EXPLANATORY STATEMENT
Migration Amendment (Protection and Other Measures) Act 2015
Migration Amendment (Protection and Other Measures) Commencement Proclamation
Item 3 of the table in subsection 2(1) of the Migration Amendment (Protection and Other Measures) Act 2015 (the POM Act) provides that Part 2 of Schedule 1 to the POM Act is to commence on a single day to be fixed by Proclamation.
Item 9 of the table in subsection 2(1) of the POM Act provides that Schedule 3 to the POM Act is to commence on a single day to be fixed by Proclamation.
Item 10 of the table in subsection 2(1) of the POM Act provides that Schedule 4 to the POM Act is to commence on a single day to be fixed by Proclamation.
However, if the provisions(s) do not commence within the period of 6 months beginning on the day the POM Act receives the Royal Assent, they commence on the day after the end of that period.
The purpose of the Proclamation is to fix 18 April 2015 as the day on which Part 2 of Schedule 1, Schedule 3 and Schedule 4 to the POM Act commence.
The POM Act implements a range of measures to increase efficiency and enhance integrity in the onshore protection status determination process. The purpose is to respond to the evolving challenges in the asylum seeker caseload arising from judicial decisions and management of illegal maritime arrivals.
Schedule 1 to the POM Act contains amendments which contribute to the integrity and improve the efficiency of the onshore protection status determination process. Specifically, the amendments in Part 2 of Schedule 1 to the POM Act:
- create grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship when requested to do so or provides bogus documents in response to such a request; or provides bogus documents for the purpose of their application or destroys or disposes of documentary evidence of their identity, nationality or citizenship, or causes such evidence to be destroyed or disposed of. However, the refusal power will not apply if the applicant has a reasonable explanation and either produces documentary evidence of their identity, nationality or citizenship, or has taken reasonable steps to provide such evidence;
- clarify when an applicant who applies for a protection visa, where a criterion for the grant of a visa is that they are a family member of a person who engages Australia’s protection obligations, is to make their application for a protection visa in order to be eligible for the visa; and
- provide for the Refugee Review Tribunal (RRT) to draw an unfavourable inference with regard to the credibility of claims or evidence that are raised by a protection visa applicant at the review stage for the first time, if the applicant has no reasonable explanation to justify why those claims and evidence were not raised before a primary decision was made.
Schedule 3 to the POM Act contains amendments relating to unauthorised maritime arrivals and transitory persons, as defined in the Migration Act 1958 (Migration Act), making a valid application for a visa. Specifically, the amendments will ensure that unauthorised maritime arrivals and transitory persons who are unlawful non-citizens and who hold a bridging visa, a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this provision, will be prevented from making a valid application for a visa unless the Minister determines that it is in the public interest to allow them to do so.
The amendments in Schedule 3 to the POM Act will also provide that such a determination may have effect only for the period of time specified, may have a different period of time specified for different classes of unauthorised maritime arrivals, and may be varied or revoked by the Minister. The amendments will also ensure that where section 46A of the Migration Act applies to an unauthorised maritime arrival, the application bar in section 91K of the Migration Act will no longer apply. The amendments make the statutory bar in section 46B, which applies to transitory persons, consistent with the amended bar in section 46A, to ensure that transitory persons are treated consistently with unauthorised maritime arrivals. These amendments streamline the operation of the statutory bars and support the orderly management of visa applications.
Schedule 4 to the POM Act contains amendments relating to the Migration Review Tribunal and the RRT. The amendments apply to both Tribunals and seek to improve their processing and administration. The powers of the Principal Member will be strengthened to enable them to issue practice directions to review applicants and their representatives (including migration agents and legal practitioners) about the procedures they are to follow in relation to proceedings before the Tribunal. The directions will also provide guidance on processing practices relating to the conduct of reviews. The Principal Member will also be able to issue guidance decisions to members of the Tribunals. Guidance decisions will not go to the conduct of the review, but relate to issues identified on review of a case that provide guidance for subsequent cases on review with like issues and like evidence. In conducting reviews of this kind, the Tribunal must comply with the guidance decision unless a Tribunal member is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances in the guidance decision. However, if the Tribunal member fails to comply with a guidance decision in making a decision, it will not invalidate that decision.
The amendments will also provide a power to the Tribunals to enable them to provide an oral statement of reasons where there is an oral decision. This discretionary provision will also provide that where an oral statement of reasons is given, a written statement of reasons is to be provided to the review applicant if they request it within a specified period as prescribed by the regulations. The Tribunals will also be able to dismiss an application where an applicant fails to appear before the Tribunal after being invited to do so. The Tribunals will have the power to reinstate an application that has been dismissed for non-attendance, if the applicant seeks reinstatement within a specified period and the Tribunal considers it appropriate to do so.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.