Commonwealth: Migration Legislation Amendment Act (No. 1) 2000 (Cth)

Migration Legislation Amendment Act (No. 1) 2000 No. 28, 2000 An Act to amend the Migration Act 1958, and for related purposes Contents 1 Short title................................... 2 Commencement............................... 3 Schedule(s).................................. Schedule 1—Business sponsors Migration Act 1958 Schedule 2—Circumstances that must be met for a valid visa application Migration Act 1958 Schedule 3—Authorisation of officers Migration Act 1958 Schedule 4—People held in non‑immigration custody Migration Act 1958 Schedule 5—Review of decisions refusing to grant permanent visas to non‑citizens Part 1—Permanent provisions Migration Act 1958 Part 2—Temporary provisions Migration Act 1958 Schedule 6—Exemptions from limits on number of visas Migration Act 1958 Schedule 7—Extension of period in pool for certain applications for visas Migration Act 1958 Schedule 8—Refugee Review Tribunal Migration Act 1958 Schedule 9—Judicial review Part 1—Amendments Migration Act 1958 Part 2—Transitional provisions Migration Act 1958 Migration Legislation Amendment Act (No. 1) 2000 No. 28, 2000 An Act to amend the Migration Act 1958, and for related purposes [Assented to 3 April 2000] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Migration Legislation Amendment Act (No. 1) 2000. 2 Commencement (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent. (2) Subject to subsection (3), Schedules 1, 2, 3, 4, 6, 7 and 8 commence on a day or days to be fixed by Proclamation. (3) If Schedule 1, 2, 3, 4, 6, 7 or 8 does not commence under subsection (2) within 6 months after the day on which this Act receives the Royal Assent, that Schedule commences on the first day after the end of that period. (4) If this Act receives the Royal Assent before or on the date of commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998, Part 1 of Schedule 5 to this Act commences on the date of commencement of Schedule 1 to that Act, immediately after the commencement of that Schedule. (5) If this Act receives the Royal Assent after the date of commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998, then, subject to subsection (8), Part 1 of Schedule 5 to this Act commences on a day to be fixed by Proclamation. (6) If this Act receives the Royal Assent before the date of commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998, then, subject to subsection (8), Part 2 of Schedule 5 to this Act commences on a day to be fixed by Proclamation. (7) If this Act receives the Royal Assent on or after the date of commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998, Part 2 of Schedule 5 to this Act does not commence and is taken not to have been enacted. (8) If subsection (5) or (6) applies to the commencement of Part 1 or 2 of Schedule 5 to this Act and that Part does not commence under the subsection concerned within 6 months after the day on which this Act receives the Royal Assent, that Part of that Schedule commences on the first day after the end of that period. (9) If an Act entitled Migration Legislation Amendment (Judicial Review) Act 2000 commences on or before 1 June 1999, Schedule 9 does not commence and is taken not to have been enacted. (10) If an Act entitled Migration Legislation Amendment (Judicial Review) Act 2000 has been enacted but has not commenced on or before 1 June 1999, or has not been enacted on or before that date, and this Act receives the Royal Assent on or before that date, Schedule 9 commences on 1 June 1999. (11) If an Act entitled Migration Legislation Amendment (Judicial Review) Act 2000 has been enacted but has not commenced on or before 1 June 1999, or has not been enacted on or before that date, and this Act receives the Royal Assent after that date, Schedule 9 is taken to have commenced on 1 June 1999. 3 Schedule(s) Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—Business sponsors Migration Act 1958 1 After Subdivision G of Division 3 of Part 2 Insert: Subdivision GA—Cancellation of approval as a business sponsor 137A Definitions In this Subdivision: approval of a person as a business sponsor or approval means an approval (including a renewal of an approval) under the regulations of a person as a business sponsor. business sponsor means a pre‑qualified business sponsor, or a standard business sponsor, under the provisions of the regulations relating to the approval of such sponsors. 137B Power of Minister to cancel approval as a business sponsor (1) The Minister may cancel an approval of a person as a business sponsor if the Minister is satisfied that a prescribed ground for cancelling the approval applies to the person. (2) To avoid doubt, a matter may constitute a ground for cancelling an approval of a person as a business sponsor: (a) whether or not the Minister became aware of the matter because of information given by the person; and (b) if the matter is an act or omission by the person—whether the act or omission was deliberate or inadvertent. (3) If the Minister may, under subsection (1), cancel an approval of a person as a business sponsor, the Minister must do so if there exist prescribed circumstances in which the approval must be cancelled. (4) To avoid doubt, the cancellation under subsection (1) of an approval of a person as a business sponsor terminates the approval in the same way as the revocation of such an approval under the regulations. 137C Non‑cancellation of approval because of one matter not to prevent cancellation of approval because of another matter If: (a) a matter constituted a ground for cancelling under section 137B an approval of a person as a business sponsor; and (b) despite that matter, the approval has not been cancelled; the failure to cancel the approval on the ground constituted by that matter does not prevent the cancellation, or the taking of steps for the cancellation, of the approval on a ground constituted by another matter. 