Monday, 22 September 2014
Migration Amendment (Protection and Other Measures) Bill 2014; Second Reading
22nd September 1973. When I first came here—you may not think about it—I spent time visiting refugee camps. I went first to Traiskirchen in Austria. It is a place where I became aware that the United States said that anybody who runs away from a communist country must be a refugee, so we have to resettle them. We had a gentleman called Ceausescu, who took the view that this was an ideal time to empty his jails. It was probably appropriate that we should have been asking some important questions about who it might be that we would be resettling: people who were genuinely opposed to the regime or those that the regime did not in fact want itself.
Later, I spent some time in Cambodia. I went to the Cambodian border with Thailand and saw many of the camps there. I went to Vietnam, but I also had the opportunity of seeing Vietnamese in places like Pulau Bidong. Come into my office and you will find a framed picture carved out of a packing case sent to me by a refugee, who later settled in Australia. I went to Whitehead detention centre, in Hong Kong. I went and saw the Afghans in Pakistan. I spent time later in the Balkans, focusing on what was happening to people from Bosnia, from Croatia and from Serbia. Sometimes the Serbians, even though they had been evicted from parts of Croatia, were not seen as having a need for resettlement, and they clearly were.
I had the opportunity of going to Africa. I went to Kakuma, the camp in Kenya. What that demonstrated to me was that there were people who were out of sight and out of mind living in some of the most appalling circumstances. Nobody was focused on trying to help them and work out a way of dealing with their circumstances. Yet it seemed to me that they might well be people who, in a properly constructed refugee program, you would want to settle and support.
What that meant for me was that I frequently focused on those people who were unsafe where they were, those who had no prospect of being able to return home, and asked how their circumstances were going to be resolved. It meant that as I later came across groups of people who were free enough to travel, with the money and resources to be able to engage people smugglers—organised crime—who may well have a sound claim for refugee status, but in many circumstances if you ask yourself who would you want to help, it would be the person the refugee camp with nowhere to go and not the person free enough to travel who was making Australia a destination of choice.
That brings me to this bill we are discussing, Migration Amendment (Protection and Other Measures) Bill 2014. It is about examining and looking at the integrity and efficiency of our onshore protection status-determination regime. It is about ensuring that the people whom we have to consider, because of the refugee convention we are party to, have claims that we consider are substantial and real. I have to say that I think there are many people, and I meet them frequently, about whom you would say that the only refugees they have ever met are those people who say to them, in Australia, 'I am a refugee, and it is my claim that ought to be the most important.' I think, and I have believed this for some time, that there are people who come through that process, supported by very well-meaning Australians, encouraged by members of my own profession, to look at their claims in absolutely minute detail to establish whether there is any possible way that you can actually get them through the system. Their claims are being given priority.
These measures are about improving the integrity of that system. If I could point to some of them. There are measures to put responsibility on asylum seekers to help us in assessing their claims—to put responsibility on them to put before us complete information and to be up-front about it. These measures are to apply to all asylum seekers, regardless of their modus operandi. Specifically, the bill amends the Migration Act to make clear that it is an asylum seeker's responsibility to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claim. You may think this is surprising. But I am aware of circumstances in which people will come here and say, 'I am an asylum seeker,' and expect us to disprove it, without telling us any of the circumstances that give rise to their claim to enable it to be adequately examined. It seems to me that for people who are saying, 'We want to be taken by you because you have a protection obligation in relation to us,' it is not unreasonable to require them to provide us with sufficient evidence to establish that claim.
The bill also creates grounds to refuse a protection visa application when an applicant refuses to establish their identity, nationality or citizenship. I ask myself what have you got to hide if you do not want to show me the documents on which you might have travelled—the documents that might tell me where you have come from, where you have been and also might tell me what other countries have examined your entitlement to establish who you are and what view they have formed in relation to these matters. I know the reason people get rid of documentation. It is because they take the view that if we find they are not a refugee we will not be able to prove who they were and where they were from, and send them home. I think that is why a lot of the lawyers tell them that it is not a bad thing to get rid of your documentation. It is certainly what the people smugglers tell them. They will not know where to send you if you are found not to be a refugee. I do not think it is unreasonable to require people to have their documentation with them, and if they have not, to put on them the obligation to tell us why they do not. This provision creates grounds to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship, and does not have a reasonable explanation for doing so, including when an applicant provides bogus documents to establish their identity or either destroys or discards such evidence. Those factors are to be taken into account.
The bill also clarifies when an applicant who applies for protection visa, where a criterion for the grant of a visa is that they are a member of the same family unit of a person who engages Australia's protection obligations, is to make their application for a protection visa. It is to put on them a requirement to make their application separately for a protection visa.
The point that I make is that this legislation is intended to improve the integrity and consistency of decision making to prevent exploitation. This legislation is intended to improve the integrity and the consistency of decision making in, and to prevent exploitation of, the protection visa determination process, including the merits review system, by applicants not genuinely pursuing a claim. This is something that is of concern to me and it has to be run with integrity. These amendments will put responsibility back on asylum seekers, and I do not think that is unreasonable.
I make the point very strongly that these amendments are about ensuring continued public confidence in Australia's capacity to assess claims for asylum and to support community expectation that claims are made in good faith. I suspect that, properly applied with some other measures that the government is seeking to implement, what we will see is fewer claims for protection. Provided we are not sending a person who is a refugee with well-founded fear of persecution back to possible persecution, what it means is that we will be in a better position to protect those people whose claims would never be before us.
I think this bill is completely consistent with our obligations under the Refugee Convention and the International Covenant on Civil and Political Rights and also those that deal with torture. We treat our international obligations seriously, but we want to ensure that we do not allow those who advocate in these matters—those who want to establish a unique Australian jurisprudence that gives people an advantage—to achieve their objective.
In my view, privately arranged application assistance can be sought by any person claiming protection in Australia. Vulnerable asylum seekers, such as unaccompanied minors, people with disabilities and survivors of torture and trauma, will obviously be helped in presenting their claims. This is not about depriving people of the opportunity to have their matters dealt with properly. Those who arrived lawfully and who are disadvantaged or who face financial hardship may be eligible for assistance with their primary application through the Immigration Advice and Application Assistance Scheme. This is not about ensuring that people who have proper claims do not have them considered within the context of the framework of law. This is about ensuring greater integrity. I congratulate the minister on bringing these issues forward. I am sure the legislation will put in place a more effective protection system when it is enacted.