Key points
- The Migration Amendment (Giving Documents and Other Measures) Bill 2023 (the Bill) will amend the Migration Act 1958 to make a number of changes to the current legislative framework for the giving of notices and other documents.
- This includes introducing a substantial compliance framework to make clear that strict adherence to the relevant statutory requirements for the provision of documents is not required in all situations.
- These proposed amendments appear to primarily be aimed at reducing litigation founded on technical or inconsequential disputes over the giving of documents or their precise wording.
- The Bill will also remove the current prohibition on non-citizens who are a national of two or more countries from lodging a valid application for a protection visa without the permission of the Minister. However, they will still need to demonstrate that they have taken all possible steps to avail themselves of a right to enter and reside in any country apart from Australia before being granted a visa.
- Stakeholders do not appear to have commented on the Bill at the time of writing this digest.
Introductory Info
Date introduced: 24 May 2023
House: House of Representatives
Portfolio: Home Affairs
Commencement: Sections 1-3 commence on Royal Assent; Schedule 1 on the earlier of Proclamation or 6 months after Royal Assent and Schedule 2 the day after Royal Assent.
Purpose of
the Bill
The purpose of the Migration
Amendment (Giving Documents and Other Measures) Bill 2023 (the Bill) is to
amend the Migration
Act 1958 to:
- make
changes to the current legislative framework for the giving of notices and
other documents
- introduce
a substantial compliance framework to make clear that strict adherence to the
relevant statutory requirements for the provision of documents is not required
in all situations and
- remove
restrictions on certain non-citizens from lodging a valid application for a
protection visa.
Structure
of the Bill
The Bill contains two Schedules. The amendments in Schedule
1 deal with the changes to the giving of notices and other documents and the
amendments in Schedule 2 remove the existing restrictions on certain
non-citizens lodging a valid application for a protection visa.
Committee
consideration
At the time of writing, the Bill has not been referred to
any committees.
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing, the Bill had not been considered
by the Scrutiny of Bills Committee.
Policy
position of non-government parties/independents
At the time of writing, non-government
parties/independents do not appear to have commented on the Bill.
Position of
major interest groups
At the time of writing, stakeholders do not appear to have
commented on the Bill.
Financial
implications
The Explanatory Memorandum states that the Bill will have
nil financial impact.[1]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, 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 ‘because
it promotes the protection of human rights and, to the extent it may limit
human rights, those limitations are reasonable, necessary and proportionate to
achieving a legitimate objective’.[2]
Parliamentary
Joint Committee on Human Rights
At the time of writing, the Bill had not been considered
by the Parliamentary Joint Committee on Human Rights.
Background
and Key Provisions
Schedule 1 –
Giving documents for character-related cancellation decisions and actions
Cancellation
of visas
In order to travel to and enter Australia, a person who is
not an Australian citizen is required to seek permission from the Minister.[3]
This is known as a visa. The Migration Act provides specific classes of
visas (for example, protection visas) and also allows for there to be
prescribed classes of visas (which are set out in Schedule 1 of the Migration Regulations
1994).
Following the decision by the Minister or their delegate
to grant or refuse a visa,[4]
the Migration Act provides for a number of situations where a person’s
visa may be cancelled. This may be on the grounds that the visa was based on
incorrect information (Subdivision C of Division 3 of Part 2) or on a range of other
grounds (Subdivision D of Division 3 of Part 2). The Minister or their delegate
also has the power to cancel a visa on security grounds (Subdivision FB of
Division 3 of Part 2) and other grounds with respect to specific visas (business
visas, students visas and regional sponsored employment visas). The Migration
Act also provides the Minister with additional personal powers to cancel a
visa (Subdivision FA of Part 2), to cancel a
temporary safe haven visa in certain circumstances (section 500A) and to cancel
a visa on character grounds (section 501).
Key
provisions
As set out in the Explanatory Memorandum, the current
provisions in the Migration Act relating to visa cancellation ‘have a
range of varying requirements for the giving of notices and other documents’.[5]
For example:
Certain provisions allow the Minister to notify visa holders
of certain decisions or proposed decisions orally rather than in writing,
however, in practice, such notifications are all given in writing. Some
provisions require the Minister to give a document by the prescribed method,
some grant the Minister a discretion, and some are silent as to the necessary
method.[6]
Items 1-21 and 25-32 of Schedule 1 of the
Bill amend the relevant visa cancellation provisions to essentially require all
cancellation-related notifications to be given to the person in writing and
enable the Migration Regulations to specify the method of providing documents
to the visa holder.
Item 22 of the Bill amends section 494A which deals
with the provision of documents. Specifically, it provides that where a
provision of the Migration Act or the Migration Regulations requires
or permits the Minister to give a document to a person and that provision does
not state that the document must be given by one of the methods in section 494B
or by a prescribed method under the Migration Regulations, then the Minister
may give the documents to the person by any method the Minister considers
appropriate. Methods specified under section 494B include giving a document by
hand, by prepaid post and transmission by fax, email or other electronic means.
Section 494C then provides for deemed receipt of the documents by the visa
holder if one of the methods used in section 494B has been used.
Regulation 2.55 of the Migration Regulations provides for
the way in which the Minister must give a document to a holder or former holder
of a visa relating to the proposed cancellation or the cancellation of a visa
under the Migration
Act. As noted in the Explanatory Memorandum, the prescribed
methods specified in regulation 2.55 of the Migration Regulations currently
differ from the methods specified in section 494B of the Migration Act.[7]
In a recent decision of the Federal Circuit Court of
Australia, Judge Driver disagreed with the Government’s submissions that
regulation 2.55 of the Migration Regulations does not operate in an
inconsistent manner with the relevant provisions in the Migration Act.[8]
In finding that regulation 2.55 ‘impairs or distracts from the operation of the
statutory scheme’, he stated:
The relevant subject matter with which the legislature has
dealt in detail is when a document sent by pre-paid post will be deemed to have
been received. Regulation 2.55(7), read with regulation 2.55(3)(c),
impairs or detracts from the manner in which the legislation has dealt with
that subject matter, by extending the deeming to a case where the Minister has
sent a document to an address which has not been provided to the Minister by
the recipient for the purposes of receiving documents, provided it is the last
residential, business or post box address “known to the Minister”. In that way,
the regulation interferes with the balance struck by the legislature through ss
494C(4) and 494B(4) between administrative certainty and the interests of the
recipient. [9]
The Bill will amend section 494A to make clear that the
section does not apply to documents relating to the proposed cancellation,
cancellation or revocation of the cancellation of a visa. The Explanatory
Memorandum states that the effect of these amendments:
… is to confirm that cancellation-related documents can be
given to a person at their last address known to the Minister (per regulation
2.55 of the Regulations), rather than to the last address the person provided
to the Minister (per section 494B of Migration Act).[10]
The Government states that the nature of the visa
cancellation process means that a non-citizen may not have had contact with the
Department of Home Affairs for a long period of time and this amendment
‘maximises the likelihood the person will actually receive the
cancellation-related documents’.[11]
Schedule 1 –
Validating documents which do not comply with statutory requirements
Schedule 1 of the Bill also includes amendments relating
to validating certain processes where the Minister or their delegate has not
complied with the relevant statutory requirements.
Receipt of
documents
Item 23 of the Bill repeals and replaces subsection
494C(7) which deals with when a person is taken to have received a document
from the Minister where an error has occurred.
Subsection 494C(7) prescribes when a person is taken to
have received a document from the Minister in circumstances where the
Minister has purported to give a document to a person in accordance with a
stipulated method (such as by pre-paid post under subsection 494B(4)) but makes
an error in doing so, but the person nonetheless receives the document or a
copy of it. It currently provides that the person is taken to have received the
document at the time mentioned in section 494C as if the Minister had given the
document to the person without making an error in doing so, unless the person
can show that they received it at a later time (in which case the person is
taken to have received it at that later time).
The Bill will amend subsection 494C(7) to deal with both
the giving of the document and the receipt of the document. Specifically, proposed
subsection 494C(7) will provide that even where there is an error in giving
a document to a person, if the person nevertheless receives the document or a
copy of it, then the giving of the document is taken to have been in accordance
with the relevant method and the person is taken to have received the document at
the time mentioned in section 494C, unless the person can show that they
received it at a later time (in which case the person is taken to have received
it at that later time). The redrafting also appears to clarify that the onus is
on the visa holder to prove that they received the document at a later specific
time, with that specific time then being the time in which the document was
taken to have been received.[12]
The Explanatory Memorandum does not provide much clarity
on the need for this specific change though it may fit within the broader
intent of the Bill in discouraging litigation ‘founded on technical or
inconsequential disputes over the giving of a document’.[13]
Substantial
compliance framework
Item 24 of Schedule 1 of the Bill inserts proposed
section 494E into the Migration Act, which introduces a substantial
compliance framework in relation to the content of documents.
According to the Explanatory Memorandum:
The substantial compliance framework is intended to address
instances where the Minister is permitted or required to give a document to a
person, and the document does not strictly comply with the relevant
requirements under the Migration Act or the Regulations. This Bill amends the
Migration Act to provide that where the Minister has substantially complied
with the relevant content-related requirements and the requirements for the
giving of a document, and the recipient of that document suffers no substantial
prejudice to their legal rights from that breach, or those breaches, the
document will be taken to have complied with the content-related requirements.[14]
Proposed section 494E does not define what is meant
by ‘substantial compliance’, though proposed subsection 494E(4)
clarifies that there may be substantial compliance with the content
requirements even if there is an error, omission, misstatement or
misdescription in the document. The Explanatory Memorandum also provides some
context as to what is meant by ‘substantial compliance’:
… a document which omits crucial information, such as the
availability of review rights or the timeframe for making an application for
review, will not comply with content requirements despite the operation of the
new provision.[15]
Proposed subsection 494E(5) clarifies that a
failure by a person to exercise any rights or take any other action (such as
seeking a review of the decision or making representations to the Minister)
does not on its own imply that that failure by the Minister to strictly comply
with the content requirements has caused substantial prejudice to the person’s
rights. Specific examples are provided to illustrate the effect of the
provision.
Schedule 2 –
Repeal of the application bar for certain protection visa applicants
Lifting the
bar for certain protection visa applicants
Section 35A of the Migration Act establishes the
classes of visas known as protection visas, which include permanent Protection
visas, Temporary Protection visas and Safe Haven Enterprise visas.
There are a number of statutory ‘bars’ that prevent a
person from making a valid protection visa application. This includes the
current prohibition on any person who is a national of two or more countries
from lodging a valid application for a protection visa contained in Subdivision
AK of Part 2, Division 3 of the Migration Act, unless the Minister
allows such an application to be made.
These provisions were introduced in 1999 via the enactment
of the Border
Protection Legislation Amendment Act 1999. The specific provisions were
not included in the original Bill but were passed
by the Senate with the support of the then Howard Government and the
Opposition.[16]
As noted in ALP Senator Chris Schacht’s second reading
speech, the amendments were intended to prevent forum shopping by persons
seeking to enter Australia:
Clearly there is evidence emerging that forum shopping is
about how people, with the assistance of people smugglers, try to make
arrangements to end up in the country of their first desire, where they think
would be the nicest place for them to go, and the place that would provide the
best facilities and the best future. We cannot blame people for having that
view; that is a natural human reaction. But when it gets to the stage where, in
one form or another, the international and national procedures for dealing with
refugees are being, if not abused, at least bent, so that countries like
Australia are unnecessarily targeted, we have every right as a nation to make
laws in respect of those arrangements.[17]
This is reflected in section 91M of the Migration Act which
states that these provisions were enacted because the Parliament considered
that ‘a non-citizen who can avail himself or herself of protection from a third
country, because of nationality or some other right to re-enter and reside in
the third country, should seek protection from the third country instead of
applying in Australia for a protection visa’.