137D Notice of decision (1) If the Minister decides to cancel under section 137B an approval of a person as a business sponsor, the Minister is to give the person written notice of the decision. (2) Subject to subsection (3), the notice: (a) is to be addressed to the person; and (b) is to be given by the prescribed method, or, if there is no prescribed method, by a method that the Minister considers to be appropriate, to an address that, under section 137E, is an appropriate address for delivery of the notice. (3) Subsection (2) does not prevent the Minister from giving notice of the decision to the person by a method or to an address not mentioned in that subsection provided that the person receives the notice. (4) Notice of the decision must state the ground for the cancellation. (5) Failure to give notice of the decision does not affect the validity of the decision. 137E What constitutes an appropriate address for delivery of notice of a decision (1) Subject to subsection (2), if a person has, whether before or after the commencement of this section, notified the Minister of an address at which the person lives or carries on business, or proposes to live or carry on business for at least 14 days, the address is taken to be an appropriate address for delivery of notice of the decision. (2) If the person notifies the Minister of an address to which a notice to the person of a decision to cancel the approval may be delivered, subsection (1) does not apply in relation to the person but that address is an appropriate address for delivery of notice of the decision. (3) If the person has notified the Minister, as mentioned in subsection (1) or (2), of different addresses at different times, references in the subsection concerned to the address are taken to be references to the later or latest such address. 137F Effect of compliance If the Minister complies with this Subdivision in respect of the cancellation of an approval of a person as a business sponsor, the Minister is not required to take any other action in respect of the cancellation. 137G Effect of setting aside decision to cancel approval (1) If the Federal Court sets aside a decision under section 137B to cancel an approval, the approval is taken never to have been cancelled. (2) However, the person is not entitled to make any claim against the Commonwealth or an officer because of the purported cancellation. 137H Provision of information—business sponsors (1) Subject to subsection (2), the Secretary may, by written notice to a person who has at any time applied for approval as a business sponsor (whether or not the person was approved as a business sponsor), require the person to give the Secretary information about any matters stated in the notice. (2) The Secretary may not require information under subsection (1) unless the information relates to: (a) the person's application for the approval; or (b) any approval of the person as a business sponsor; or (c) anything done as a result of the application or as a result of such an approval. (3) A notice under subsection (1) is to state that the information must be given within a period stated in the notice, being a prescribed period or, if no period is prescribed, a reasonable period. (4) The Secretary may, at the request of the person to whom a notice under subsection (1) is given, fix a day later than the day stated in the notice and, if a later day is so fixed, the information is to be given by the person on or before the later day. 2 Application The provisions of the Subdivision inserted by item 1 that relate to the cancellation of approvals of persons as business sponsors apply only to approvals granted or renewed, whether before or after the commencement of this Schedule, as a result of applications made on or after 1 August 1996. Schedule 2—Circumstances that must be met for a valid visa application Migration Act 1958 1 Subsections 45(2) and (3) Repeal the subsections. 2 Paragraph 46(1)(b) Repeal the paragraph, substitute: (b) it satisfies the criteria and requirements prescribed under this section; and 3 At the end of section 46 Add: (3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. (4) Without limiting subsection (3), the regulations may also prescribe: (a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and (b) how an application for a visa of a specified class must be made; and (c) where an application for a visa of a specified class must be made; and (d) where an applicant must be when an application for a visa of a specified class is made. 4 Saving Any regulations that: (a) were in force, or were purportedly in force, under section 45 of the Migration Act 1958 immediately before the commencement of this Schedule; and (b) could validly be made under section 46 of the Migration Act 1958 as amended by this Schedule; have effect after the commencement of this Schedule as if they had been made under section 46 of the Migration Act 1958 as amended by this Schedule. Schedule 3—Authorisation of officers Migration Act 1958 1 Subsection 5(1) (paragraph (f) of the definition of officer) Repeal the paragraph, substitute: (f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or (g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given. 