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This is a Bill, not an Act. For current law, see the Acts databases.
MIGRATION AMENDMENT (COMPLEMENTARY PROTECTION) BILL 2009
2008-2009
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Complementary
Protection) Bill 2009
No. , 2009
(Immigration and Citizenship)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
i Migration Amendment (Complementary Protection) Bill 2009 No. , 2009
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Amendments
3
Migration Act 1958
3
Migration Amendment (Complementary Protection) Bill 2009 No. , 2009 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 may be cited as the Migration Amendment
5
(Complementary Protection) Act 2009.
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 (Complementary Protection) Bill 2009 No. , 2009
Commencement information
Column 1
Column 2
Column 3
Provision(s)
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,
items 1 to 16
A single day to be fixed by Proclamation.
However, if any of the provision(s) 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 1,
item 17
Immediately after the commencement of the
provision(s) covered by table item 2.
4. Schedule 1,
items 18 and 19
At the same time as the provision(s) covered
by table item 2.
5. Schedule 1,
item 20
Immediately after the commencement of the
provision(s) covered by table item 2.
6. Schedule 1,
items 21 to 34
At the same time as the provision(s) covered
by table item 2.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
4
part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
6
3 Schedule(s)
7
Each Act 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
12
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2009 No. , 2009 3
Schedule 1--Amendments
1
2
Migration Act 1958
3
1 Subsection 5(1)
4
Insert:
5
Covenant means the International Covenant on Civil and Political
6
Rights, a copy of the English text of which is set out in Schedule 2
7
to the Australian Human Rights Commission Act 1986.
8
2 Subsection 5(1)
9
Insert:
10
cruel or inhuman treatment or punishment means an act or
11
omission by which:
12
(a) severe pain or suffering, whether physical or mental, is
13
intentionally inflicted on a person; or
14
(b) pain or suffering, whether physical or mental, is intentionally
15
inflicted on a person:
16
(i) for the purpose of obtaining from the person or from a
17
third person information or a confession; or
18
(ii) for the purpose of punishing the person for an act which
19
that person or a third person has committed or is
20
suspected of having committed; or
21
(iii) for the purpose of intimidating or coercing the person or
22
a third person; or
23
(iv) for a purpose related to a purpose mentioned in
24
subparagraph (i), (ii) or (iii); or
25
(v) for any reason based on discrimination that is
26
inconsistent with the Articles of the Covenant; or
27
(c) pain or suffering, whether physical or mental, is intentionally
28
inflicted on a person for any other reason so long as, in all the
29
circumstances, the act or omission could reasonably be
30
regarded as cruel or inhuman in nature;
31
but does not include an act or omission:
32
(d) that is not inconsistent with Article 7 of the Covenant; or
33
Schedule 1 Amendments
4 Migration Amendment (Complementary Protection) Bill 2009 No. , 2009
(e) arising only from, inherent in or incidental to, lawful
1
sanctions that are not inconsistent with the Articles of the
2
Covenant.
3
3 Subsection 5(1)
4
Insert:
5
degrading treatment or punishment means an act or omission that
6
causes, and is intended to cause, extreme humiliation which is
7
unreasonable, but does not include an act or omission:
8
(a) that is not inconsistent with Article 7 of the Covenant; or
9
(b) that causes, and is intended to cause, extreme humiliation
10
arising only from, inherent in or incidental to, lawful
11
sanctions that are not inconsistent with the Articles of the
12
Covenant.
13
4 Subsection 5(1)
14
Insert:
15
non-political crime:
16
(a) subject to paragraph (b), means a crime where a person's
17
motives for committing the crime were wholly or mainly
18
non-political in nature; and
19
(b) includes an offence that, under paragraph (a), (b), (c) or (d)
20
of the definition of political offence in section 5 of the
21
Extradition Act 1988, is not a political offence in relation to a
22
country for the purposes of that Act.
23
5 Subsection 5(1)
24
Insert:
25
receiving country, in relation to a non-citizen, means:
26
(a) a country of which the non-citizen is a national; or
27
(b) if the non-citizen has no country of nationality--the country
28
of which the non-citizen is an habitual resident;
29
to be determined solely by reference to the law of the relevant
30
country.
31
6 Subsection 5(1)
32
Insert:
33
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2009 No. , 2009 5
serious Australian offence means an offence against a law in force
1
in Australia, where:
2
(a)
the
offence:
3
(i) involves violence against a person; or
4
(ii) is a serious drug offence; or
5
(iii) involves serious damage to property; or
6
(iv) is an offence against section 197A or 197B (offences
7
relating to immigration detention); and
8
(b) the offence is punishable by:
9
(i) imprisonment for life; or
10
(ii) imprisonment for a fixed term of not less than 3 years;
11
or
12
(iii) imprisonment for a maximum term of not less than 3
13
years.
