EXPLANATORY STATEMENT
Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2005 (No. 2)
The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2005 (No. 2) (the Determination) is made under subsection 739A(6) of the Social Security Act 1991 (the Act).
Purpose
The purpose of the Determination is to enable any person who is the holder of a subclass 070 (Bridging (Removal Pending)) (Class WR) visa to be able to access special benefit without having to serve the newly arrived resident’s waiting period of 104 weeks.
The holders of subclass 070 visas are unlawful non-citizens who have been held in detention centres for extended periods because of a variety of reasons that have made their removal from Australia difficult and who are not refugees.
Background
Subsections 739A(1) and (5) of the Act provide that a person is subject to a newly arrived resident’s waiting period of 104 weeks if that person enters Australia on or after the commencement of subsection 739A(1) of the Act, or becomes the holder of a permanent visa, or becomes the holder of a visa that is in a class of visas determined by the Minister for the purposes of paragraph 739A(1)(e) of the Act. Subsection 739A(1) of the Act commenced on 4 March 1997.
Subsection 739A(6) of the Act enables the Minister to make a determination that neither subsection 739A(1) nor (2) of the Act applies to a person who holds a visa or was a former holder of a visa in a class of visas for the purposes of this subsection.
Any person granted a subclass 070 visa has been determined to not be a refugee but because they have been detained for an extended period they will be offered the opportunity, where the Minister for Immigration and Multicultural and Indigenous Affairs believes it is not reasonably practicable to achieve removal from Australia in the short term and where the person undertakes to fully cooperate with the removal, to be released from detention.
This legislative instrument subject to disallowance will ensure that holders of a subclass 070 visa will be exempt from the newly arrived residents waiting period.
The Minister has also determined under subparagraph 729(2)(f)(v) of the Act that any person who is the holder of a subclass 070 visa will be able to access special benefit. Further, the Minister has determined under subparagraph 729(2)(g)(i) that certain persons who hold a subclass 070 visa will be required to satisfy the activity test set out in section 731A of the Act.
Consultation
No consultation in relation to the Determination was undertaken because this legislative instrument is of a minor or machinery nature that does not substantially alter existing arrangements.
Explanation of the provisions
Section 1 of the Determination states the name of the determination.
Section 2 states that the Determination commences on the day following the registration of the Determination on the Federal Register of Legislative Instruments.
Section 3 provides that any person who is the holder of a subclass 070 (Bridging (Removal Pending)) (Class WR) visa will not be subject to a newly arrived resident’s waiting period.
Overview
The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2005 (No. 2) was enacted to address the specific issue of providing timely access to special benefits for holders of subclass 070 (Bridging (Removal Pending)) visas, who are non-refugee unlawful non-citizens held in detention for extended periods due to difficulties in their removal from Australia. This Determination is made under subsection 739A(6) of the Social Security Act 1991 by the Minister for Immigration and Multicultural and Indigenous Affairs, and its policy objective is to ensure these individuals can access special benefits without the necessity of serving a 104-week waiting period, provided they cooperate with their removal from Australia. This legislative instrument, subject to disallowance, was deemed minor and did not require consultation due to its limited alteration of existing arrangements.
Scope and Application
The Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2005 (No. 2) applies to any person who holds a subclass 070 (Bridging (Removal Pending)) (Class WR) visa, allowing these individuals to access special benefits without having to serve the usual 104-week waiting period imposed on newly arrived residents. This determination is made under the authority provided by subsection 739A(6) of the Social Security Act 1991 and is intended for unlawful non-citizens who have been held in detention for extended periods and are not classified as refugees. The exemption applies to those individuals for whom it is deemed not reasonably practicable to achieve removal from Australia in the short term, provided they undertake to fully cooperate with the removal process. This legislation operates within the Commonwealth jurisdiction and does not include any specific exclusions or exemptions beyond those defined by the subclass 070 visa criteria. The application of the Act can be further refined through subordinate instruments, though none are specified in this particular determination.
Key Provisions
The main operative sections of the Social Security (Class of Visas—Newly Arrived Resident’s Waiting Period for Special Benefit) Determination 2005 (No. 2) (section 3) provide that any person who holds a subclass 070 (Bridging (Removal Pending)) (Class WR) visa will be exempt from the newly arrived resident's waiting period of 104 weeks. This is a specific exemption for individuals who have been held in detention centres for extended periods and have been granted a subclass 070 visa. This visa is typically given to unlawful non-citizens who are not refugees and whose removal from Australia has been challenging due to various reasons.
This legislation imposes certain obligations on the individuals holding a subclass 070 visa. Firstly, they must be unlawful non-citizens who have been held in detention for extended periods and have been granted the subclass 070 visa. Secondly, these individuals must undertake to fully cooperate with their removal from Australia, as determined by the Minister for Immigration and Multicultural and Indigenous Affairs. The subclass 070 visa is offered to those individuals for whom it is not reasonably practicable to achieve removal from Australia in the short term. Furthermore, under subparagraph 729(2)(g)(i) of the Act, certain persons who hold a subclass 070 visa will be required to satisfy the activity test set out in section 731A of the Act.
In terms of breaches, the legislation does not explicitly detail specific offences or penalties for non-compliance with the provisions. However, failure to comply with the requirements of the subclass 070 visa, such as not cooperating with removal or not satisfying the activity test, could potentially lead to complications with visa status and immigration enforcement actions. The penalties for breaches related to immigration status are governed by other sections of the Social Security Act 1991 and the Migration Act 1958, and can include fines, imprisonment, or deportation, depending on the nature and severity of the breach.
It is important to note that the primary focus of this Determination is to provide a pathway for certain individuals who have been detained for extended periods to access special benefits without the need to serve the newly arrived resident's waiting period. This is a compassionate measure intended to support those who have faced significant challenges in their circumstances. However, the Determination also seeks to ensure that these individuals cooperate with their removal from Australia and comply with other relevant requirements, to maintain the integrity of the immigration system.