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The committee has sought further comment in
relation to the following instruments
Migration Act 1958 - Determination of
Granting of Protection Class XA Visas in 2013/2014 Financial Year - IMMI 14/026
FRLI: F2014L00224
Portfolio: Immigration and Border Protection
Tabled: House of Representatives
and Senate, 6 March 2014 Summary of committee concerns
2.1
The committee seeks further information to determine the compatibility
of this instrument with human rights. Overview
2.2
This instrument operates to set the cap for the Protection (Class XA)
visa (protection visa). It determines that the maximum number of protection visas
that may be granted in the financial year 1 July 2013 to 30 June 2014 is 2773.[1]
The instrument applies to all applicants who have applied for a protection
visa, including applicants who have applied before the implementation of this
cap.
2.3
The explanatory statement states that:
The purpose of this Legislative Instrument is to support the
Government’s determination that no more than 2750 permanent Protection visas be
granted to applicants who lawfully applied onshore under the onshore component
of the 2013/2014 Humanitarian Programme. The figure of 2773 takes into account
the temporary protection visas that were granted in 2013/2014.[2]
Compatibility with human rights
Statement of compatibility
2.4
The instrument is not accompanied by a statement of compatibility as it
is not defined as a disallowable legislative instrument within the strict meaning
of section 42 of the Legislative Instruments Act 2003.[3]
Committee view on compatibility
2.5
The committee notes that it had commented on a similar instrument in its
Second Report of the 44th Parliament.[4]
That instrument was subsequently revoked by the Minister but the committee took
the opportunity to outline some of the human rights issues that the instrument
gave rise to, as it was legislation that had come before the Parliament.
2.6
The committee notes that a human rights compatibility assessment,
addressing the committee's previously identified concerns, has not been
provided for this instrument. The committee reiterates its view that
legislative instruments which have the potential to limit human rights should
be accompanied by a statement of compatibility, even if one is not technically
required under the Human Rights (Parliamentary Scrutiny) Act 2011.[5]
2.7
The committee understands that there are approximately 5,800 persons in
immigration detention, 3,300 people in community detention, and 22,900 people in
the community on bridging visas.[6]
The committee considers that to the extent that the instrument results in a
freeze on processing, it may give rise to issues of compatibility with a number
of human rights.
2.8
The committee intends to write to the Minister for Immigration
and Border Protection to seek clarification on the following issues:
- whether the cap of 2773 determined for this financial year has
already been reached; and if so,
- whether the capping on the issuing of protection visas to
those held in immigration detention is compatible with the prohibition on
arbitrary detention,[7]
the right to humane treatment,[8]
the right to health,[9]
and children's rights;[10]
- whether the capping on the issuing of protection visas to
those who are in the community on bridging visas is compatible with the right
to work,[11]
the right to social security,[12]
and the right to an adequate standard of living;[13]
and
- whether the capping on the issuing of protection visas is
compatible with rights relating to the protection of the family.[14]
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