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]