Explanatory Statement
Issued by the Authority of the Minister for Immigration and Citizenship
Migration Legislation Amendment Act (No. 1) 2008
Proclamation
Schedule 4 to the Migration Legislation Amendment Act (No. 1) 2008 (‘the Amendment Act’) provides for miscellaneous amendments to the Migration Act 1958 (‘the Act’).
In particular:
- Item 5 of Schedule 4 to the Amendment Act inserts new section 501HA into the Act, to clarify that where a transitional (permanent) visa or a transitional (temporary) visa is taken to be held by a non-citizen under the Migration Reform (Transitional Provisions) Regulations, that person is taken for the purposes of sections 501 to 501H of the Act to have been ‘granted’ that visa.
- Subitem 6(3) of Schedule 4 to the Amendment Act provides that the amendment made by item 5 of that Schedule applies in respect of a decision to cancel a visa that is made under the Act on or after the day on which item 5 commences.
- Item 7 of Schedule 4 to the Amendment Act provides that to avoid doubt, any decision made or purported to be made to cancel a transitional (permanent) visa or transitional (temporary) visa under sections 501, 501A, 501B, 501C or 501F of the Act (as in force at any time on or after 1 September 1994 and before the day on which item 7 commences) is valid and is taken to have always been valid as if the transitional visa had been granted.
Item 6 of the table in subsection 2(1) of the Amendment Act provides that Schedule 4 to the Amendment Act commences on a day to be fixed by Proclamation. If any of the provision(s) do not commence within the period of six months beginning on the day on which the Amendment Act receives the Royal Assent, they commence on the first day after the end of that six month period. The Amendment Act has received the Royal Assent.
The Proclamation fixes 19 September 2008 as the day on which item 5, subitem 6(3) and item 7 of Schedule 4 to the Amendment Act commences.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Migration Legislation Amendment Act (No. 1) 2008 was enacted to address ambiguities and ensure clarity in the legal status of transitional visas under the Migration Act 1958. This Act, proclaimed by the Minister for Immigration and Citizenship, aimed to provide certainty regarding the interpretation of visa statuses for transitional visa holders. The legislation ensures that transitional visas are recognised as having been 'granted' for the purposes of visa cancellation provisions, thereby providing a clear framework for administrative decisions concerning visa holders. The objective of this amendment is to avoid any potential legal disputes over the validity of visa cancellation decisions made under the Migration Act.
This Act was passed by the Australian Parliament and received Royal Assent, with a Proclamation subsequently setting the commencement date for the provisions, including the clarification of transitional visa statuses and the validation of past cancellation decisions. The amendments aim to resolve any uncertainties that may have arisen from the transitional provisions of the Migration Reform, ensuring that the legal treatment of these visas aligns with the legislative intent and provides a robust framework for visa administration.
Scope and Application
The Migration Legislation Amendment Act (No. 1) 2008, through its Schedule 4, amends the Migration Act 1958 to address specific transitional visa provisions. This amendment applies to non-citizens who hold or are considered to hold transitional (permanent) or transitional (temporary) visas under the Migration Reform (Transitional Provisions) Regulations. These amendments ensure clarity in the interpretation of visa status for the purposes of sections 501 to 501H of the Act, specifically clarifying that such transitional visa holders are deemed to have been 'granted' these visas. The application of these amendments extends to decisions made under the Act to cancel such visas on or after the commencement date of the provisions, which is fixed by the Proclamation as 19 September 2008. This legislative change aims to provide certainty and validity to past decisions regarding the cancellation of transitional visas, ensuring they are recognised as always having been legally sound.
The scope of these amendments is national, applying across Australia, and affects any decision made under the Migration Act concerning transitional visas since 1 September 1994. The amendments do not specify any exclusions, exemptions, or thresholds; instead, they broadly apply to all non-citizens holding transitional visas and to all decisions made under the Act regarding such visas. While the Act itself does not explicitly extend its application through subordinate instruments, the regulations and instruments made under the Migration Act may further define or implement these provisions.
Key Provisions
The Migration Legislation Amendment Act (No. 1) 2008 introduces new provisions to the Migration Act 1958, primarily through Schedule 4, which aims to clarify certain aspects of transitional visa status and cancellation decisions. Section 501HA, introduced by item 5 of Schedule 4, specifies that a non-citizen holding a transitional (permanent) visa or a transitional (temporary) visa is considered to have been 'granted' that visa for the purposes of sections 501 to 501H of the Act (paragraph 1). This clarification is intended to ensure that the legal status of these visa holders is properly understood and applied within the legislative framework.
The obligations imposed by these provisions on parties, particularly the visa holders and the Department of Immigration and Citizenship, include ensuring that the status and rights of individuals holding transitional visas are accurately recognised and that any decisions regarding visa cancellations are made in accordance with the amended sections (paragraph 2). Specifically, item 6(3) of Schedule 4 mandates that the new interpretation applies to visa cancellation decisions made under the Act on or after the commencement date specified by the Proclamation, which is 19 September 2008 (paragraph 3). Furthermore, item 7 of Schedule 4 asserts the validity of any prior decisions to cancel transitional visas, ensuring that such decisions are considered legally sound and enforceable as if the visas had been formally granted (paragraph 4).
In terms of consequences for breaches or non-compliance, the Act does not explicitly outline specific offences, penalties, or consequences for failing to adhere to these provisions. However, it is implicit that any non-compliance with the legislative requirements could result in legal challenges or disputes regarding the validity of visa cancellation decisions. Such disputes could potentially lead to judicial review or other legal remedies, with the courts interpreting the provisions of the Act and the Amendment Act to determine the rights and obligations of the parties involved (paragraph 5).