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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
MIGRATION AMENDMENT (REINSTATEMENT OF TEMPORARY PROTECTION VISAS)
BILL 2013 [No. 2]
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Senator M Cash
MIGRATION AMENDMENT (REINSTATEMENT OF TEMPORARY PROTECTION VISAS)
BILL 2013 [No. 2]
OUTLINE
The Bill will restore two classes of temporary protection visas to provide safe haven and protection to those
who have arrived illegally in Australia or at an excised offshore place and are found to engage Australia's
protection obligations under the Refugee Convention.
FINANCIAL IMPACT
Costs will be met from within existing resources of the Department of Immigration and Citizenship.
NOTES ON CLAUSES
TEMPORARY PROTECTION VISAS
Temporary Protection (Offshore Entry) Visa
This is a visa for people who:
have illegally entered Australia and/or arrived at an "excised offshore place" (such as Christmas
Island, Ashmore, Cocos Islands) when they first came to Australia;
do not have protection from any other country
are found to engage Australia's protection obligations by the Australian Government; and
meet health and character requirements
The visa is temporary for a term of up to three years, to be set by the Minister or his/her delegate.
The visa gives the holder the right to work, to Special Benefits payments and access to Medicare.
Successive temporary visas can be applied for upon conclusion of the term of the visa unless the Minister
allows an application for a permanent protection visa to be made
It does not give the right to family reunion or to return to Australia if he/she leaves.
It does not give the holder the right to re-enter Australia if they depart
It is a condition of the visa that the holder satisfies mutual obligation requirements for receiving
special benefit payments.
Temporary Protection (Secondary Movement Offshore Entry) Visa
This is a visa for people who:
have illegally entered Australia and/or arrived at an "excised offshore place" (such as Christmas
Island, Ashmore, Cocos Islands) when they first came to Australia
are secondary movement persons
do not have protection from any other country
are found to have engaged Australia's protection obligations by the Australian Government; and
meet health and character requirements.
The visa is temporary for a term of up to three years, to be set by the Minster or his/her delegate.
The bill defines a secondary movement person as someone who is a non-citizen seeking protection having
moved beyond their country of first asylum and who transited in a country other than Australia where the
person could have sought protection;
of the country, due to but not limited to, that country being a signatory to the United Nations
Convention and/or Protocol relating to the Status of Refugees; or
through the officers of the United Nations Commissioner for Refugees located in that country;
A secondary movement person cannot be granted a permanent Protection Visa. Such a person may only
apply for a further TPV, or if eligible, one of the mainstream visas for which TPV holders are eligible.
The visa gives the holder the right to work, to Special Benefits payments and access to Medicare.
It does not give the right to family reunion.
It does not give the holder the right to re-enter Australia if they depart
It is a condition of the visa that the holder satisfies mutual obligation requirements for receiving
special benefit payments.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
MIGRATION AMENDMENT (REINSTATEMENT OF TEMPORARY PROTECTION VISAS)
BILL 2013 [No. 2]
This bill is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the bill
The bill will restore two classes of temporary protection visas to provide safe haven and protection to those
who have arrived illegally in Australia or at an excised offshore place and are found to engage Australia's
protection obligations under the nation's international human rights responsibilities.
Human rights implications
This bill positively engages human rights within the framework of existing devices of the Migration Act that
fulfill Australia's refugee and humanitarian responsibilities under both domestic and international law.
This bill enhances the human rights of those who are fleeing persecution and are found to engage Australia's
protection obligations by the Australian Government by facilitating the provision of temporary safe haven in
accordance with international standards, including respect for the principle of non-refoulement, admission to
safety, access to fair procedures for the determination of refugee status and humane standards of treatment.
This bill does not alter existing mechanisms of the Migration Act but creates two new visa subclasses which
satisfy Australia's protection obligations and responsibilities under the Refugee Convention in relation to
persons who have arrived in Australia illegally or at an excised offshore place and are found to have engaged
Australia's protection obligations, consistent with legal definitions articulated by Article 31 of the 1951
Convention Relating to the Status of Refugees.
The provision of permanent residence is not a requirement under the Convention or associated treaties.
According to the UNHCR, "Resettlement is not a right, and there is no obligation on States to accept
refugees for resettlement... resettlement must be a complement to - and not a substitute for - the provision
of protection where needed to persons who apply for asylum."
The Minister may waive the subclause of the Temporary Protection (Offshore Entry visa) denying the
applicant the right to apply for a permanent visa if the Minister is satisfied that it is in the public interest to
do so.
This bill recognises the UNHCR's philosophy of seeking durable solutions that best safeguard the wellbeing
of refugees including voluntary repatriation where a change in context has made it safe to return.
Conclusion
The bill is compatible with human rights by facilitating the provision of safe haven for those found to engage
Australia's protection obligations under international law.
Senator Michaelia Cash