BILLS DIGEST NO. 51, 2016–17              7 December 2016

Migration Amendment (Visa Revalidation and Other Measures) Bill 2016

Claire Petrie
Law and Bills Digest Section 

Date introduced:  19 October 2016

House:  House of Representatives

Portfolio:  Immigration and Border Protection

Commencement: Sections 1 to 3 upon Royal Assent. Schedules 1 to 3 commence on Proclamation or six months after Royal Assent, whichever is sooner.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at December 2016.

Purpose of the Bill

The purpose of the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (the Bill) is to amend the Migration Act 1958 (Cth)[1] to:

•       introduce a new revalidation check framework for visas (initially, the ten-year visitor visa)

•       clarify when a visa ‘ceases to be in effect’ under the Migration Act and

•       enable the use of contactless SmartGate technology during immigration clearance.

Background

Visa revalidation

Longer-term visitor visa

In his second reading speech for the Bill, Minister for Immigration and Border Protection, Peter Dutton stated that the introduction of a visa revalidation requirement would support the pilot of a proposed ten-year validity visitor visa, noting:

Tourism is a vital part of the Australian economy, providing employment for around 600,000 Australians and accounting for more than $120 billion of economic activity. The government is committed to boosting tourism across the nation, which in turn helps grow our domestic economy.

The introduction of a 10-year visitor visa will encourage repeat visits by genuine tourists and businesspeople choosing Australia as their preferred destination. However, 10 years is a long time and it is likely that an individual’s circumstances will change throughout the visa validity period.[2]

The Explanatory Memorandum to the Bill further indicates that a longer validity visitor visa is being created in response to the 2015 Our North, Our Future: White Paper on Developing Northern Australia.[3] The White Paper highlighted the Government’s commitment to ‘increase tourism in the north and across Australia by targeting the world’s fastest growing outbound tourist markets—China and India’.[4] It noted that changes to Australia’s existing visa requirements could help to boost tourism from these markets, and flagged a number of measures, including:

•       allowing electronic lodgement of visitor visa applications for visitors from China (from 2016) and India (from the end of 2017)

•       trial of a fast track service for visas, with a proposed 48-hour turnaround, for visitors from China and

•       trial of a ten-year validity visa for Chinese visitors.[5]

Official statistics released by the Department of Immigration and Border Protection (the Department) indicate that 4.8 million visitor visas were granted in 2015–16 and that the number of visitor visa grants to Chinese nationals has grown significantly over the past five years, from 324,712 in 2010–11 to 801,761 in 2015–16:

The Department’s facilitation of legitimate visitors to Australia provides benefits to the Australian community, including support to the tourism industry and international business activity. The efficient delivery of the visitor visa programme balances national security and community protection with economic and trade interests.

…

Further innovations for the China visitor market have been announced, including a trial of an online visitor visa lodgement option in Chinese, and a 10-year validity visitor visa to reduce red tape for frequent travellers. A ‘fast track’ visitor visa processing service for an additional fee commenced as a trial for Chinese nationals in March 2016.[6]

Tourism Australia reports that visitors from China generated $8.3 billion in total expenditure in 2015.[7]

The pilot ten-year visa for Chinese nationals was publicly announced in a joint media release by the Minister for Immigration and Border Protection, Peter Dutton, Minister for Trade and Investment, Andrew Robb and Assistant Minister for Immigration and Border Protection, Michaelia Cash on 17 June 2015, the same day that Australia signed the Free Trade Agreement with China.[8] In announcing the initiative, Andrew Robb noted that ‘increased visitor numbers in Australia translates into significant benefits for Australians and our economy. China is our largest source of tourism, already worth over $5 billion to the Australian economy’.[9] In May 2016, Minister for Tourism and International Education, Richard Colbeck, noted that a ten-year visitor visa for China would be available online in Simplified Chinese in 2016, with this being the first time Australia has trialled visa application lodgement in a language other than English.[10]

The Department has indicated that the ten-year visa will commence on 12 December 2016.[11] It has introduced the framework for a new Frequent Traveller stream of the Subclass 600 (Visitor) visa through the Migration Legislation Amendment (2016 Measures No. 5) Regulation 2016 (2016 Regulation), which commenced on 19 November 2016. The 2016 Regulation specifies that the Frequent Traveller stream visa will:

•       have an application fee of $1,000[12]

•       apply to persons intending to visit Australia as a tourist or on business[13] and

•       enable the visa holder to travel to Australia on multiple occasions during a maximum period of ten years, and to remain in Australia for up to three months at a time (with a maximum of 12 months in any 24-month period).[14]

An applicant for a visa in the Frequent Traveller stream must meet requirements specified by the Minister via legislative instrument, in regards to:

•       the place at which, and manner by which, the application must be made

•       the applicant’s location, which must be outside Australia and at a place specified by the Minister (if any) and

•       the kind of passport which the applicant must hold.[15]

The announcement of the new visa does not appear to have been part of a reciprocal arrangement with China. However, China has entered into reciprocal arrangements with a small number of countries for the offering of ten-year multi-entry visas. In November 2014, the United States and China agreed to a reciprocal arrangement to offer ten-year visas for nationals of each country, covering travel for business and tourism purposes.[16] China has subsequently entered into similar arrangements with Canada and Israel.[17] Singapore also offers ten-year visas for Chinese visitors.[18]