2 After subsection 5(1) Insert: (1A) The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of officer in subsection (1) and, if such an authorisation is given: (a) the Minister is to cause notice of the authorisation to be published in the Gazette; but (b) without affecting the obligation of the Minister to cause a notice to be so published: (i) the authorisation takes effect when it is given; and (ii) the validity of the authorisation is not affected if such a notice is not published. 3 Saving of existing authorisations A person who, immediately before the commencement of this Schedule, was authorised, under paragraph (f) of the definition of officer in subsection 5(1) of the Migration Act 1958, to be an officer for the purposes of that Act is taken, after that commencement, to have been authorised to be such an officer under the paragraph substituted for the first‑mentioned paragraph by item 1 of this Schedule. Schedule 4—People held in non‑immigration custody Migration Act 1958 1 Subsection 254(3) Repeal the subsection, substitute: (2A) If a removee is given notice under subsection (2): (a) the authority who has custody of the removee immediately before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the application of Division 7 of Part 2 in relation to the removee; and (b) the removee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by that Division. (3) If a deportee is given notice under subsection (2): (a) the authority who has custody of the deportee immediately before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the application of subsection 253(1) in relation to the deportee; and (b) the deportee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by subsection 253(1); and (c) subsection 253(3) does not apply in relation to the deportee. Schedule 5—Review of decisions refusing to grant permanent visas to non‑citizens Part 1—Permanent provisions Migration Act 1958 1 After subsection 338(7) Insert: (7A) A decision to refuse to grant a non‑citizen a permanent visa is an MRT‑reviewable decision if: (a) the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone; and (b) the visa is a visa that could be granted while the non‑citizen is either in or outside the migration zone. 2 Subparagraph 347(1)(b)(i) Omit "or (4)", substitute ", (4) or (7A)". 3 Paragraph 347(2)(a) Omit "or (4)", substitute ", (4) or (7A)". 4 After subsection 347(3) Insert: (3A) If the primary decision was covered by subsection 338(7A), an application for review may only be made by a non‑citizen who: (a) was physically present in the migration zone at the time when the decision was made; and (b) is physically present in the migration zone when the application for review is made. Part 2—Temporary provisions Migration Act 1958 5 Section 337 (after paragraph (g) of the definition of Part 5 reviewable decision) Insert: (ga) a decision to refuse to grant to a non‑citizen a permanent visa where: (i) the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone; and (ii) the visa is a visa that could be granted while the non‑citizen is either in or outside the migration zone; 6 Subparagraph 339(1)(b)(i) Omit "or (b)", substitute ", (b) or (ga)". 7 Paragraph 339(2)(a) Omit "or (b)", substitute ", (b) or (ga)". 8 After subsection 339(3) Insert: (3A) An application for review of a decision covered by paragraph (ga) of the definition of Part 5 reviewable decision may only be made by a non‑citizen who: (a) was physically present in the migration zone at the time when the decision was made; and (b) is physically present in the migration zone when the application for review is made. 9 Subparagraph 347(1)(b)(i) Omit "or (d)", substitute ", (d) or (ga)". 10 Paragraph 347(2)(a) Omit "or (d)", substitute ", (d) or (ga)". 11 After subsection 347(3) Insert: (3A) If the primary decision was covered by paragraph (ga) of the definition of Part 5 reviewable decision, an application for review may only be made by a non‑citizen who: (a) was physically present in the migration zone at the time when the decision was made; and (b) is physically present in the migration zone when the application for review is made. Schedule 6—Exemptions from limits on number of visas Migration Act 1958 1 After section 87 Insert: 87A Limit does not prevent the grant of visas to certain people who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control If: (a) a person has applied, whether before or after the commencement of this section, for the grant of a visa; and (b) a time was or is reached when the grant of the visa to the person in a particular financial year was or is prevented by section 86; and (c) the person was requested by the Minister after that time to satisfy requirements for the grant of the visa that relate to health or character; and (d) after the making of the request referred to in paragraph (c) the person satisfies the requirements referred to in that paragraph in a financial year subsequent to the financial year in which the time referred to in paragraph (b) occurred; and (e) the grant of the visa to the person at the time when the requirements referred to in paragraph (c) are satisfied would, apart from this section, be prevented by section 86; and (f) the person was unable to satisfy the requirements referred to in paragraph (c) at a time when, apart from this section, section 86 would not have prevented the grant of the visa to the person; and (g) the Minister is satisfied that the person's inability to satisfy the requirements referred to in paragraph (c) at a time mentioned in paragraph (e) was due to circumstances beyond the person's control; section 86 does not prevent the grant of the visa to the person. Schedule 7—Extension of period in pool for certain applications for visas Migration Act 1958 1 At the end of section 95 Add: Section to be subject to section 95A (5) This section has effect subject to section 95A. Note: The heading to subsection 95(4) is replaced by "Removal from pool under paragraph (3)(a) treated as failure to receive qualifying score". 