ACT No. VI of 2015 AN ACT to amend the Refugees Act, Cap. 420.

I assent.

D OLORES C RISTINA

(L.S.)

Acting President

10th March, 2015

ACT No. VI of 2015

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:-

The short title of this Act is the Refugees (Amendment)

Act, 2015, and this Act shall be read and construed as one with the

Refugees Act, hereinafter referred to as "the principal Act".

In this Act, for the word "asylum" wherever it occurs in the

principal Act, with the exclusion of the words "first country of

asylum" and "asylum procedures", there shall be substituted the

words "international protection".

Article 2 of the principal Act shall be amended as follows

(a)

for the definition "applicant for asylum" there shall

be substituted the following

" "applicant" means a third country national or a

stateless person who has made an application for

international protection in respect of which a final decision

has not yet been taken by the Commissioner or the

Refugees Appeals Board;";

(b) for the definition "application for asylum" there

shall be substituted the following

" "application for international protection" means

a request made by a third country national or a stateless

person which can be understood as a request for

international protection unless the third country national

explicitly requests another kind of protection outside the

scope of this Act that can be applied for separately;";

(c)

immediately after the definition "application for

international protection" there shall be added the following new

definition

" "applicant in need of special procedural

guarantees" means an applicant whose ability to benefit

from the rights and comply with the obligations provided

for in this Act or any subsidiary legislation made

thereunder, is limited due to individual circumstances;";

(d) immediately after the definition "applicant in need

of special procedural guarantees" there shall be added the

following new definition

" "beneficiary of international protection" means a

person who has been granted refugee status or subsidiary

protection status in accordance with article 8 and article

17;";

(e)

in the definition "Convention", for the word

"Convention" there shall be substituted the words

" "Convention" or "Geneva Convention" ";

(f)

the definition "dependent members of the family"

shall be deleted;

(g) in the definition "Directives", for the words

"Council Directive 2004/83/EC of 29 April 2004 on minimum

standards for the qualification and status of third country

nationals or stateless persons as refugees or as persons who

otherwise need international protection and the content of the

protection granted", there shall be substituted the words

"Council Directive 2011/95/EU on standards for the

qualification of third-country nationals or stateless persons as

beneficiaries of international protection, for a uniform status for

refugees or for persons eligible for subsidiary protection, and

for the content of the protection granted";

(h) immediately after the definition "Directives" there

shall be added the following new definition

" "family members" means, in so far as the family

already existed in the country of origin, the following

members of the family of the beneficiary of international

protection who are present in Malta in relation to the

application for international protection

(a) the spouse of the beneficiary of international

protection, or his or her unmarried partner in a stable

relationship where recognised by law;

(b) the minor children of the spouse or partner

or of the beneficiary of international protection

referred to in paragraph (a) above, on condition that

they are unmarried and regardless of whether they

were born in or out of wedlock or adopted as defined

under national law;

(c) the father, mother or another adult

responsible for the beneficiary of international

protection whether by law or by the practice of the

Member State concerned, when that beneficiary is a

minor and unmarried;";

(i)

for the definition "final decision" there shall be

substituted the following

" "final decision" means a decision on whether the

third country national or stateless person be granted

refugee status or subsidiary protection status which is not

subject to appeal, irrespective of whether such decision has

the effect of allowing the applicants concerned to remain in

Malta pending its outcome;";

(j)

immediately after the definition "the High

Commissioner" there shall be added the following new

definition

" "international protection" means refugee status

or subsidiary protection;";

(k) for

the

definition

"manifestly

unfounded

application" there shall be substituted the following

" "manifestly unfounded application" means an

application in relation to which

(a)

the applicant, in submitting his or her

application and presenting the facts, has only raised

issues that are not relevant to the examination as to

whether such applicant qualifies as a beneficiary of

international protection; or

(b)

the applicant has given clearly insufficient

details or evidence to substantiate his claim and his

story is inconsistent, contradictory or fundamentally

improbable; or

(c)

the applicant has based his application on

a false identity or on forged or counterfeit documents

which he maintained as genuine when questioned

about them; or

(d)

the applicant has misled the authorities by

withholding relevant information or documents with

respect to his or her identity and/or nationality that

could have had a negative impact on the decision; or

(e)

the applicant made false representations

of a substantial nature; or

(f)

the applicant has, without reasonable

cause and in bad faith, destroyed, damaged or

disposed of any passport, other document or ticket

relevant to his claim, either in order to establish a

false identity for the purpose of his application or to

make the consideration of his application by the

authorities more difficult; or

(g)

the applicant, having had ample earlier

opportunity to submit an application for international

protection, submitted the application in order to

forestall an impending removal order from Malta,

and did not provide a valid explanation for not

having applied earlier; or

(h)

the applicant is from a safe country; or

(i)

the applicant refuses to comply with an

obligation to have his or her fingerprints taken in

accordance with the relevant legislation; or

(j)

the applicant may, for serious reasons, be

considered a danger to the national security or public

order, or the applicant has been forcibly expelled for

serious reasons of public security or public order

under national law;";

