In this blog, we explore Sections under Subdivision AI (safe third countries) under Division 3 of Part 2 of the Migration Act 1958. There are 7 Sections under Subdivision AI.
Section 91A: Reason for Subdivision (Safe Third Countries)
The Parliament created this Subdivision to prevent certain non-citizens, who the Comprehensive Plan of Action (CPA) covers, or have a safe third country, from applying for a protection visa or any other visa. If such a non-citizen is an unlawful non-citizen, they will be subject to removal under Division 8 of Part 2 of the Act.
Section 91B: Interpretation
This Section states that in the Subdivision about safe third countries, the term “agreement” includes a written arrangement or understanding, whether or not binding.
Additionally, the Section states that CPA is the Comprehensive Plan of Action that the International Conference on Indo-Chinese Refugees approved. This conferences took place at Geneva, Switzerland from 13 to 14 June 1989.
Moreover, for the purposes of this Subdivision, if, apart from this section:
- a colony, overseas territory or protectorate of a foreign country; or
- an overseas territory or the international relations of which a foreign country is responsible;
is not a country in its own right, the colony, territory or protectorate is taken to be a country in its own right.
Section 91C: Non-citizens covered by Subdivision
Firstly, section 91C states that this subdivision applies to a person if:
- the non-citizen is in Australia at that time; and
- at that time the non-citizen is covered by CPA, or an agreement, relating to persons seeking asylum, between Australia and a country that is a safe third country (see below Section 91D) in relation to the non-citizen
- the non-citizen is not excluded by the regulations from the application of this Subdivision.
Secondly, the section states that a country does not need to be prescribed (by regulations) as a safe third country at the time that the agreement referred above in point (3).
Section 91D: Safe Third Countries
This section outlines the criteria for designating a country as a safe third country. It states that, in relation to a non-citizen, a country is a safe third country if:
- the country is prescribed as a safe third country in relation to non-citizen, or in relation to a class of persons of which the non-citizen is a member; and
- the non-citizen has a prescribed connection with the country.
Moreover, the regulations provide that a person has a prescribed connection with a country if:
- the person is or was present in the country at a particular time or at any time during a particular period; or
- the person has a right to enter and reside in the country.
The Minister must provide a statement on the compliance of the country with international law concerning the protection of asylum seekers, human rights standards, and willingness to allow the person to remain in the country during the period of asylum claim determination. Lastly, a regulation designating a country as a safe third country expires after two years.
Section 91E: Non-citizens to Which this Subdivision Applies Unable to Make Valid Applications for Certain Visas
This section states that if a non-citizen is subject to this Subdivision and applies for a protection visa, the application is not valid, regardless of any other provision of the Act. This is subject to Section 91F (see below).
If the non-citizen does not have immigration clearance at the time of application, then no application made by them for any visa is valid.
If the non-citizen has immigration clearance at the time of application, then no application for a protection visa or any other visa is valid.
Section 91F: Minister May Determine That Section 91E Does Not Apply to Non-citizen
This section allows the Minister to exempt a non-citizen from certain provisions of the Act if the Minister believes it is in the public interest to do so.
The Minister can give this exemption by notice and they must lay it before Parliament with a statement of reasons. The statement cannot reveal the non-citizen’s identity or any identifying information. The Minister must lay notice within 15 sitting days of the House of Parliament. The Minister has no duty to consider an exemption request.
Section 91G: Application Made Before Regulations Take Effect
This Section outlines the provisions for non-citizens applying for a protection visa during a transitional period when a new regulation prescribing a safe third country takes effect. If the non-citizen did not have immigration clearance at the time of making the application, the application and any other visa applications made during the transitional period will cease to be valid when the regulation takes effect.
If the non-citizen had immigration clearance, the same applies, and the Act will apply as if the non-citizen had applied for a protection visa immediately after the regulation takes effect. This applies even if the application or decision is under review or appeal, and the DHA may not grant any visa as a result of such an application.
However, this does not apply to non-citizens who already have a substantive visa. The cut-off day specified in the regulation must not be before the Minister announces the intention to make such a regulation or more than six months before the regulation takes effect.
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