2 After section 95 Insert: 95A Extension of period in pool (1) This section applies to an application that: (a) is in the pool at the commencement of this section; or (b) is put in the pool after that commencement. (2) Section 95 has effect in relation to the application as if references in subsections 95(2) and (3) to 12 months were references to 2 years. Schedule 8—Refugee Review Tribunal Migration Act 1958 1 Subsections 461(2) and (3) Repeal the subsections. Schedule 9—Judicial review Part 1—Amendments Migration Act 1958 1 Paragraph 475(1)(a) Omit "Immigration Review Tribunal", substitute "Migration Review Tribunal". 2 Paragraph 475(2)(b) Repeal the paragraph. 3 Paragraph 475(2)(c) Omit "IRT‑reviewable decision", substitute "MRT‑reviewable decision". 4 Paragraph 475(2)(f) Omit "Immigration Review Tribunal", substitute "Migration Review Tribunal". 5 At the end of section 475 Add: (3) The reference in paragraph (2)(e) to section 345 is a reference to section 345 of this Act as in force before the commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998. Part 2—Transitional provisions Migration Act 1958 6 Application for judicial review of decision of Immigration Review Tribunal pending at commencement For the purposes of Part 8 of the Migration Act 1958, if: (a) before the commencement of this Schedule, an application had properly been made under section 476 of the Migration Act 1958 as previously in force to the Federal Court for judicial review of a decision of the Immigration Review Tribunal; and (b) that Court had not made an order on the application under subsection 481(1) of the Migration Act 1958 as previously in force before that commencement; the application is taken to be an application properly made, on the day of that commencement, under section 476 of the Migration Act 1958 for the judicial review of the decision of the Immigration Review Tribunal as if it were a decision of the Migration Review Tribunal. 7 Period for making application for judicial review of decision of Immigration Review Tribunal current at commencement If: (a) before the commencement of this Schedule, an application could have been properly made under section 476 of the Migration Act 1958 as previously in force to the Federal Court for judicial review of a decision of the Immigration Review Tribunal; and (b) the period under section 478 of the Migration Act 1958 as previously in force for making the application had not ended before that commencement; an application may be made under section 476 of the Migration Act 1958 for judicial review of the decision of the Immigration Review Tribunal as if it were a decision of the Migration Review Tribunal. However, the period for making the application is to be worked out from the day, before that commencement, on which the applicant was notified of the decision. 8 Decision of Immigration Review Tribunal quashed or set aside and matter to which decision relates referred for further consideration (1) For the purposes of Part 8 of the Migration Act 1958, if: (a) before the commencement of this Schedule, a decision of the Immigration Review Tribunal was quashed or set aside under that Part by the Federal Court; and (b) the matter to which the decision related was referred by that Court for further consideration; and (c) no decision on that further consideration was made before that commencement; the decision that was reviewed by the Immigration Review Tribunal is taken, on and after that commencement, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on the day of that commencement. (2) For the purposes of Part 8 of the Migration Act 1958, if: (a) after the commencement of this Schedule, a decision of the Immigration Review Tribunal made before that commencement is quashed or set aside by the Federal Court; and (b) the matter to which the decision related is referred by that Court for further consideration; the decision that was reviewed by the Immigration Review Tribunal is taken, on and after the day of the referral, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on that day. 9 Decision of Immigration Review Tribunal that the Minister has agreed to reconsider (1) For the purposes of Part 8 of the Migration Act 1958, if: (a) before the commencement of this Schedule, an application had been made to the Federal Court for judicial review of a decision of the Immigration Review Tribunal; and (b) before the judicial review application was determined by that Court, and before that commencement, the Minister agreed, in writing, to reconsider the decision; and (c) no decision on that reconsideration was made before that commencement; the decision that is to be reconsidered by the Minister is taken, on and after that commencement, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on the day of that commencement. (2) For the purposes of Part 8 of the Migration Act 1958, if: (a) before or after the commencement of this Schedule, an application has been or is made to the Federal Court for judicial review of a decision of the Immigration Review Tribunal that was made before that commencement; and (b) before the judicial review application was or is determined by that Court, but after that commencement, the Minister agrees, in writing, to reconsider the decision; the decision that is to be reconsidered by the Minister is taken, on and after the day of the Minister's agreement, to be an MRT‑reviewable decision in respect of which an application under section 347 of the Migration Act 1958 was made on that day. [Minister's second reading speech made in— Senate on 31 March 1999 House of Representatives on 6 March 2000] (63/99)