Revalidation checks

The Bill introduces a legislative framework by which visa holders may be required to undergo a ‘revalidation check’ at one or more points during the visa period. The Explanatory Memorandum states that the framework anticipates issues which may arise from the introduction of a longer-term visa:

The revalidation framework provides a mechanism to require visa holders to routinely update the information they have previously provided to the Department of Immigration and Border Protection through their secure online account as their circumstances change, including contact and passport details. The framework is also designed to manage the risks to the Australian community that may arise in the context of longer validity Visitor visas, including a person’s individual circumstances changing over time, or in the event of a serious incident occurring overseas which may create a situation where it is in the public interest to reassess a visa holder’s individual circumstances in light of such an event. The amendments will allow the government to ensure that visa holders continue to meet the health, character, security and other requirements for entry to Australia.[19]

A requirement that a visa-holder’s eligibility be reassessed during the course of the visa period appears to be relatively uncommon—for example, it does not appear to be currently used by any of the countries which have implemented ten-year visas for Chinese nationals. However, the United States is in the process of introducing the Electronic Visa Update System (EVUS), maintained by US Customs and Border Protection within the Department of Homeland Security.[20] From 29 November 2016, all international visitors holding ten-year business or tourism visitor visas (currently available only to Chinese nationals) are required to update biographical and other information from their visa application via the EVUS every two years, or upon getting a new passport or visa, whichever occurs first.[21] A successful EVUS enrolment is required in addition to the visa, for a person to travel to the United States.[22] In issuing its Rule establishing the EVUS, Department of Homeland Security stated:

While visas with a longer validity period provide an opportunity for individuals to travel to the United States with greater ease, they do not enable the U.S. Government to receive regularly updated biographic and other information from repeat visitors who travel to the United States multiple times over the span of the visa.

…

Having a means for regularly collecting updated information, before the alien embarks on travel to the United States and without requiring aliens to apply for a visa on a more frequent basis, would be valuable in contributing to a robust traveler screening and verification process and would cut down on the number of visa holders who are found inadmissible at ports of entry.[23]

It has been reported that similar arrangements will be implemented by China for US nationals holding ten-year visas, though details of such arrangements have not yet been released.[24]

Contactless immigration clearance

Contactless technology at airports

A Department media release at the time of the 2015–16 Federal Budget announced that $93.7 million had been allocated to the Seamless Traveller initiative, for the rollout of new technology, including contactless automatic biometric processing, at air and sea ports. The media release stated:

Biometric capability will reduce manual processes allowing a fast, seamless self-processing experience for up to 90 per cent of travellers and enable border control officers to concentrate on passengers-of-interest.[25]

This new technology is intended to enhance the existing use of facial recognition technology by airport SmartGates. Facial recognition technology maps the underlying bone structure of the face, such as distances between the eyes, nose, mouth and ears. SmartGates presently allow eligible arriving and departing travellers to self-process through immigration clearance by presenting their ePassport to an electronic ‘SmartGate kiosk’. The SmartGate then captures the person’s image and uses a mathematical formula to compare this with the person’s ePassport.[26] The Department claims that facial recognition ‘is considered to be one of the least intrusive biometric measures and has a high degree of accuracy when used for one-to-one matching’.[27]

The arrivals SmartGate was originally introduced in 2007, and has been followed by a rollout of similar technology at airport departures.[28] The Department’s 2015–16 Annual Report provides the following overview of the rollout of departures SmartGates:

In 2014 the Department was funded by $50.1 million to rollout departures SmartGates as part of the Government’s counter-terrorism initiative. SmartGates use facial biometrics technology to automate the manual checks normally conducted by an Australian Border Force (ABF) officer. Automated border processing is a critical enabler to managing increasing traveller volumes and enables travellers, irrespective of passport type, to quickly and seamlessly pass through departures processing. Unlike most overseas jurisdictions, by using new technology automated processing in Australia is not restricted to ePassport or registered/trusted travellers. The successful rollout of the departures SmartGates has been delivered in close cooperation with industry.

Between July 2015 and June 2016, 77 departure SmartGates were successfully rolled out and are now operational at seven of Australia’s eight international airports (all Australian international airports will have departure SmartGates once Adelaide begins operation of a further six in early July 2016).

…

At 30 June 2016, approximately 6.9 million departing travellers had been successfully processed through the gates with around 85 per cent of all eligible travellers using the SmartGates to self-process through the border.

The Department’s goal is to reach 90 per cent throughput by 2019.[29]

The Explanatory Memorandum states that contactless technology is to be gradually rolled out for SmartGates in major airports from May 2017 and that this will remove the need for travellers to present a passport to verify their identity during immigration clearance.[30] Instead, a person’s identity will be able to be verified on the basis of a unique biometric identifier, such as a facial image, with a live image of the person at the SmartGate matched against a previously verified image.[31] The Department will use two databases for image verification:

•       the Australian Passport Office database, which holds images collected as part of the Australian passport identity verification process and

•       images provided by the traveller to the SmartGate—these are stored in departmental systems.[32]

Biometric data and the Migration Act

A series of amendments to the Migration Act since 2004 have provided for the collection of biometric data (termed ‘personal identifiers’) by immigration officials.[33] Personal identifiers are defined to include fingerprints and handprints, height and weight measurements, an image of a person’s face and shoulders, audio or video recording of a person, iris scan and signature.[34] Although collection of personal identifiers was originally restricted to the data of non-citizens, provided when applying for a visa or passing through immigration clearance, recent amendments have significantly expanded the scope of these powers.[35] In particular, the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth) amended the Migration Act to authorise the collection of biometric information of both citizens and non-citizens at the border, by an automated border clearance system (‘authorised system’) such as a SmartGate.[36]

Section 257A of the Migration Act, inserted by the Migration Amendment (Strengthening Biometrics Integrity) Act 2015 (Cth), provides the Minister and officers with a broad power to collect personal identifiers. This power is limited in respect of Australian citizens, who may only be required to provide personal identifiers when entering or departing Australia, or when travelling on an overseas vessel from one port to another in Australia.[37]

As a result of these amendments, the Migration Act already accommodates the collection of personal identifiers during the immigration clearance process. The Bill does not significantly alter the scope of the power to collect biometric data in this process. Instead, it amends the evidentiary requirements for immigration clearance to provide that the presentation of biometric data may be sufficient to satisfy such requirements, as an alternative to the provision of documentary evidence (such as a passport).

Committee consideration

Senate Standing Committee on Legal and Constitutional Affairs

On 10 November 2016, the Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report. Details are available at the inquiry webpage.[38] The Committee tabled its report on 28 November 2016, with the majority report recommending that the Bill be passed.[39] The Committee noted concerns from interest groups regarding the visa revalidation system and the oversight mechanisms in place, but was satisfied that the proposed measures are necessary and justified, and will ‘lead to good outcomes for both the integrity of the Australian immigration system and the national economy’.[40] In regards to public interest revalidation checks, the Committee encouraged the government to consider that the Ministerial exercise of powers in relation to these checks be subject to disallowance by the Senate.[41]

The Australian Greens issued a Dissenting Report and recommended that the Bill be rejected by the Senate.[42] The Greens argued that the revalidation check provisions in the Bill would grant a broad range of discretionary powers to the Minister, with insufficient oversight. In particular, they noted that the Bill’s provisions were not tied to the introduction of the new ten-year visa but could be applied to the holder of any Australian visa, and raised concerns that key terms in the Bill, such as ‘revalidation check’, ‘public interest’ and ‘adverse information’, were not sufficiently defined.[43] They further argued that the Migration Act contains sufficient provision to ensure that the trial of the ten-year visa does not compromise the Australian visa system.[44]

No submissions to the inquiry raised concerns with amendments proposed by Schedules 2 and 3 of the Bill.

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee has raised concerns about aspects of the revalidation check framework set out in Schedule 1 of the Bill. The Committee’s Alert Digest No. 8 of 2016 notes that the Bill does not limit the application of the revalidation check to the proposed ten-year visitor visa, but instead confers a broad power on the Minister to require revalidation checks for any category of visa, including spouse or family visas or protection visas.[45] The Alert Digest also draws attention to the Minister’s power, by non-disallowable legislative instrument, to determine that a specified class of persons holding a visa of a prescribed kind must complete a revalidation check if the Minister thinks it is in the public interest to do so. It states:

… although it is (sic) may be accepted that in exercising this power the Minister may consider a broad range of factors relevant to the public interest and that there is a level of accountability to the Parliament through the reporting requirements, it is not clear why it is not feasible to provide for the Parliament to disallow the exercise of legislative power.[46]

The Minister’s response to the Committee’s comments is included in the Tenth Report of 2016.[47] The Minister states that the power to prescribe visas as subject to the revalidation check process is not limited because other longer-validity visas may be introduced in the future. The Minister further suggests that placing limits on the visas that could be prescribed would restrict the ability to use the revalidation framework to reduce red tape and manage risks associated with newly developed or reformed visa products.[48] With regards to the power to require a revalidation check be undertaken in the public interest, the Minister states that the power is intended to be exercised in circumstances requiring an immediate response. As implementation of such a determination would be time-critical, it would not be appropriate for the legislative instrument to be subject to disallowance.[49]

In response, the Committee has noted that it is not clear why primary legislation cannot set limits on the types of visas to be prescribed, and that the power to prescribe any type of visa is ‘inappropriately broad in scope’.[50] The Committee also notes that the Minister’s power to require a revalidation check in the public interest is not limited to circumstances where the Minister identifies a risk to the Australian community.[51] The Committee has requested that the key information provided by the Minister be included in the Explanatory Memorandum.[52]

Further concerns raised by the Committee, and the Minister’s response, are discussed under the ‘Key issues and provisions’ section below.

Policy position of non-government parties/independents

Labor Senators on the Senate Legal and Constitutional Affairs Legislation Committee supported the majority recommendation that the Bill be passed. As indicated above, the Australian Greens issued a dissenting report recommending that the Bill be rejected, due to the revalidation framework provisions in Schedule 1.

At the time of writing, other non-government parties and independent members of Parliament do not appear to have spoken publicly on the Bill.

Position of major interest groups

In submissions to the Senate inquiry, stakeholders and interest groups raised concerns with the revalidation framework under Schedule 1 of the Bill, in particular:

•       the broad Ministerial discretion to determine which visa types may be subject to a revalidation check

•       the wide definition of ‘revalidation check’, not being limited to matters considered as part of the original visa application

•       the lack of clarity regarding a mechanism for review of a decision that a person has failed the revalidation check and

•       the absence of provision for notification of a failure to pass the revalidation check.

