Michaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Hansard source

I table four supplementary explanatory memoranda relating to the government's amendments to be moved to this bill. I also seek leave to move government amendments on sheet HA110, government amendments on sheet GH117, government amendments on sheet GH118 and government amendments on sheet HA108 together.

Leave granted.

by leave—I move:

(1) Clause 2, page 2 (after table item 4), insert:

(2) Schedule 2, item 16, page 27 (after line 24), after subsection 35A(3A), insert:

  (3B) The purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.

Note: If a person satisfies the requirements for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), section 46A will not bar the person from making a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b). This does not include permanent protection visas.

(3) Schedule 2, Part 1, page 28 (after line 1), at the end of Division 2, add:

Migration Regulations 1994

18B After subparagraph 1401(3)(d)(i)

  Insert:

     (ia) does not hold, and has not ever held, a Safe Haven Enterprise (Class XE) visa; and

18C After subparagraph 1403(3)(d)(i)

  Insert:

     (ia) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or

18D At the end of Schedule 1

  Add:

1404. Safe Haven Enterprise (Class XE)

(1) Form: 790.

(2) Visa application charge:

  (a) first instalment (payable at the time the application is made):

     (i) for an applicant who is in immigration detention and has not been immigration cleared:

     (ii) for any other applicant:

Note: Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non-internet application charge. Not all of the components may apply to a particular application.

  Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant's application.

(b) the second instalment (payable before grant of visa) is nil.

(3) Other:

  (a) Application must be made in Australia.

  (b) Applicant must be in Australia.

(c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Safe Haven Enterprise (Class XE) visa may be made at the same time and place as, and combined with, the application by that person.

  (d) An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person:

     (i) holds, or has ever held, a Temporary Protection (Class XD) visa or a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; or

     (ii) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or

     (iii) holds, or has ever held, a Temporary Safe Haven (Class UJ) visa; or

     (iv) holds, or has ever held, a Temporary (Humanitarian Concern) (Class UO) visa; or

     (v) did not hold a visa that was in effect on the person's last entry into Australia; or

     (vi) is an unauthorised maritime arrival; or

     (vii) was not immigration cleared on the person's last entry into Australia.

(e) An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person indicates in writing an intention to work or study while accessing minimum social security benefits in a regional area specified under subclause (4).

(4) The Minister may, by legislative instrument, specify a regional area for the purposes of these regulations.

Note: See also regulation 2.06AAB (visa applications by holders and certain former holders of safe haven enterprise visas).

(5) Subclasses:

  790   (Safe Haven Enterprise)

18E After Part 785 of Schedule 2

  Insert:

Subclass 790—Safe Haven Enterprise

790.1—Interpretation

790.111

     For the purposes of this Part, a person (A) is a member of the same family unit as another person (B) if:

  (a) A is a member of B's family unit; or

  (b) B is a member of A's family unit; or

(c) A and B are members of the family unit of a third person.

790.2—Primary criteria

Note: All applicants must satisfy the primary criteria.

790.21—Criteria to be satisfied at time of application

790.211

(1) Subclause (2) or (3) is satisfied.

(2) The applicant:

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

  (b) makes specific claims as to why that criterion is satisfied.

Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

(3) The applicant claims to be a member of the same family unit as a person:

  (a) to whom subclause (2) applies; and

  (b) who is an applicant for a Subclass 790 (Safe Haven Enterprise) visa.

Note: See paragraphs 36(2)(b) and (c) of the Act.

790.22—Criteria to be satisfied at time of decision

790.221

(1) Subclause (2) or (3) is satisfied.

(2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.

Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.

(3) The Minister is satisfied that:

  (a) the applicant is a member of the same family unit as an applicant mentioned in subclause (2); and

  (b) the applicant mentioned in subclause (2) has been granted a Subclass 790 (Safe Haven Enterprise) visa.

Note: See paragraphs 36(2)(b) and (c) of the Act.

790.222

     The applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner):

  (a) a Medical Officer of the Commonwealth;

  (b) a medical practitioner approved by the Minister for the purposes of this paragraph;

(c) a medical practitioner employed by an organisation approved by the Minister for the purposes of this paragraph.

790.223

(1) One of subclauses (2) to (4) is satisfied.

(2) The applicant has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia.

(3) The applicant is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested the examination mentioned in subclause (2).

(4) The applicant is a person:

  (a) who is confirmed by a relevant medical practitioner to be pregnant; and

  (b) who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and

(c) who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and

  (d) who the Minister is satisfied should not be required to undergo a chest x-ray examination at this time.