Subdivision AK of Part 2, Division 3 of the Migration Act
applies to two broad categories of persons, namely:
- a
non-citizen who is a national of two or more countries (subsection 91N(1)) and
- a
non-citizen who has a right to re-enter and reside in any country apart from
Australia or a country of which the person is a national, or former habitual
resident (subsection 91N(2)).
Where it is in the public interest, the Minister may lift
the bar and allow a non-citizen to make an application for a protection visa.
According to the Government, this statutory bar has led to an administrative burden
on the ‘individual, the Department and the Minister’[18]:
From 1 July 2019
to 24 March 2023, 401 prospective protection visa applicants were assessed as
being impacted by the application bar. However, in the same period, in excess
of 55,000 protection visa applicants had to be assessed against this provision
before their application could be progressed for further processing.[19]
The provisions in Schedule 2 of the Bill repeal Subdivision
AK and make a number of consequential amendments as the result of the repeal of
those provisions.[20]
While this will mean an applicant for a protection visa who currently meets the
relevant criteria in subsection 91N will no longer have to seek the Minister’s
permission to lift the bar, they will still need to demonstrate that they have
taken all possible steps to avail themselves of a right to enter and reside in
any country apart from Australia.[21]
As noted by the Minister is his second reading speech:
The government's position remains unchanged: those who can
avail themselves of protection from a third country because of nationality or
some other right to re-enter and reside in the third country, should seek
protection from the third country instead of applying for a protection visa in
Australia.[22]
The
principle of non-refoulement
As noted by the AAT’s Guide to Refugee Law, the protection
visa scheme is, in part, ‘a mechanism by which Australia provides protection
from situations which engage its non-refoulement obligations’ under the
relevant international treaties to which it is a party.[23]
Under international law, refugees and asylum-seekers are entitled to two
partially overlapping sets of rights: those which States are obliged to
respect, protect and fulfil under international human rights law,[24]
and the specific rights of refugees arising from the Convention
Relating to the Status of Refugees (the Refugee Convention) and
its 1967
Protocol.
The principle of non-refoulement (non-return) applies both
in respect of recognised refugees, and those whose claims for protection have
not been finally determined (asylum seekers). Therefore, Australia has an
obligation to not return asylum seekers to their country of origin until their
claim for protection has been determined.[25]
Australia’s international obligations towards refugees are implemented
domestically via the Migration Act, which provides a person may be
eligible for a protection visa if they are a person in respect of whom the
Minister is satisfied Australia has protection obligations because they are a
refugee.[26]
The Migration Act historically included express
references to the Refugee Convention; however, these were largely
removed in 2014 and replaced with provisions which ‘articulate Australia’s
interpretation of its protection obligations under the Refugees Convention’.[27]
This included the insertion of section 197C which made clear that the removal
powers under the Migration Act were ‘completely independent’ of
Australia’s non-refoulement obligations.[28]
Legal commentators and refugee organisations have argued
that the scope of protection provided under the Migration Act is
narrower than Australia’s obligations under international law. In particular,
the grounds on which a person can be denied a protection visa—including for
failing to pass the character test—are broader than the grounds for exclusion
under international law.[29]
The Government has stated that the removal of Subdivision
AK
… assists Australia in meeting its non-refoulement
obligations by allowing for considered assessments of protection claims for
certain non-citizens who are nationals of two or more countries. Rather than
preventing a valid application for a protection visa to be made, it allows for
the making of a protection finding in relation to individuals seeking to engage
Australia’s protection obligations. This provides a greater assurance in giving
effect to Australia’s international obligations.[30]