Migration Act 1958 Direction under section 499 Removal of Immigration Rights of Inhabitants of Protected Zone (Direction No. 18 of 1999) (Cth)

DIRECTION NO. 18

MIGRATION ACT 1958

DIRECTION UNDER S.499 – REMOVAL OF IMMIGRATION RIGHTS OF INHABITANTS OF PROTECTED ZONE

Direction - Removal of Immigration Rights s.16

PREAMBLE:

It is Government policy that allowed inhabitants of the Protected Zone be allowed to move freely within the Protected Zone in connection with the performance of traditional activities. An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen under s.13(2) of the Migration Act 1958 (the Act) and does not require a visa. This Direction covers the factors that the Minister (or his or her delegate) shall consider when deciding whether to make or revoke a declaration under s.16 of the Act.

The role of the Department of Immigration and Multicultural Affairs (DIMA) in relation to the Protected Zone is expressed in the Act and two bilateral agreements between Australia and Papua New Guinea, being:

•      The Torres Strait Treaty (the Treaty), signed in 1978 and ratified in 1985; and

•      Memorandum of Understanding on Illegal People Movement in the Torres Strait- signed

        in 1994

Article 1(k) of the Treaty defines "traditional activities" as being activities performed by the traditional inhabitants in accordance with local tradition. Such activities include;

•      activities on land including gardening, collection of food and hunting;

•      activities on water, including traditional fishing;

•      religious and secular ceremonies or gatherings for social purposes; and

•      barter and market trade.

Section 16 of the Act provides that the Minister (or his or her delegate) may declare, in writing, that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia. The Minister (or his or her delegate) may use a s.16 declaration where a specified inhabitant of the Protected Zone has breached the free movement provisions. The s.16 declaration removes the privileges enjoyed by allowed inhabitants under s.13 (2) and remains inforce until it is revoked.

THEREFORE I,Philip Maxwell Ruddock, the Minister for Immigration andMulticultural Affairs, hereby give the following Direction pursuant to s.499 of the Act to any person or body having functions or powers under s.16 of the Act:

1.      This Direction may be cited as Direction - Removal of Immigration Rights s.16 - No. 18

2.      An inhabitant of the Protected Zone shall be considered 'undesirable' if they do not comply with expected standards of behaviour that reflect local community attitudes to such matters as criminality, provocative conduct, complicity with others who are involved in, or connected with, criminal behaviour. Inhabitants of the Protected Zone must not be engaged in the performance of activities of a non-traditional nature.

3.      Matters of significant concern in the Torres Strait and the wider Australian community, and to which all persons or bodies who are bound to follow this Direction must attach significant weight in deciding whether or not a specified inhabitant of the Protected Zone should be declared undesirable under s16, are:

-      the commission of crime(s) by an inhabitant of the Protected Zone whether such was prosecuted or not or a conviction was recorded or not.

-      the inhabitant of the protected zone behaves or conducts themselves in a manner which has given, or could give, rise to concerns in the local community or a segment of it.

-      the inhabitant of the protected zone is a member of, or has an association with another person, group or organisation whom is/are reasonably suspected of being involved in criminal activity.

-      the commission of offences against the Act which involve penalties (either actually imposed or with a liability arising from the breach that could lead to such penalties being imposed), including escaping from lawful custody and offences relating to the trafficking of unlawful third-country nationals.

-      engaging in activities of a non-traditional nature as defined in Article 1(k) of the Treaty.

-      any other general conduct or activity which in the Minister’s opinion would lead to a conclusion that the inhabitant of the Protected Zone is not of good character.

4.      When considering the making of a declaration under s.16, due regard must be given to the nature, severity and frequency of any breaches or matters giving rise to significant concern. In this respect, the Government considers that due regard should be given to:

•      the seriousness or, conversely, the triviality of the offence or alleged offence;

•      whether or not the offence or alleged offence is of considerable public concern;

•      the availability and efficacy of alternatives to the making of a s.16 declaration;

•      whether or not the consequences of the making of a s.16 declaration would be unduly harsh or oppressive;

•      any mitigating or aggravating circumstances; and

•      the repetition of, or likelihood of the repetition of, breaches of the free movement provisions.

5.      The following are also regarded by the Government as matters which should be given due regard when considering the exercise of the discretion to declare, under s.16 that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia:

•      whether the inhabitant of the Protected Zone has a close familial relationship with a local member or members of the Australian community in the Protected Zone,

•      whether the non-citizen has been cautioned or advised in the past about conduct considered to be undesirable by:

-      an officer of DIMA;

-      a Movement Monitoring Officer;

-      Federal, State or local law enforcement officials;

-      Local government, council or community officials; or

-      an officer of the Australian Customs Service, Australian Quarantine and Inspection Service, Australian Fisheries Management Authority or Queensland Boating and Fisheries Patrol.

6.      When considering whether to revoke a declaration made under s.16, due regard must be given to the nature, severity and frequency of any breaches that led to the making of the s.16 declaration. In addition, the Government considers that due regard should be given to:

•      whether the circumstances which led the original decision to declare the individual undesirable continue to exist or are likely to re-occur;

•      whether the individual had sought to, or did, re-enter the Protected Zone unlawfully since the declaration;

•      whether the relevant Island Council supports the revocation of the declaration;

•      whether there are compelling and/or compassionate circumstances affecting the interests of an Australian citizen or permanent resident that justify revocation;

•      whether there are any risks to the Commonwealth of Australia, its laws or people in revoking the s.16 declaration; and

•      the length of time since the s.16 declaration was imposed.

7.      This direction is to take effect from the date of signature.

Dated this 17th day of August 1999

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs.