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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Clarifying
International Obligations for Removal)
Bill 2021
No. , 2021
(Immigration, Citizenship, Migrant Services and Multicultural Affairs)
A Bill for an Act to amend the
Migration Act 1958
to clarify obligations in relation to removal of
unlawful non-citizens, and for related purposes
No. , 2021
Migration Amendment (Clarifying International Obligations for
Removal) Bill 2021
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Migration Act 1958
3
No. , 2021
Migration Amendment (Clarifying International Obligations for
Removal) Bill 2021
1
A Bill for an Act to amend the
Migration Act 1958
1
to clarify obligations in relation to removal of
2
unlawful non-citizens, and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Migration Amendment (Clarifying International
6
Obligations for Removal) Act 2021
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Migration Amendment (Clarifying International Obligations for
Removal) Bill 2021
No. , 2021
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Amendments
Schedule 1
No. , 2021
Migration Amendment (Clarifying International Obligations for
Removal) Bill 2021
3
Schedule 1--Amendments
1
2
Migration Act 1958
3
1 After section 36
4
Insert:
5
36A Consideration of protection obligations
6
(1) In considering a valid application for a protection visa made by a
7
non-citizen, the Minister must consider and make a record of
8
whether the Minister is satisfied of any of the following:
9
(a) the non-citizen satisfies the criterion in paragraph 36(2)(a)
10
with respect to a country and also satisfies the criterion in
11
subsection 36(1C);
12
(b) the non-citizen satisfies the criterion in paragraph 36(2)(aa)
13
with respect to a country;
14
(c) the non-citizen:
15
(i) satisfies the criterion in paragraph 36(2)(a) with respect
16
to a country but does not satisfy the criterion in
17
subsection 36(1C); and
18
(ii) would satisfy the criterion in paragraph 36(2)(aa) with
19
respect to a country except that the non-citizen is a
20
non-citizen mentioned in paragraph 36(2)(a).
21
(2) The Minister must do so:
22
(a) before deciding whether to grant or refuse to grant the visa;
23
and
24
(b) before considering whether the non-citizen satisfies any other
25
criteria for the grant of the visa; and
26
(c) before considering whether the grant of the visa is prevented
27
by any provision of the Act or regulations; and
28
(d) without regard to subsections 36(2C) and (3).
29
(3) Subsection (1) does not apply if:
30
(a) the non-citizen (the
family applicant
) is a member of the
31
same family unit as another non-citizen (the
family visa
32
Schedule 1
Amendments
4
Migration Amendment (Clarifying International Obligations for
Removal) Bill 2021
No. , 2021
holder
) who holds a protection visa of the same class as the
1
visa the family applicant is applying for; and
2
(b) the family applicant's application for a protection visa was
3
made before the family visa holder was granted their visa;
4
and
5
(c) the family visa holder is a non-citizen mentioned in
6
paragraph 36(2)(a) or (aa).
7
2 Section 197C (heading)
8
Repeal the heading, substitute:
9
197C Relevance of Australia's non-refoulement obligations to
10
removal of unlawful non-citizens under section 198
11
3 At the end of section 197C
12
Add:
13
(3) Despite subsections (1) and (2), section 198 does not require or
14
authorise an officer to remove an unlawful non-citizen to a country
15
if:
16
(a) the non-citizen has made a valid application for a protection
17
visa that has been finally determined; and
18
(b) in the course of considering the application, a protection
19
finding within the meaning of subsection (4), (5), (6) or (7)
20
was made for the non-citizen with respect to the country
21
(whether or not the visa was refused or was granted and has
22
since been cancelled); and
23
(c) none of the following apply:
24
(i) the decision in which the protection finding was made
25
has been quashed or set aside;
26
(ii) the Minister is satisfied that the non-citizen is no longer
27
a person in respect of whom any protection finding
28
within the meaning of subsection (4), (5), (6) or (7)
29
would be made;
30
(iii) the non-citizen has asked the Minister, in writing, to be
31
removed to the country.
32
(4) For the purposes of subsection (3), a
protection finding
is made for
33
a non-citizen with respect to a country if a record was made in
34
Amendments
Schedule 1
No. , 2021
Migration Amendment (Clarifying International Obligations for
Removal) Bill 2021
5
relation to the non-citizen under section 36A that the Minister is
1
satisfied as mentioned in paragraph 36A(1)(a), (b) or (c) with
2
respect to the country.
3
(5) For the purposes of subsection (3), a
protection finding
is also
4
made for a non-citizen with respect to a country if the Minister was
5
satisfied of any of the following (however expressed and including
6
impliedly):
7
(a) the non-citizen satisfied the criterion in paragraph 36(2)(a)
8
with respect to the country and also satisfied the criterion in
9
subsection 36(1C);
10
(b) the non-citizen satisfied the criterion in paragraph 36(2)(aa)
11
with respect to the country;
12
(c) the non-citizen:
13
(i) would have satisfied the criterion in paragraph 36(2)(a)
14
with respect to the country except that subsection 36(3)
15
applied in respect of the non-citizen; and
16
(ii) satisfied the criterion in subsection 36(1C);
17
(d) the non-citizen:
18
(i) satisfied the criterion in paragraph 36(2)(a) with respect
19
to the country but did not satisfy the criterion in
20
subsection 36(1C); and
21
(ii) would have satisfied the criterion in paragraph 36(2)(aa)
22
with respect to the country except that the non-citizen
23
was a non-citizen mentioned in paragraph 36(2)(a);
24
(e) the non-citizen:
25
(i) satisfied the criterion in paragraph 36(2)(a) with respect
26
to the country but did not satisfy the criterion in
27
subsection 36(1C); and
28
(ii) would have satisfied the criterion in paragraph 36(2)(aa)
29
with respect to the country except that the non-citizen
30
was a non-citizen mentioned in paragraph 36(2)(a) and
31
subsection 36(2C) or (3) applied in respect of the
32
non-citizen;
33
(f) the non-citizen would have satisfied the criterion in
34
paragraph 36(2)(aa) with respect to the country except that
35
subsection 36(2C) or (3) applied in respect of the non-citizen.
36
Schedule 1
Amendments
6
Migration Amendment (Clarifying International Obligations for
Removal) Bill 2021
No. , 2021
(6) For the purposes of subsection (3), a
protection finding
is also
1
made for a non-citizen with respect to a country if:
2
(a) the Minister was satisfied (however expressed and including
3
impliedly) that, because subsection 36(4), (5) or (5A) applied
4
to the non-citizen in relation to the country, subsection 36(3)
5
did not apply in relation to the country; and
6
(b) a protection finding within the meaning of subsection (4) or
7
(5) was made for the non-citizen with respect to another
8
country.
9
(7) For the purposes of subsection (3), a
protection finding
is also
10
made for a non-citizen with respect to a country in circumstances
11
prescribed by the regulations.
12
(8) For the purposes of subsection (5), it is irrelevant whether or not
13
the non-citizen satisfied any other criteria for the grant of a
14
protection visa.
15
(9) For the purposes of subparagraph (3)(c)(iii), a non-citizen who
16
withdraws their written request to be removed to a country is taken
17
not to have made that request.
18
4 Application of amendments
19
(1)
Section 36A of the
Migration Act 1958
, other than paragraphs
20
36A(2)(a), (b) and (c), applies in relation to applications for visas made
21
but not decided before this Schedule commences.
22
(2)
Section 36A of the
Migration Act 1958
applies in relation to
23
applications for visas made after this Schedule commences.
24
(3)
A reference in section 197C of the
Migration Act 1958
to a protection
25
finding within the meaning of subsection 197C(5) or (6) is a reference
26
to a protection finding made before or after this Schedule commences.
27