Migration (Offences and Undesirable Persons) Amendment Act 1992
No. 213 of 1992
An Act to amend the Migration Act 1958
[Assented to 24 December 1992]
The Parliament of Australia enacts:
Short title etc.
1.(1) This Act may be cited as the Migration (Offences and Undesirable Persons) Amendment Act 1992.
(2) In this Act, “Principal Act” means the Migration Act 19581.
Commencement
2.(1) Subject to subsection (2), this Act commences on the day on which it receives the Royal Assent.
(2) Subsection 4(2) and sections 6 and 7 commence on 1 November 1993.
3. After section 83 of the Principal Act the following section is inserted:
Offences relating to visas
“83AA. A person must not:
(a) for purpose of travel to Australia, remaining in Australia or identification, use a visa that was granted to another person; or
(b) without reasonable excuse, have in his or her possession or under his or her control a visa that was not granted to him or her.
Penalty: Imprisonment for 2 years.”.
Review of decisions
4.(1) Section 180 of the Principal Act is amended:
(a) by omitting subsection (1) and substituting the following subsection:
“(1) Applications may be made to the Administrative Appeals Tribunal for review of:
(a) decisions of the Minister under section 55; or
(b) decisions of the Minister under section 180A;
other than decisions to which a certificate under section 180B applies.”;
(b) by omitting from subsection (2) “subsection (1)” and substituting “paragraph (1)(a)”;
(c) by omitting subsection (3) and substituting the following subsections:
“(3) A person who is the subject of a decision referred to in paragraph (1)(b) is not entitled to make an application under subsection (1) for review of the decision unless the person has entered Australia and has not left Australia.
“(3A) A person other than the person who is the subject of a decision referred to in paragraph (1)(b) is not entitled to make an application under subsection (1) for review of the decision unless the person would be entitled to seek review of the decision under Part 3 if the decision had been made on another ground.
“(3B) Decisions referred to in subsection (1) are not reviewable under Part 3.”.
(2) Section 180 of the Principal Act is amended:
(a) by omitting from paragraph (1)(a) “section 56” and substituting “section 55 because of circumstances specified in section 55”;
(b) by inserting after paragraph (1)(b) the following word and paragraph:
“; or (c) a decision to refuse an application for a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Article 1F, 32 or 33(2).”;
(c) by omitting subsections (3) and (3A) and substituting the following subsection:
“(3) A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 3…
Overview
The Migration (Offences and Undesirable Persons) Amendment Act 1992, enacted by the Parliament of Australia and assented to on 24 December 1992, amends the Migration Act 1958 to address gaps in the regulation of visas and the exclusion of undesirable persons from Australia. This amendment introduces stricter penalties for visa fraud, where using a visa not issued to oneself or remaining in Australia under another person's visa is now a punishable offence with a penalty of up to two years imprisonment. Additionally, the Act broadens the scope of reviewable decisions to include specific ministerial decisions under certain conditions, enhancing the accountability of the visa refusal and cancellation process. The policy objective is to bolster the integrity of the visa system and safeguard national security by preventing undesirable persons from entering or remaining in Australia.
Scope and Application
The Migration (Offences and Undesirable Persons) Amendment Act 1992 amends the Migration Act 1958 to address the misuse of visas, provide for the review of certain decisions by the Administrative Appeals Tribunal, and empower the Minister to refuse or cancel visas and entry permits under specific circumstances. This Act applies to any person who uses a visa that was granted to another person for purposes of travel to Australia, remaining in Australia, or identification, as well as to any person in possession of a visa that was not granted to them without reasonable excuse. The Act also applies to the Minister of Immigration, who has the authority to refuse or cancel a visa or entry permit, and to declare certain individuals as excluded persons if it is deemed to be in the national interest. The geographic reach of this Act is national, as it applies throughout Australia and is enacted by the Commonwealth Parliament. The Act extends its application through subordinate instruments, such as regulations that determine the period of exclusion for certain individuals. Additionally, the Act does not apply to decisions to which a certificate under section 180B applies, and the Minister’s power to refuse or cancel visas and entry permits is in addition to any other powers under the Principal Act.
Key Provisions
- The Migration (Offences and Undesirable Persons) Amendment Act 1992 introduces significant changes to the Migration Act 1958, primarily focusing on enhancing control over visa misuse and the exclusion of undesirable individuals from Australia. Section 83AA (3) introduces a prohibition against using a visa granted to another person for travel to Australia, remaining in Australia, or identification purposes. It also prohibits possessing a visa not granted to oneself without reasonable excuse, with a penalty of up to two years' imprisonment for breach of these provisions.
- Under the amendments, the scope of reviewable decisions by the Administrative Appeals Tribunal has been expanded. Section 180 (1) now allows for the review of decisions made under section 55 and section 180A of the Principal Act, as well as decisions to refuse or cancel a protection visa based on specific Articles of the Refugees Convention (1F, 32, or 33(2)). However, certain decisions, such as those subject to a certificate under section 180B, are excluded from review. Additionally, eligibility for review is restricted based on the individual's presence in Australia and their entitlement to seek review under other parts of the Act.
- The Act grants the Minister the authority to refuse or cancel visas or entry permits for individuals deemed to be of bad character or likely to pose a threat to the Australian community. This power is exercised if the Minister is satisfied that the person is not of good character based on their past criminal conduct, general conduct, or associations with individuals or groups involved in criminal activities. Furthermore, the Minister can refuse entry or cancel a visa if the person is likely to engage in criminal conduct, vilify a segment of the Australian community, incite discord, or represent a danger to the community.
- The Act also allows the Minister to declare certain individuals as excluded persons if it is deemed to be in the national interest. This declaration is applicable to decisions made under section 55 or 180A of the Principal Act, and individuals so declared are prohibited from entering or remaining in Australia for a period determined by regulations. The Minister must personally make this decision and notify both Houses of Parliament within 15 sitting days of the decision.
- Breach of the provisions introduced by the Act can lead to severe consequences. The misuse of visas carries a maximum penalty of two years' imprisonment under section 83AA (3). Additionally, individuals declared as excluded persons under section 180C are barred from entering or remaining in Australia for a specified period, with the exact duration determined by regulations. These provisions aim to strengthen the integrity of Australia's migration system and protect the national interest by preventing undesirable individuals from entering the country.
- Area of Law
- Immigration & Refugee Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Offence Provisions
- Review & Sunset Clauses
- Reporting & Disclosure Obligations
- Exclusions & Exclusions
