Monday, 22 September 2014
Migration Amendment (Protection and Other Measures) Bill 2014; Second Reading
I thank members for their contributions to the debate on the Migration Amendment (Protection and Other Measures) Bill. I understand the opposition may have a bit more to say at a later stage of these proceedings, but it is important to simply sum up, again, the purposes of the bill. The bill amends the Migration Act to implement a range of measures which will enhance the integrity and efficiency of Australia's protection status determination process. These measures will provide the government with the necessary tools to assess asylum seekers irrespective of their mode of arrival in Australia through an effective and coherent protection processing system. The bill provides legislative support for decision makers who assess the claims of people seeking protection in this country. The measures in this bill clarify lines of responsibility—it is up to the person seeking protection in Australia to establish their identity and their claims to protection in good faith and as soon as possible. It is not the decision maker's responsibility to make out a claim for protection.
The measures before the House go to improving the quality of protection visa applications and the decision making process in the interests of integrity and efficiency. The first schedule of the bill goes directly to establishing a timely, efficient and higher quality protection claim processing system. The bill will put beyond doubt that it is the asylum seeker's responsibility to establish their claim for protection and to provide sufficient evidence to support those claims. It also makes clear that asylum seekers must present their claims and supporting evidence at the earliest opportunity. Where an asylum seeker raises claims or evidence at the Refugee Review Tribunal for the first time they must have a reasonable explanation for not having raised those claims or evidence before a primary decision was made. Where there is no reasonable explanation, the RRT will have the power to draw an adverse inference regarding the credibility of those new claims and evidence.
Establishing identity is a pivotal factor in maintaining the overall integrity of the protection visa system. Identity can have a direct bearing on whether an asylum seeker engages Australia's protection obligations. When assessing an asylum seeker's claim for protection the decision maker needs to be confident that the asylum seeker is who they say they are. If asylum seekers do not cooperate with the government to establish their identity, they should not be given the benefit of a protection visa.
In order to give effect to this policy, amendments to the Migration Act will provide decision makers with the power to refuse a protection visa on three separate grounds: refusing or failing to comply with a request to provide documentary evidence of identity, nationality or citizenship; destroying or discarding such evidence or causing that to occur; or providing a bogus document to establish identity. However, a decision maker may decide not to refuse a protection visa on one of those three grounds if they are satisfied that the applicant has a reasonable explanation for their actions, and that can occur, and either provides documentary evidence of their identity, nationality or citizenship or has taken reasonable steps to do so.
The bill will also put beyond doubt that an applicant for a protection visa who is a member of the same family unit of an existing protection visa holder cannot be granted a protection visa years later simply on the basis of being a member of the same family. They must use established migration pathways for family reunion.
The second schedule of the bill makes it clear that the higher threshold is required to engage Australia's non-refoulement obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. The government's position is that the threshold for assessing Australia's non-refoulement obligations is 'more likely than not'. This means a greater than 50 per cent chance that a person would suffer significant harm in the country they are returned to. This threshold is an acceptable position open to Australia under international law and will be applied to assessments of complementary protection claims. I note that this is not the threshold that is being provided to refugee claims under the refugee convention, which seems to have been a suggestion in some of the debate both in this place and outside this place. I also note that the 'more likely than not' test was the exact same test that was used by the former government and now opposition when they were assessing these very claims. What this bill is legislating is the practice of the previous government, what they actually did and what their policy actually was.
The third schedule of the bill will streamline the operation of the current statutory bars placed on illegal maritime arrivals that prevent them from making a valid visa application. The statutory bar under section 46A of the Migration Act will now apply to illegal maritime arrivals, regardless of whether they are unlawful, on bridging visas or other proscribed temporary visas. Amendments to section 46B of the Migration Act will also be made to ensure that transitory persons are treated consistently with illegal maritime arrivals. These are important streamlining and efficiency measures.
The fourth schedule of the bill will improve the processing administration of the RAT and the Migration Review Tribunal. The principal member will be able to issue practice directions about review procedures and processing practices as well as guidance decisions to tribunal members to reduce inconsistencies when similar issues are raised across decisions. The tribunals will also be given powers to make an oral rather than a written statement where there is an oral decision. They will be able to dismiss review applications when an applicant fails to appear at a scheduled hearing before the tribunal and to reinstate the application where it is appropriate to do so.
This government is committed to strengthening the integrity and efficiency of Australia's protected status determination process. The bill before the House today will provide the necessary tools to deliver on this commitment. The bill deserves the support of all parties to ensure continued public confidence in Australia's protection processing system. I commend the bill to the House.