Monday, 22 September 2014
Migration Amendment (Protection and Other Measures) Bill 2014; Second Reading
I rise to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. I am always keen to speak on bills that are about improving the integrity of our migration system, particularly as they result in enhancing our refugee and humanitarian program. I have always taken the opportunity of emphasising that migration is enormously positive to Australia. The benefits that it delivers are when the migration program is carefully constructed in order to reflect our interests in relation to skills that we might need, in relation to our interests in accommodating genuine and close family reunion but also in relation to enabling Australia to be a generous and supportive country to people who are in need of protection, who are unsafe where they are and who need a resettlement outcome.
The size and dimension of the problem is enormous. There is something in the order of 52 million people who are either refugees or people of concern around the world. As I frequently remind people as we talk about these issues, Australia cannot take them all. The idea that we should is, I think, naive. It prompts you to look very, very closely at the way in which we deal with border protection issues, because they go to the whole question of whether or not some people whose needs may not be as great are accommodated in terms of advantage for them over those who have a greater need. This has always troubled me enormously, I have to say.
I have been speaking at some gatherings fairly recently where I emphasised my own personal engagement in something like 41 years of public life. I can say that because today is the 41st anniversary of my election to parliament—
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.
I rise to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. Australia has a proud tradition of offering humanitarian protection to those who face persecution and danger in their home countries. To ensure that Australia is able to offer protection to those in need, we need to have a robust and efficient framework for governing the way in which we make decisions about who qualifies as or who is established to be a genuine refugee. It is important that we continue to look at that process, update it and make sure that it is as tight as possible, which is what this bill seeks to do. In the process, it is also important that this should be done in a way which does not distinctly disadvantage those who have genuine claims to protection. This bill seeks to address various aspects of the protection framework embodied in the Migration Act 1958. In principle, Labor supports the bulk of this bill. But Labor does have concerns regarding some of the proposals contained within this bill, which will lead us to make amendments when this is dealt with in consideration in detail.
Firstly, the proposed changes in schedule 2 to the existing complementary protection framework lowers the threshold and potentially puts people at risk of being returned to a situation where they may face serious harm or death. In our view, this is an unacceptable proposition which Labor cannot support, and on that basis we will be moving an amendment to remove schedule 2 from this bill. Secondly, in schedule 4, the provisions in item 17 are a distinct watering down of the current requirement of the Refugee Review Tribunal to give a written decision whenever an oral decision has been given. This puts the applicant in a position of needing to request a written decision and, therefore, in a position of a distinct disadvantage within that system. While we support the bulk of the bill, as long as these provisions remain within it, we will not be able to support the bill as a whole.
In saying that, I want to go through the specifics of the bill to indicate Labor's position. The bill has four schedules. The first schedule, in turn, contains four broad provisions dealing with the regime around making decisions on people's refugee status. The first issue, which is dealt with in schedule 1, goes to the applicant's responsibility in relation to protection claims. Schedule 1 inserts a new section 5AAA. This makes it clear that the onus of proving a claim for refugee status lies firmly with the asylum seeker applicant. Currently, there is no provision within the Migration Act that explicitly states the onus of proof when a claim is made, and it does not specifically provide that that onus of proof lies with the applicant, although, in effect, that is how the system has always acted in practice. It is, of course, in the best interests of the applicant to provide as much information as possible to substantiate their claim for protection. Making that an explicit requirement makes eminent sense.
The second area which seeks to be changed in schedule 1 relates to the consequences applying to those who fail to establish their identity or, indeed, use bogus documentation. Schedule 1 will amend section 91W and insert a new section 91WA. As the legislation stands, a decision maker can draw an adverse inference where no documentary evidence of an applicant's identity is available. However, it is not currently a ground for refusal. The amendments provided in this bill will impose a duty on the minister to refuse an application for a protection visa if the applicant refuses or fails to comply with a request to provide documentary evidence and does not have a reasonable explanation for refusing or failing to comply with that request. Similarly, if an applicant provides bogus documentation around evidence of their identity, nationality or citizenship, or if the minister is satisfied that the applicant has destroyed or disposed of that documentary evidence, the minister is obligated to refuse the application, unless the applicant has a reasonable explanation.
It is important to note in this particular part of the bill that the refusal power will not apply where the applicant does have a reasonable explanation—for example, where an applicant is stateless—and either provides documentary evidence of their identity or has taken reasonable steps to obtain such documents. Provisions around the establishment of identity is important. Provisions around providing genuine material is important in the system as well. We accept that this is a proposition which is worthy of support.
The third area which this schedule seeks to deal with is the question of application for protection visas by family members. Schedule 1 inserts a new section 91WB to 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 simply on the basis of being a member of the same family, unless they apply before the protection visa has been granted to the original protection visa applicant. As the act currently provides, a family member of a protection visa holder has an automatic ability to be considered to be owed protection simply by virtue of being a member of the same family without having to be assessed individually. But this new section will amend this so that if a person seeking protection does not apply at the same time as the primary applicant, or at least before the primary applicant's claim for a protection visa is itself granted, then they will have to lodge an application for protection in their own right or go through the process of family reunion, as would occur with any permanent visa holder. For example, if someone marries a protection visa holder years after the time they were granted protection, under the proposed changes they will not be considered to be in need of protection by virtue of the fact that their partner has a protection visa. It is important to note that these changes only apply to applicants who are already in Australia. Again, that is a proposition which we see as having merit to be supported.
The fourth aspect in which schedule 1 seeks to amend the Migration Act is in relation to the consequences which exist when information is not raised in relation to all evidence at the earliest opportunity. Schedule 1 inserts a new section 423A which encourages all information to be provided at the earliest opportunity. When an applicant seeks to raise new evidence, section 423A requires the Refugee Review Tribunal to draw an inference unfavourable to the credibility of new evidence where the applicant does not have a reasonable explanation to justify why the evidence was not presented to the primary decision maker. That, in Labor's view, is a fair proposition. Again, this is not a substantial change from current practice. As we understand it, the change will restore this to the original legislative intent and put Australia in line with other like-minded countries including the US, New Zealand and the UK.
As I have outlined, in supporting the measures contained in schedule 1, we do have one caveat and that is to examine the process, which is being undertaken by the Senate in relation to this bill, and to look at the way in which each of these provisions applies. Subject to that, our view is that schedule 1 deserves support. However, as I indicated at the outset we are concerned about schedule 2.
Schedule 2 seeks to insert a new section 6A which makes clear that the threshold for complementary protection claims would shift from people proving they have a real chance of significant harm if they are to be returned to the country from which they have fled to a test where they would be more likely than not to experience harm. That is obviously a higher threshold that needs to be achieved in order to invoke the complementary protection provisions of the legislation. In our view that could potentially result in people being returned to a situation in their home country where they do face persecution. On that basis, Labor will not support a weakening of this threshold where death or serious harm could result in the event of someone being returned to their home country.
We should remember that the complementary protection legislation regime deals with people who would not otherwise qualify as refugees, pursuant to the definition which is in our legislation by virtue of the refugee convention, but may qualify for protection based on other international instruments to which Australia is a party, such as the convention against torture. The sorts of instances which have been cited as invoking complementary protection that would not otherwise invoke the protection that is provided under the refugee convention are circumstances where people may face honour killings or where women may be returned to a situation where they could become subject to female genital mutilation.
When we are talking about consequences as significant as that, we believe that increasing the threshold before being able to invoke the provisions of that legislation is a concern. The changes proposed in this schedule are of such concern to Labor that we will not be supporting this bill while the changes to the complementary protection regime in schedule 2 remain a part of this legislative package. We will seek to amend this bill when it is considered in detail.