790.224

(1) A relevant medical practitioner has considered:

  (a) the results of any tests carried out for the purposes of the medical examination required under clause 790.222; and

  (b) the radiological report (if any) required under clause 790.223 in respect of the applicant.

(2) If the relevant medical practitioner:

  (a) is not a Medical Officer of the Commonwealth; and

  (b) considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;

the relevant medical practitioner has referred any relevant results and reports to a Medical Officer of the Commonwealth.

790.225

     If a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.

790.226

     The applicant:

  (a) satisfies public interest criteria 4001 and 4003A; and

  (b) if the applicant had turned 18 at the time of application—satisfies public interest criterion 4019.

790.227

     The Minister is satisfied that the grant of the visa is in the national interest.

790.228

(1) If the applicant is a child to whom subregulation 2.08(2) applies, subclause (2) is satisfied.

(2) The Minister is satisfied that:

  (a) the applicant is a member of the same family unit as an applicant to whom subclause 790.221(2) applies; and

  (b) the applicant to whom subclause 790.221(2) applies has been granted a Subclass 790 (Safe Haven Enterprise) visa.

Note 1: Subregulation 2.08(2) applies, generally, to a child born to a non-citizen after the non-citizen has applied for a visa but before the application is decided.

Note 2: Subclause 790.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or (aa) of the Act.

790.3—Secondary criteria

Note: All applicants must satisfy the primary criteria.

790.4—Circumstances applicable to grant

790.411

     The applicant must be in Australia when the visa is granted.

790.5—When visa is in effect

790.511

     Temporary visa permitting the holder to travel to, enter and remain in Australia until:

  (a) if the holder of the temporary visa (the first visa) makes a valid application for another Subclass 790 (Safe Haven Enterprise) visa within 5 years after the grant of the first visa—the day when the application is finally determined or withdrawn; or

  (b) in any other case—the end of 5 years from the date of grant of the first visa.

790.6—Conditions

790.611

     Conditions 8565 and 8570.

Note: There is nothing in the Act or these regulations which restricts the ability of the holder of the visa to study or work as he or she sees fit.

(4) Schedule 2, Part 1, page 28 (after line 1), after Division 2, insert:

Division 2A—Safe haven enterprise visas: pathways to other visas

Migration Act 1958

18F After subsection 46A(1)

  Insert:

  (1A) Subsection (1) does not apply in relation to an application for a visa if:

  (a) either:

     (i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or

     (ii) the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and

(b) the application is for a visa prescribed for the purposes of this paragraph; and

  (c) the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.

Migration Regulations 1994

18G After regulation 2.06AAA

  Insert:

2.06AAB Visa applications by holders and certain former holders of safe haven enterprise visas.

(1) For paragraph 46A(1A)(b) of the Act, visas of the subclasses listed in the following table are prescribed:

(2) For the purposes of paragraph 46A(1A)(c) of the Act, an applicant for a visa who currently holds, or has ever held, a safe haven enterprise visa must, for a period or periods totalling 42 months (which need not be continuous) while the visa is (or was) in effect, satisfy one of the following requirements:

  (a) the applicant does not receive any social security benefits determined under subregulation (3), and is engaged in employment, as determined under that subregulation, in a regional area specified under subclause 1404(4) of Schedule 1;

  (b) the applicant is enrolled in full-time study at an educational institution, as determined under subregulation (3), in a regional area specified under subclause 1404(4) of Schedule 1;

(c) the applicant satisfies a combination of the requirements in paragraph (a) and paragraph (b), at different times.

(3) The Minister may, by legislative instrument, make a determination for the purposes of paragraphs (2)(a) and (b).

(5) Schedule 2, page 28 (after line 22), at the end of item 19, add:

(3) The amendments of the Migration Act 1958 and the Migration Regulations1994 made by Division 2A of this Part apply in relation to an application for a visa made on or after the commencement of that Division.

(1) Schedule 2, page 28 (after line 1), after item 18, insert:

18A At the end of subsection 85(2)

  Add "or safe haven enterprise visas".

(2) Schedule 7, page 111 (after line 4), after item 10, insert:

10A Section 85

  Omit "The", substitute "(1) Subject to subsection (2), the".

(3) Schedule 7, page 111 (after line 8), after item 12, insert:

12A At the end of section 85

  Add:

(2) Subsection (1) does not apply in relation to temporary protection visas.

