Consideration in Detail - Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 and Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021
Mr HAWKE (Mitchell—Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) (17:56): I present a supplementary explanatory memorandum to the bill and seek leave to move government amendments (1) to (4) together.
Leave granted.
Mr HAWKE: I move:
(1) Schedule 1, item 3, page 4 (lines 27 to 30), omit subparagraph 197C(3)(c)(ii), substitute:
(ii) a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
(2) Schedule 1, item 3, page 6 (after line 12), after subsection 197C(7), insert:
(7A) For the purposes of subsection (3), if an unlawful non-citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(3) Schedule 1, page 6 (after line 18), after item 3, insert:
3A After section 197C
Insert:
197D Decision that protection finding would no longer be made
(1) A decision under subsection (2) of this section may only be made for the purposes of subsection 197C(3).
(2) If the Minister is satisfied that an unlawful non-citizen to whom paragraphs 197C(3)(a) and (b) apply in relation to a valid application for a protection visa is no longer a person in respect of whom any protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made, the Minister may make a decision to that effect.
(3) For the purposes of subsection (2), if an unlawful non-citizen has made more than one valid application for a protection visa that has been finally determined, that subsection applies only in relation to the last such application.
(4) If the Minister makes a decision under subsection (2) in relation to an unlawful non-citizen, the Minister must, in writing, notify the non-citizen of the following matters:
(a) the decision;
(b) the reasons (other than non-disclosable information) for the decision;
(c) that the decision is reviewable under Part 7;
(d) the period within which an application for review can be made;
(e) who can apply for review;
(f) where the application for review can be made.
Note: For the method by which the notification may be given, see section 494A.
(5) Failure to comply with subsection (4) in relation to a decision does not affect the validity of the decision.
(6) For the purposes of subparagraph 197C(3)(c)(ii), a decision under subsection (2) of this section is complete if any of the following apply:
(a) the period within which an application for review of the decision under Part 7 can be made has ended without a valid application for review having been made;
(b) a valid application for review of the decision under Part 7 was made within the period but has been withdrawn;
(c) the decision is affirmed (or taken to have been affirmed) on review under Part 7.
3B Section 408 (paragraph beginning " Part 7 -reviewable decisions " )
After "circumstances", insert "or to decisions under subsection 197D(2)".
3C At the end of subsection 411(1)
Add:
; (e) a decision under subsection 197D(2) that an unlawful non-citizen is no longer a person in respect of whom a protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made.
3D At the end of Division 2 of Part 7
Add:
419 Certain decisions on review to be made within prescribed period etc.
(1) If:
(a) an application for review of a Part 7-reviewable decision is made under section 412; and
(b) the Part 7-reviewable decision is a decision of a kind mentioned in paragraph 411(1)(e);
then, subject to subsection (2) of this section, the Tribunal must make its decision on review, and notify the applicant of the decision, within the prescribed period.
(2) The Tribunal may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application.
3E Subsection 423A(1)
Omit "an RRT-reviewable decision (the primary decision) in relation to a protection visa", substitute "a Part 7-reviewable decision (the primary decision)".
3F Paragraphs 423A(1 )( a) and (b)
Omit "in the application before", substitute "before".
(4) Page 6 (after line 27), at the end of the Bill, add:
Schedule 2—Review of amendments
Intelligence Services Act 2001
1 After paragraph 29(1 )( ce)
Insert:
(cf) to commence, by the second anniversary of the commencement of the Migration Amendment (Clarifying International Obligations for Removal) Act 2021, a review of the operation, effectiveness and implications of the amendments made by Schedule 1 to that Act; and
I have moved the government amendments to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 as circulated, and I propose an amendment to the Intelligence Services Act 2001 which will require the Parliamentary Joint Committee on Intelligence and Security to commence a review of the operation, effectiveness and implications of the amendments made by this bill two years after commencement. This review will further ensure that the amendments are effective in preventing a person from being removed from Australia in breach of non-refoulement obligations and in ensuring that protection claims are always assessed in a protection visa application. The amendments will also enable access to merits review for certain individuals who were previously determined to have engaged protection obligations but in respect of whom the minister has decided that they no longer engage those obligations.
As noted in the supplementary explanatory memorandum, the bill is anticipated to operate in relation to the very small cohort of serious character and national security concerned detainees who enliven Australia's non-refoulement obligations. A person will not be subject to removal unless the decision is affirmed on merits review, or the period within which the person may apply for merits review has ended without an application for review having been made, or the person has withdrawn the application for the merits review. I commend the amendments to the chamber.
Bill, as amended, agreed to.