ACT No. VIII of 2004 AN ACT to amend the Refugees Act, Cap. 420 BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows>-

I assent.

E DWARD F ENECH A DAMI

(L.S.)

President

6th August, 2004

ACT No. VIII of 2004

AN ACT to amend the Refugees Act, Cap. 420

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows>-

(1) The title of this Act is the Refugees (Amendment) Short title

and

Act, 2004, and it shall be read and construed as one with the Refugees commencement.

Act, 2000, hereinafter in this Act referred to as “the principal Act”.

(2) This Act shall come into force on such date as the

Minister responsible for immigration may by notice in the Gazette

establish, and different dates may be so established for different

provisions and different purposes thereof.

Article 2 of the principal Act shall be amended as follows> Amendment of

article 2 of the

principal Act.

(a) for the definition of “safe country of origin” there

shall be substituted the following>

“ “safe country of origin” means a country of which

an applicant is a national or citizen or, if he is not a national

or citizen thereof, in which he has a right of residence and

which, in general terms, is considered as presenting no

serious risk of persecution on the basis that a person seeking

asylum will be treated in accordance with the following

principles in that country –

(a) life and liberty are not threatened on account

of race, religion, nationality, membership of a

particular group or political opinion< and

(b) the principle of non-refoulement in

accordance with the Convention is respected< and

(c) the prohibition on removal in breach of the

right to freedom from torture and cruel, inhuman or

degrading treatment as laid down in international law

is respected< and

(d) the possibility exists to request refugee

status and, if found to be a refugee, to receive

protection in accordance with the Convention.”< and

(b) immediately after the definition of “refugee” there

shall be inserted the following new definition>

“ “Member State” shall have the same meaning

assigned to it by article 2 of the European Parliament

Elections Act.”.

Immediately after sub-article (4) of article 4 of the principal

Act, there shall be added the following subarticle (5)>

“(5) (a) Without prejudice to the provisions of

subarticle (4) there shall be such number of Assistant Refugee

Commissioners (hereinafter referred to as Assistant

Commissioners) as the Prime Minister may by notice in the

Gazette from time to time determine.

(b) The Assistant Commissioners shall be appointed by

the Prime Minister from among public officers and from among

persons who in each case, in the opinion of the Prime Minister,

have knowledge and experience in matters relating to refugees.

(c) The Assistant Commissioners shall under the

general direction of the Commissioner have such functions and

powers as are conferred on the Commissioner by this Act, and

are assigned to each of them by the Commissioner, including

the function and power to examine applications for refugee

status and to administer the oath to any person, and any reference

in this Act, other than in this article to the Commissioner shall

be deemed to include also reference to an Assistant

Commissioner in the exercise of any function assigned to him

by the Commissioner.”.

Immediately after subarticle (3) of article 5 of the principal Amendment of

article 5 of the

Act, there shall be added the following subarticle>

principal Act.

“(4) (a) There shall be such number of Chambers of

the Refugee Appeals Board as the Minister may prescribe.

(b) Where there is more than one chamber of the Board,

cases shall be assigned to the various chambers in accordance

with such rules as the Minister may prescribe.

(c) Each chamber of the Board shall be composed of a

chairperson and two other members as provided in subarticles

(1) to (3) of this article, which together with all the other

provisions of this Act other than this subarticle shall apply with

respect to each chamber as if reference therein to the Board

were a reference to a chamber of the Board.”.

In article 8 of the principal Act, immediately after sub- Amendment of

article 8 of the

article (2) thereof, there shall be inserted the following subarticles principal Act.

(2A) and (2B)>

“(2A) Saving the provisions of subarticle (2B), an

application as is referred to in subarticle (2) shall be made, and

shall not be valid unless made, within two months of the

applicant’s arrival in Malta.

(2B) Notwithstanding the provisions of subarticle (2A),

the Commissioner may, for special and exceptional reasons to

be stated in his decision, consider valid an application made

after the lapse of the period mentioned in the same subarticle

(2A) and proceed accordingly.”.

For subarticle (1) of article 18 of the principal Act, there Amendment of

article 18 of the

shall be substituted the following>

principal Act.

“(1) A person seeking asylum in Malta in terms of article

8 of this Act shall be examined under accelerated procedures in

accordance with this article when his application appears prima

facie to be manifestly unfounded as defined in article 2 of this

Act.”.

Immediately after article 18 of the principal Act, there shall

be inserted the following new article>

“18A. (1) This article shall apply to any person in Malta

seeking refugee status and who>

(a) has been granted refugee status by a Member

State other than Malta< or

(b) has been recognised in a country which is not a

member state as a refugee and can still avail himself of

that protection or otherwise enjoys sufficient protection in

that country, including benefitting from the principle of

non-refoulement, and such person can be re-admitted to

that country< or

(c) is a national or citizen of any safe country of

origin listed in the Schedule to this Act or, if he is not a

national or citizen thereof, he has a right of residence

therein.