(1) Schedule 2, item 31, page 42 (line 3), omit "remain in Australia", substitute "remain in, travel to and enter Australia".

(2) Schedule 2, item 31, page 42 (line 16), after "8503", insert ", 8570".

(3) Schedule 2, page 44 (after line 10), after item 36, insert:

36A At the end of Schedule 8

  Add:

8570      The holder must not:

  (a) enter a country by reference to which:

     (i) the holder was found to be a person to whom Australia has protection obligations; or

     (ii) for a member of the family unit of another holder—the other holder was found to be a person to whom Australia has protection obligations; or

(b) enter any other country unless:

     (i) the Minister is satisfied that there are compassionate or compelling circumstances justifying the entry; and

     (ii) the Minister has approved the entry in writing.

(4) Schedule 4, item 1, page 57 (lines 20 to 22), omit subparagraph (a)(v) of the definition of excluded fast track review applicant.

(5) Schedule 4, item 1, page 57 (after line 27), after paragraph (a) of the definition of excluded fast track review applicant, insert:

  (aa) who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:

     (i) has no plausible or credible basis; or

     (ii) if the claim is based on conditions, events or circumstances in a particular country—is not able to be substantiated by any objective evidence; or

     (iii) is made for the sole purpose of delaying or frustrating the fast track applicant's removal from Australia; or

(6) Schedule 4, item 1, page 58 (line 2), after "13 August 2012", insert ", but before 1 January 2014, and who has not been taken to a regional processing country".

(7) Schedule 4, item 2, page 59 (after line 19), after subsection 5(1AC), insert:

  (1AD) Despite subsection 44(2) of the Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (1AA).

(8) Schedule 4, item 21, page 62 (line 17), after "13 August 2012", insert ", but before 1 January 2014, and who have not been taken to a regional processing country".

(9) Schedule 4, item 21, page 63 (lines 13 and 14), omit "and quick", substitute ", quick, free of bias and consistent with Division 3 (conduct of review)".

(10) Schedule 4, item 21, page 68 (lines 25 to 29), omit paragraph 473DD(b), substitute:

  (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

     (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

     (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

(11) Schedule 4, item 21, page 72 (line 18), omit "and quick", substitute ", quick, free of bias and consistent with Division 3 (conduct of review)".

(12) Schedule 5, item 7, page 93 (lines 24 to 31), omit subsection 5J(2), substitute:

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(13) Schedule 5, item 7, page 95 (lines 15 to 31), omit section 5L, substitute:

5L Membership of a particular social group other than family

     For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if:

  (a) a characteristic is shared by each member of the group; and

  (b) the person shares, or is perceived as sharing, the characteristic; and

(c) any of the following apply:

     (i) the characteristic is an innate or immutable characteristic;

     (ii) the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;

     (iii) the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

(14) Schedule 5, item 7, page 95 (after line 31), after section 5L, insert:

5LA Effective protection measures

(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

  (a) protection against persecution could be provided to the person by:

     (i) the relevant State; or

     (ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

  (a) the person can access the protection; and

  (b) the protection is durable; and

(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

(1) Clause 2, page 2 (after table item 9), insert:

(2) Page 49 (after line 23), after Schedule 2, insert:

Schedule 2A—Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas

Migration Act 1958

1 After section 39

  Insert:

39A Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas

(1) Despite any legislative instrument made for the purposes of section 39, the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection (3) of this section for that year.

(2) Subsection (1) applies subject to this Act, and to any regulation or instrument made under or for the purposes of this Act (other than section 39 of this Act).

( 3 ) The Minister may, by legislative instrument, determine a minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas for a financial year specified in the determination.

( 4 ) Despite subsection 44(2) of the Legislative Instruments Act 2003 , section 42 (disallowance) of that Act applies to a legislative instrument made under subsection (3) of this section.

(5) In this section:

  Protection (Class XA) visas means visas classified by regulation as Protection (Class XA) visas.

Note: For this class of visas, see clause 1401 of Schedule 1 to the Migration Regulations1994.

  Refugee and Humanitarian (Class XB) visas means visas classified by regulation as Refugee and Humanitarian (Class XB) visas.

Note: For this class of visas, see clause 1402 of Schedule 1 to the Migration Regulations1994.

