Not so fast!

Readers of this blog will recall my recent article commenting on the nightmarish visa ban that was imposed in America through Trump’s Executive Order (currently being litigated in the Federal Court system in the US), as well as my suggestion that: “It won’t happen in Australia”.

Well, it sure seems like I may have spoken too soon!

An article appeared in yesterday’s Sydney Morning Herald entitled: “Peter Dutton seeking “Trump-like” powers to target visa holders from certain nations”. That article can be found by clicking here.

The proposed legislation that is referred to in this article is the Migration Amendment (Visa Revalidation And Other Measures Bill) 2016. The bill was introduced in the House of Representatives (with very little apparent fanfare) on 19 October 2016, and there was a second reading debate on 8 February. The proposed legislation can be found through this link.

In brief summary, this bill will create a new personal power for the Minister to determine by legislative instrument that a specified class of persons who hold a visa of a prescribed kind to complete a so-called “public interest revalidation check”. According to the Explanatory Memorandum that accompanies thee bill, it is expected that this power would be used only in “rare circumstances”, for example in situations “where there has been an assessment of increased risk to the Australian community resulting from a health, security or other incident in a particular location, and the Minister considers it is in the public interest to act quickly.”

The Explanatory Memorandum states that visa holders will be able to pass the “revalidation check” provided there is no “adverse information” relating to the person or if it is reasonable to disregard that information.

The term “adverse information: is not defined in the present version of the bill, so it appears that it would be open to the Minister to interpret that term very broadly.

The Explanatory Memorandum goes on to say that when the Minister does make a determination that a specified class of persons should be required to complete a revalidation check, the visas of persons within the specified class will cease to be in effect. Persons in the specified class who are onshore in Australia at the time that the determination is made by the Minister would not become unlawful non-citizens, even though their visas would not be in effect until they complete and pass the revalidation check.

However, persons who happen to be offshore when a determination is made would not be able to re–enter Australia until they pass the revalidation check.

So, the effect of this bill, if it should be enacted into law, could be exactly what we have seen happen around the world as a consequence of Trump’s Executive Order: namely, that lawful visa holders, whether they be permanent residents here with their families under partner of other family stream visas; temporary workers under the 457 or ENS programs, or persons who have come to Australia through independent skilled migration, as well as students, could be prevented from returning to Australia. In other words, these people could be stranded offshore for however long it might take for the revalidation check to be completed.

The bill provides that the Minister may make a determination that persons of a specified class must undergo a revalidation check if the Minister considers that it is in the public interest for the determination to be made. Further, if the Minister makes such a determination, the Minister must lay the determination before both houses of the Parliament and provide a statement of the reasons why the determination has been made.

The commentary in the Sydney Morning Herald article suggests – in my view accurately – that the legislation would enable the Minister to make a determination that applies to:

* Holders of a particular passport;

* Persons who live in a particular country;

* Persons who live in a particular area of a country;

* Persons who have travelled through a particular area at a particular time; and

* Persons who have applied for visas during particular dates.

It is certainly conceivable that such a determination could be made even more broadly.

And it is an open question as to whether such a determination if made could be challenged successfully in the Australian courts.

The Sydney Morning Herald article indicates that the Law Council of Australia has made submissions to a Senate inquiry cirticising the bill. And the president of the Law Council, Fiona McLeod SC is quoted by the Herald as saying that the bill has “obvious potential for abuse, arbitrary decision-making and injustice”.

The article reports that the Labor Party has signalled its intention to oppose the bill.

So we’ll have to see what happens.

What are your thoughts about this?

Courtesy of Migration Alliance
posted by Michael Arch