14
7 Subsection 5(1)
15
Insert:
16
serious foreign offence means an offence against a law in force in
17
a foreign country, where:
18
(a)
the
offence:
19
(i) involves violence against a person; or
20
(ii) is a serious drug offence; or
21
(iii) involves serious damage to property; and
22
(b) if it were assumed that the act or omission constituting the
23
offence had taken place in the Australian Capital Territory,
24
the act or omission would have constituted an offence (the
25
Territory offence) against a law in force in that Territory, and
26
the Territory offence would have been punishable by:
27
(i) imprisonment for life; or
28
(ii) imprisonment for a fixed term of not less than 3 years;
29
or
30
(iii) imprisonment for a maximum term of not less than 3
31
years.
32
8 Subsection 5(1)
33
Insert:
34
Schedule 1 Amendments
6 Migration Amendment (Complementary Protection) Bill 2009 No. , 2009
torture means an act or omission by which severe pain or
1
suffering, whether physical or mental is intentionally inflicted on a
2
person:
3
(a) for the purpose of obtaining from the person or from a third
4
person information or a confession; or
5
(b) for the purpose of punishing the person for an act which that
6
person or a third person has committed or is suspected of
7
having committed; or
8
(c) for the purpose of intimidating or coercing the person or a
9
third person; or
10
(d) for a purpose related to a purpose mentioned in paragraph (a),
11
(b) or (c); or
12
(e) for any reason based on discrimination that is inconsistent
13
with the Articles of the Covenant;
14
but does not include an act or omission arising only from, inherent
15
in or incidental to, lawful sanctions that are not inconsistent with
16
the Articles of the Covenant.
17
9 At the end of subparagraph 5A(3)(j)(ii)
18
Add "or".
19
10 After subparagraph 5A(3)(j)(ii)
20
Insert:
21
(iii) an offshore entry person who makes a claim for
22
protection on the basis of any of the matters mentioned
23
in subsection 36(2A);
24
11 After paragraph 36(2)(a)
25
Insert:
26
(aa) a non-citizen in Australia (other than a non-citizen mentioned
27
in paragraph (a)) to whom the Minister is satisfied Australia
28
has protection obligations because the Minister has
29
substantial grounds for believing that, as a necessary and
30
foreseeable consequence of the non-citizen being removed
31
from Australia to a receiving country, there is a real risk that
32
the non-citizen will be irreparably harmed because of a
33
matter mentioned in subsection (2A); or
34
12 At the end of subsection 36(2)
35
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2009 No. , 2009 7
Add:
1
; or (c) a non-citizen in Australia who is a member of the same
2
family unit as a non-citizen who:
3
(i) is mentioned in paragraph (aa); and
4
(ii) holds a protection visa.
5
13 After subsection 36(2)
6
Insert:
7
(2A) The matters are that:
8
(a) the non-citizen will be arbitrarily deprived of his or her life;
9
or
10
(b) the non-citizen will have the death penalty imposed on him
11
or her and it will be carried out; or
12
(c) the non-citizen will be subjected to torture; or
13
(d) the non-citizen will be subjected to cruel or inhuman
14
treatment or punishment; or
15
(e) the non-citizen will be subjected to degrading treatment or
16
punishment.
17
(2B) However, there is taken not to be a real risk that a non-citizen will
18
be irreparably harmed in a country because of a matter mentioned
19
in subsection (2A) if the Minister is satisfied that:
20
(a) it would be reasonable for the non-citizen to relocate to an
21
area of the country where there would not be a real risk that
22
the non-citizen will be irreparably harmed because of a
23
matter mentioned in that subsection; or
24
(b) the non-citizen could obtain, from an authority of the
25
country, protection such that there would not be a real risk
26
that the non-citizen would be irreparably harmed because of a
27
matter mentioned in that subsection; or
28
(c) the real risk is one faced by the population of the country
29
generally and is not faced by the non-citizen personally.
30
Ineligibility for grant of a protection visa
31
(2C) A non-citizen is taken not to satisfy the criterion mentioned in
32
paragraph (2)(aa) if:
33
(a) the Minister has serious reasons for considering that:
34
Schedule 1 Amendments
8 Migration Amendment (Complementary Protection) Bill 2009 No. , 2009
(i) the non-citizen has committed a crime against peace, a
1
war crime or a crime against humanity, as defined by
2
international instruments prescribed by the regulations;
3
or
4
(ii) the non-citizen committed a serious non-political crime
5
before entering Australia; or
6
(iii) the non-citizen has been found guilty of acts contrary to
7
the purposes and principles of the United Nations; or
8
(b) the Minister considers, on reasonable grounds, that:
9
(i) the non-citizen is a danger to Australia's security; or
10
(ii) the non-citizen, having been convicted by a final
11
judgment of a particularly serious crime (including a
12
crime that consists of the commission of a serious
13
Australian offence or serious foreign offence), is a
14
danger to the Australian community.
15
14 Subsections 36(4) and (5)
16
Repeal the subsections, substitute:
17
(4) However, subsection (3) does not apply in relation to a country in
18
respect of which:
19
(a) the non-citizen has a well-founded fear of being persecuted
20
for reasons of race, religion, nationality, membership of a
21
particular social group or political opinion; or
22
(b) the Minister has substantial grounds for believing that, as a
23
necessary and foreseeable consequence of the non-citizen
24
availing himself or herself of a right mentioned in
25
subsection (3), there would be a real risk that the non-citizen
26
would be irreparably harmed because of a matter mentioned
27
in subsection (2A) in relation to the country.