(l)

immediately after the definition "the Minister" there

shall be added the following new definition

" "minor" means a third country national or

stateless person below the age of eighteen years;";

(m) immediately after the definition "minor" there shall

be added the following new definition

" "person eligible for subsidiary protection" means

a third country national who does not qualify as a refugee

but in respect of whom substantial grounds have been

shown for believing that the person concerned, if returned

to his country of origin, would face a real risk of suffering

serious harm, and is unable or, owing to such risk,

unwilling to avail himself of the protection of that country,

and has not been excluded from being eligible for such

protection under article 17(1);";

(n) in paragraph (b) of the second proviso to the

definition "refugee", for the words "in a similar manner as in

paragraph (a);" there shall be substituted the words "in a similar

manner as in paragraph (a).", and immediately thereafter there

shall be added the following

"For the purpose of paragraph (a), "acts of

persecution" means

(a)

acts of physical or mental violence,

including acts of sexual violence;

(b)

legal, administrative, police, and/or

judicial measures which are in themselves

discriminatory or which are implemented in a

discriminatory manner;

(c)

prosecution or punishment which is

disproportionate or discriminatory;

(d)

denial of judicial redress resulting in a

disproportionate or discriminatory manner;

(e)

prosecution or punishment for refusal to

perform military service in a conflict, where

performing military service would include crimes or

acts falling within the scope of the grounds for

exclusion as set out in article 12(2);

(f)

acts of a gender-specific or child-specific

nature

Provided that refugee status on the

grounds of fear of persecution shall only be granted

if there is a connection between the reasons for

persecution mentioned in regulation 18 of the

Procedural Standards in Examining Applications for

International Protection Regulations and the acts of

persecution referred to in this definition;";

(o) in the definition "remain", immediately after the

words "or is being examined;" there shall be added the words

"the right to remain shall not constitute an entitlement to a

residence permit;";

(p) immediately after the definition "remain" there shall

be added the following new definition

" "representative" means a person or an

organisation appointed by the competent bodies in order to

assist and represent an unaccompanied minor in asylum

procedures with a view to ensuring the best interests of the

child and exercising legal capacity for the minor where

necessary. Where an organisation is appointed as a

representative, it shall designate a person responsible for

carrying out the duties of a representative in respect of the

unaccompanied minor;";

(q) immediately after paragraph (e) in the definition

"safe third country", there shall be added the following new

paragraph

"(f) there is no risk of serious harm as defined in

this article;";

(r)

immediately after the definition "serious harm"

there shall be added the following new definition

" "subsequent application" means a further

application for international protection made after a final

decision has been taken on a previous application;";

(s)

for the definition "withdrawal of refugee status"

there shall be substituted the following

" "withdrawal of international protection" means

the decision by the Commissioner to revoke, end or refuse

to renew the refugee or subsidiary protection status of a

person.".

Immediately after sub-article (1) of article 7 of the

principal Act there shall be added the following new sub-article

"(1A) For the purpose of this article, an appeal on both

facts and points of law may be permitted against

(a) a recommendation taken on an application for

international protection, including a decision;

(i)

considering an application to be

unfounded in relation to refugee status and/or

subsidiary protection status;

(ii)

considering an application

to

be

inadmissible pursuant to article 24;

(iii) not to conduct an examination pursuant to

article 24(1)(c);

(b) a refusal to reopen the examination of an

application after the discontinuation in accordance with

regulation 13 of the Procedural Standards in Examining

Applications for International Protection Regulations;

(c)

a withdrawal of international protection.".

Article 7A of the principal Act shall be substituted by the

following

"7A. (1) A person who has applied for international

protection may make a subsequent application after a final

decision to the Commissioner for Refugees

Provided that such application shall only be

considered on the presentation of new elements or findings,

relating to the examination of whether the person making the

subsequent application qualifies as a beneficiary of international

protection, and of which the applicant could not have been

aware or which he could not have submitted.

(2)

The person submitting a subsequent application

shall

(a) indicate facts and provide evidence which

justify this procedure; and

(b) submit such new information within fifteen

days from the day on which the person making the

subsequent application obtained such information.

(3) The examination may be conducted on the sole basis

of written submissions and the person making the subsequent

application is to be informed of the outcome of the examination

and of his right for an appeal.

