Australian migration zone

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The Australian migration zone is a legal device created by the Australian government for the purpose of Australia's visa policy and immigration policy. In the Australian migration zone, which covers such Australian controlled territories as the government may determine, a non-citizen must hold an Australian visa. Without such a visa, or a bridging visa, the alien is treated as an "unauthorised arrival". Prior to 2001, the Australian migration zone consisted of the mainland, and some external territories.[1]

To stem the flow of unauthorised arrivals into Australia, in September 2001, the Australian government passed the Migration Amendment (Excision from Migration Zone) Act 2001[2] and the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001[3] which removed ("excised") a number of external territories from the Australian migration zone for purposes relating to unauthorised arrivals. The effect of this change was to limit the ability of "offshore entry persons" to apply for a visa on arrival. The territories excised were Ashmore Island, Cartier Islands, Christmas Island, and Cocos Islands.

After Australian Indian Ocean territories were excised, increasing numbers of asylum seekers attempted to reach the Australian mainland by-passing those islands, which are closer to Indonesia. To combat this tactic, on 30 October 2012, the Australian government excised the entire Australian mainland from the Australian migration zone.[4] The legislation to excise the mainland itself from the migration zone was passed by Parliament on 16 May 2013.[5][6] Before the excise, asylum seekers who reached the mainland by boat could not be sent offshore to Australian immigration detention facilities on Nauru or Papua New Guinea's Manus Island for immigration processing.[7]

Impact on unauthorised arrival[edit]

Main article: Asylum in Australia

In an excised area, an unauthorised arrival has no right to apply for a visa. Asylum seekers who land in an excised area of Australian territory may apply for refugee status with the UNHCR. However, Australia has no obligation to grant them a visa to settle permanently in Australia (as opposed to temporary protection) and they have no recourse to Australian courts.

The Acts also included the powers to move unauthorised arrivals to another country where their claim for protection could be considered. These changes allowed for thousands of asylum seekers to be moved to immigration detention facilities on Christmas Island, Nauru, and Manus Island.

In subsequent years the government excised many islands, sometimes attempting to do so retroactively after asylum seekers had already landed.

The excising of islands from the Australian migration zone remains a controversial aspect of Australian immigration policy. Refugee advocates argue that Australia is not meeting its obligations under international law to protect refugees. This was not accepted by the Howard Government, which contended that international law obliged Australia to provide temporary protection only and not necessarily a permanent settlement.[citation needed]

However, the Rudd Government abolished the temporary protection visa scheme in 2008. The practice of diverting boat-borne arrivals to Christmas Island remained, effectively disallowing judicial review.[8] In 2010, a landmark High Court ruling found that the processing procedures on Christmas Island were unlawful and unconstitutional.[9] On 16 May 2013, Australian Senate passed a bill to excise entire Australian mainland from its migration zone.[5]

Effect of excision on sovereignty[edit]

At times there has been confusion over the effect on Australia's sovereignty over the excised area. Various constitution authorities have voiced the opinion that excising territory from the migration zone does not affect Australia's sovereignty.

The "excision" of areas from the migration zone has no impact on the rights of Australian citizens and permanent residents to travel to and remain in that area, and no documentation is required to travel between these areas and the rest of Australia. Nor is there any impact on the rights of those non-citizens who arrive in these territories with valid visas.

For example, the territory of Norfolk Island, although under Australian sovereignty, is entirely outside the migration zone, as are the uninhabited territories of Heard Island and McDonald Islands (in the Southern Ocean) and the Australian Antarctic Territory.

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