Migration Legislation Amendment Act (No. 2) 1995 (Cth)

Migration Legislation Amendment Act (No. 2) 1995

No. 1 of 1995

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

[Assented to 17 February 1995]

The Parliament of Australia enacts:

Short title

1. This Act may be cited as the Migration Legislation Amendment Act (No. 2) 1995.

Commencement

2. This Act commences on the day on which it receives the Royal Assent.

Schedule

3. The Migration Act 1958 is amended in accordance with the applicable items in the Schedule.

Applications made before People's Republic of China prescribed as a safe third country in relation to certain non-citizens

4.(1) Subject to subsection (3) and to section 91F of the Migration Act 1958, if:

(a) Subdivision AI of Division 3 of Part 2 of the Migration Act 1958 applies to a non-citizen immediately after Statutory Rules 1995 No. 3 took effect and did not apply to the non-citizen immediately before those Statutory Rules took effect; and

(b) during the period (the "transitional period") from the beginning of 30 December 1994 until immediately before those Statutory Rules took effect, the non-citizen made an application for a protection visa;

then:

(c) if the non-citizen had not been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a visa made during the transitional period, ceases to be a valid application on the commencement of this section; and

(d) if the non-citizen had been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a protection visa made during the transitional period, ceases to be a valid application on the commencement of this section; and

(e) on and after the commencement of this section, the Migration Act 1958 applies as if the non-citizen had applied for a protection visa immediately after that commencement.

(2) To avoid doubt:

(a) paragraphs (1)(c) and (d) apply even if an application referred to in the paragraph concerned, or a decision in relation to such an application, is the subject of a review by, or an appeal or application to, the Immigration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal, a Federal Court or any other body or court; and

(b) no visa may be granted to the non-citizen as a direct, or indirect, result of such an application.

(3) Subsection (1) does not apply in relation to a non-citizen who, before the commencement of this section, has:

(a) been granted a substantive visa as a result of an application referred to in that subsection; or

(b) been determined under the Migration Act 1958 to be a non-citizen who satisfies the criterion mentioned in subsection 36(2) of that Act.

(4) The Migration Act 1958 applies in relation to applications covered by subsection (1) as if:

(a) subsection 91F(1) of that Act were omitted and the following subsection substituted:

"(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that subsection 4(1) of the Migration Legislation Amendment Act (No. 2) 1995 does not apply to an application for a visa made by the non-citizen during the transitional period referred to in that subsection."; and

(b) subsection 198(7) of that Act were amended by omitting all the words after "migration zone" (first occurring).

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SCHEDULE Section 3

AMENDMENT OF THE MIGRATION ACT 1958

1. Subsection 91F(1):

Omit the subsection, substitute:

"(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine:

(a) that section 9IE does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given; or

(b) that section 91G does not apply to an application for a visa made by the non-citizen during the transitional period referred to in that section.".

2. After section 91F:

Insert in Subdivision AI of Division 3 of Part 2:

Applications made before regulations take effect

"91G.(1) Subject to section 91F and subsection (3), if:

(a) this Subdivision applies to a non-citizen immediately after a regulation prescribing a country as a safe third country takes effect and did not apply to the non-citizen immediately before that time; and

(b) the regulation prescribes a day as the cut off day; and

(c) during the period (the 'transitional period') from the beginning of the cut off day until immediately before that regulation takes effect, the non-citizen made an application for a protection visa;

then:

(d) if the non-citizen had not been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and

(e) if the non-citizen had been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a protection visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and

(f) on and after the regulation takes effect, this Act applies as if the non-citizen had applied for a protection visa immediately after the regulation takes effect.

SCHEDULE— continued

"(2) To avoid doubt:

(a) paragraphs (1)(d) and (e) apply even if an application referred to in the paragraph concerned, or a decision in relation to such an application, is the subject of a review by, or an appeal or application to, the Immigration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal, a Federal Court or any other body or court; and

(b) no visa may be granted to the non-citizen as a direct, or indirect, result of such an application.

"(3) Subsection (1) does not apply in relation to a non-citizen who, before the regulation referred to in that subsection takes effect, has:

(a) been granted a substantive visa as a result of an application referred to in that subsection; or

(b) been determined under this Act to be a non-citizen who satisfies the criterion mentioned in subsection 36(2).

"(4) The cut off day specified in the regulation must not be:

(a) before a day on which the Minister, by notice in the Gazette, announces that he or she intends that such a regulation will be made; or

(b) more than 6 months before the regulation takes effect.".

3. Subparagraph 198(7)(d)(i):

Omit "subsection 91F(1)", substitute "paragraph 91F(1)(a)".

4. Subparagraph 198(7)(d)(ii):

Omit "subsection", substitute "paragraph".

[Minister's second reading speech made in—

Senate on 31 January 1995

House of Representatives on 9 February 1995