Monday, 22 September 2014
Migration Amendment (Protection and Other Measures) Bill 2014; Second Reading
One of the standout successes during the first 12 months of the coalition government has been the end to the drownings of asylum seekers in north Australian waters and the breakdown of the business model that propped up people smugglers during the previous Labor government's administration. It is impossible to believe that the previous government was able to get things so wrong, as they did when they undid the coalition's successful border protection policies. In doing so, they effectively put out the welcome mat to every opportunist with the boat in south-east Asia and reignited the people smuggling scourge that have been so effectively dealt with by former Prime Minister Howard in the previous years.
There are four main components to this legislation that I will deal with in order: scheduled 1 relates to protection visas; schedule 2 focuses on amendments relating to Australia's protection obligations, as they relate to international law; schedule 3 relates to unauthorised maritime arrivals; and schedule 4 deals with the Migration Review Tribunal and Refugee Review Tribunal. Schedule 1 is designed to improve the integrity and consistency of decision making in and preventing exploitation of the protection visa determination process, including in the merits review system of applicants who are not genuinely pursuing a protection claim. The amendment sends a clear message that asylum seekers have certain responsibilities, such as that they are responsible for establishing their identity, their nationality or their citizenship wherever it is possible to do so.
Similarly, asylum seekers are also responsible for making comprehensive claims for protection, supported by evidence, as soon as possible. The measures—when they are introduced—will apply to all asylum seekers, regardless of how they arrive in Australia. This amendments are necessary to ensure the continued public confidence in Australia's capacity to assess claims for asylum and to support public expectations that asylum claims are made in good faith. They are an effective response to the evolving challenges in the asylum seeker case load and in the recent judicial decisions and management of the backlog of illegal maritime arrivals.
Under the amendments, if an applicant has no reasonable explanation for disposing of their identity documents and provides no documentary evidence of identity or has not taken reasonable steps to provide such evidence, their application will be refused. However, an applicant will not be refused for a protection visa for disposing of their identity documents if they have a reasonable explanation for disposing of their documents. Of course, some stateless people may find themselves in that position and our amendments provide those seeking asylum under such circumstances a reasonable opportunity to explain the circumstances surrounding their situation. The government wants to reduce the length of time people remain in detention. If they are refused a protection visa, they may have their case referred to the minister for consideration to determine the most appropriate way to resolve that person's immigration status. Decisions will be made on a case-by-case basis with reference to the particular country situation under question.
It is the view of this government that this measure is fair and reflects international standards. It has been long accepted that an asylum seeker is obliged to make and support their case for protection in good faith and to the best of their ability. This is reflected in the latest guidelines from the United Nations High Commissioner for Refugees, which state that applicants should 'tell the truth' and 'assist the examiner in full in establishing the facts of the case'.
As well as the Refugee Review Tribunal or the Administrative Appeals Tribunal, judicial review of challenged decisions is also available. This amendment also clarifies that when a family migration outcome is sought the protection visa process is not the appropriate migration stream. Through this it prevents and discourages the use of the onshore component of Australia's humanitarian program as a means of family migration.
Section 2 of the bill amends the test to be satisfied when considering complementary protection claims as part of a protection visa application and inserts new section 6A into the act. Proposed section 6A makes it clear that the minister can only be satisfied that Australia has protection obligations in respect of the noncitizen if the minister considers that it is more likely than not that the noncitizen will suffer significant harm if removed from Australia to a receiving country. The bill also clarifies the definition of 'receiving country' to ensure that there is always a country of reference when considering Australia's protection obligations in respect of a person.
This amendment is being made in response to a full Federal Court decision which the government does not agree with. The court interpreted the complementary protection provisions in a way that was not intended when they were introduced into the Migration Act. The government is now seeking to restore the originally intended 'more likely than not' threshold. This threshold is the same threshold that was initially adopted by the government when the complementary protection legislation commenced in the Migration Act in March 2012.
A year later the full Federal Court found that the threshold for assessing complementary protection claims was whether there is a 'real chance' of harm occurring. This lower threshold applies in the refugee convention context. The High Court has interpreted 'real chance' under the refugee convention as being less than a 50 per cent chance of harm, including as low as a 10 per cent chance. The coalition government considers the 'real chance' threshold to be too low and not reflective of Australia's protection obligations. It is also considered to be a lower threshold than our international obligations.
When a person applies for a protection visa they are first assessed against the refugee convention applying the 'real chance' test. If they are found not to be a refugee, the person is only then considered for complementary protection. The complementary protection assessment will apply the 'more likely than not' threshold. The majority of people who engage Australia's protection obligations are those who are found to be refugees under the refugee convention—indeed, those who are found to engage Australia's protection obligations under the convention against torture and the International Convention on Civil and Political Rights.
The effect of restoring the risk threshold to 'more likely than not' will ensure that someone is not found to engage Australia's protection obligations and be granted a visa under the Migration Act in circumstances where they are not entitled to it. The risk threshold for assessing protection obligations under the CAT and the ICCPR will be restored to being 'more likely than not' a person would suffer significant harm. 'More likely than not' means that that would be a greater than 50 per cent chance that a person would suffer significant harm if returned home or to an alternative receiver country. This is an acceptable position open to Australia under international law.
Schedule 3 of the amendment bill relates to unauthorised maritime arrivals as defined in the Migration Act making a valid application for a visa. The intention of these amendments is to simplify the legal framework that applies to unauthorised maritime arrivals and transitory persons. Currently unauthorised maritime arrivals may be subjected to section 46A, section 91K or indeed both. These amendments ensure that an unauthorised maritime arrival who is an unlawful noncitizen, a bridging visa holder or the holder of a temporary visa prescribed for the purposes of the provision will be prevented from making a valid application for a visa unless the minister determines that it is in the public's interest to allow them to do so.
They also provide that such a determination may have effect only for the period of time specified, have a different period of time specified for different classes of unauthorised maritime arrivals or be varied or revoked by the minister.
The amendments will create a bar on making a valid visa application at section 46A of the Act for unauthorised maritime arrivals who are in Australia and hold bridging visas or any other temporary visa prescribed in the regulations. And, finally, schedule 4 contains amendments relating to the Migration Review Tribunal and the Refugee Review Tribunal which were specifically requested by both tribunals and seek to improve their processing and administration. These include strengthening the powers of the principal member in relation to practice directions, the ability to issue guidance decisions and permitting a member to provide an oral statement of reasons in certain situations where there is an oral decision without having to provide a written statement of reasons. The amendment also includes a capacity for Migration Review Tribunal and the Refugee Review Tribunal to dismiss an application where an applicant fails to appear before a tribunal after being invited to do so, as well as a power to reinstate the application where the applicant applies for a reinstatement within a specified period of time.
The amendments are intended to reduce inconsistencies in decisions and to improve the processing and administrative efficiency of both tribunals. To conclude I want to acknowledge the efforts of this government and particularly the Minister for Immigration and Border Protection, the Member for Cook, on delivering the tools that have been so successful in stemming the tide of illegal boat arrivals to Australia. It is the coalition government that has shown it is prepared to make the tough decisions to restore sovereignty to Australia's borders and to save the lives of the innocent people who fell for the lure of people smugglers and false promises that they would be able to be settled in Australia.