(4) For the purpose of taking a decision on the

admissibility of an application pursuant to article 24, a

subsequent application shall be subject to a preliminary

examination as to whether new elements or findings have arisen

or have been presented since the lodging of the first application.

(5) If the preliminary examination referred to in sub-

article (4) concludes that new elements or findings have arisen

or have been presented by the applicant which significantly add

to the likelihood of the applicant qualifying as a beneficiary of

international protection, a further examination of the application

shall be carried out

Provided that an application shall only be further

examined if the applicant concerned was, through no fault of his

own, incapable of concluding that new elements or findings

have arisen.

(6) When a subsequent application is not further

examined pursuant to this article, it shall be considered

inadmissible, in accordance with article 24(1)(f).

(7) The procedure referred to in this article may also be

applicable in the case of

(a) a dependent who lodges an application after

he has, in accordance with article 24(1)(g), consented to

have his case be part of an application lodged on his

behalf;

(b) an unmarried minor who lodges an

application after an application has been lodged on his

behalf.

(8) For the purpose of this article, the Refugee

Commissioner shall ensure that

(a) the preliminary examination referred to in

this article will consist of examining whether there are

facts relating to the dependent’s or the unmarried minor’s

situation which justify a separate application;

(b) that the applicant whose subsequent

application is subject to a preliminary examination enjoys

the guarantees provided for in regulation 4 of the

Procedural Standards in Examining Applications for

International Protection Regulations;

(c) that the applicant is informed in an

appropriate manner of the outcome of the preliminary

examination and, if the application is not to be further

examined, of the reasons why and the possibilities for

seeking an appeal or review of the decision.

(9) The preliminary examination may be conducted on

the sole basis of written submissions and the person making the

subsequent application is to be informed of the outcome of the

preliminary examination.".

Article 8 of the principal Act shall be amended as follows

(a)

sub-article (3) thereof shall be renumbered as sub-

article (4); and

(b) immediately after sub-article (2) thereof, there shall

be added the following new sub-article

"(3) For the purpose of this article, a previous

persecution or serious harm or a direct threat of such

persecution or harm shall be considered as a serious

indication of the applicant’s well-founded fear of

persecution or real risk of suffering serious harm, unless

there are good reasons to consider that such persecution or

previous harm will not be repeated.".

In the proviso to sub-article (1) of article 9 of the principal

Act, for the words "can no longer be regarded as well-founded.",

there shall be substituted the words "can no longer be regarded as

well-founded:", and immediately thereafter there shall be added the

following new proviso

"Provided further that paragraphs (d) and (e) shall not

apply to a refugee who is able to invoke compelling reasons

arising out of previous persecution for refusing to avail himself

of the protection of the country of nationality or, being a

stateless person, of the country of former habitual residence.".

The heading of Title II in Part IV of the principal Act shall Substitution of

heading of Title

be substituted by the following.

II in Part IV of

the principal

Act.

"Title II - Actors of persecution or serious harm, actors of

protection, internal protection, non-refoulement and resettlement".

Article 17 of the principal Act shall be amended as Amendment of

article 17 of the

principal Act.

(a)

sub-article (2) thereof shall be renumbered as sub-

article (3); and

(b) immediately after sub-article (1) thereof, there shall

be added the following new sub-article

"(2) For the purpose of this article, a real risk of

suffering serious harm may be based on events which have

taken place after the applicant has left his country of origin

or activities engaged in by applicant since leaving the

country of origin, except when based on circumstances

which the applicant has created by his own decision since

leaving the country of origin.".

Article 18 of the principal Act shall be substituted by the Substitution of

article 18 of the

following

principal Act.

"18. The following may be considered as actors of

persecution or serious harm

(a)

the State;

(b) parties or organizations controlling the State

or a substantial part of the territory of the State;

(c) non-State actors, if it can be demonstrated

that the actors mentioned in paragraphs (a) and (b),

including international organizations, are unable or

unwilling to provide protection against such acts of

persecution or serious harm.".

Article 19 of the principal Act shall be amended as Amendment of

article 19 of the

principal Act.

(a)

in paragraph (b) of sub-article (1) thereof, for the

words "or a substantial part of the territory of the State.", there

shall be substituted the words "or a substantial part of the

territory of the State:", and immediately thereafter there shall be

added the following new proviso

"Provided that, for the purpose of this article,

actors of protection referred to in paragraphs (a) and (b)

are willing and able to offer protection in accordance with

sub-article (2).";

(b) immediately after sub-article (1) thereof there shall

be added the following new sub-article

"(1A) For the purpose of this article, when

assessing whether an international organisation controls a

State or a substantial part of its territory and provides

protection as described in sub-article (2), account shall be

taken of any guidance provided for in any other relevant

provision of national law, any European Union Act or

relevant

documentation

issued

by

the

High

Commissioner.";

(c)

sub-article (2) thereof shall be deleted; and

(d) immediately after sub-article (1A) thereof, there

shall be added the following new sub-article

"(2) Protection against persecution or serious

harm must be effective and of a non-temporary nature.