The Kaldor Centre for International Refugee Law (Kaldor Centre) submitted that the introduction of revalidation checks:

… undermines the long-standing rationale and stability of Australia’s migration system, which is premised on the notion that once a person has been issued a visa, he or she is entitled to have that visa be in effect until the visa period expires (subject to any grounds for visa cancellation).[53]

The Migration Institute of Australia, while acknowledging that revalidation ‘at biannual intervals and through the processes specified in this Bill appear reasonable and appropriate without being overly onerous’, raised concerns with the broad power afforded to the Minister to determine a revalidation check be required in the public interest, and recommended that this be removed from the Bill.[54]

Existing provisions

The Law Council of Australia pointed to existing provisions under the Migration Act and associated regulations, which it argued provide adequate powers to manage risks arising from the introduction of longer validity visitor visas. These include:

•       the power to require a visa holder to inform of any changes to their contact details

•       cancellation of a temporary visa where it is later determined that the decision to grant the visa was based on a particular fact or circumstance that is no longer the case, or where the decision was based on the existence of a particular fact or circumstance which did not exist

•       cancellation of a temporary visa where the holder has not complied with the visa conditions

•       cancellation of a temporary or permanent visa where a bogus document, or false or misleading information, was provided as part of the visa application and

•       extensive cancellation powers of the Minister in relation to protection, refugee and humanitarian visas.[55]

In response to this submission, the Department has stated:

There is no existing head of power in the Migration Act that is broad enough to require a visa holder to provide updated information on their personal circumstances for the purpose of ascertaining the existence of any such adverse information. This would be required to enable the Minister to be satisfied that the visa holder continued to meet health, character, security, genuine temporary entrant and other criteria that would normally be considered at the time of visa grant over the visa period.[56]

Further comments made by interest groups are incorporated into the discussion below.

Financial implications

The Explanatory Memorandum contains the following financial impact statement:

The amendments made by Schedule 1 to the Bill to establish a visa revalidation framework and the proposed introduction of the longer validity Visitor visa for Chinese nationals is expected to result in an increase of revenue to the Commonwealth. The Visa Application Charge (VAC) of $1,000 for the longer validity visa will have a net impact of $33.5 million in administered revenue over the forward estimates from 2016–17.

The amendments made by Schedule 2 to the Bill will have a low financial impact.

The amendment made by Schedule 3 to support the use of new contactless automated immigration clearance technology will contribute towards the achievement of the Seamless Traveller Initiative’s estimated saving of $32.9 million per year in compliance costs.[57]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[58]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considered the Bill in its ninth report of 2016.[59] It noted that the Minister’s power to require certain visa holders to complete a revalidation check, as provided for in Schedule 1, has the potential to engage a number of human rights, depending on the type of visa prescribed:

As the power to prescribe the type of visa is unlimited, it appears that it could enable the minister to prescribe any type of visa, including a protection visa, spousal or other family visa or permanent visa as subject to the revalidation check. This measure therefore has the potential to engage a number of human rights, including Australia's non-refoulement obligations, the right to an effective remedy, the right to liberty and the right to protection of the family.[60]

The Committee sought advice from the Minister as to why the Bill does not appear to limit the type of visas which may be prescribed, and whether, in light of the broad power to prescribe any type of visa, the measure is compatible with the rights identified above.

The Committee further noted that the broad Ministerial discretion to require any visa holder to complete a revalidation check engages the right to equality and non-discrimination, and may not be proportionate to achieving the stated objective of managing risks to the Australian community through immigration channels.[61] It stated that although the statement of compatibility provided that the power will only be used based on objective assessments of risk, there is nothing in the Bill to restrict the use of the power in this way. Accordingly, the Committee sought advice from the Minister as to whether safeguards could be included in the legislation, such as:

•       the Minister’s power to require a revalidation check be limited to long-term visitor visas

•       the basis upon which a revalidation check may be required be made clear in the legislation, rather than a matter of Ministerial discretion and

•       a requirement that the Minister’s power to require a person or class of persons to complete a revalidation check be based on an objective assessment of an increased risk to the Australian community.[62]

Key issues and provisions

Schedule 1—Revalidation check for certain visas

Revalidation check framework

Item 4 will insert new subdivision BA—Revalidation check for certain visas into Division 3 of Part 2 of the Migration Act. This subdivision establishes the framework for the revalidation check process. Under the framework, the Minister may require a visa holder to complete a revalidation check for their visa either:

•       where the person holds a visa of a prescribed kind (proposed section 96B) or

•       where the Minister issues a determination that a specified class of persons holding a visa of a prescribed kind must complete such a check in the public interest (proposed section 96E) (‘public interest revalidation check’).

Although the Explanatory Memorandum states that the revalidation check scheme is intended to support the proposed introduction and trial of a new longer validity visitor visa, the Bill itself does not link the scheme to any particular visa type. It confers a broad discretion on the Minister to prescribe in the regulations any kind of visa as being subject to revalidation requirements. Regulations made to prescribe a visa for the purposes of proposed subsections 96B(1) and 96E(1) will be subject to Parliamentary scrutiny via the disallowance process.

