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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Giving
Documents and Other Measures) Bill
2023
No. , 2023
(Home Affairs)
A Bill for an Act to amend the
Migration Act 1958
,
and for related purposes
No. , 2023
Migration Amendment (Giving Documents and Other Measures) Bill
2023
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1
--
Documents
3
Migration Act 1958
3
Schedule 2
--
Visa applications by dual nationals etc.
11
Migration Act 1958
11
No. , 2023
Migration Amendment (Giving Documents and Other Measures) Bill
2023
1
A Bill for an Act to amend the
Migration Act 1958
,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Migration Amendment (Giving Documents and
5
Other Measures) Act 2023
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Migration Amendment (Giving Documents and Other Measures) Bill
2023
No. , 2023
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
3. Schedule 2
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Documents
Schedule 1
No. , 2023
Migration Amendment (Giving Documents and Other Measures) Bill
2023
3
Schedule
1--Documents
1
2
Migration Act 1958
3
1 Subsection 107(1)
4
Omit "
holder
a notice", substitute "
holder
a written notice".
5
2 After subsection 107(1B)
6
Insert:
7
(1C) The notice under subsection (1) must be given in the prescribed
8
way.
9
3 At the end of section 109
10
Add:
11
(3) If the Minister cancels a visa under subsection (1), the Minister
12
must give the former holder of the visa a written notice that:
13
(a) sets out the decision; and
14
(b) specifies the ground for the cancellation; and
15
(c) states whether the decision is reviewable under Part 5 or 7;
16
and
17
(d) if the former holder has a right to have the decision reviewed
18
under Part 5 or 7
--
states:
19
(i) that the decision can be reviewed; and
20
(ii) the time in which the application for review may be
21
made; and
22
(iii) who can apply for the review; and
23
(iv) where the application for review can be made.
24
(4) The notice under subsection (3) must be given in the prescribed
25
way.
26
(5) Failure to give notice of a decision does not affect the validity of
27
the decision.
28
4 Subsection 119(1)
29
Omit "must notify", substitute "must, in writing, notify".
30
Schedule 1
Documents
4
Migration Amendment (Giving Documents and Other Measures) Bill
2023
No. , 2023
5 Subsections 119(2) and (3)
1
Repeal the subsections, substitute:
2
(2) The notification under subsection (1) must be given in the
3
prescribed way.
4
6 Subsection 120(2)
5
After "must", insert "by written notice".
6
7 Paragraph 120(2)(b)
7
Omit "ensure, as far as reasonably
practicable, that the holder
8
understands", substitute "set out".
9
8 Subsection 120(3)
10
Repeal the subsection, substitute:
11
(3) The notice under subsection (2) must be given in the prescribed
12
way.
13
9 Subsection 127(1)
14
Omit
"the prescribed way", substitute "writing".
15
10 After subsection 127(2)
16
Insert:
17
(2A) The notification under subsection (1) must be given in the
18
prescribed way.
19
11 Subsection 129(1)
20
Before "notice", insert "written".
21
12 Section 132
22
Before "When,", insert "(1)".
23
13 Section 132
24
Omit "the
prescribed way", substitute "writing".
25
Documents
Schedule 1
No. , 2023
Migration Amendment (Giving Documents and Other Measures) Bill
2023
5
14 At the end of section 132
1
Add:
2
(2) The notification under subsection (1) must be given in the
3
prescribed way.
4
15 Subsection 133E(2)
5
Omit "manner", substitute "way".
6
16 Paragraph 133F(3)(a)
7
Omit "way that the M
inister considers appropriate in the
8
circumstances", substitute "prescribed way".
9
17 Subsection 134E(1)
10
Before "notice", insert "written".
11
18 After subsection 134(7)
12
Insert:
13
(7A) The notice under subsection (7) must be given in the prescribed
14
way.
15
19 At the end of section 135
16
Add:
17
(6) A notice under subsection (1) or (5) must be given in the
18
prescribed way.
19
20 At the end of section 137R
20
Add:
21
(4) A notice under subsection (1) or (3) must be given in the
22
prescribed way.
23
21 After subsection 137S(1)
24
Insert:
25
(1A) The notice under subsection (1) must be given in the prescribed
26
way.