Such protection is provided when the entities mentioned in

sub-article (1) take reasonable steps to prevent the acts

mentioned in article 17(1) by operating an effective legal

system for the detection, prosecution and punishment of

acts constituting persecution or serious harm, and the

applicant has access to such protection.".

Article 20 of the principal Act shall be substituted by the

following

"20. (1) As part of the assessment of the application for

international protection, the Refugee Commissioner may

determine that the applicant is not in need of international

protection if, in the exercise of his functions, he deems that in a

part of the country of origin, the applicant

(a) has no well-founded fear of being persecuted

or is not at real risk of suffering serious harm; or

(b) has access to protection against persecution

or serious harm as mentioned in article 19,

and the applicant can safely and legally travel to and gain

admittance to that part of the country of origin and can reasonably

be expected to settle there.

(2) In examining whether a part of the country of origin

is in accordance with sub-article (1), the Refugee Commissioner

shall at the time of taking the decision on the application, have

regard to the general circumstances prevailing in that part of the

country and to the personal circumstances of the applicant.

(3) For the purposes of this article, the Refugee

Commissioner shall ensure that precise and up-to-date

information is obtained from relevant sources, such as the

United Nations High Commissioner for Refugees and the

European Asylum Support Office.".

In the proviso to article 21 of the principal Act for the Amendment of

words "no longer faces a real risk of serious harm.", there shall be article

principal Act.

substituted the words "no longer faces a real risk of serious harm:",

and immediately thereafter there shall be added the following new

proviso

"Provided further that the provisions of this article shall

not apply to a beneficiary of subsidiary protection who is able to

invoke compelling reasons arising out of previous persecution

for refusing to avail himself of the protection of the country of

nationality or, being a stateless person, of the country of former

habitual residence.".

Immediately after article 23 of the principal Act, there Addition of new

article to the

shall be added the following new article

principal Act.

" Accelerated

An unaccompanied minor may be

procedures.

examined under accelerated procedures, in

accordance with this article, when

(a)

the applicant comes from a

country which satisfies the criteria to be

considered a safe country of origin,

within the meaning of this Act;

(b) the applicant has introduced

a

subsequent

application

for

international protection which is not

inadmissible in accordance with article

24;

(c)

the applicant may for serious

reasons be considered a danger to the

national security or public order of

Malta or the applicant has been forcibly

expelled for serious reasons of public

security or public order under national

law.".

15. Article 24 of the principal Act shall be amended as

(a)

sub-article (1) thereof shall be substituted by the

following new sub-article

"(1) The application of any person in Malta

seeking international protection and who falls under any

one of the following conditions, shall be inadmissible if

(a) another Member State has already granted

him international protection in terms of Council

Regulation No. 604/2013 of 26 June 2013

establishing the criteria and mechanisms for

determining the Member State responsible for

examining an application for international protection

lodged in one of the Member States by a third-

country national or a stateless person;

(b) a country which is not a Member State is

considered as a first country of asylum for the

applicant;

(c) a country which is not a Member State is

considered as a safe third country for the applicant;

(d) the applicant made a subsequent application,

where no new elements or findings relating to the

examination of whether the applicant qualifies as a

beneficiary of international protection have arisen or

have been presented by the applicant;

(e) a dependent of the applicant lodges an

application after consenting to have his case part of

an application made on his behalf, and there are no

facts relating to the dependent person’s situation

which justify a separate application;

(f) the applicant has been recognized 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

benefiting from the principle of non-refoulement,

and such person can be re-admitted to that country;

or

(g) the applicant is a national or citizen of any

safe country of origin listed in the Schedule or, if he

is not a national or citizen thereof, he has a right of

residence therein.";

(b) sub-article (2) thereof shall be substituted by the

following new sub-article

"(2) The provisions of article 23(2), (3), (4) and

(5) shall apply mutatis mutandis to inadmissible

applications.";

(c)

sub-article (3) thereof shall be renumbered as sub-

article (4); and

(d) immediately after sub-article (2) thereof there shall

be added the following new sub-article

"(3) The Commissioner shall allow applicants to

present their views, with regard to the application, of the

grounds referred to in this article before a decision on the

admissibility of an application has been taken. A personal

interview on the admissibility of the application shall also

be conducted.".

Passed by the House of Representatives at Sitting No. 245 of the

3rd March, 2015.

A NĠLU F ARRUGIA

Speaker

R AYMOND S CICLUNA

Clerk of the House of Representatives

€1.44