A revalidation check is defined as a check as to whether there is any adverse information relating to a person who holds a visa.[63] A visa holder will pass the revalidation check if the Minister is satisfied that there is no adverse information relating to the person, or that it is reasonable to disregard any adverse information relating to the person.[64] ‘Adverse information’ is not defined in the Bill, and the Bill does not specify the types of information a visa holder may be required to provide. When a revalidation check is required, a written notice must be given to the visa holder specifying how they are to complete the revalidation check.[65] The Explanatory Memorandum notes:

Adverse information … is to be given its ordinary general meaning when considering whether the information relating to the person is adverse. Whether the information is adverse will also depend on the circumstances of each particular case and depend on the visa held by the person as a revalidation check will generally be directed to determining whether the person continues to meet the criteria for the visa that has been granted.[66]

The Scrutiny of Bills Committee has raised concerns about the revalidation check requirements relating to adverse information, stating:

… it is not clear why information relating to the person would be included in a revalidation check and what this means, over and above information directly about the person. It is also not clear why it is necessary to link the revalidation check to such a broad category of information given that the legislation sets out in detail the criteria for the grant of the initial visa. It is not clear to the committee why the revalidation check is not linked to whether the person still meets the requirements set out for the initial grant of the visa.[67]

The Law Council has raised concerns with the broad definition of adverse information currently used in the Migration Regulations in the context of employer sponsorship and nomination.[68] It noted that this covers a wide range of activities committed not only by the relevant person but also by an ‘associated’ person, and does not relate to either the criteria for the grant of the visa or the matters which may expose a person to visa cancellation under the existing provisions of the Migration Act.[69] The ANU College of Law Migration Law Program has also pointed to the broad range of matters covered by this definition, and queried whether a similar definition will be inserted into the Migration Regulations to apply in the context of revalidation checks.[70] The Explanatory Memorandum to the Bill does not provide clarification on this issue.

In response to the concerns raised by the Scrutiny of Bills Committee on this matter, the Minister advised that the revalidation check is not intended to be a full reassessment of a visa holder’s ability to meet the original requirements for grant of the visa. By not defining adverse information, the Bill provides flexibility for the Minister to consider information relating to the visa holder’s ongoing compliance with the conditions of their visa, as well as any new grounds for visa cancellation which are introduced in the future.[71] Adverse information ‘relating to’ the visa holder could include consideration of ‘the personal circumstances of the applicant in their home country and general conditions in the home country that might encourage them to remain in Australia’.[72] In response, the Committee has noted that the provision’s drafting in regards to adverse information provides little certainty to visa holders, and limited scope for parliamentary scrutiny of the exercise of the power. It has requested that the key information provided by the Minister be included in the Explanatory Memorandum.[73]

Effect of failure to pass revalidation check

Where a person does not complete the check within the specified period, or does not pass the check at a particular time (the check time), the person’s visa will cease to be in effect. This will occur:

•       if the person is in the migration zone at the end of the specified period or at the check time, and leaves Australia after this time without having completed and passed a revalidation check or

•       if the person is not in the migration zone at the end of the specified period or at the check time.

The Minister must provide written notice to the person informing them of the cessation.[74]

However, a visa which has ceased to be in effect because of a failure to complete or pass a revalidation check within the specified period may come into effect again if, at a particular time during the visa period for the visa, the person passes a revalidation check for the visa.[75] Visa holders may be required to complete revalidation checks on more than one occasion during the visa period, including at a time when the visa is not in effect.[76]

The Scrutiny of Bills Committee has stated that the Bill and explanatory material are silent on the question of which decisions made under the proposed visa revalidation provisions will be subject to merits review.[77] Similar concerns have been raised by the Kaldor Centre, which noted that although a decision to cancel a visa may be subject to merits and judicial review, a decision as to whether a person passes the revalidation check does not appear to be.[78] Furthermore, the Law Council has raised concerns that the visa holder may not be provided with reasons or an opportunity to be heard following a decision that a visa ceases to be in effect.[79]

In his response to the Scrutiny of Bills Committee, the Minister has confirmed that a decision made under new subdivision BA would not be subject to merits review. The Minister states that failure to pass a revalidation check does not automatically result in cancellation of the visa—this will be referred to a visa cancellation delegate to consider whether a visa cancellation ground exists. If the delegate decides to cancel the visa, this decision may be subject to merits review.[80] The Committee has requested that the key information provided by the Minister on this issue be included in the Explanatory Memorandum.[81]

Public interest revalidation check

Proposed section 96E provides that where the Minister thinks it is in the public interest to do so, the Minister may issue a legislative instrument requiring a specified class of persons holding a visa of a prescribed kind to complete a revalidation check for the visa. This is a personal, non-delegable power.

‘Public interest’ is not defined under the Migration Act, and the Bill does not provide guidance as to the circumstances in which a revalidation check may be required in the public interest. The Minister therefore has a broad discretion to issue a determination under this provision. The Explanatory Memorandum notes that the public interest test:

… is intended to be broad and flexible to allow the Minister to consider any factor that he or she considers relevant when deciding whether to make a determination under new subsection 96E(1). For example, the Minister may consider the public health and safety of the Australian community or particular individuals, national security, the economic wellbeing of Australia, the circumstances in a person’s home country, the risk of overstaying or other factors, or combination of factors, designed to be relevant to the particular circumstances.[82]

A determination made by the Minister under this provision is not a disallowable instrument.[83] The Bill provides an alternative mechanism for parliamentary transparency, by requiring the Minister to provide to each House of Parliament a statement that such a determination has been made, and which sets out the reasons for making the determination. This must be done within 15 sitting days after either 1 July of the relevant year (where the determination was made between 1 January and 30 June) or 1 January of the following year (where the determination was made between 1 July and 31 December).[84] The Minister must also give written notice of the determination to each person included in the specified class.[85]

Schedule 2—Cessation of visas that are not in effect

Item 2 will insert proposed section 82A which clarifies the operation of visa cessation provisions of the Migration Act in relation to visas which are not in effect.

