Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (3 of 2019)

Schedule 6   Transitory persons

Migration Act 1958

4   After section 198B

Insert:

198C Transfer of legacy minors, relevant transitory persons and family members for medical treatment

Transfer of legacy minors

(1) If the Minister approves the transfer of a legacy minor to Australia under section 198D, an officer must, as soon as practicable, bring the legacy minor to Australia for the temporary purpose of medical or psychiatric assessment or treatment.

Note: For legacy minor , see subsection 198D(1).

Transfer of relevant transitory persons

(2) If the Minister approves the transfer of a relevant transitory person to Australia under section 198E or 198F, an officer must, as soon as practicable, bring the person to Australia for the temporary purpose of medical or psychiatric assessment or treatment.

Note: For relevant transitory person , see subsection 198E(2).

Transfer of family unit etc.

(3) If an officer knows or reasonably suspects that a transitory person in a regional processing country is a member of the same family unit as another transitory person (the relevant transferee ) who is being brought to or is in Australia for a temporary purpose, and the Minister has approved the transitory person's transfer under section 198G, the officer must, for the temporary purpose referred to in paragraph 198B(4)(b), bring the transitory person to Australia at the same time as, or as soon as practicable after, the relevant transferee.

(4) If an officer knows or reasonably suspects that a transitory person in a regional processing country has been recommended by a treating doctor to accompany another transitory person (the relevant transferee ) who is being brought to or is in Australia for a temporary purpose, and the Minister has approved the person's transfer under section 198G, the officer must, for the temporary purpose referred to in paragraph 198B(4)(b), bring the transitory person to Australia at the same time as, or as soon as practicable after, the relevant transferee.

(5) If an officer knows or reasonably suspects that a transitory person in a regional processing country is a member of the same family unit as a minor who is in Australia, and the Minister has approved the person's transfer under section 198G, the officer must, for a temporary purpose, bring the transitory person to Australia.

Miscellaneous

(6) Nothing in this section shall affect the operation of section 198B.

(7) An officer must not bring a person to Australia from a regional processing country in accordance with subsection (1), (3), (4) or (5) while the person does not consent to being brought to Australia.

Note: Any transitory person who is brought to Australia for a temporary purpose must be kept in immigration detention whilst in Australia. That immigration detention must continue until the time of removal from Australia or until the Minister determines that immigration detention is no longer required.

198D Minister's approval to bring legacy minors to Australia

(1) As soon as practicable after this section commences, the Secretary must:

(a) identify each transitory person who, on the day this section commences, is both in a regional processing country and aged under 18 (a legacy minor ); and

(b) notify the Minister that each such person is a legacy minor.

(2) After being notified that a person is a legacy minor, the Minister must approve, or refuse to approve, the person's transfer to Australia.

(2A) The Minister must make a decision under subsection (2):

(a) as soon as practicable after being notified; and

(b) no later than 72 hours after being notified.

(3) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(3A) Within 72 hours of the Minister being notified under subsection (1), ASIO should advise the Minister if the transfer of the person to Australia may be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (including because an adverse security assessment in respect of the person is in force under that Act) and if that threat cannot be mitigated.

(4) For the purposes of subsection (3), the Minister must also have regard to the best interests of the person.

(5) If the Minister does not make a decision under subsection (2) within the time required by subsection (2A), the Minister is, at the end of the time, taken to have approved the person's transfer under subsection (2).

(6) The Minister's powers under this section may only be exercised by the Minister personally.

(7) The regulations may prescribe processes to be complied with in relation to the exercise of the Minister's powers under this section.

198E Minister's approval to bring relevant transitory persons to Australia

(1) If 2 or more treating doctors for a transitory person who is in a regional processing country have notified the Secretary that the person is a relevant transitory person, the Secretary must notify the Minister as soon as practicable.

(2) A transitory person is a relevant transitory person if:

(a) the person:

(i) is in a regional processing country on the day this section commences; or

(ii) is born in a regional processing country; and

(b) in the opinion of a treating doctor for the person:

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

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

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

(3) After being notified by the Secretary that a person is a relevant transitory person, the Minister must approve, or refuse to approve, the person's transfer to Australia.

(3A) The Minister must make a decision under subsection (3):

(a) as soon as practicable after being notified; and

(b) no later than 72 hours after being notified.

