Australian Immigration Daily News

The Bill aims to provide that, when an unlawful non-citizen is in the process of being removed to another country and the removal is aborted, or is completed but the person is not permitted entry into the receiving country, and as a direct result the person is returned to Australia, then that person has a lawful basis to return to Australia without a visa; provide that, when such a person does return to Australia without a visa, the person will be taken to have been continuously in the migration zone for the purposes of certain sections of the Act which bar the person from making a valid application for certain visas; and allow the department to use an online account to provide clients with certain legally required communications; Customs Act 1901 to: allow the department to make a recoverable payment to a person who is entitled to it; and make technical amendments; and Passenger Movement Charge Collection Act 1978 to insert a new head of power so that regulations can prescribe the charging and recovery of fees for, and in relation to, the payment of passenger movement charge or an amount equal to the charge.

The bill was first introduced into parliament on 28 March 2018 and is now awaiting Royal Assent.

The purpose of Schedule 1 to the Bill is to provide that when a non-citizen is removed from Australia under section 198 to another country (the destination country), or an unsuccessful attempt is made to remove that non-citizen under section 198, that non‑citizen can be returned to Australia without needing to hold a visa. Further, the amendments in this Schedule are intended to provide that when the non-citizen is returned to Australia, then despite their temporary absence from Australia, if the non‑citizen was barred from making certain visa applications under section 48 or 48A prior to their departure, they will continue to be barred on their return.

There are however several amendments inserted into the Bill before passing of the final legislation.  Amendments worthwhile noting include:

S198C

This section refers to transfer of minors as well as relevant transitory persons and family members for medical treatment.  Specifically, the Minister is required to approve the transfer and the transfer must be conducted as soon as practicable (if related to a medical treatment)

S198D

This section solidifies wording of S198C, stating that identity of each transferee must be done as soon as practicable.  Where a person is identified as a legacy minor, the transfer should be approved or refused within 24 hours.

S198E

Refers to the Minster’s approval to bring relevant transitionary persons to Australia.  Specifically where two or more doctors are treating a person who is in a regional processing country.

A person is a relevant transitory person if, in the opinion of a treating doctor for the person:

               (a)          the person requires medical or psychiatric assessment or treatment; and

               (b)          the person is not receiving appropriate medical or psychiatric assessment or treatment in the regional processing country; and

               (c)           it is necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment.

S 198F

This section addresses review process which may be conducted in the event where transfer is refused by the minister by an Independent Panel.  In the event where the transfer is refused.

The panel must within 24 hours

               (a)          conduct a further clinical assessment of the person (whether in person or remotely); and

               (b)          inform the Minister of the findings of that assessment, including its recommendation that:

               (i)            the decision to refuse the person’s transfer be confirmed; or

               (ii)           the person’s transfer be approved.

               If the panel does not inform the Minister of its recommendation under subsection (2) within the time required by the subsection, the panel is, at the end of that time, taken to have recommended that the person’s transfer be approved and informed the Minister accordingly.

               Within 24 hours of being informed by the panel of its findings and recommendation, the Minister must reconsider the decision to refuse to approve the person’s transfer and either:

               (a)          confirm the decision to refuse; or

               (b)          approve the person’s transfer.

S 198H

This section gives the power to the AAT to review decisions of the Minister where a transfer is refused.

Full details of the bill including tabulated amendments can be found here:

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6069