Currently, section 82 sets out the various circumstances when a visa will cease to be in effect. These include: upon cancellation; when the holder leaves Australia because of a deportation order; in the case of a bridging visa, when another visa for the person comes into effect; or in the case of a visa to travel to and enter Australia during a particular period or until a particular date, if the holder leaves Australia after that period or date. Additionally, sections 173 and 174 provide, respectively, that a visa ceases to have effect if the holder enters Australia in contravention of the Migration Act, or does not comply with immigration clearance requirements.

Proposed section 82A provides that a visa will cease to take effect if sections 82, 173 or 174 apply at a particular time, even if the visa is not in effect at that time. This provision recognises that in certain circumstances, a visa may be held but not in effect during the visa period.[86] This may occur where the visa has been granted but not yet taken effect, or where the visa has ceased to be in effect but may come into effect again during the visa period (the possibility of which is provided for in proposed sections 96D and 96H at item 4 of Schedule 1 to the Bill, for example). The amendment ensures that in such cases, a cessation provision under section 82, 173 or 174 will nonetheless apply.

An exception is proposed in relation to subsection 82(8).[87] This subsection provides that a visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia. The Explanatory Memorandum states that the effect of exempting this provision from the operation of proposed section 82A is that if a person travels outside of Australia on another, valid visa, and has a visa with a travel facility allowing them to return, they will continue to hold any other visas permitting them to remain in Australia which are not in effect at the time of their departure. The Explanatory Memorandum notes:

A common example of where this may occur is in the case of a bridging visa that has been granted to a person in association with an undecided application for another substantive visa, where a non-citizen might travel offshore and return to Australia whilst holding a different substantive visa.

…

The policy intention is that the bridging visa that is out of effect should continue to be held by the person, so that if a decision has not been made on the undecided application when the person’s substantive visa ceases following their return to Australia, the bridging visa will come into effect to maintain the person’s lawful status until a decision is made on the outstanding application.[88]

Schedule 3—Immigration clearance

Evidentiary requirements for immigration clearance

Schedule 3 of the Bill will amend the Migration Act to accommodate the use of contactless technology in the immigration clearance process. Section 166 sets out the evidentiary requirements for immigration clearance when entering Australia. The section currently provides that a person entering Australia must present to a clearance authority (which can be a clearance officer or an authorised system):[89]

•       if the person is a citizen, the person’s Australian passport or prescribed other evidence of the person’s identity and Australian citizenship or

•       if the person is a non-citizen, evidence of the person’s identity and of a visa that is in effect and held by the person.[90]

Where the person presents this evidence to an authorised system, paragraph 166(1)(d) currently requires them to provide a photograph or other image of their face and shoulders. The person must also supply any information required by the Migration Act or regulations and comply with any requirement by a clearance officer to provide personal identifiers to a clearance authority.[91]

Items 4 to 9 will amend section 166 to set out a number of alternative means by which a person may satisfy the evidentiary requirements for immigration clearance. [92] Item 8 substitutes proposed paragraph 166(1)(d) to require a person to provide one or more personal identifiers to an authorised system. Unlike the existing provision, this is not limited to a particular type of identifier but can include any one or more of the personal identifiers set out under subsection 5A(1).

Items 23 to 25 will amend subsection 172(3) to provide that a person is refused immigration clearance if the person is with a clearance officer for the purposes of section 166 and refuses or is unable to do a thing required under subsection 166(1).

The effect of the proposed amendments is that a person entering Australia may not need to present documentary evidence of their identity, such as a passport and/or visa, but may alternatively satisfy immigration clearance requirements by presenting a personal identifier, such as their facial image, to an automated system.

The Schedule will also amend the following references to the presentation of travel documents or evidence of identity during immigration clearance:

•       section 170, which sets out evidentiary requirements for persons travelling on an overseas vessel from one port to another port, and passing through Australian immigration clearance (items 12 to 21) and

•       section 175, which sets out evidentiary requirements for persons departing Australia (items 26 to 31).

As with the proposed amendments to section 166, the proposed amendments to these sections provide for alternative mechanisms by which a person may satisfy immigration clearance requirements, which include the provision of personal identifiers to an automated system.

Consequential and other amendments

Items 1 to 3 will amend section 32 of the Migration Act in relation to special category visas. Section 32 currently provides that New Zealand citizens may satisfy part of the criterion for a special category visa where they hold, and have presented to an officer or authorised system, an in-force New Zealand passport. In most circumstances this visa is granted during the immigration clearance process.[93] Item 2 will insert proposed subsection 32(2A) which amends this criterion to require New Zealand citizens to either present their passport to an officer or authorised system, or provide one or more personal identifiers to an authorised system.

The Schedule makes a number of minor consequential amendments. For example, section 190 specifies that for the purposes of section 189 (which provides for the detention of unlawful non-citizens), an officer may suspect on reasonable grounds that a person is an unlawful non-citizen if the person fails to meet certain evidentiary requirements at immigration clearance. Item 32 will repeal paragraph 190(1)(b) and substitutes a proposed new paragraph, which incorporates consequential amendments based on the changes made to subsection 166(1).

Section 271 sets out documents which will constitute prima facie evidence of certain matters in the course of migration proceedings. Items 33 and 34 will amend this section to provide that evidence that a person who, when entering Australia, failed to produce an Australian passport to an officer or authorised entry system when required to do so, is prima facie evidence that the person was a non-citizen at the time of entry.[94]

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[1].              Migration Act 1958.

[2].              P Dutton, ‘Second reading speech: Migration Amendment (Visa Revalidation and Other Measures) Bill 2016’, House of Representatives, Debates, 19 October 2016, p. 2433.

[3].              Explanatory Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill 2016, p. 2; Australian Government, Our north, our future: white paper on developing Northern Australia, White paper, 2015.

[4].              Australian Government, Our north, our future, op. cit., p. 77.

[5].              Ibid., p. 78.

[6].              Department of Immigration and Border Protection (DIBP), ‘Part 3: annual performance statements’, Annual report 2015–16, DIBP, Canberra, September 2016, p. 61.

[7].              Tourism Australia (TA), ‘Greater China’, TA Corporate website.

[8].              P Dutton (Minister for Immigration and Border Protection), A Robb (Minister for Trade and Investment) and M Cash (Assistant Minister for Immigration and Border Protection), New pilot visa to boost Australian tourism, media release, 17 June 2015.

[9].              Ibid.

[10].              R Colbeck (Minister for Tourism and International Education), 2016 budget to drive future tourism growth, media release, 4 May 2016.

[11].              Department representative presenting at the Migration Institute of Australia National Conference, 18 November 2016, Brisbane.

[12].              Migration Legislation Amendment (2016 Measures No. 5) Regulation 2016 (Cth), Schedule 1, clause 7.

[13].              Ibid., Schedule 1, clause 10.

[14].              Ibid., Schedule 1, clause 12.

[15].              Ibid., Schedule 1, clause 8.

[16].              US Department of State, The United States and China to extend visas for short-term business travellers, tourists and students, fact sheet, Bureau of Public Affairs, 10 November 2014; J Diamond, ‘New visa policy elevates U.S.–China relations’, CNN, (online edition), 10 November 2014.

[17].              B Smith, ‘Canada, China agree on 10-year, multi-entry visa’, The PIE News, (online edition), 12 March 2015; R Ahren, ‘Israel and China to sign 10-year multiple entry visa deal’, The Times of Israel, (online edition), 27 March 2016.

[18].              ‘Multiple journey visa validity extended for Chinese visitors’, Channel NewsAsia, (online edition), updated 16 May 2015.

[19].              Explanatory Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill 2016, op. cit., p. 2.

[20].              U.S. Customs and Border Protection, ‘Enroll in a new Electronic Visa Update System (EVUS)’, Department of Homeland Security website.

[21].              Ibid.; ‘Establishment of the Electronic Visa Update System (EVUS) (US)’, 81 FR 72481, Federal Register, 81(203), 20 October 2016, p. 72,481.

[22].              U.S. Customs and Border Protection, ‘Electronic Visa Update System (EVUS): frequently asked questions’, Department of Homeland Security website, last published 29 November 2016.

[23].              Department of Homeland Security, ‘Establishment of the Electronic Visa Update System (EVUS)’, op. cit.

[24].              Z Yunbi, ‘FM: China–US visa arrangement “not nullified”’, ChinaDaily.com.cn, (online edition), 5 March 2016.

[25].              P Dutton (Minister for Immigration and Border Protection), Benefits for consumers, travellers and industry from red tape cuts and new technology, media release, 12 May 2015.

[26].              DIBP, ‘Arrivals SmartGate: frequently asked questions’, DIBP website. An ePassport is embedded with a microchip which contains the same personal information that is on the photo page of the ePassport, including a digitised photograph.

[27].              Ibid.

[28].              DIBP, ‘What is the difference between SmartGate at arrivals and at departures?’, DIBP website.

[29].              DIBP, ‘Part 3: annual performance statements’, op. cit., p. 41.

[30].              Explanatory Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill 2016, op. cit., p. 3.

[31].              Ibid., pp. 39–40.

[32].              Ibid., p. 40.

[33].              For an overview of amendments made to the Migration Act in relation to biometrics, see MA Neilsen, Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, Bills digest, 111, 2014–15, Parliamentary Library, Canberra, 2015.

[34].              Migration Act, section 5A.

[35].              In particular, see the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (Cth); and Migration Amendment (Strengthening Biometrics Integrity) Act 2015 (Cth).

[36].              Neilsen, Migration Amendment (Strengthening Biometrics Integrity) Bill 2015, Bills digest, op. cit., pp. 3–4.

[37].              Migration Act, subsection 257A(3).

[38].              Inquiry homepage, Senate Legal and Constitutional Affairs Legislation Committee, ‘Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions]’.

[39].              Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions], The Senate, Canberra, November 2016.

[40].              Ibid., p. 22.

[41].              Ibid., p. 23.