As a result of the success of the government's strong border protection management policies, the Australian government has been able to restore offshore places within the humanitarian program for vulnerable people waiting overseas to be resettled. The first amendment I am moving proposes to add a new schedule 2A to the bill to progressively increase Australia's humanitarian program over the next four years so that by the financial year commencing 1 July 2018 Australia's annual humanitarian intake will increase from its current level of 13,750 places to 18,750 places. This will be done through two successive increases of 2½ thousand places in each of the 2017-18 and the 2018-19 programs. The government will also maintain the size of the program over the next two years at no less than 13,750 places in each year. The amendments set out these commitments within the Migration Act 1958, and they will provide clarity and certainty for the Australian public. The proposed government amendments will provide certainty about the size of the humanitarian program in the coming years and demonstrate the government's commitment to a strong and orderly humanitarian intake, focused on those overseas most in need of resettlement. The government considers these amendments to be a public commitment to build on Australia's proud history of resettling refugees and those in humanitarian need.

I am also moving amendments to schedule 2 and schedule 7 to the bill to address concerns raised in relation to the operation of the new safe haven enterprise visa, known as the SHEV, and temporary protection visas, known as TPVs. The first amendment I have moved to schedule 2 is to make clear on the face of legislation that holders of the SHEV will, in certain circumstances, be able to apply for certain types of permanent visas. It was always the government's intention to permit SHEV holders who work or study in regional Australia for at least 3½ years of their visa, and access income support for not more than 18 months in that time, to apply for onshore substantive visas, including permanent visas but not permanent protection visas, provided that they meet the application criteria for those visas.

However, to alleviate concerns about the detail of the operation of the SHEV, it is proposed to clarify that the bar on visa applications by illegal maritime arrivals while lawful noncitizens will not apply to SHEV holders who have met the SHEV work and study requirements and who are applying for a prescribed list of visas. The pathways being proposed will include skilled and family visas and the full list of permanent visas for which SHEV holders may be eligible to apply for will be prescribed in the regulations.

The second amendment I am moving to schedule 2 is to set out the criteria for the grant of the SHEV. Schedule 2 to the bill already creates the SHEV as a new class of visa. This amendment will make it clear to the parliament what the criteria are for the grant of a SHEV and address the scare campaign suggesting that the government does not intend to follow through on the creation of this visa.

The third amendment I am moving to schedule 2 will allow travel in compassionate and compelling circumstances, as determined by the minister, to places other than a country in respect of which a TPV holder or a SHEV holder was found to be eligible for protection. If a TPV holder or a SHEV holder can demonstrate a compelling or compassionate need to travel, they will be able to request permission to do so from the minister. The permission would need to be sought prior to travel and cannot be to the country from which they sought protection.

The amendments I am moving to schedule 7 are in relation to the minister's ability to cap the number of protection visas available in the financial year, which the bill clarifies in this schedule. Capping protection visas is in no way an attempt to resile from Australia's non-refoulement obligations. The amendments I am proposing would ensure that this is the case by preventing the minister from placing a statutory limit or cap on the number of temporary protection visas or safe haven enterprise visas granted in a program year. As a result of these amendments, it will not be possible to use this power to cut the number of temporary protection visas or safe haven enterprise visas available. These amendments will not impact on the power of the minister to place a cap on permanent protection visas. This power, which is clarified in schedule 7 to the bill, is intended to support the government's policy objective by granting only temporary protection to illegal maritime arrivals and encouraging the grant of SHEVs to the benefit of regional Australia.

I am also moving amendments to schedule 4 aimed at increasing the integrity, transparency and accountability of the fast-track process. The first amendment I am proposing to schedule 4 is to clarify on the face of the legislation which IMAs are subject to the fast track. The amendments will expand the definition to clarify that fast-track applicants will include persons who are an unauthorised maritime arrival and who entered Australia on or after 13 August 2012 but before 1 January 2014 and have not been taken to a regional processing country. This demonstrates the government's commitment to process IMAs currently on Christmas Island through the fast-track assessment process along with the current backlog of IMAs.

Secondly, the proposed amendments to schedule 4 would amend the purpose of the Immigration Assessment Authority, the IAA, from being required to 'pursue the objective of providing a mechanism of limited review that is efficient and quick' to being required to 'pursue the objective of providing a mechanism which is efficient, quick, free from bias and consistent with the code of procedure'. This amendment would clarify the purpose of the IAA and reassure the public that the review by the IAA will be free of bias and consistent with division 3, the conduct of review, as well as efficient and quick.

The third amendment I am proposing to schedule 4 would clarify certain circumstances which may satisfy the IAA that exc