Commonwealth Consolidated Acts Commonwealth Consolidated ActsPart 1 -- Removal of unlawful non - citizens
Division 1--Amendments commencing on the day after Royal Assent
1 Subsection 5(1)
Insert:
"Convention Against Torture" means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.
Note: The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
"non-refoulement obligations" includes, but is not limited to:
(a) non - refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
2 Before section 198
Insert:
(1) For the purposes of section 198, it is irrelevant whether Australia has non - refoulement obligations in respect of an unlawful non - citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non - citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non - refoulement obligations in respect of the non - citizen.
Division 2--Amendments if this Act commences after the Migration Amendment (Protection and Other Measures) Act 2015
3 Subsection 6A(4)
Repeal the subsection, substitute:
(4) In this section:
"protection obligations" means any obligations that may arise because Australia is a party to:
(a) the Covenant; or
(b) the Convention Against Torture.
Part 2 -- Amendments commencing on Proclamation
4 Subsection 5(1)
Insert:
"refugee" has the meaning given by section 5H.
"well-founded fear of persecution" has the meaning given by section 5J.
5 Paragraph 5A(3)(f)
Repeal the paragraph, substitute:
(f) to improve the procedures for determining claims from people seeking protection as refugees; and
6 Subparagraph 5A(3)(j)(ii)
Repeal the subparagraph, substitute:
(ii) an unauthorised maritime arrival who makes a claim for protection as a refugee; or
7 After section 5G
Insert:
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well - founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality--is outside the country of his or her former habitual residence and owing to a well - founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well - founded fear of persecution , see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non - political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well - founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well - founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well - founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well - founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person's identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill - treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(6) In determining whether the person has a well - founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person ), in determining whether the first person has a well - founded fear of persecution for the reason of membership of a particular social group that consists of the first person's family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i) the characteristic is an innate or immutable characteristic;
(ii) the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;
(iii) the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i) the relevant State; or
(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State--the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
8 Paragraph 36(1A)(a)
Repeal the paragraph, substitute:
(a) both of the criteria in subsections (1B) and (1C); and
9 After subsection 36(1B)
Insert:
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
10 Paragraph 36(2)(a)
Omit "under the Refugees Convention as amended by the Refugees Protocol", substitute "because the person is a refugee".
11 Subsection 48A(2) (after paragraph (aa) of the definition of application for a protection visa )
Insert:
(aaa) an application for a visa, a criterion for which is that the applicant is a non - citizen who is a refugee; or
12 Sections 91R to 91U
Repeal the sections.
13 Subsection 228B(2)
Omit all the words after "the non - citizen", substitute "because the non - citizen is or may be a refugee, or for any other reason".
14 Subparagraphs 336F(3)(a)(ii), (4)(a)(ii) and (5)(c)(i)
Omit "under the Refugees Convention as amended by the Refugees Protocol", substitute "as a refugee".
15 Subparagraph 336F(5)(c)(ii)
Omit "under the Refugees Convention as amended by the Refugees Protocol".
16 Subparagraph 502(1)(a)(iii)
Repeal the subparagraph, substitute:
(ii) to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C);
17 Paragraph 503(1)(c)
Repeal the paragraph, substitute:
(c) to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C);
Part 3 -- Contingent amendments
Division 1--Amendments if this Act commences before the Migration Amendment (Protection and Other Measures) Act 2015
18 Subsection 5(1) (definition of receiving country )
Repeal the definition, substitute:
"receiving country" , in relation to a non - citizen, means:
(a) a country of which the non - citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non - citizen has no country of nationality--a country of his or her former habitual residence, regardless of whether it would be possible to return the non - citizen to the country.
19 Subparagraphs 411(1)(c)(i) and (ii)
Repeal the subparagraphs, substitute:
(i) subsection 5H(2), or 36(1B) or (1C); or
20 Subparagraph 411(1)(d)(i)
Repeal the subparagraph, substitute:
(i) subsection 5H(2) or 36(1C); or
21 Subparagraph 500(1)(c)(i)
Repeal the subparagraph, substitute:
(i) subsection 5H(2) or 36(1C); or
22 Subparagraph 500(4)(c)(i)
Repeal the subparagraph, substitute:
(i) subsection 5H(2) or 36(1C); or
23 Subsection 5(1) (definition of receiving country )
Insert:
"receiving country" , in relation to a non - citizen, means:
(a) a country of which the non - citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non - citizen has no country of nationality--a country of his or her former habitual residence, regardless of whether it would be possible to return the non - citizen to the country.
24 Paragraph 411(1)(c)
Omit all the words after "made", substitute "relying on subsection 5H(2), or 36(1B) or (1C);".
25 Subparagraph 411(1)(d)(i)
Repeal the subparagraph, substitute:
(i) subsection 5H(2) or 36(1C); or
26 Paragraphs 500(1)(c) and (4)(c)
Repeal the paragraphs, substitute:
(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, that was made relying on subsection 5H(2) or 36(1C);
Part 4 -- Application and transitional provisions
27 Application--Part 1
The amendments made by Part 1 of this Schedule apply in relation to the removal of an unlawful non - citizen on or after the day this item commences.
28 Application--Parts 2 and 3
The amendments made by Parts 2 and 3 of this Schedule apply in relation to an application for a protection visa that is made on or after the day this item commences.
29 References to amended provisions
If a regulation or other instrument made under the Migration Act 1958 contains a reference to a provision of the Migration Act 1958 listed in column 2 of the following table in relation to an item, the reference in the regulation or other instrument is to be construed as a reference to the provision of the Migration Act 1958 listed in column 3 of the item:
References to amended provisions of the Migration Act 1958 | ||
Column 1 | Column 2 | Column 3 |
Item | Old reference | New reference |
1 | section 91R | subsections 5J(4), (5) and (6) |
2 | section 91S | section 5K |
3 | section 91U | section 5M |