Migration Act 1958

The Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person’s temporary safe haven visa if, in the Minister’s opinion:

the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

subsection (1A) applies to the person (spreading hatred and extremism); or

having regard to either or both of the following:

the person’s past and present criminal conduct;

the person’s past and present general conduct;

in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person might:

engage in criminal conduct in Australia; or

harass, molest, intimidate or stalk another person in Australia (see subsection (2)); or

vilify a segment of the Australian community; or

incite discord in the Australian community or in a segment of that community; or

represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or

the person is a threat to national security; or

the person’s presence in Australia would prejudice Australia’s international relations.

This subsection applies to a person if the Minister reasonably suspects that:

both of the following apply:

the person is, or has been, a member of an organisation;

at any time the person was a member of the organisation, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group; or

all of the following apply:

the person has, or has had, an association with an organisation;

at any time during the person’s association, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group;

the person intends, or intended, by the association, to support terrorism, extremism or hatred or to further acts of terrorism, extremism or hatred; or

the person has been or is involved in conduct constituting a hate crime (whether or not the person, or another person, has been convicted of an offence constituted by the conduct); or

both of the following apply:

the person has made one or more public statements, or has endorsed a statement publicly, (whether in Australia or overseas, and including online statements) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;

in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community; or

both of the following apply:

the person has encouraged one or more other persons to make a statement publicly (whether in Australia or overseas, and including an online statement) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;

in the event the person were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community.

Antisemitic statements are an example of statements that involve harmful ideas based on superiority over or hatred of other persons on the basis of ethnic origin, as mentioned in subparagraphs (d)(i) and (e)(i).

See also subsection 5(1) for definitions of terms used in this subsection.

None of the limbs of the grounds for refusal or cancellation of a temporary safe haven visa are intended to limit or otherwise affect each other.

The Minister is not required to determine whether a person’s membership of or association with an organisation is continuing or has concluded when making a decision for the purposes of paragraph (1A)(a) or (b).

For the purposes of subsection (1), conduct may amount to harassment or molestation of a person even though:

it does not involve violence, or threatened violence, to the person; or

it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.

The Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person’s temporary safe haven visa if:

the person has been sentenced to death (see subsection (4)); or

the person has been sentenced to imprisonment for life (see subsection (4)); or

the person has been sentenced to a term of imprisonment of 12 months or more (see subsections (4) and (5)); or

the person has been convicted of an offence that was committed:

while the person was in immigration detention; or

during an escape by the person from immigration detention; or

after the person escaped from immigration detention but before the person was taken into immigration detention again; or

the person has been convicted of an offence against section 197A.

For the purposes of subsection (3), a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

the conviction concerned has been quashed or otherwise nullified; or

the person has been pardoned in relation to the conviction concerned.

For the purposes of subsection (3), if a person has been convicted of an offence and the court orders the person to participate in:

a residential drug rehabilitation scheme; or

a residential program for the mentally ill;

The powers under subsections (1) and (3) may only be exercised by the Minister personally.

If the Minister makes a decision under subsection (1) or (3) to refuse to grant, or to cancel, a temporary safe haven visa, the Minister is to cause to be laid before each House of the Parliament a statement that:

sets out the decision; and

sets out the reasons for the decision.

A statement under subsection (7) is not to include:

the name of the non‑citizen; or

any information that may identify the non‑citizen; or

if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

A statement under subsection (7) is to be laid before each House of the Parliament within 15 sitting days of that House after:

if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

if the decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

If the Minister makes a decision under subsection (1) or (3) to refuse to grant a person a temporary safe haven visa, or to cancel a person’s temporary safe haven visa, the Minister must, in writing, notify the person of the decision. However, failure to do so does not affect the validity of the decision.

If the notification under subsection (10) relates to a decision to cancel a person’s temporary safe haven visa, the notification must be given in the prescribed way.

The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (1) or (3).

If the Minister refuses to grant a person a temporary safe haven visa under subsection (1) or (3), then the Minister is also taken to have refused to grant a temporary safe haven visa to each immediate family member of the person. The immediate family member need not be notified of the refusal.

If a person’s temporary safe haven visa is cancelled under subsection (1) or (3), then a temporary safe haven visa held by each immediate family member of the person is also cancelled. The immediate family member need not be notified of the cancellation.

In this section: