Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/007

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Legislation au F2016L00455 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Act 1958

CLASS OF PERSONS DEFINED AS A FAST TRACK APPLICANT 2016/007

(Paragraph 5(1AA)(b))

  1. Instrument IMMI 16/007 is made under paragraph 5(1AA)(b) of the Migration Act 1958 (the Act).
  2. The purpose of the Instrument is to specify a class of persons for the purposes of paragraph (b) of the definition of ‘fast track applicant’ in subsection 5(1) of the Act.
  3. Paragraph 1) of the Instrument specifies that class of persons as a person who is an unauthorised maritime arrival born in the migration zone on or after 1 January 2014 and who is a child of a person who is a fast track applicant as defined in paragraph 5(1) of the Act, and who has made a valid application for a protection visa and before the  commencement of the Instrument, is not a child of an unauthorised maritime arrival who both entered the migration zone before 13 August 2012 and made a valid application for a protection visa before the commencement of the Instrument
  4. Consultation was undertaken with the Immigration Assessment Authority within the Administrative Appeals Tribunal and with the Minister’s Advisory Council on Asylum Seekers and Detention.
  5. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 20066).
  6. Under section 42 of the Legislation Act 2003, the Instrument is subject to disallowance and therefore a Statement of Compatibility with Human Rights is attached.
  7. The Instrument, IMMI 16/007, commences on the day after it is registered on the Federal Register of Legislative Instruments.


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Class of Persons Defined as Fast Track Applicants 2016/007

(Paragraph 5(1AA)(b))

Legislative Instrument IMMI 16/007

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Legislative Instrument (the Instrument) is made under paragraph 5(1AA)(b) of the Migration Act 1958 (the Act).  The Instrument specifies classes of persons so that, in accordance with paragraph (b) of the definition of fast track applicant in subsection 5(1) the Act, a person included in that class is a fast track applicant.

A fast track applicant is defined as:

(a)          A person:

(i)            who is an unauthorised maritime arrival who entered Australia on or after
13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)         to whom the Minister has given written notice under subsection 46A(2) of the Act determining that subsection 46A(1) of the Act does not apply to an application by the person for a protection visa; and

(iii)       who has made a valid application for a protection visa in accordance with the determination; or

(b)          a person who is, or who is included in a class of persons who are, specified by legislative instrument under paragraph 5(1AA)(b) of the Act.


This instrument specifies the following class of persons to be fast track applicants:

Persons who:

  • were born in the migration zone on or after 1 January 2014;
  • are the child of a person who falls within the definition of fast track applicant in paragraph 5(1)(a) of the Act;
  • have made a valid application for a protection visa; and
  • have not been included in a valid protection visa application made by a parent who is an unauthorised maritime arrival who entered Australia before 13 August 2012.

The fast track assessment process was established by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (the RALC Act). The definition of fast track applicant in the RALC Act is restricted to unauthorised maritime arrivals (UMAs) who entered Australia on or after 13 August 2012 and before
1 January 2014.  An unintended consequence of this restriction is that the fast track process does not apply to infants born on or after 1 January 2014 to unauthorised maritime arrival parents who are subject to the fast track processing framework.  Under the Act, these infants are regarded as entering Australia on the date of their birth.

Specifying that these infants are fast track applicants will allow them to have their protection claims and immigration status managed as part of a family unit with their parents and any siblings. 

A very small number of infants may have a parent who is covered by the definition of
fast track applicant and a parent who is not a fast track applicant because they are an UMA who entered Australia before 13 August 2012.  Where the infant has already made a valid protection visa application with a parent who arrived before 13 August 2012, this Instrument does not make the infant a fast track applicant or affect their existing application.  However, where the infant has not made an application at the time this Instrument commences or is not born before that date, any future application will be assessed under the fast track process. 

Human rights implications

This instrument has been assessed against the seven core treaties that comprise Australia’s human rights obligations.


Best interests of the child

Article 3 of the Convention on the Rights of the Child (CRC) states:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The instrument defines children born in Australia on or after 1 January 2014, to a parent who is an UMA and a fast track applicant, as fast track applicants.  As a consequence, if the Minister lifts the application bar in section 46A of the Act, these children will have their claims for protection assessed under the fast track assessment process.  Such children may be included in a parent or parents’ application, allowing their protection claims to be considered and processed together.

The Government is committed to acting in accordance with Article 3 of the CRC.  In making this instrument, the Minister considered the best interests of the child as primary consideration.  Allowing children to remain with their parents is generally in their best interests and providing children with the same status and process as their parents facilitates this.

Family unity

Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) states:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

Article 23(1) of the ICCPR states:

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

The Instrument positively engages Article 17(1) and Article 23(1) of the ICCPR.  The Instrument provides a mechanism for children specified as fast track applicants to have their protection claims processed in Australia under the fast track assessment process along with other members of their family unit.  By ensuring these children’s claims can be assessed with their immediate family members’, the measure will operate to prevent the possible separation of family members and is consistent with the principle of family unity.

The human rights compatibility of the fast track assessment process is extensively addressed in the Statement of Compatibility for the Migration and Maritime Powers Legislation Amendment (Resolving the Legacy Caseload) Act 2014.

Conclusion

The Legislative Instrument is compatible with human rights because it is consistent with Australia’s human rights obligations.

The Hon. Peter Dutton MP, Minister for Immigration and Border Protection

Overview

The Legislative Instrument IMMI 16/007, made under the Migration Act 1958, aims to address a gap in the fast track assessment process for children born in Australia to unauthorised maritime arrivals who are fast track applicants. Enacted in 2016 by the Australian Government, the purpose of this Instrument is to specify a class of persons for the purposes of paragraph (b) of the definition of ‘fast track applicant’ in the Act. This legislative measure ensures that children born in Australia on or after 1 January 2014 to parents who are fast track applicants are included in the fast track process, thus aligning their protection claims and immigration status with their family unit. This legislative change is designed to maintain family unity and ensure the best interests of the child, as recognised under international human rights instruments such as the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The Instrument was developed following consultation with relevant authorities and the Office of Best Practice Regulation determined that a Regulatory Impact Statement was not required. It is subject to disallowance under section 42 of the Legislation Act 2003 and a Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The Instrument is compatible with Australia’s human rights obligations, ensuring that the best interests of the child and family unity are upheld. It is compatible with the international instruments listed in the Human Rights (Parliamentary Scrutiny) Act 2011.

Scope and Application

The Legislative Instrument IMMI 16/007, made under the Migration Act 1958, specifies a class of persons for the purposes of paragraph (b) of the definition of 'fast track applicant' in subsection 5(1) of the Act. This class includes children born in the migration zone on or after 1 January 2014 who are the offspring of a fast track applicant, have made a valid application for a protection visa, and were not included in a valid application made by a parent who is an unauthorised maritime arrival who entered Australia before 13 August 2012. The instrument aims to address an unintended consequence of the fast track assessment process by ensuring that children born in Australia to parents who are subject to this framework have their protection claims assessed under the same process as their parents. This alignment facilitates family unity and the best interests of the child, consistent with Australia’s human rights obligations, particularly the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights. The instrument is subject to disallowance and a Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. This instrument applies to a specific class of individuals within the migration zone, namely children born on or after 1 January 2014 to parents who are fast track applicants. The scope of this legislation is limited to the Commonwealth jurisdiction of Australia, as it is made under the Migration Act 1958, which is a federal statute. The instrument does not extend or restrict the application of the Migration Act beyond its existing parameters, but rather clarifies the definition of a fast track applicant to include the specified class of persons. The legislative instrument commences on the day after it is registered on the Federal Register of Legislative Instruments, and there are no exclusions or exemptions stated within the text. The instrument ensures compatibility with human rights as recognised in international instruments and is consistent with Australia's human rights obligations.

Key Provisions

The Legislative Instrument IMMI 16/007 specifies a class of persons for the purposes of the definition of 'fast track applicant' under the Migration Act 1958 (section 5(1)). This Instrument identifies a specific group of individuals as fast track applicants, which includes persons born in the migration zone on or after 1 January 2014, who are children of fast track applicants, have made a valid application for a protection visa, and who were not previously included in a protection visa application made by a parent who is an unauthorised maritime arrival (UMA) who entered Australia before 13 August 2012. This class of persons is defined in paragraph 1 of the Instrument and is intended to ensure that these children can have their protection claims and immigration status managed as part of their family unit under the fast track assessment process. The Instrument imposes several obligations on the relevant parties. Firstly, it requires the Department of Immigration and Border Protection to recognise and process the protection visa applications of the specified class of persons as fast track applicants. Secondly, it mandates that these individuals are assessed and managed under the fast track process, which is designed to expedite the processing of protection claims for certain UMAs. This includes ensuring that these individuals are not subjected to the application bar imposed by section 46A of the Act, if the Minister chooses to lift that bar. Finally, the Instrument requires the Department to ensure that these individuals’ applications are processed in conjunction with their immediate family members, promoting family unity. There are no explicit offences or penalties outlined in the Legislative Instrument IMMI 16/007. However, any breaches of the requirements set out in the Act, such as failure to recognise a fast track applicant or to process their application under the fast track process, could potentially lead to legal challenges and administrative reviews. The consequences of such breaches could include orders for the Department to correct its actions, and possibly, damages or other remedies for individuals adversely affected by the non-compliance. The Instrument is subject to disallowance under section 42 of the Legislation Act 2003, meaning it can be annulled by a resolution of either House of Parliament. The Legislative Instrument is compatible with human rights, as it is consistent with Australia’s international human rights obligations. The compatibility statement confirms that the Instrument aligns with the best interests of the child as outlined in Article 3 of the Convention on the Rights of the Child, and supports family unity as required by Articles 17(1) and 23(1) of the International Covenant on Civil and Political Rights. The Instrument ensures that children born in Australia to fast track applicants are considered and processed under the same framework as their parents, thereby promoting family unity and the best interests of the child.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.