[42].              Australian Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions], The Senate, Canberra, November 2016, p. 25.

[43].              Ibid., p. 26.

[44].              Ibid., p. 27.

[45].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 8, 2016, The Senate, 9 November 2016, p. 26.

[46].              Ibid., p. 27.

[47].              Senate Standing Committee for the Scrutiny of Bills, Report, 10, 2016, The Senate, 30 November 2016, pp. 648–657.

[48].              Ibid., pp. 652–653.

[49].              Ibid., p. 655.

[50].              Ibid., p. 653.

[51].              Ibid., p. 656.

[52].              Ibid., pp. 653–656.

[53].              Kaldor Centre, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions], 21 November 2016, p. 2.

[54].              Migration Institute of Australia (MIA), Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions], 22 November 2016, p. 3.

[55].              Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions], 22 November 2016, pp. 13–14.

[56].              DIBP, Response to the Law Council submission by DIBP, to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions], 2016.

[57].              Explanatory Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill 2016, op. cit., p. 3.

[58].              The Statement of Compatibility with Human Rights can be found at page 48 of the Explanatory Memorandum to the Bill.

[59].              Parliamentary Joint Committee on Human Rights, Report 9 of 2016, 22 November 2016, pp. 9–14.

[60].              Ibid., p. 10.

[61].              Ibid., p. 12.

[62].              Ibid., pp. 12–14.

[63].              Proposed subsection 96A(1).

[64].              Proposed subsection 96A(2).

[65].              Proposed subsections 96B(2)–(3) and 96F(2)–(3). Where a revalidation check is required under proposed section 96B, a visa holder must be given at least 14 days after the date of the written notice to complete the check (proposed subsection 96B(4)). No minimum timeframe for compliance is specified where a public interest revalidation check determination is issued under proposed section 96E.

[66].              Explanatory Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill 2016, op. cit., p. 11.

[67].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 8, 2016, op. cit., p. 25.

[68].              Adverse information is currently defined under section 1.13A of the Migration Regulations 1994 in relation to a person’s suitability as an approved sponsor or nominator. The definition provides that adverse information will include information that the person, or a person associated with a person, has been found guilty of an offence, the subject of administrative action or is under investigation for an alleged contravention of a law relating to one of the following matters: discrimination; immigration; industrial relations; occupational health and safety; people smuggling and related offences; slavery, sexual servitude and deceptive recruiting; taxation; terrorism; and trafficking in persons and debt bondage. It will also include information that the person, or a person associated with the person, has become insolvent.

[69].              Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, op. cit., p. 10.

[70].              Australian National University (ANU) College of Law Migration Program, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the provisions of the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions], 18 November 2016, p. 2.

[71].               Senate Standing Committee for the Scrutiny of Bills, Report, 10, 2016, op. cit., pp. 649–650.

[72].              Ibid., p. 650.

[73].              Ibid., pp. 651–652.

[74].              Proposed sections 96D and 96H.

[75].              Proposed subsections 96D(5) and 96H(5).

[76].              Proposed section 96J.

[77].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 8, 2016, op. cit., p. 27.

[78].              Kaldor Centre, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, op. cit., p. 3.

[79].              Law Council of Australia, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, op. cit., p. 11.

[80].              Senate Standing Committee for the Scrutiny of Bills, Report, 10, 2016, op. cit., pp. 656–657.

[81].              Ibid., p. 657.

[82].              Explanatory Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill 2016, op. cit., p. 21.

[83].              Legislation (Exemptions and Other Matters) Regulation 2015, Part 4, section 10. Relevantly, item 20 specifies that section 42 of the Legislation Act 2003 (relating to disallowance of legislative instruments) does not apply to an instrument (other than a regulation) made under Part 2 of Migration Act.

[84].              Proposed subsection 96E(5).

[85].              Proposed section 96F.

[86].              Visa period is defined under section 5 of the Migration Act as the period beginning when the visa is granted and ending (i) in the case of a visa other than a bridging visa, when the visa ceases to be in effect; or (ii) in the case of a bridging visa, when the visa ceases to be in effect other than under subsection 82(3) (which provides that a bridging visa ceases to be in effect if another visa for the non-citizen comes into effect).

[87].              Proposed paragraph 82A(c).

[88].              Explanatory Memorandum, Migration Amendment (Visa Revalidation and Other Measures) Bill 2016, op. cit., p. 37.

[89].              Migration Act, section 165. A clearance officer means an officer or other person authorised by the Minister to perform duties for the purposes of Division 5 of Part 2 of the Migration Act. Under section 5, an authorised system, when used in a provision of the Migration Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision.

[90].              Migration Act, paragraph 166(1)(a).

[91].              Ibid., paragraphs 166(1)(b) and (c).

[92].              Item 4 amends subsection 166(1) to provide that a person entering Australia must, without unreasonable delay, ‘do any one or more of the following things as required by one or more clearance authorities’. Paragraphs 166(1)(a)–(d) then set out different ways by which a person may provide evidence of identity for the purposes of immigration clearance.

[93].              DIBP, ‘Special category visa (subclass 444)’, DIBP website.

[94].              Item 35 will insert into subsection 271(4) a definition of authorised entry system, which means an authorised system for the purposes of section 32, 166, 170 or 172, or paragraph (b) of the definition of clearance authority in section 165.