EXPLANATORY STATEMENT
Social Security (Class of Visas – Qualification for Special Benefit) Determination 2014
Purpose
The purpose of this Determination is to grant qualification for Special Benefit under subparagraph 729(2)(f)(v) of the Social Security Act 1991 (the Act) to holders of a Subclass 449 (Humanitarian Stay (Temporary)) visa.
Background
A person may be qualified for Special Benefit under the Act if they are:
- in severe financial hardship;
- unable to earn a sufficient livelihood for themselves and dependants due to reasons beyond their control;
- not qualified for any other income support payment; and
- an Australian resident or the holder of a temporary visa in a class of visas determined by the Minister for the purpose of subparagraph 729(2)(f)(v) of the Act.
A number of different visa classes have been determined for the purpose of subparagraph 729(2)(f)(v) of the Act. Those determinations are unaffected by this Determination.
The Subclass 449 visa is a subclass of the Temporary Safe Haven (Class UJ) visa. It is a generic humanitarian visa that provides temporary stay in Australia primarily for a person who:
- is displaced, or likely to be displaced, from his or her place of residence; and
- has grave fears for his or her personal safety because of the circumstances in which, or reasons why he or she was, or may be, displaced from his or her place of residence.
There is no application form for a Temporary Safe Haven (Class UJ) visa; an authorised officer must invite a person to apply for the visa.
A person must be the holder of a Subclass 449 visa in order to be eligible for the grant of a Subclass 786 (Temporary (Humanitarian Concern)) visa. A person must satisfy health, character and security checks before they can be granted a Subclass 786 visa.
The Social Security (Class of Visas – Qualification for Special Benefit) Determination 2009, which is currently in effect, determines that a Subclass 786 visa is in a class of visas for the purpose of subparagraph 729(2)(f)(v) of the Act.
A Subclass 449 visa may be granted to a person to whom Australia owes protection obligations under the United Nations 1951 Convention and 1967 Protocol relating to the Status of Refugees but who has not completed the necessary health, character and security checks for the grant of a Subclass 786 visa. A Subclass 449 visa permits its holder to travel to, enter and remain in Australia until a date specified by the Minister for Immigration and Border Protection (or his or her delegate).
Summary
This Determination specifies Subclass 449 (Humanitarian Stay (Temporary)) as a class of visa for the purpose of subparagraph 729(2)(f)(v) of the Act.
This Determination will ensure that for the purpose of qualification for Special Benefit, Subclass 449 visa holders are treated in the same way as Subclass 786 visa holders.
This Determination is a legislative instrument for the purpose of the Legislative Instruments Act 2003.
Explanation of the provisions
Section 1 sets out the name of the Determination.
Section 2 provides that the Determination commences on the day after it is registered.
Section 3 provides that Subclass 449 (Humanitarian Stay (Temporary)) is a class of visa for the purpose of subparagraph 729(2)(f)(v) of the Act. The effect of this is that Subclass 449 visa holders will meet the residence requirements for Special Benefit.
Consultation
The Department of Employment and the Department of Immigration and Border Protection (DIBP) was consulted in relation to this Determination to ensure a consistent approach between Australian Government agencies.
DIBP advised that a person must be the holder of a Subclass 449 (Humanitarian Stay (Temporary)) visa in order to be eligible for the grant of a Subclass 786 (Temporary (Humanitarian Concern)) visa. The Social Security (Class of Visas – Qualification for Special Benefit) Determination 2009 determines that a Subclass 786 visa is in a class of visas for the purpose of subparagraph 729(2)(f)(v) of the Act. In consultation with DIBP it was agreed that another determination should be made under subparagraph 729(2)(f)(v) of the Act to determine a Subclass 449 visa.
Public consultation was considered to be unnecessary as this Determination is purely beneficial in character, extending a payment to a visa class.
Regulation Impact Analysis
The Determination does not require a Regulation Impact Statement because the Determination is not regulatory in nature, will not impact on business activity and will have no or minimal compliance costs or competition impact.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Social Security (Class of Visas – Qualification for Special Benefit) Determination 2014
The Social Security (Class of Visas – Qualification for Special Benefit) Determination 2014 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The Social Security (Class of Visas – Qualification for Special Benefit) Determination 2014 (the Determination) is made under subparagraph 729(2)(f)(v) of the Social Security Act 1991.
The purpose of the Determination is to allow the holders of a Subclass 449 (Humanitarian Stay (Temporary)) visa to qualify for Special Benefit, and consequently, a suite of ancillary social security and family payments such as Family Tax Benefit, Education Entry Payment, Rent Assistance, Health Care Card and Pharmaceutical Allowance.
Human rights implications
The Determination engages or gives effect to the following human rights:
- the right to social security as recognised in Article 24 of the United Nations (UN)1951 Convention and 1967 Protocol Relating to the Status of Refugees and Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
- the right to an adequate standard of living in Article 11 of the ICESCR and Article 28 of the Convention on the Rights of Persons with Disabilities (CRPD).
The Determination will assist Australia to meet its international obligations under the UN Refugees Convention and Protocol, the ICESCR and the CRPD by providing that Subclass 449 visa holders meet the residence requirements for qualification for Special Benefit. The Determination will also promote an adequate standard of living for those illegal maritime arrivals whose claims for protection are found to be valid and who are granted a Subclass 449 visa.
Conclusion
This Determination is compatible with human rights as it promotes the right to social security and an adequate standard of living for Subclass 449 visa holders.
Kevin Andrews, Minister for Social Services