Schedule 3 deals with an amendment relating to the statutory bars that preclude the making of visa applications. The changes in this schedule are intended to streamline the operation of statutory bars and support the management of visa applications and, in the process, support the way in which our detention facilities are managed and, indeed, people are managed into community detention.
Changes to section 46 ensure that an unauthorised maritime arrival in Australia who is an unlawful non-citizen, a bridging-visa holder or holder of a temporary visa will be prevented from making a valid application for a visa unless the minister determines it is in the public interest to do so.
The explanatory memorandum to this bill states:
Most unauthorised maritime arrivals and some transitory persons who arrived in Australia before 19 July 2013 have been granted a temporary safe haven visa and a Bridging …visa … under section 195A of the Migration Act.
Under the current framework, anyone with these visas would be subject to three provisions that prevent them from making a valid application for a visa. These are: section 46A that applies to unauthorised maritime arrivals, generally; section 46B for transitory persons; and section 91K that applies to those with a temporary safe-haven visa. This change will ensure that unauthorised arrivals will only be caught by the section 46A bar and not both the section 46A and section 91K bar.
This has not been a problem in the past; however, temporary safe-haven visas have been used by the department, most recently, instead of issuing permanent-protection visas. This will streamline the operation of statutory bars applicable to unauthorised maritime arrivals and transitory persons. Importantly, these changes do not expand or change the minister's existing powers, under section 46A or 46B of the act, to make it a determination to lift the application bar in relation to an unauthorised maritime arrival or a transitory person. The changes only affect applications made by unauthorised maritime arrivals and transitory persons after the amendments commence. They do not affect the validity of applications already lodged with the department.
The effect of these provisions will be to streamline the way in which this process operates, in respect of those people who are here awaiting their refugee-status determinations to occur. It will more efficiently enable the system to deal with those who are in refugee-detention centres and in community detention. For that reason, Labor believes there is merit in the amendments contained in this schedule.
Schedule 4 relates to the Migration Review Tribunal and the Refugee Review Tribunal processes and administration. The changes will enable the principal member of the tribunal to issue practice directions to applicants and their representatives and issue guidance directions to other members of the tribunals. It is important to note this is consistent with practices in other Commonwealth merits review tribunals—for example, the Administrative Appeals Tribunal. It will also enable the tribunals to dismiss an application when an applicant fails to appear after being invited to do so, although it is important to note that the tribunals will have a power to reinstate the case if requested by the applicant within a specified period and, indeed, it is appropriate to do so.
In schedule 4, however, Labor does have a specific concern with item 17, which relates to circumstances where the tribunal's decisions are given orally. Right now, there is a requirement when a decision is given orally to subsequently provide a written decision to an applicant. Item 17 will have the effect of amending the legislation to make that requirement only applicable when there has been a request by the applicant for a written copy of the decision.
Labor will not support this change, because we believe this effectively is a watering down of the current requirements of the tribunal and may even potentially deny procedural fairness to applicants during the tribunal process. This is particularly the case where we have people who do not necessarily understand English and where advice may be difficult to obtain. On that basis, we believe it is absolutely essential that there is, as a right, an ability for every applicant to have at least the decision around their refugee-status determination provided to them in writing so that they have the best opportunity to take whatever steps they may want to within our system.
In conclusion, while Labor does support the general intention of this bill, in seeking to streamline and improve the processing efficiencies within the Migration Act—and we do believe that much of the bill will achieve that end and is worthy of support—we will not be supporting the bill in its current form so long as it includes both schedule 2 and item 17 of schedule 4. On that basis, we will be opposing the bill at the second reading speech but will be seeking to amend the bill, to remove those provisions, when it is considered in detail.
I rise today to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. I acknowledge the contribution made by the member for Berowra. He has extensive experience and knowledge in this area and it is good to see he is supporting this bill.
This bill, which amends the Migration Act 1958, will make changes to the way asylum seekers are assessed. The amendments the bill makes to the Migration Act are necessary to ensure the protection and determination system is as efficient and fair as possible. In particular, the amendments aim to strengthen the importance placed on establishing the identity of the applicant and the cooperation of the applicant throughout that application process. Their implementation will further assist the government in guaranteeing that only those with genuine claims to asylum receive a place under Australia's protection system.
The government is proud of Australia's protection program for the role it plays in giving thousands of people every year, who are unable to remain in or return to their home countries for fear of persecution of violence, the opportunity to settle in Australia. In 2014-15, the government will again ensure that 11,000 of the 13,750 places in the humanitarian program are for people overseas in need of resettlement, including 1,000 places reserved for women at risk and their dependents and 5,000 places for people proposed by close family under the Special Humanitarian Program. By stopping the flow of unauthorised boat arrivals, the government has been able to revive the Special Humanitarian Program, which has seen thousands of people resettled in Australia. This year alone, 4,400 places will be offered to Christians fleeing persecution in Iraq and Syria.
I am pleased to speak today on a bill which will ensure that those who genuinely require Australia's assistance will continue to receive it. Schedule 1 of the bill contains amendments making it undeniable that the responsibility for establishing identity and claims for protection lie with the applicant. It is not the job of the Department of Immigration and Border Protection nor of the Refugee Review Tribunal to establish a case for the asylum seeker. Despite what those opposite and those on the crossbenches may say, this shift in responsibility will align the Australian system with that of the United States, the United Kingdom and New Zealand. I know the shadow minister, the member for Corio, just said that Labor does support the bulk of this bill but will oppose the second reading and move to make some amendments.
The importance of an applicant's identity when processing a visa application cannot be overstated. For protection visa applicants their nationality, citizenship or ethnicity may bear direct relevance as to whether or not they engage Australia's protection obligations. Under these amendments asylum seekers who refuse to provide, or to take reasonable steps to provide, documents to establish their identity will be refused a protection visa. As the minister noted in his speech, an applicant who will not cooperate with the government to establish their identity should not receive a protection visa. In accordance with the renewed emphasis on the establishment of identity these amendments to 91W, and the introduction of 91WA, will see those who present bogus documents refused a protection visa unless they can prove they have a reasonable explanation for presenting them and can then provide, or take reasonable steps to provide, genuine documents.
Attempting to limit the use of bogus documents will continue to increase the integrity of the immigration process and limit the profitability of a trade which, like people smuggling, is the work of criminals who prey on vulnerable people. Similarly, those who destroy or dispose of their documents prior to arrival in Australia who do not have a reasonable explanation for doing so, and who do not take steps to establish their genuine identity, will be refused a protection visa.
I believe the Australian public deserves to be able to take comfort in the knowledge the government knows the true identity of all those wishing to make Australia their home. This is of particular importance given the growing threat of terrorism from around the globe. It was only last week that Australians woke to the news of the largest counter-terrorism operation ever to take place in Australia and the gruesome details of proposed terror attacks in Sydney and Brisbane and here at Parliament House. These attacks were to target innocent individuals and were designed to spread fear throughout the community. While this threat was a result of home-grown terrorism, it would be foolish for anyone to deny the existence of noncitizens who would seek to harm Australians and the freedoms we cherish if given the chance. It would also be foolish to suggest, given the threat of terrorism and the potential risks dangerous individuals pose to Australia, that the establishment of an applicant's true identity is not of vital importance.
In addition to requiring an asylum seeker to establish their identity these amendments will also require them to present as much information as possible in their initial claim for protection through the introduction of provision 423A. If an asylum seeker fails to do so they risk the Refugee Review Tribunal drawing an adverse inference about the credibility of their protection claim, if they raise a new claim or new evidence at the Refugee Review Tribunal for the first time.