27
Schedule 1
Documents
6
Migration Amendment (Giving Documents and Other Measures) Bill
2023
No. , 2023
22 At the end of section 494A
1
Add:
2
(5) This section does not apply to the giving of any of the following
3
documents:
4
(a) a document relating to the proposed cancellation of a visa;
5
(b) a document relating to the cancellation of a visa;
6
(c) a document relating to the revocation of the cancellation of a
7
visa;
8
(d) a document relating to a decision not to revoke the
9
cancellation of a visa.
10
Note 1:
The Minister must give a person a document mentioned in this
11
subsection in the way prescribed by the regulations for the document
12
(see, for example, subsections 119(2), 127(2A) and 501G(3) and
13
paragraph 504(1)(e)).
14
Note 2:
For the giving of such a
document to the person's authorised
recipient,
15
see section 494D.
16
23 Subsection 494C(7)
17
Repeal the subsection, substitute:
18
(7) If:
19
(a) the Minister purports to give a document to a person in
20
accordance with a method (the
relevant method
) specified in
21
section 494B (including in a case covered by section 494A)
22
but makes an error in doing so; and
23
(b) the person nonetheless receives the document or a copy of it;
24
then, despite the error:
25
(c) the document is taken to have been given in accordance with
26
the relevant method; and
27
(d) the person is taken to have received the document:
28
(i) at the time mentioned in this section for the relevant
29
method; or
30
(ii) if the person can show that the person received the
31
document at a later time
--
at that later time.
32
24 After section 494D
33
Insert:
34
Documents
Schedule 1
No. , 2023
Migration Amendment (Giving Documents and Other Measures) Bill
2023
7
494E When documents are taken to comply with content
1
requirements
2
(1) This section applies in relation to a document if:
3
(a) a provision of this Act or the regulations requires or permits
4
the Minister to give the document to a person; and
5
(b) a provision of this Act or the regulations requires (the
6
content requirements
) the document to include particular
7
information.
8
(2) For the purposes of this Act or the regulations, the document is
9
taken to comply with the content requirements if:
10
(a) there is substantial compliance with those requirements; and
11
(b) the failure to strictly comply with those requirements does
12
not, or is not likely to, cause substantial prejudice to the
13
person
's rights (including, but not limit
ed to, rights to seek
14
review in connection with the matter to which the document
15
relates).
16
(3) Subsection (2) applies despite any other provision of this Act or the
17
regulations.
18
(4) Without limiting paragraph (2)(a), there may be substantial
19
compliance with the content requirements even if there is an error,
20
omission, misstatement or misdescription in the document.
21
(5) Without limiting paragraph (2)(b), a failure by the person to:
22
(a) exercise any rights (including, but not limited to, rights to
23
seek review) in connection with the matter to which the
24
document relates; or
25
(b) take any other action (including, but not limited to, the
26
making of representations) in connection with the matter to
27
which the document relates;
28
is not on its own to be taken to imply that the failure to strictly
29
comply with the content requirements has caused substantial
30
prejudice to the person
's rights (including, but not limited to, rights
31
to seek review in connection with the matter to which the
32
document relates).
33
Example 1: Andrew, George and Daniel each make an application for the grant of
34
a visa. The Minister refuses to grant each applicant the visa and gives
35
notice of the refusal decision to each applicant. The notice states that
36
Schedule 1
Documents
8
Migration Amendment (Giving Documents and Other Measures) Bill
2023
No. , 2023
the applicant may make an application for review of the refusal
1
decision within 30 days after the notice is received by the applicant.
2
While the notice substantially complies with the requirement in the
3
Act to state the period within which an application for review must be
4
made, the notice misstates the period. The correct period is 28 days
5
after the notice is received by the applicant.
6
Andrew makes an application for review of the refusal decision 25
7
days after receiving the notice. As the misstatement in the notice does
8
not cause substantial prej
udice to Andrew's right to seek review, it is
9
intended that subsection (2) would apply in relation to the notice given
10
to Andrew.
11
George makes an application for review of the refusal decision 29
12
days after receiving the notice. The misstatement in the notice causes
13
substantial prejudice to George's right to seek review as the
14
application for review is not made within the required period but is
15
made within the misstated period specified in the notice. It is intended
16
that subsection (2) would not apply in relation to the notice given to
17
George.
18
Daniel makes an application for review of the refusal decision 40 days
19
after receiving the notice. The misstatement in the notice does not
20
cause substantial prejudice to Daniel's right to seek review as the
21
application for review is made well after the required period. It is
22
intended that subsection (2) would apply in relation to the notice given
23
to Daniel.
