1)

Add:

; (e) a decision under subsection 197D(2) that an unlawful non-citizen is no longer a person in respect of whom a protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made.

 3D At the end of Division 2 of Part 7

Add:

 419 Certain decisions on review to be made within prescribed period etc. 1

If:

 a

an application for review of a Part 7-reviewable decision is made under section 412; and

 b

the Part 7-reviewable decision is a decision of a kind mentioned in paragraph 411(1)(e);

then, subject to subsection (2) of this section, the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period.

 2

The Tribunal may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.

 3E Subsection 423A(1)

Omit “an RRT-reviewable decision (the primary decision) in relation to a protection visa”, substitute “a Part 7-reviewable decision (the primary decision)”.

 3F Paragraphs 423A(1)(a) and (b)

Omit “in the application before”, substitute “before”.

 4 Application of amendments 1

(1) Section 36A of the Migration Act 1958, other than paragraphs 36A(2)(a), (b) and (c), applies in relation to applications for visas made but not decided before this Schedule commences.

 2

(2) Section 36A of the Migration Act 1958 applies in relation to applications for visas made after this Schedule commences.

 3

(3) A reference in Migration Act 1958 to a protection finding within the meaning of subsection 197C(5) or (6) is a reference to a protection finding made before or after this Schedule commences.section 197C of the

Review of amendments

Intelligence Services Act 2001

 1 After paragraph 29(1)(ce)

Insert:

[Minister’s second reading speech made in—

House of Representatives on 25 March 2021

Senate on 13 May 2021]

(40/21)

 cf

(cf) to commence, by the second anniversary of the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021, a review of the operation, effectiveness and implications of the amendments made by Schedule 1 to that Act; and