(2) The Minister may by regulation amend the list

of countries specified in the Schedule to this Act provided that

only countries which in his opinion are countries of safe origin

may be listed in the said Schedule and provided further that the

Minister shall remove from the said Schedule any country which

in his opinion is no longer a safe country of origin.

(3) An application for refugee status by any person

to whom this article applies shall be inadmissible.

(4) If in the course of an interview referred to in

article 8(1) the person interviewed requests to apply for refugee

status and that person is one to whom this article applies the

immigration officer conducting the interview shall forthwith

draw up a report in writing to the effect that any application by

that person for refugee status is inadmissible under subarticle

(3) and shall specify the reason for such inadmissibility.

(5) A copy of the report shall be given by the

immigration officer to the person interviewed who shall be

informed that he may apply to the Commissioner for a

reconsideration of his request for refugee status.

(6) Where the ground for the inadmissibility of the

application is that another country is a safe country of origin

the immigration officer shall, together with his report, provide

the person interviewed with a document in the language of the

said country informing the authorities of that country that the

person interviewed requested refugee status and that his request

was ruled inadmissible and not examined in substance.

(7) A person in whose regard a report is drawn up

under this article may within seven days from the date of the

report apply to the Commissioner for a reconsideration of the

opinion on inadmissibility.

(8) The Commissioner shall forthwith examine any

application under subarticle (7) and shall consider any

submissions made or evidence produced by the applicant

seeking to show that he is not a person to whom this article

applies.

(9) Where the application concerns a report as is

referred to in subarticle (6) the Commissioner shall also consider

any submissions made or evidence produced by the applicant

seeking to show that>

(a) the country declared in the report to be a safe

country of origin is not a country to which the applicant

may safely return< or

(b) that the applicant would be subjected to torture,

cruel, inhuman or degrading treatment or punishment were

he to be returned to that country.

(10) Any decision of the Commissioner under this

article on the inadmissibility or otherwise of an application for

refugee status by the applicant shall be final and no appeal shall

lie from that decision.”.

Immediately after article 20 of the principal Act, there shall Addition of

Schedule to the

be inserted the following schedule>

principal Act.

“SCHEDULE

(Article 18A)

Australia

Iceland

Benin

India

Botswana

Jamaica

Brazil

Japan

Bulgaria

Liechtenstein

Canada

Mali

Cape Verde

New Zealand

Chile

Norway

Croatia

Romania

Costa Rica

Senegal

Gabon

Switzerland

Ghana

United States of America

Uruguay”.

Immediately after subarticle (8) of article 25A of the

Immigration Act, there shall be added the following>

“(9) The Board shall also have jurisdiction to hear and

determine applications made by persons in custody in virtue

only of a deportation or removal order to be released from

custody pending the determination of any application under the

Refugees Act or otherwise pending their deportation in

accordance with the following subarticles of this article.

(10) The Board shall only grant release from custody

under subarticle (9) where in its opinion the continued detention

of such person is taking into account all the circumstances of

the case, unreasonable as regards duration or because there is

no reasonable prospect of deportation within a reasonable time.

(11) The Board shall not grant such release in the

following cases>

(a) when the identity of the applicant including his

nationality has yet to be verified, in particular where the

applicant has destroyed his travel or identification

documents or used fraudulent documents in order to

mislead the authorities<

(b) when elements on which any claim by applicant

under the Refugees Act is based, have to be determined,

where the determination thereof cannot be achieved in the

absence of detention<

(c) where the release of the applicant could pose a

threat to public security or public order.

(12) A person who has been released under the provisions

of subarticles (9) to (11) of this article, may where the Principal

Immigration Officer is satisfied that there exists a reasonable

prospect of deportation, and no proceedings under the Refugees

Act are pending, be again taken into custody pending his

removal from Malta.

(13) It shall be a condition of any release under

subarticles (9) to (12) of this article that the person so released

shall periodically (and in no case less often than once every

week) report to the immigration authorities at such intervals as

the Board may determine.”.

(1) Subarticle (2) of article 39 of the Amendment of Amendment of the

Amendment of

Various Laws Act, 2004 shall be amended as follows>

Various Laws Act,

2004. (a) in the Maltese text only thereof, the words from “u Act III of 2004.

kull Ordni” to “l-artikolu 49” shall be deleted and immediately

after the words “25 ta’ Marzu, 2004” there shall be inserted the

words “u kull Ordni mag[mul ta[t dak l-Att relattiv g[al dak l-

artikolu 49 g[andu jitqies bla effett g[al kollox u g[andu jitqies

li qatt ma sar”< and

(b) in the English text only thereof, immediately after

the words “the said article 49” there shall be inserted the words

“shall be without any effect whatsoever and shall be deemed to

have never been made.”.

(2) The provisions of this article shall be deemed to have

come into force on the 14th May, 2004.

Passed by the House of Representatives at Sitting No. 162 of the 26th July,

2004. A NTON T ABONE

R ICHARD J. C AUCHI

Clerk to the House of Representatives