24
Example 2: Anne applies for a visa and has an authorised recipient under
25
section 494D. The Minister refuses to grant Anne the visa and gives
26
notice of the refusal decision by sending an email to the authorised
27
recipient. The authorised recipient receives the notice and 2 days later
28
forwards it on to Anne.
29
The notice states that Anne may make an application for review of the
30
refusal decision within 21 days after the day Anne receives the notice.
31
The notice does not explain that the effect of sections 494C and 494D
32
is that the period of 21 days begins to run on the day after the day the
33
notice is received by the authorised recipient, rather than by Anne.
34
While the notice substantially complies with the requirement in the
35
Act to state the period within which an application for review must be
36
made, the notice misdescribes when that period begins to run.
37
Anne makes an application for review of the refusal decision 35 days
38
after receiving the notice. The misdescription in the notice does not
39
cause substantial prejudice to Anne's right to seek review as the
40
application for review is made well after the required period. It is
41
intended that subsection (2) would apply in relation to the notice given
42
to the authorised recipient.
43
Documents
Schedule 1
No. , 2023
Migration Amendment (Giving Documents and Other Measures) Bill
2023
9
25 Subsection 500A(10)
1
After "Minister must", insert ", in writing,".
2
26 After subsection 500A(10)
3
Insert:
4
(10A) If the notification under subsection (10) relates to a decision to
5
cancel a person's temporary safe haven visa, the notification must
6
be given in the prescribed way.
7
27 Paragraph 501C(3)(a)
8
Omit "
, in the way that the Minister considers appropriate in the
9
circumstances".
10
28 After subsection 501C(3)
11
Insert:
12
(3A) If the notice under subsection (3) relates to an original decision to
13
cancel a visa, the notice must be given in the prescribed way.
14
29 Paragraph 501CA(3)(a)
15
Omit ", in the way that the Minister considers appropriate in
the
16
circumstances".
17
30 After subsection 501CA(3)
18
Insert:
19
(3A) The notice under subsection (3) must be given in the prescribed
20
way.
21
31 Subsection 501G(3)
22
Omit "manner", substitute "way".
23
32 After subsection 504(2)
24
Insert:
25
(2A) The regulations that may be made under paragraph (1)(e) include,
26
but are not limited to, regulations specifying circumstances in
27
Schedule 1
Documents
10
Migration Amendment (Giving Documents and Other Measures) Bill
2023
No. , 2023
which a document is to be taken to have been given in a specified
1
way.
2
33 Application provision
3
The amendments made by this Schedule apply in relation to a notice,
4
notification or document given on or after the commencement of this
5
item.
6
Visa applications by dual nationals etc.
Schedule 2
No. , 2023
Migration Amendment (Giving Documents and Other Measures) Bill
2023
11
Schedule
2--Visa applications by dual
1
nationals etc.
2
3
Migration Act 1958
4
1 Subsection 5(1) (subparagraph (a)(i) of the definition of
5
excluded fast track review applicant
)
6
Omit "or 91N".
7
2 Subparagraphs 46(1)(e)(v) and (vi)
8
Repeal the subparagraphs, substitute:
9
(v) section 91K (temporary safe haven visas).
10
3 Subdivision AK of Division 3 of Part 2
11
Repeal the Subdivision.
12
4 Subsection 198(9)
13
Repeal the subsection.
14
5 At the end of subsection 474(7)
15
Add:
16
Note:
Section 91Q was repealed by the
Migration Amendment (Giving
17
Documents and Other Measures) Act 2023
.
18
6 Application provision
--
validity of visa applications
19
(1)
The repeal of subparagraph 46(1)(e)(vi) and Subdivision AK of
20
Division 3 of Part 2 of the
Migration Act 1958
by this Schedule applies
21
in relation to the following:
22
(a) an application for a visa made on or after the commencement
23
of this item;
24
(b) an application for a visa made before the commencement of
25
this item if, immediately before that commencement, a
26
decision has not been made that the application is not a valid
27
application.
28
Schedule 2
Visa applications by dual nationals etc.
12
Migration Amendment (Giving Documents and Other Measures) Bill
2023
No. , 2023
(2)
For an application of a kind mentioned in paragraph (1)(b) of this item,
1
subparagraph 46(1)(e)(vi) and Subdivision AK of Division 3 of Part 2
2
of the
Migration Act 1958
are to be taken to have been repealed
3
immediately before the application was made.
4