Monday, 22 September 2014
Migration Amendment (Protection and Other Measures) Bill 2014; Second Reading
I rise to speak against the Migration Amendment (Protection and Other Measures) Bill 2014 and the measures it contains. Put simply, it is unnecessary, it will do harm, it is against legal and moral principle, and I believe it contravenes our international humanitarian commitments.
The two key words used in justification for these amendments are 'streamline' and 'efficiency', but these are weasel words. The proposed changes are being made so that a person claiming humanitarian protection faces greater obstacles, is at risk of falling foul of additional procedural pitfalls, and has their opportunity to review any adverse decisions constrained. If 'streamline' is taken to mean the making of unfair decisions more smoothly and quickly, and 'efficiency' is taken to mean the further restriction on granting humanitarian protection, then this bill certainly furthers those ends. No case has been made for these changes. If in the government's view the tribunals are overturning too many refusals at first instance, perhaps the problem lies more with the quality of the initial decision-making than with the considered decisions of the independent expert tribunals.
It is a long established principle and practice in Australian administrative law that as a general rule nobody bears an onus of proof in administrative proceedings. The proposed changes in schedule 1, parts 1 and 2, place a refugee applicant in the position of having to prove their need for protection as an unsupported petitioner to an administrative system where the decision-maker is procedurally obliged to wait passively for proof that protection is required, and can refuse an application where an asylum seeker fails to provide documentary evidence of identity, nationality, or citizenship.
While an applicant clearly bears responsibility for explaining their claims, substantial fairness requires the onus to be shared with the decision-maker, who should play an active role in eliciting and clarifying the claims. This is because, for most asylum seekers, the refugee assessment process is foreign to them. It involves complex legal and procedural issues that can be difficult to understand and engage with and there may be further obstacles including language, torture or trauma, education, impairment, cultural background, remote detention or other special vulnerabilities. These factors may account for a person's failure to raise all claims and evidence to the department at first instance. There are well-established practices for the assessment of credibility which take into account the late disclosure of claims and individual vulnerabilities. So it is hard to see the need for this proposed law to direct tribunals to draw an adverse inference when they are already competent to make assessments of credibility and, indeed, do so every day.
Even more disturbing is the new provision allowing the failure of an applicant to provide evidence of identity as a ground for refusal of a protection application. Currently, the decision maker can draw an adverse inference from such failure to provide evidence. But now protection could be refused solely on the basis of a lack of identity documents without the central legal question of whether the person is at risk of persecution being addressed. If a person at such risk were returned to their place of persecution because of a lack of identity documents this would violate Australia's non-refoulement obligations.
I note that this provision runs contrary to the UN Refugee Convention which provides that states must not penalise asylum seekers for entering without valid documents and the UNHCR guidelines which acknowledge that the refugee experience itself often militates against people obtaining identity or travel documents. Asylum seekers may be unable to obtain identity documents for understandable reasons, including well-founded fears of persecution for themselves or for family left behind. Again, it would seem to me that current provisions for the assessment of identity and credibility are adequate and no case has been made for introducing provisions that are fundamentally inconsistent with our protection obligations.
Humanitarian protection processes should not be based on a supplicant/gatekeeper relationship. Asylum seekers are not contestants for a prize. They are not adversaries in a conflict between competing interests. Asylum seekers are people who have lived and are living on the very edge of physical, mental and emotional survival. Their judgement and instincts are often shaped by their experience of horrors, by their proximity to further suffering and, paradoxically, by their proximity to the prospect of safety. It is absolutely wrong in those circumstances to move our system of humanitarian protection assessment further along the path of Kafkaesque impenetrability.
As with all the legislative amendments contained in this bill, one has to ask: where is the evidence that demonstrates a need for these changes? Where are the arguments that make a compelling case for the inadequacy of the existing arrangements and the clear benefits of the proposed departures from established practice and international norms? On this point, it is absolutely critical to see the proposed changes in the bill in the context of the government's decision earlier this year to axe funding for legal services that assist asylum seekers as they are confronted with this strange and difficult administrative test. In the first place, the government removed the support that previously existed to aid asylum seekers in navigating a complicated and unfamiliar process, and now the government seeks to make that process more onerous. It is a form of catch 22: a person whose experience of persecution and suffering renders them least able to make their case will be most disadvantaged by the changes contained in this bill.
The proposed changes to schedule 2 of the Migration Act are odious and unacceptable. What is the basis for introducing a new and significantly higher threshold when it comes to complementary protection? The established threshold test is whether there is a real chance that a person would be subject to persecution or life threatening harm. Why replace that perfectly sensible rationale with a form of probability test that is more generally found in the assessment of civil liability? If it were possible to determine that a person was only 49 per cent likely to be executed on their return to a place of danger, would any of us be happy for that to occur? The bottom line is that by making such a change we shift our protection assessment system to a point where returning a fellow human being to severe harm is more likely.
The proposed change in schedule 4 that allows the tribunal to give oral reasons, with the provision of reasons in writing made subject to a formal and time limited request, is yet another procedural step that potentially and unnecessarily condemns genuine asylum seekers to peril, especially in the absence of legal assistance. Asylum seekers may not understand the need to request written reasons within the limited period, and the consequence may be that their capacity to seek judicial review is severely limited. This provision strikes directly at the heart of our legal system in terms of its lack of transparency and accountability. If we take 'streamline' to mean that decision making becomes less transparent, less easily reviewed and more unfair in the name of procedural haste, then, of course, this amendment will achieve that end.
The provision in schedule 4 enabling the principal member to issue guidance directions to other members may impact upon the exercise of the independent merits review process by individual members of the tribunals. We need to ensure that consistency in decision making does not come at the expense of independence. The provision enabling tribunals to dismiss an application where an applicant fails to appear may have the effect of denying a fair hearing of an applicant's claims because of circumstances beyond their control, for instance, not having received notification, serious illness or impairment. The seven-day time limit to request reinstatement is too limited, given that many applicants may not understand the process.
I know I am not alone in occasionally wishing that we could have debates in this place where, in a relatively concentrated period of time, we could all speak and listen, hearing the arguments made for or against legislative change, with the opportunity and real prospect of changing other members' views and of having our views changed. This is certainly one of those times. In my view, this bill will seriously erode existing substantive and procedural safeguards and facilitate refusal of protection applications using technical procedural measures without due consideration of Australia's international protection obligations. There really is not any basis for these amendments. They can only be understood as moving towards a harsher approach, for its own sake, when it comes to providing humanitarian protection and a more discriminatory approach towards those who do not arrive by aeroplane. It would be better if this bill did not proceed any further, and I encourage all members to consider it carefully on that basis.