John Murphy (Lowe, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition) Share this | Hansard source

Whilst I rise to speak in support of the Migration Amendment (Border Integrity) Bill 2006, there are some anomalies with the direction of the interphase with border protection law and the operation of migration law that raise what I see to be a confusing development in terminology with migration law and the law generally. I draw to the attention of the House this evening the provisions relating to the amendments concerning what are called ‘special purpose visas’.

Bills Digest No. 57 of 2005-06 on this bill cites the provisions of section 33 of the Migration Act dealing with special purpose visas. As members of the House are aware, section 33 provides that, by operation of law, certain persons are holders of temporary visas and are therefore eligible to validly travel to, enter and remain in Australia under certain conditions. Further, Migration Regulations 1994 prescribe, at regulation 2.40, those types of persons who are eligible to hold special purpose visas. The bill before us this afternoon seeks to amend subsection 33(5) of the act in dealing with visas that cease to have effect.

The point I wish to make to the House today relates to the class of persons known as diplomats. As the Minister for Immigration and Citizenship is aware, there is a discrete visa class specifically provided for in Migration Regulations 1994, known as the diplomatic (temporary) class TF visa. The only subclass of visa within this class prescribed in schedules 1 and 2 of the migration regulation is the 995 subclass visa. The 995 is granted to those defined in the Migration Regulations as ‘diplomatic or consular representatives’ or ‘international representatives’ so prescribed. These personnel are discrete persons who are members of foreign governments’ diplomatic corps who reside temporarily in Australia. It is a fundamental provision of a grant of the 995 visa at Migration Regulation 995.22.1 that:

The Foreign Minister has recommended in writing to the Minister that the visa be granted to the applicant on the basis of the applicant being (a) a diplomatic or consular representative or (b) an international representative ...

It is further prescribed at Migration Regulation 995.321, with respect to attached parties to a 995 visa primary applicant, that:

The Foreign Minister has recommended in writing to the Minister (of Immigration and Citizenship) that the visa be granted to the applicant to accompany a person who seeks to satisfy the primary criteria.

The reason for bringing the 995 visa into this debate today is to ask the simple question: is a diplomatic (temporary) subclass 995 visa holder the holder of a special purpose visa? The immediate answer would appear to be no, until we match the regulatory definition of special purpose visa against the criteria for a 995 visa. Let us say a child of a diplomat is also the holder of a 995 visa by virtue of their parent being the primary 995 visa holder. Migration Regulation 2.40 specifies that ‘guests of government’ are automatically special purpose visa holders. A plain reading would suggest that 995 visa holders are not special purpose visa holders. However, this conclusion is brought into confusion when one reads the Department of Immigration and Citizenship fact sheet titled ‘New Zealanders in Australia’. I quote from the fact sheet:

Note: Children born to a New Zealand parent who was living in Australia temporarily as a diplomat or as the holder of a special purpose visa (i.e. certain diplomatic officials, aircrew or armed forces and their families) are not Australian citizens by birth.

Fact sheet 17 expressly notes that there are certain diplomatic officials who are also holders of special purpose visas. The question is: do these diplomats on whom fact sheet 17 contemplates also hold a 995 visa? If so, are such diplomats subject to the provisions of this bill or not? It would appear that there are two types of diplomats contemplated within our migration law. There are those diplomats and consular staff that are 995 visa holders and there are ‘certain diplomats’ who are holders of special purpose visas by operation of law. If true, this situation is, in my view, highly unsatisfactory. I am not aware if the Department of Foreign Affairs and Trade has precise numbers of diplomats and consular staff from foreign sovereign states in Australia. What I can guesstimate is that there will be several thousands, if not tens of thousands, of diplomats and consular staff residing in Australia temporarily at any one time. Given that these people will be, by definition, of very high security sensitivity, it is therefore imperative, in my view, that we get our law right in this bill and the border protection purpose this bill seeks to preserve.

Therefore, I call upon the Minister for Immigration and Citizenship to seek clarification from his legal counsel on one question of high importance: is there, as fact sheet 17 suggests, a subset of diplomatic temporary visa holders who are also holders of special purpose visas? I do not expect the minister to give me an immediate answer in summing-up on this bill when we come to the conclusion of the debate shortly, but that is what I am asking to be clarified.

When one reviews schedule 1 of the Migration Regulations, one notes that the 995 visa has no prescribed application form. This lends weight to the analogy of the prevailing special purpose visa, for which there is also no prescribed form or application process. This is so because, in the case of both 995 and special purpose visas, it is the circumstance which gives rise to the automatic grant of visa by operation of law. It is true that, whilst the 995 visa has no prescribed application form per se, the application must be in writing and have the approbation of the Minister for Foreign Affairs. The Procedures Advice Manual, schedule 2, entitled ‘Applying for a diplomatic (class TF) 995 visa,’ states, ‘The Minister for Foreign Affairs must supply the Minister for Immigration and Citizenship a copy of the note verbale provided by the relevant foreign ministry or mission.’

In similar fashion, the Bills Digest notes that, in the explanatory memorandum to this bill, the application process for the special purpose visa is such that the ‘visa is granted by the operation of law to noncitizens who either come within a prescribed class of persons or are a person or a class of persons declared by the minister to hold special purpose visas’.

In the case of the 995 visa, we see that the grant is subject to the advice of the Minister for Foreign Affairs, whilst in the case of the special purpose visa the grant is subject to operation of law by regulatory schedule of certain persons. So in addressing the desired border protection outcomes of this bill, that would appear to me to be consistent with the treatment of all diplomatic and consular staff, including their attached parties. Further, when we add all secondary applicants to the primary diplomatic and consular and international missions’ staff, the number of 995 and special purpose visa holders swells to an even larger number.

For this reason, I urge the minister to consider tidying up what appears to me to be a number of messy loopholes in this legislation, specifically unifying the law under the existing regime, which appears to have three types of visa holders, namely, (1) those exclusive 995 visa holders; (2) those 995 visa holders who are also special purpose visa holders by the operation of law; and (3) those holding exclusive special purpose visas.

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