This amendment will assist in seeing claims processed as quickly and fairly as possible, allowing the genuine asylum seekers to progress through the application process faster. Most importantly, this amendment seeks to stop those who are not genuine refugees from exploiting the Refugee Review Tribunal by presenting new claims or evidence at this stage and delaying the final decision process, sometimes for considerable lengths of time, as these claims are examined.
As always, the government has included safety nets for those who cannot provide documentary evidence of their identity or who will struggle with their primary application for a protection visa. For example, unaccompanied minors or those who are genuinely stateless and cannot provide evidence of nationality may have their claims assessed without the appropriate documents if the reasons for not providing documentation are consistent with the known facts regarding their home country. Additional assistance may be available to asylum seekers who arrive lawfully, and who are disadvantaged or face financial hardship, through the Immigration Advice and Application Assistance Scheme.
Similarly to the pride we have in our protection program, the government is proud of Australia's comprehensive and fair family migration program. We believe that this is the appropriate path under which family reunion should occur.
This bill, through the addition of section 91WB to the Migration Act, will clarify the government's position so that members of the same family unit who were not included in an application or did not make an application prior to the granting of a protection visa, cannot be granted one on the basis of being a member of the same family unit as a protection visa holder. That does not mean that members of the same family unit cannot be granted a protection visa. It simply means that they will need to make a protection visa application and prove that they, in their own right, engage Australia's protection obligations.
The introduction of 91WB is necessary in order to prevent any potential abuse of Australia's protection program in the interests of family migration. It is also aimed at stopping the illegal arrival of those who expect to be granted a protection visa due to a family member holding one. Again, whilst those opposite may protest, I would like to point out that there is no right to family reunification under international law and that, as previously stated in the case of family reunification, the family migration stream is the most appropriate pathway.
As a signatory to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and International Covenant on Civil and Political Rights, Australia is required to abide by a number of non-refoulement obligations. Schedule 2 of this bill inserts section 6A into the Migration Act to clarify that the threshold to be satisfied when considering complementary protection claims as a part of a protection visa application is restored to 'more likely than not'. The threshold was altered in March 2013 when the full Federal Court interpreted the complementary protection provisions in a way the government believes is not reflective of Australia's protection obligations.
The aim of restoring the original threshold is to ensure that an applicant is not found to engage Australia's protection threshold when they are not entitled to it. Again, it is about ensuring that genuine asylum seekers can access places in Australia's protection program. Despite the success of the government's border protection policies in stopping boats there remain a number of unauthorised maritime arrivals with protection visa claims to be processed. Schedule 3 contains amendments relating specifically to the ability of unauthorised maritime arrivals to make a valid visa application. The amendments will remove the possibility of unauthorised maritime arrivals being subject to multiple sections of the Migration Act by broadening the application of section 46A. This will ensure that unauthorised maritime arrivals who are unlawful non-citizens, holders of a bridging visa or a temporary protection visa will be prevented from making a valid visa application unless the minister determines it is in the public interest for them to do so.
These amendments will also apply to transitionary persons to ensure that they are treated consistently with unauthorised marine arrivals. As with the other amendments I have discussed today, these amendments will result in greater efficiency in the processing and management of visa applications. The amendments in schedule 4 of the bill will improve the consistency and the processing and administrative efficiency of the Migration Review Tribunal and the Refugee Review Tribunal by strengthening the powers of the principal member, permitting the acceptance of an oral statement of reasons from members, in the case of an oral decision, and granting the Migration Review Tribunal and Refugee Review Tribunal the power to dismiss an application as a result of an applicant failing to appear before the tribunal after being invited to do so.
The tribunals will also have the power to reinstate an application that has previously been dismissed due to failure to appear. In summary, the amendments contained in this legislation will allow the Department of Immigration and Border Protection to easily identify and respond to those who attempt to falsely engage Australia's protection obligations. They will encourage increased integrity and efficiency in the processing of both on-shore and off-shore protection claims whilst ensuring that Australia remains safe and that only those with genuine claims for asylum have access to protection visas. I commend the bill to the House.
I speak on the Migration Amendment (Protection and Other Measures) Bill 2014. Generally, Labor support the intent of the bill, which streamlines the processes and efficiencies associated with processing claims for asylum. In terms of the whole of the bill, Labor supports schedule 1. We have reservations regarding schedule 2, and item 17 of schedule 4, which I will detail throughout the course of this speech.
The Migration Amendment (Protection and Other Measures) Bill 2014 seeks to restore integrity and efficiency to the protection and processing framework, as well as restore the original legislative intent of particular sections of the Migration Act following some judicial decisions. The bill aims to increase the efficiency of processing visa applications and streamline the assessment of protection claims.
As I mentioned, in terms of schedule 1, Labor is supportive of the provisions contained within the bill. In particular, the two new sections that have been inserted in schedule 1, section 5AAA, that makes it clear that the onus of proving a claim for refugee status lies firmly with the asylum seeker applicant. There is currently no provision in the act that explicitly states that the onus of proving a claim lies with the asylum seeker. However, it has always operated in that manner in practice. It has always been in the applicant's best interests to provide as much information as possible to substantiate their claim and application.
Section 423A encourages all information to be provided at the earliest possible opportunity. This change will apply regardless of whether the decision is administrative, before the Refugee Tribunal or a ministerial intervention. This is not a substantial change from current practice, and the changes will restore the original legislative intent, and also put Australia in line with other like minded jurisdictions including the US, New Zealand, and the UK. In terms of schedule 1 part 2, this amendment relates to documentary evidence of identification for someone claiming protection. It amends section 91W and inserts new section 91WA. Currently the decision maker can draw an adverse inference where no documentary evidence of an asylum seeker's identity is available. However, it is not grounds for refusal. This amendment will allow refusal of an application by an asylum seeker who refuses or fails to provide evidence of identity, nationality or citizenship; who provides a bogus document; or who destroys documents intentionally relating to their identity. The refusal power will not apply where the applicant has a reasonable excuse—for example, where an applicant is stateless or where reasonable steps have been taken to obtain such documents.
Part 3 of schedule 1 inserts new section 91WB to put beyond doubt that an applicant for a protection visa who is a member of the same family unit or an existing protection visa holder cannot be granted protection simply on the basis of being a member of the same family unless they apply before the protection visa has been granted to the original protection visa applicant. Currently, if someone is a family member of a protection visa holder they are automatically considered to be owed protection by virtue of simply being a member of the same family without having to assess the claim individually. This results in family members of protection visa holders being advantaged over those who apply through the non-family stream. This amendment will restore the original intent of the legislation and these measures will improve processing and streamline the efficiency of the act. They really do codify what is occurring in practice both through common law decisions and through the principles that are applied in terms of practice notifications at various levels and in different jurisdictions.
Of particular concern to me is schedule 2 of this proposed bill, which Labor will not be supporting. As the shadow minister mentioned earlier, when the bill moves to the consideration in detail stage Labor will seek to move an amendment to have this schedule removed in its entirety. The reason for that is that this schedule inserts a new section 6A which makes clear in cases of complementary protection that it is more likely than not that the applicant will suffer significant harm if they are removed from Australia. This proposed change to the risk threshold is a higher threshold than that which currently operates at the moment and, importantly, it will introduce a higher threshold than is contained in international agreements. Most notably, in the refugee convention, the wording is a 'real chance' of significant harm. This reform will change that threshold and will change that test that is applied for someone seeking protection in Australia to more likely than not that the applicant will suffer harm if they are removed from Australia.
This change has caused considerable alarm amongst the community, with stakeholders such as the Refugee Council of Australia expressing alarm that under this bill people fleeing torture or other forms of serious harm will have to prove that there is a greater than 50 per cent chance of being harmed to avoid being returned to their home country. So the asylum seeker now has a 50 per cent threshold that they need to get over; they need to prove that they will be harmed beyond that threshold if they are going to be afforded protection. It is a clumsy test. It is inconsistent with international agreements that Australia is a signatory to, and on that basis is does not have my support or the support of the Labor Party.
The Refugee Council has expressed alarm regarding this. The council has said:
Making these kinds of presumptions is unfair and out of touch with realities of forced displacement.
When people are fleeing persecution, many are not able to obtain or travel safely with their own identity documents, as doing so could allow them to be identified by the very people from whom they are fleeing.
The Refugee Advice and Casework Service has also expressed its opposition to this aspect of the bill, while the University of New South Wales' Professor Jane McAdam and the Australian National University's Kerry Murphy have stated:
Overall, the bill … is designed to reduce adherence to Australia’s international legal obligations and make it easier to refuse refugees on technical grounds. … This bill underscores that the driving force in Australian refugee law will be punishment, not protection.
Tony Wright of the Sydney Morning Herald put it brilliantly when he wrote that the government was playing a dangerous game with the lives of people who are desperate enough to seek asylum in the face of threats to their lives in their homelands. He wrote:
Applicants for asylum on the basis of fear of torture must establish, under his proposal—
under this immigration minister's reforms—
that there is more than a 50 per cent probability that they will be subjected to [torture, to harm] or even death if returned to the country they have fled.
Tony Wright of the Sydney Morning Herald said—
if there is a mere 49 to 50 per cent chance of escaping being hung by one’s thumbs from meat hooks while being thrashed by a length of electrical flex, that’s good enough for Mr Morrison. They can be sent to whatever fate might await them.
No doubt Mr Wright's comments are a particularly graphic account of the horror that might be visited upon some desperate and poor people, but such is the unworkable nature of this amendment.
Until now, those seeking asylum have escaped the indignity of being made to prove that the possibility they would return home to face the prospect of significant harm was in fact a probability. A 10-per-cent chance of torture upon return has, in some cases, been deemed sufficient. As Mr Wright put it, a one-in-10 probability of being reduced to a whimpering bloodied mess might not sound particularly attractive to those possessing a heart, but it was deemed to constitute a real chance. On that basis, Labor has difficulties with schedule 2 of the bill and, as I said earlier, we will move an amendment during the consideration in detail.
In terms of schedule 3: this amendment removes the need to grant temporary safe haven visas and enables people in detention to be moved into the community on a bridging visa. The introduction of a statutory bar to unlawful noncitizens' bridging visas and other temporary visa holders will enable increased efficiency of processing and management of caseloads by expanding the basis for getting people out of immigration detention. On that basis, I will support schedule 3.
In terms of schedule 4: these are amendments that seek to streamline some of the processing and administration of the Migration Review Tribunal and the Refugee Review Tribunal decision-making processes. They will enable the principal member to issue practice directions to applicants and their representatives and to issue guidance directions to other members of the tribunal, similarly to other jurisdictions in Australia where practice directions are widely used and which, no doubt, provide excellent guidance to advocates, claimants and those working within the system, and also to members of tribunals through the guidance directions.
Item 17, which relates to written reasons being given for oral decisions, is something that Labor has a difficulty with. Currently, if an oral decision is given then there is a requirement for a written statement of reasons for that oral decision to be provided to an applicant. The amendment contained in this bill will seek to change that and the written reasons will only be given if there is a claim or a request made for those written reasons. That is a change that Labor is opposed to. We do believe that it impinges on the notion of procedural fairness and providing adequate reasons for decisions. Again, amendments will be moved during the consideration in detail.
Labor's approach to this bill is based on our guiding principles associated with migration and asylum seeker claims: compassion, fairness, and generosity. A fundamental maxim is that this country should not harm people who are claiming asylum and who are seeking to flee persecution. On the whole, we support these amendments to improve the efficiency, the streamlining and the operation of our migration legislation. But we do not support amendments that make things unreasonably difficult for people who have genuine claims for protection, who are genuinely fleeing difficult situations throughout the world and seeking protection from Australia—to have unnecessary and burdensome tests applied to their applications. That is exactly what schedule 2 does, and that is why we oppose that amendment to this bill. But, on the whole, the bill is supported.
I am pleased to rise and speak on the Migration Amendment (Protection and Other Measures) Bill 2014.
I would like to start my comments by saying how honoured I am to speak in this debate following the member for Berowra, given that it is actually the anniversary of his 41st year in our federal parliament. We are honoured and lucky to have someone in this parliament of such immense experience—someone who was a long-time immigration minister under the Howard government and someone who served as our nation's Attorney-General for many years—to have someone of that experience, who younger members of parliament such as myself can take counsel from and learn from. I am very pleased to be able to follow him in this debate.
When it comes to the issue of our nation's migration and refugee policy the very first question we need to address is: do we have a policy of open borders? Can we have a policy where anyone who actually turns up can come and stay? I would like to reflect on a story that my wife's grandfather told me.
He migrated to Australia after the First World War. He lived here all his life; he paid his taxes and worked. When he was in his 80s my wife's father decided he would take him back home to England and went to organise to get him a passport. They put the applications in and when they went to the migration department they found that, even though he was in his 80s and he had lived in the country for almost 60 years, the department had no record of him actually come into this country. They asked him, 'Go back to when you first arrived in Australia—what happened? What process did you go through?'
He said that he simply turned up on the boat at circular Quay. He walked down the gangplank and there was no-one there, so he went on his way. He stayed in the country and worked for 60 years and then, of course, had difficulty getting a passport.
But the world has changed and those times have changed. Today we have over 50 million people around the world who would qualify as refugees. We have enormous differences with the living standards here and the social security benefits that are available to Australian citizens that are not available to billions of others in the world. We also live in a time of international terrorism, where there are those who do not like us or our beliefs and wish to do us harm. So in today's world it is completely unrealistic for us to have an open border policy on migration. Therefore, we need to set a limit on the number of people who can come to Australia. It will never be large enough. There will always be more people who want to come here than we can provide places for. We need to set a process of selection. That is what this bill helps to achieve.
I would also like to take this opportunity to congratulate the Minister for Immigration and Border Protection, the member for Cook, on how successful he has been in closing down the people-smuggling trade. During the election, we had the line 'stop the boats', but what we wanted was to close down the people-smuggling trade. If we went back 12 months ago, I think there would be very few of us who could have imagined the success that the minister for immigration has had. He has had absolute success in closing down a diabolical trade. By closing down that trade, the minister for immigration has saved hundreds of lives. He has restored the integrity to our immigration system. There has also been savings of billions of dollars of costs to the Australian taxpayer. But what is most important is that he has successfully freed up thousands of places under the Special Humanitarian Program. In fact, 4,000 places were freed up in the last financial year, there will be another 4,000 places freed up this year and there will be thousands more places freed up in years to come because of the minister for immigration's success. We know that many of those places will go to those persecuted minorities in the Middle East who otherwise would not have had the opportunity to come and settle in Australia.
I will now get on to the provisions of the bill. The Migration Amendment (Protection and Other Measures) Bill 2014 amends the Migration Act 1958 and implements a range of measures which increase the efficiency and enhance the integrity of the onshore protection status determination process. The measures in the bill support an effective and coherent protection determination process which responds to the challenging domestic asylum seeker landscape.
There are 12 individual provisions, and I would like to take the opportunity to go through each one. Firstly, this bill clarifies that it is the noncitizen and not the minister who has the responsibility to specify all particulars of a protection claim and provide sufficient evidence to substantiate that claim. It is a simple process that everyone must agree to.
Secondly, the bill creates grounds to refuse a protection visa application where an applicant refuses or fails to establish their identity, nationality or citizenship and does not have a reasonable explanation for doing so. Again, I think this is a proposal that everyone would accept.
The third thing this bill does is create grounds to refuse a protection visa where an applicant provides bogus documents to establish their identity or either destroys or discards identity evidence or has caused that evidence to be destroyed or discarded. This is an important provision. We have heard many stories of asylum seekers flying into Indonesia with their travel documentation, getting on a boat in Indonesia and then destroying those documents on the way to Christmas Island. In fact, it has been documented that the people smugglers would encourage people to destroy their documents. This provision in this bill makes sure that, if someone destroys their documents or provides bogus documents, that person will have an adverse finding against them.
The fourth provision clarifies that a family member of a protection visa holder cannot be granted a protection visa on the basis of being a family member if they applied after the initial visa was granted. Again, this is a provision which I am sure everyone would agree with.
The fifth provision provides that the Refugee Review Tribunal must draw an unfavourable inference with regard to the credibility of claims or evidence that are used for the first time before it if the review applicant has no reasonable explanation to justify why those claims and evidence were not raised before the primary decision was made by the department. Again, it puts the onus back on the applicant to make sure they put everything up-front, and they must have a reasonable explanation if they have not done so.
The sixth provision clarifies Australia's interpretation of 'the likelihood of harm' and the types of harm necessary to engage Australia's non-refoulement obligations which will apply to certain protection obligation determinations made under the act, the regulations, administrative processes and so forth, irrespective of whether the assessment is conducted as a result of a visa application.
The seventh provision changes the test for assessing complementary protection claims and raises the requisite threshold for return.
The eighth provision broadens the operation of the statutory bar that precludes unauthorised maritime arrivals from lodging valid visa applications by providing that the unauthorised maritime arrivals who have been granted a bridging visa or a prescribed temporary visa will also be precluded from applying for a visa. Again, this is something that is needed in the bill to make sure that we have much more efficient and stronger protections.
The ninth provision broadens the powers of the principal member of the Migration Review Tribunal and the Refugee Review Tribunal to issue practice directions to applicants and their representatives, including migration agents and legal practitioners, about the procedures they are to follow in relation to proceedings. This is a simple procedural change that gives the principal member of those tribunals more authority and power, enabling them to run those tribunals more efficiently.
The 10th provision broadens the powers of the principal member of the tribunals to issue guidance decisions which members of the tribunal must comply with unless satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the guidance decision. Again, this is a simple method to improve the efficiency of the running of these tribunals. The eleventh provision is to:
…enable a Tribunal Member to provide an oral (as opposed to a written) statement of reasons when they make an oral decision…
The final one, the twelfth provision, is that they enable the Migration Review Tribunal and the Refugee Review Tribunal to:
…dismiss an application where an applicant fails to appear before the Tribunal after being invited to attend.
It is a simple list of 12 changes to our Migration Act, which will simply increase the efficiency and enhance the integrity of that onshore protection status determination process. I commend this bill to the House, because it will provide effective and coherent protections in our determination process and it deals with the current challenging domestic asylum seeker landscape that this government is currently dealing with.
I sincerely hope that Australia remains a stable, peaceful democracy where no one here ever has to feel that their safety is so threatened that they have to flee. I hope that no one in Australia ever feels that their life or their family's lives are at risk, such that they might have to put whatever they can into a bag in the middle of the night and flee—using whatever means they can—to get out of the country. I sincerely hope that no one in Australia ever has to live through a war in this country that might see orderly systems of migration stopping and them having to turn to whoever they possibly can to smuggle them out the country to save their own life and their family's lives.
If any one of us in this country ever found ourselves in danger, if any one of us in this country ever found ourselves worried that our family members or people close to us might be in danger themselves and if we were forced to flee and go to knock on the door of another country, we could not in all good conscience ask them to take us in given that this is what we are doing in this bill to people who are coming here seeking our protection. Under this bill, we now have the very real likelihood that Australia will take some of the most vulnerable people in the world—who are coming here seeking our help, who have experienced war, who have experienced persecution and who have experienced torture—and we will send them back into danger. This is not only morally repugnant in its own right but it breaches international obligations that we have signed up to. It seriously compromises the integrity of our rigorous protection determination system and it erodes procedural safeguards and it puts Australia at risk of breaching our non-reformat obligation, which is the obligation not to put someone back in harm's way.
What we know is that people who arrive on our shores seeking protection are extremely vulnerable. They have often experienced persecution, trauma and torture. But the amendments in this bill presume that the person who arrives on our doorstep is lawyered up, has all the resources available to a Liberal party donor and backer and are able to hire this country's best legal minds to go and represent them in a now very narrowly prescribed tribunal system. There is absolutely no evidence that the integrity of our current system is at risk or is in any way compromised in its current functioning, but what this government is doing is what it usually does whenever it finds itself in political trouble: it turns on refugees, it turns on the vulnerable and it turns on those who are least able to defend themselves and it attacks them.
This bill will have incredible adverse impacts on those in the world who most need our help. How does it do that? One of the things it does is that it alters the burden of proof. The amendments proposed by the bill state that the burden of proof will rest solely on the applicant to prove:
…that they are a person to whom Australia has protection obligations…
And that sufficient evidence must be provided in the first instance to establish that claim. On one reading and on the face of it, it sounds reasonable—of course someone has to prove their case. But what anyone who has paid the slightest attention to what happens in reality would know or even if you just think about it for a moment, someone who arrives here who is a genuine refugee may have nothing with them and they are almost certainly not going to have a fine, detailed knowledge of Australia's migration law.
That is why the Office of the United Nations High Commissioner for Refugees states:
…while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. …it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized.
That makes perfect sense. Someone who turns up here may not speak English, almost certainly will have no idea about the finer points of Australian migration law and may not have a dollar to their name, yet this government is saying, 'It is now your job to front up and prove every single aspect of your case, otherwise we will consider sending you back.' To add insult to injury, this comes on top of this government cutting funding for legal advice to these very same people.
In this budget that we have just seen, these people who are now expected to prove every element of their case are not going to have access to legal representation. I hear a member opposite shouting, 'Hear, hear,' because these people are not going to have access to legal advice. If they are genuine refugees, surely they are the kind of people who are turning up with nothing in their pockets.
Mr Randall interjecting—
The member interjects, 'What about my genuine constituents?' Let me tell you, my genuine constituents—and, indeed, one in four in this country—were not born here or have parents who were not born here. The suggestion that somehow genuine refugees are not genuine constituents is offensive, and it shows exactly what is behind this government's motivations. David Manne, the CEO of the Refugee & Immigration Legal Centre, said:
It is often very difficult for people in those circumstances to understand what is required and how to present it. That is why the conventional position in international law and under our system is that the duty of establishing claims, the duty of listing those claims and evaluating them is a shared duty between the applicant and the decision maker.
That is point 1 of this offensive bill.
Point 2 is increasing the risk threshold to 'more likely than not'. Let us pause and think about this for a moment because it bears significant examination. What this bill proposes to do is significantly increase the risk threshold for people who are fleeing harm. Under the proposed amendments, asylum seekers will have to prove that they have a greater than 50 per cent chance of being tortured or killed. If you have only a 49 per cent chance that someone is going to put a gun to your head and kill you if the Australian government sends you back, the Australian government will be allowed to send you back under this bill. Even if there is a 40 per cent, a 30 per cent, a 20 per cent or a 10 per cent chance that you are likely to be killed or tortured when returned, under these amendments that will now be enough to have you sent back. That change is in direct contravention to international and human rights law, in particular the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as well as the principle of nonrefoulement.
The amendments proposed refer to people who are seeking protection on complementary grounds—that is, people who are not captured by the refugee convention but are still deserving of protection as they are fleeing serious harm such as torture, honour killings or female genital mutilation. These are the people who are relying on this protection that is there at the moment. So a woman who arrives here, who may not speak English or have had formal education, and is seeking our help will now be sent back if she can prove that she is only at 49 per cent risk of female genital mutilation. That is what this government is proposing in this bill. As stated by Mr Manne from the Refugee & Immigration Legal Centre:
… the proposed 'more likely than not' test would ultimately significantly increase the risk of Australia making the wrong decision on whether or not somebody should be protected from serious harm. The test raises the real prospect of returning people to persecution or other forms of life-threatening harm, in violation of our non-refoulement obligations. That is the bottom line here.
This unacceptably high threshold is at odds with our international obligation, which is the lower threshold test that has been well established and applies in comparable countries like the UK and New Zealand.
Point 3: if somebody arrives here with wrong documentation or no documentation and are unable to prove their identity, under this bill the application for protection will be denied. That just plainly ignores the reality of someone who is seeking asylum and goes against the basic principles of the refugee convention. As has been made very clear through the inquiry process into this bill and elsewhere, there are many reasons why people are unable to obtain identity documents or may not have the correct documentation when they arrive in Australia.
I do not know whether members opposite have had any practical experience in assisting people in their electorate trying to bring family members here or with their own migration claims, so this may come as news to them, but there are some countries which do not have a robust, democratic government and accountable bureaucracy. Someone who has fled the police will now be asked to go back. The police may be the only authority in that country who is able to issue you any documentation at all, so the same people who want to kill you may be the only ones who can give you this precious piece of paper that the government is now saying stands between you being accepted as a genuine refugee and not. It may also be the case that you just did not have time to get the documentation before you left. When your life is threatened, which is one of the instances in which you would be found to be a refugee, you may not have time to gather everything together and get that piece of paper that up until now you have never had any reason to hold.
As was raised by one of the submitters to the inquiry, these amendments contravene article 31 of the refugee convention, which prohibits governments from penalising refugees who arrive without authorisation. Mr Webb stated:
… the refugee convention recognises what these reforms ignore—that is, the basic legal and moral duty to protect a person is not diminished just because that person arrives without certain paperwork or with fake documents.
It should be up to the tribunal to assess in each instance whether the fact that you have come with the wrong documents or no documents means that you are not a genuine refugee. It should be up to the tribunal to assess if you are trying to put one over on the system here and are not a genuine refugee versus saying: 'There is a completely legitimate reason why in this instance you have no piece of paper at all. I can see that your life was threatened.' This bill says: 'Enough of that. We don't care.' This bill says, 'Those people who have a genuine reason are treated like everyone else and now the door is shut to you as well.'
We know that this bill also contains changes with respect to family reunion, to the Refugee Review Tribunal's processes, with respect to new claims and to retrospectivity. But, fundamentally, this bill must be opposed because it is yet another instance of this government saying: 'When you are someone who comes here seeking our help we will turn our backs on you. We will turn our backs on you and we are quite prepared, in all good conscience, to say that if you have a 49 per cent risk of being killed, we are happy to send you back to where you came from.' That is not the kind of Australia I want to live in. I want to live in the kind of Australia where if someone has a genuine fear for their life and that person can meet the test to prove they are a genuine refugee then we welcome them in. I do not want us shutting the door on people who may have had to flee in the middle of the night in fear of their life or their family's lives, but that is what we are about to do so this government can try and seek a bit of a bump in the polls.
I am very pleased to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. I could spend my whole time talking about the contribution from the member for Melbourne. We are in the position here today of having to put integrity back into our migration system because the Rudd-Gillard-Rudd government allowed our migration system to become so dysfunctional, thanks to the way they were compromised by the Greens. It was Kevin Rudd, the then prime minister, who, with migration minister Chris Evans, pulled the successful Pacific solution off the table and, to appease the Greens, Julia Gillard allowed it to be further dismantled—it was as though, if you could get here, you would get a visa. That is why they came without any identification; all they had to do was get here. That is what the Greens in conjunction with the Labor Party did. Remember that in 2007, when the Labor Party took over, there were only four people who came by boat in detention.
When the Labor Party left, not only did we have thousands in detention, but we now have 30,000 in our community who cannot be processed because Kevin Rudd put a moratorium on processing Afghans, Iraqis and Sri Lankans for a while, but it was all too hard and so they let them go into the community. Now the Greens and Labor in the Senate will not allow us to fix that situation. There are 30,000 sitting in the community without the ability to work. They rely on the Salvation Army and other charity groups to feed them. Wouldn't they be better off as functional members of our society doing some work to support themselves, rather than relying on charities and taking the support away from Australians doing it hard? It is unconscionable that someone like that Green from Melbourne can stand in this place and say, 'What we are doing here today to fix this is wrong.'
The Labor Party feels sheepish about it too. The other day when the migration minister Scott Morrison got up and gave a report after 12 months on how many boats had arrived and the number of boats that came under Labor, the member for Corio, the opposition's spokesman on migration—instead of being gracious and saying, 'That's fantastic; thank goodness someone has come to fix this system'—said, 'Oh, yeah, I suppose it's all right, but there's a long way to go.' There is a long way to go, but there has only been one boat in that time, and we are working through the backlog at the detention centres. At the end of the day, if the Labor Party did not work with the Greens in the Senate, we could deal with the backlog of those 30,000 stuck in the Australian community who are leaching the support from charity groups. They could be working under a protection visa if they were found to be genuine refugees. Do not come in here and try to wax lyrical about how concerned you are to fix up the system—you were the wreckers, the maniacs, in charge of this system in conjunction with the Greens that put us where we are today.
The member for Melbourne talks about legal aid. I had to interject, and he had to respond to me. Let me say that my constituents struggle to get legal aid. I have people who are in real trouble—low-income earners who cannot afford a lawyer when they have a Family Court problem. I have fathers who are having to walk away from their children because they cannot get a lawyer to go to Family Court with them. Yet if these people arrived under the previous regime—and we are tidying up the process in this bill today—or under the obligations to conventions that the member for Melbourne talks about, we are obliged to provide lawyers to them so they can go to court. They go through every level of court—the Magistrate's Court, the Federal Court, the High Court and then they go to the Migration Review Tribunal—and each case requires a lawyer. Not every lawyer does it pro bono. I can tell you about the plane loads of lawyers, who were heading up to Christmas Island under the previous government, were making an absolute poultice out of the Australian taxpayers from legal aid. We are putting a stop to that.