(4) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably believes that it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment; or

(b) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(c) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(4A) Within 72 hours of the Minister being notified under subsection (1), ASIO should advise the Minister if the transfer of the person to Australia may be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (including because an adverse security assessment in respect of the person is in force under that Act) and if that threat cannot be mitigated.

(5) If the Minister does not make a decision under subsection (3) within the time required by subsection (3A), the Minister is, at the end of the time, taken to have approved the person's transfer under subsection (3).

(6) The Minister's powers under this section may only be exercised by the Minister personally.

(7) A medical practitioner is a treating doctor for a transitory person if the medical practitioner:

(a) is registered or licensed to provide medical or psychiatric services in a regional processing country or in Australia; and

(b) has assessed the transitory person either remotely or in person.

(8) The regulations may prescribe processes to be complied with in relation to the exercise of the Minister's powers under this section.

198F Review by Independent Health Advice Panel of refusal on ground that transfer is not medically necessary

(1) If the Minister refuses to approve a relevant transitory person's transfer to Australia on the ground set out in paragraph 198E(4)(a), the Minister must notify the Independent Health Advice Panel established by section 199A (the panel ) as soon as practicable.

Note: The ground set out in paragraph 198E(4)(a) is that the Minister reasonably believes that it is not necessary to transfer the person to Australia for appropriate medical or psychiatric assessment or treatment.

(2) As soon as practicable, and no later than 72 hours, after being notified by the Minister, the panel must:

(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.

(3) 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.

(4) After 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.

(4A) The Minister must make a decision under subsection (4):

(a) as soon as practicable after being informed by the panel of its findings and recommendations; and

(b) no later than 24 hours after being informed by the panel of its findings and recommendation.

(5) If the panel recommends that the person's transfer be approved, the Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(6) If the Minister does not make a decision under subsection (4) within the time required by subsection (4A), the Minister is, at the end of that time, taken to have approved the person's transfer under subsection (4).

(7) The Minister's powers under this section may only be exercised by the Minister personally.

(8) A recommendation made by the panel for the purposes of this section must be agreed to by a majority of the panel's members.

(9) The regulations may prescribe processes in relation to the exercise of the Minister's powers under this section.

198G Minister's approval to bring members of family unit etc. to Australia

(1) An officer must inform the Minister as soon as practicable if the officer has knowledge or reasonable suspicion in relation to a person as mentioned in subsection 198C(3), (4) or (5).

(2) After being informed by an officer under subsection (1), the Minister must approve, or refuse to approve, the person's transfer to Australia.

(2A) The Minister must make a decision under subsection (2):

(a) as soon as practicable after being informed; and

(b) no later than 72 hours after being informed.

(3) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b) the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(3A) Within 72 hours of the Minister being informed under subsection (1), ASIO should advise the Minister if the transfer of the person to Australia may be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979 (including because an adverse security assessment in respect of the person is in force under that Act) and if that threat cannot be mitigated.

(4) For the purposes of subsection (3), the Minister must also have regard to the best interests of the person.

(5) In deciding whether to approve or refuse to approve the person's transfer, the Minister must have regard to the best interests of the relevant transferee or minor mentioned in the applicable subsection of section 198C.

(6) The regulations may prescribe processes to be complied with in relation to the exercise of the Minister's powers under this section.

198H AAT review of decisions

Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister under subsection 198E(3) to refuse to approve a relevant transitory person's transfer to Australia (other than on the ground set out in paragraph 198E(4)(b) or (c)).

198J Tabling of information relating to refusal to approve transitory person's transfer

(1) This section applies in relation to a decision under section 198D, 198E (other than a decision on the ground set out in paragraph 198E(4)(a)) or 198G to refuse to approve a person's transfer to Australia.

(2) The Minister must cause a refusal statement to be laid before each House of the Parliament within 3 sitting days of that House after the day the Minister makes the decision.

(3) In this section:

refusal statement means a statement of reasons as to why the Minister made the decision.

(4) A refusal statement tabled in accordance with subsection (3) must not include:

(a) the name of the person; or

(b) any information that may identify the person; or

(c) the name of any other person connected in any way with any person covered by paragraph (a); or

(d) any information that may identify that other person.