Migration (Offences and Undesirable Persons) Amendment Act 1992

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.