It really does gall me to stand here and witness the crocodile tears coming from the other side. The member for Melbourne rudely and crudely says that members on this side would not know what it is like to assist those with migration issues. Let me tell you, Deputy Speaker, that one person in my office spends most of his time on migration issues. We are doing a lot better now that we are in government, because the Labor Party would not help us before—in fact it was difficult even to get the local migration office, except for a few good men and women, to help us; the office had been told not to have much to do with us. I had not been into the migration office for about four years until the other day, when I went to meet the new head in Western Australia. Thank goodness she met me and she is helping me with some issues. We spend an enormous amount of time trying to connect people who have been stranded, or who are trying to come here on spouse visas. A Mr Harati, an Iranian, came here and was granted a visa under protection because he was under threat of being killed. He had proven that under our regime—so much for the tough testing. Mr Harati is beside himself, because his daughter was stranded in Malaysia. She ended up over there, and she could not get to Australia, and her Iranian husband flew in the dead of the night and took their child back to Iran. The daughter is stranded in Malaysia, his other daughter is in Australia; and they are all enemies of the state in Iran. So—because he is the sort of father that he is—Mr Harati went back to Iran to try and rescue his daughter and her child. He has now been locked up. He is now in jail in Tehran because he was trying to do that. We are trying to help him. So I am surprised to hear the member for Melbourne say to those on this side, 'What are you doing to help people with migration issues?' We spend a massive amount of time trying to help people with migration issues, because the system is too skewed one way. The fact is that under the Labor Party regime, it was 'if you could get here, you could stay here' stuff. All those people that are stranded in refugee camps around the world are doing the right thing, and trying to support themselves—some of them have been there for tens of years; some of them have had a whole family while they have been stranded in the camp, because they cannot go home—because they would be killed. Talk about being able to prove protection! They would be killed. We have just had the case last weekend, where 70,000 people from Syria fled from ISIS across the border into Turkey. They will be in a camp for a long period of time now. There are a million people in Jordan in camps now, fleeing from ISIS. They are the people that are seeking protection. We could take every one of those under this refugee convention. But under the previous regime, if you had enough money and you could pay a people smuggler, you would get to Australia.
This bill is asking you to prove your bona fides. First of all, it is asking you to prove that you have some documents. You know, most of us here have come back to Australia from overseas. What happens when I get to the airport, as an Australian citizen? I have to show them my documents. I have to show my passport. I have to fill in that part of the visa that tells me where I have been, how long I have been away, and how much money I have got. Imagine me turning up to the Australian airport, even as a member of parliament, and saying, 'Sorry, I haven't got any papers—let me in; I am Australian and, by the way, I am worried that if you send me back to the country I came from, I will be persecuted.' Some of the threshold tests—and we should lift the threshold tests on these matters—have been too weak. I have mentioned it in this place before. Two Indian gays, for example, who were allowed to stay in Australia under these former conditions, because they said that if they went back to India, they would be persecuted. Well, they got to stay here—the burden of proof obviously worked on that occasion.
Just recently I was in Malaysia, and at the time there was an article written in the Sri Lankan newspapers about the 43 people that were on a boat off Sri Lanka, and claiming that they would be persecuted if they returned to Sri Lanka. Most of them were Sinhalese, not the minority Tamils, and they eventually were taken ashore, and they were allowed to go home. And how do I know this? Because I met with the UNHCR in Kilinochchi, and I met with the IOM, the International Organization of Migration, who help resettle these people. They say that they are just the agents. They say, 'we are paid to resettle them and there are no issues'. They go back home; they have not got a lot of money—except if Australia gives them that $3,000 to $10,000 to go. But they have generally spent their money on a people smuggler.
So why wouldn't we increase the burden of proof? Why wouldn't we ask the Migration Review Tribunal to ask them to attend? That was one of the stunts, or strategies, used by people smugglers and their agents in the community—the Mr Rintouls of this world. They told them: 'Oh, just don't turn up to the MRT, because if you don't, then you just get to stay here, and if they can't find you, you can stay for quite a while.' So that was one strategy. The explanatory memorandum states that this bill would 'allow the tribunal to dismiss an application if the applicant fails to appear before the tribunal after being invited', and if the applicant fails to appear after a set period of time. How fair is that? We have asked them to appear and then, if they don't appear, we ask them to appear again, and after a set period of time they still don't appear. It also says the bill will 'make a technical amendment to put beyond doubt when a review of a decision that is that has been made is considered to be finally determined.' It has got to come to an end. You cannot have it open-ended. You have all these complications: 'oh, the child was born in Australia', or 'is the child an Australian citizen, or is the child a citizen of the country of the parents?' So these are very good arrangements that we are putting into place.
The member for Melbourne seemed to have a problem with the 50-per-cent rule. Well, 50 per cent in this life is about the average probability of proof. It was ten per cent; now we are lifting it to 50 per cent. In most legal cases and precedents, you have to have a lot better than a fifty-fifty chance of winning. I wouldn't mind that sort of chance of backing the horses: a fifty-fifty chance to get my money back; I think my wife would be very happy with me! But at the end of the day, we need to put integrity back into this process, by making sure that the obligations are met. But this bill would give the Refugee Review Tribunal the ability to bring into question and 'to draw an unfavourable inference with regard to the credibility of claims' by an applicant, and it would permit the department 'to refuse a protection visa application when an applicant refuses or fails to establish their identity, nationality or citizenship' or fails to have an explanation for doing so. And we know that. We have now got so-called refugees who have returned to their countries and who have said, 'Oh, look, we were told that once we got through Indonesia'—because, as we know, they did not have to have the proper documentation to get into Indonesia because they were Muslims, and they gave special consideration to Muslims entering Indonesia; but they had to have enough documentation to say who they were, because they were staying there while they were waiting for a boat—and 'once we got on the boat, we had to make sure our documents went over the side'. And it did not just happen on boats—everyone thinks this is all about boats. On the planes, people arrive and flush their documents down the toilet. You cannot get on a plane in any decent airport in this world unless you have travel documents, including a visa. Suddenly, people get to their destination and they do not have travel documents, passports or visas. Where have those documents gone? We know where they have gone: down the latrine. So they get to their destination and they say, ‘Look, we didn't have any documents.' It is just a strategy.
Australians do not like people who push their way to the front of the queue. See what happens if you are at the checkout at the shopping centre and somebody barges past you, knocks you out of the way after you have been lined up in a long queue and says, 'Sorry, I'm in a hurry; I want to go first.' It is not the Australian way. Yet this is what some of these people try to do.
I finish by saying that unless we get the support of the Labor Party to stop the wacky Greens from continuing their mantra and dragging the reputation of this country’s migration system down, and unless we bring integrity back into the system, we will be a laughing stock. That is what has happened to Italy, for example. As soon as they relaxed their policies, they got the problem that we have, which we are fixing.
That was a very strange pitch for Labor Party support from the previous speaker. I rise to make my contribution to the debate on the Migration Amendment (Protection and Other Measures) Bill 2014. I note that this bill amends aspects of the protection framework within the Migration Act 1958 in order to assist in improving the rate of processing protection claims. The bill also purports to improve the integrity of the framework within which assessments are made.
As the member for Corio foreshadowed, Labor will move amendments to this bill to deal with certain aspects of the bill. In particular, the amendments remove schedule 2, which relates to the important matter of complementary protection claims, from this bill. I support this critical amendment.
I also note that this bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee, which is due to report today. I was unable to look at this report before coming into the House a few minutes ago, but I do look forward to reviewing its findings. I hope that they will advance a proper consideration of this bill in the other place—a consideration that perhaps could properly have occurred in this place. Although I should say that I welcome the fact that the member for Corio, the shadow minister, was afforded a briefing on this bill by the department.
