Migration Amendment (Complementary Protection) Act 2011
No. 121, 2011
An Act to amend the Migration Act 1958, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Amendments
Migration Act 1958
Migration Amendment (Complementary Protection) Act 2011
No. 121, 2011
An Act to amend the Migration Act 1958, and for related purposes
[Assented to 14 October 2011]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Amendment (Complementary Protection) Act 2011.
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 |
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. | 14 October 2011 |
2. Schedule 1, items 1 to 17 | A single day to be fixed by Proclamation. However, if any of 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. | 24 March 2012 (see F2012L00650) |
3. Schedule 1, item 18 | Immediately after the commencement of the provision(s) covered by table item 2. | 24 March 2012 |
4. Schedule 1, items 19 and 20 | At the same time as the provision(s) covered by table item 2. | 24 March 2012 |
5. Schedule 1, item 21 | Immediately after the commencement of the provision(s) covered by table item 2. | 24 March 2012 |
6. Schedule 1, items 22 to 35 | At the same time as the provision(s) covered by table item 2. | 24 March 2012 |
Note: This table relates only to the provisions of this Act as originally enacted.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Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendments
Migration Act 1958
1 Subsection 5(1)
Insert:
Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.
2 Subsection 5(1)
Insert:
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted…
Overview
The Migration Amendment (Complementary Protection) Act 2011 was enacted by the Parliament of Australia to address the gap in the existing framework for granting protection to non-citizens who may suffer significant harm if returned to their home country. This Act amends the Migration Act 1958 to introduce a complementary protection pathway for individuals who do not meet the strict criteria for refugee status but still face serious risks if deported. The policy objective of this legislation is to provide a mechanism for granting protection visas to non-citizens who are unable to avail themselves of the traditional refugee protection pathway but are in need of international protection due to significant harm they may face in their home country. The Act includes provisions to ensure that protection visas are not granted to individuals who pose a threat to Australia's security or have committed serious crimes.
Scope and Application
The Migration Amendment (Complementary Protection) Act 2011 amends the Migration Act 1958 to introduce new provisions concerning the grant of protection visas to non-citizens. This Act applies to non-citizens who are seeking protection visas in Australia and have concerns about suffering significant harm if they are returned to their country of nationality or habitual residence. The Act primarily affects individuals and entities involved in the visa application process, including non-citizens, the Minister for Immigration and Border Protection, and Australian Government departments and agencies responsible for assessing and determining visa applications. The Act has a national jurisdictional reach as it amends Commonwealth legislation. There are no explicit exclusions or thresholds specified in the Act, but eligibility for protection visas is subject to various conditions and criteria outlined in the Migration Act 1958 and the amendments introduced by this Act. The Act may be extended or restricted through subordinate instruments such as regulations, which can provide further detail on the implementation and operation of the amended provisions.
Key Provisions
- The Migration Amendment (Complementary Protection) Act 2011 amends the Migration Act 1958 to introduce new definitions and provisions related to complementary protection for non-citizens. Under the Act, a non-citizen may be granted a protection visa if they meet certain criteria, such as having a well-founded fear of persecution or being at risk of significant harm if removed from Australia (subsection 36(2)(a), (aa), (b) or (c)). The Act also includes provisions for ineligibility for a protection visa if the non-citizen has committed certain crimes or poses a danger to Australia's security (subsection 36(2C)). Additionally, the Act modifies the definition of "application for a protection visa" to include applications made by offshore entry persons who claim they will suffer significant harm (subsection 48A(2)).
- The Act imposes several obligations on non-citizens seeking a protection visa, including the requirement to provide information and evidence to support their claim for protection (subsection 36(4)). Non-citizens must also comply with any directions given by the Minister under the Act (subsection 36(5)). Furthermore, non-citizens who make a claim for protection must do so in good faith and provide accurate and complete information (subsection 36(6)). The Act also imposes obligations on the Minister, including the duty to determine applications for protection visas in accordance with the law and to consider any relevant information provided by the non-citizen (subsection 36(7)).
- Breaching the provisions of the Act can result in civil and criminal penalties. For example, making a false or misleading statement in an application for a protection visa can result in a maximum penalty of 500 penalty units or imprisonment for 2 years, or both (subsection 232A(1)). Similarly, providing false or misleading information to the Minister in relation to a non-citizen's eligibility for a protection visa can result in a maximum penalty of 250 penalty units or imprisonment for 1 year, or both (subsection 232B(1)). Additionally, the Act includes provisions for the cancellation of a protection visa if the non-citizen no longer meets the criteria for the visa or if they have committed an offence that makes them ineligible for the visa (subsection 116(1)). The Act also provides for the deportation of non-citizens who have been refused a protection visa or whose visa has been cancelled (subsection 198(1)).
- Area of Law
- Immigration & Refugee Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Licensing & Registration
- Prohibited Conduct