28
(5) Subsection (3) does not apply in relation to a country if the
29
non-citizen has a well-founded fear that:
30
(a) the country will return the non-citizen to another country; and
31
(b) the non-citizen will be persecuted in that other country for
32
reasons of race, religion, nationality, membership of a
33
particular social group or political opinion.
34
(5A) Also, subsection (3) does not apply in relation to a country if:
35
(a) the non-citizen has a well-founded fear that the country will
36
return the non-citizen to another country; and
37
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2009 No. , 2009 9
(b) the Minister has substantial grounds for believing that, as a
1
necessary and foreseeable consequence of the non-citizen
2
availing himself or herself of a right mentioned in
3
subsection (3), there would be a real risk that the non-citizen
4
would be irreparably harmed because of a matter mentioned
5
in subsection (2A) in relation to the other country.
6
15 Subsection 48A(2) (after paragraph (ab) of the definition of
7
application for a protection visa)
8
Insert:
9
(ac) an application for a visa, a criterion for which is that the
10
applicant is a non-citizen in Australia to whom Australia has
11
protection obligations because of the matters mentioned in
12
subsection 36(2A); and
13
(ad) an application for a visa, a criterion for which is that the
14
applicant is a non-citizen in Australia who is a member of the
15
same family unit as a non-citizen in Australia:
16
(i) to whom Australia has protection obligations because of
17
the matters mentioned in subsection 36(2A); and
18
(ii) who holds a protection visa; and
19
16 Subparagraph 91N(3)(a)(i)
20
Omit "asylum", substitute "protection".
21
17 Subsection 91T(1)
22
Omit "(1)".
23
18 Subsection 91T(1)
24
Omit all the words after "were a reference to", substitute "a
25
non-political crime within the meaning of this Act".
26
19 Subsections 91T(2) and (3)
27
Repeal the subsections.
28
20 Subsection 91U(1)
29
Omit "(1)".
30
21 Paragraph 91U(1)(a)
31
Omit "(as defined by subsection (2))".
32
Schedule 1 Amendments
10 Migration Amendment (Complementary Protection) Bill 2009 No. , 2009
22 Paragraph 91U(1)(b)
1
Omit "(as defined by subsection (3))".
2
23 Subsections 91U(2) and (3)
3
Repeal the subsections.
4
24 Subparagraph 336F(3)(a)(ii)
5
Omit "Refugees Protocol; and", substitute "Refugees Protocol; or".
6
25 At the end of paragraph 336F(3)(a)
7
Add:
8
(iii) an offshore entry person who makes a claim for
9
protection on the basis of any of the matters mentioned
10
in subsection 36(2A); and
11
26 Subparagraph 336F(4)(a)(ii)
12
Omit "Refugees Protocol; and", substitute "Refugees Protocol; or".
13
27 At the end of paragraph 336F(4)(a)
14
Add:
15
(iii) an offshore entry person who makes a claim for
16
protection on the basis of any of the matters mentioned
17
in subsection 36(2A); and
18
28 At the end of paragraph 336F(5)(c)
19
Add "or".
20
29 After paragraph 336F(5)(c)
21
Insert:
22
(ca) the person is an offshore entry person:
23
(i) who makes a claim for protection on the basis of any of
24
the matters mentioned in subsection 36(2A); and
25
(ii) who, following assessment of his or her claim, is found
26
not to be a person to whom those matters apply or is
27
found to be a person mentioned in paragraph 36(2C)(a)
28
or (b);
29
30 At the end of paragraph 411(1)(c)
30
Amendments Schedule 1
Migration Amendment (Complementary Protection) Bill 2009 No. , 2009 11
Add " (other than a decision that was made relying on paragraph
1
36(2C)(a) or (b))".
2
31 At the end of paragraph 411(1)(d)
3
Add " (other than a decision that was made because of paragraph
4
36(2C)(a) or (b))".
5
32 Paragraph 500(1)(c)
6
Repeal the paragraph, substitute:
7
(c) a decision to refuse to grant a protection visa, or to cancel a
8
protection visa, relying on:
9
(i) one or more of the following Articles of the Refugees
10
Convention, namely, Article 1F, 32 or 33(2); or
11
(ii) paragraph 36(2C)(a) or (b) of this Act;
12
33 Paragraph 500(4)(c)
13
Repeal the paragraph, substitute:
14
(c) a decision to refuse to grant a protection visa, or to cancel a
15
protection visa, relying on:
16
(i) one or more of the following Articles of the Refugees
17
Convention, namely, Article 1F, 32 or 33(2); or
18
(ii) paragraph 36(2C)(a) or (b) of this Act.
19
34 Application
20
The amendments made by this Schedule apply in relation to an
21
application for a protection visa (within the meaning of the Migration
22
Act 1958):
23
(a) that is made on or after the day on which this item
24
commences; or
25
(b) that is not finally determined (within the meaning of
26
subsection 5(9) of that Act) before the day on which this item
27
commences.
28