This bill obviously cannot be isolated from the wider debate that we are having about immigration and, in particular, Australia’s obligations towards those seeking asylum. It raises difficult questions that are not best-advanced through assertions and inflammatory language such as the reference made by the member for Canning to 'so-called refugees' which we heard moments ago. Assertion and inflammatory language can be no substitute for evidence and principles, which should be the cornerstones of our approach to these very difficult issues.
I have said before in this place that I struggle with many of the questions that this debate raises; I am sure that many members on all sides of this House do. We obviously live in a very changing world, as debates in this place have demonstrated in recent months. What this tells me, though, is that the debate around how Australia behaves in an increasingly fractious and difficult world full of vulnerable, displaced people is a debate in which there can be no room for triumphalism. Rather, there needs to be a commitment on all of our parts to grapple with the full range of this challenge, a challenge which is of course not confined to Australia—far from it.
I am deeply troubled by aspects of this bill and I am not standing here today to take at face value all of the minister's assertions that it is in accord with our humanitarian obligations. In fact, I found the minister’s repeated claims that this bill will restore integrity to our asylum seeker processing system curious, to say the least. In particular, he concluded his second reading speech by saying:
This bill deserves the support of all parties. We need the tools to ensure public confidence in Australia’s capacity to assess claims for asylum in the interests of this country, and against the interests of those who show bad faith. These changes uphold the importance of integrity, the establishment of identity, and increased efficiency in our protection processing system.
Let me say that there are many elements of this bill that are unobjectionable and achieve worthwhile purposes, but these statements deserve, in my view, much closer examination. Leaving aside the rather striking omission—to my eyes at least—in the objectives of the need to do justice in each case to those seeking asylum, as a whole the minister’s claims cannot be supported. The case for the matters set out in the legislation before us has simply not been made out. It is important to note that this bill includes provisions that, firstly, erode significant procedural and substantive safeguards, and that, secondly, downgrade our compliance with international obligations which are maintained by this present government. The provisions potentially include the refusal of protection applications for technical reasons. This sits uncomfortably—at the very least—with our international protection obligations. Perhaps we could all pause for a moment to think about the consequences of getting one of these decisions wrong on technical grounds.
While there are non-controversial matters before us in this bill, the concerns that I am setting out are not minor concerns. Of course, this is not just about us. I note the very recent comments setting out the broader context of this debate by the incoming UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein. In his first speech, he went out of his way to criticise some Australian policies as leading to a chain of human rights violations including arbitrary detention and possible torture following return to home countries. This gives context as to how we are seen, which is of course critical if we are to achieve any regional solution to this terrible problem and warrants very careful attention.
Fundamentally, detention and punishment do not equal protection, just as efficiency and integrity are not always coterminous. As we strive for efficiency—as we must, as the minister has rightly said, in Australia's national interest and in the interest of individual asylum seekers—we cannot ignore integrity in matters which so often go to questions of life and death.
I turn to schedule 2 of the bill, which seeks to raise the risk of harm threshold from what it presently is—a real chance—which requires a real and not a far-fetched or fanciful possibility, but can be as low as 10 per cent, to a 'more likely than not' test, which would require a balance of probabilities test involving more than a 50 per cent chance of suffering harm. This is, in the view of expert practitioners in the field, the imposition of an unacceptably high threshold of risk assessment and it is at odds with well-established standards in international law and the test in comparable jurisdictions such as the United Kingdom and New Zealand, contrary to what has been asserted by the minister. These are considerations which are especially important again when regard is had to the consequences. Of course, the principle of non-refoulement is at the cornerstone of international refugee protection and expressed unequivocally in article 33(1) of the 1951 convention, which prohibits a state from expelling or returning a refugee in any manner whatsoever to territories where his or her life or freedom would be threatened for a convention reason.
I note that a substantial body of case law has essentially harmonised the test in the 1951 convention of there being a well-founded fear and the Migration Act's present 'real risk' of significant harm under complementary protection grounds. Despite this legal consensus, in his second reading speech the minister stated:
According to Jane McAdam from the University of New South Wales, this bill invites decision makers to reinvent the wheel rather than encourage them to draw on the wealth of jurisprudence that has developed around these human rights principles internationally.
Once again, the minister has declined to explain why these changes are necessary. He simply asserts that 'this is an acceptable position which is open to Australia under international law and reflects the government's interpretation of Australia's obligations'. These are weasel words. On the other hand, there is, finally, established case law that resolves any uncertainty by harmonising the definitions between international and domestic law, yet the minister is seeking to rip this up for no apparent reason.
The test for refugee protection under Australian law has, since 1989, been a 'real chance' test. There is no sound reason why different tests should be applied to what is ultimately the central question under both refugee and complementary protection—that is, whether a person is at risk of serious human rights abuse. This must be the test going forward. It is as simple as that. That is why Labor's amendment to schedule 2 is so fundamentally important. It is a matter of life and death.
I turn now to schedule 1, which of course goes to a non-citizen's responsibility in relation to protection claims and where very significant changes have been made. Firstly, proposed section 5AAA seeks to clarify that, going forward, the burden is to rest solely with the noncitizen to specify all particulars of their claim that they are a person to whom Australia has protection obligations and to provide sufficient evidence to establish such claims. This burden is imposed on a noncitizen who claims to be a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, the 1966 International Covenant on Civil and Political Rights and the 1984 Convention against Torture.
Whilst I of course share this government's concerns about people who are not genuine in their claims of asylum, I do not think it can be fair to collectively punish any person seeking asylum because of the wrongdoing of some, particularly given the paucity of evidence before us. I note that the minister's second reading speech fails to provide much in the way of hard evidence of wilful wrongdoing by those seeking asylum. I accept that, as with anything, there are always people who do the wrong thing, but this is about the fairest way to deal with all of those seeking asylum, including those—the vast majority—who have done nothing wrong.
In this regard, I note the statement by the Refugee Council of Australia, which has expressed alarm that under this bill people fleeing torture or other forms of serious harm will have to prove that there is a greater than 50 per cent chance of them being harmed to avoid being returned to their home country. I note again that the member for Canning seemed pretty relaxed about these sorts of odds and compared them to horse racing. I think that is not a fair comparison, to say the very least, when we think about the matters that we are concerned with here. The Refugee Council is also opposed to the changes, which it says would also allow the government to deny a protection visa to people who refuse or fail to establish their identity without a reasonable explanation. It asserts:
Making these kinds of presumptions is unfair and out of touch with realities of forced displacement.
When people are fleeing persecution, many are not able to obtain or travel safely with their own identity documents, as doing so could allow them to be identified by the very people from whom they are fleeing.
The Refugee Advice & Casework Service and legal academics and commentators have similarly expressed concern over the majority of the proposed changes in the bill. For instance, Professor McAdam and Kerry Murphy have stated:
Overall, the bill degrades refugee protection under Australian law. It is designed to reduce adherence to Australia’s international legal obligations and make it easier to refuse refugees on technical grounds … This bill underscores that the driving force in Australian refugee law will be punishment, not protection.
However, the Handbook and guidelines on procedures and criteria for determining refugee status issued by the UNHCR states:
… while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.
It is a shared duty, and common sense tells us that that must continue to be the case.
I note that this section enables the minister to request further information that he or she considers relevant to the assessment of a visa application. But of course it is very difficult to see how this would work in places that are remote with people who have no resources available to them. Often, again in a practical sense, people come seeking asylum with only the clothes on their backs. How are they supposed to adduce items requested by the minister, assuming he does so in any event? These provisions could result in refusal of protection based solely on identity or other documents, without addressing the significant legal question of whether a person is at risk of persecution. A person could be expelled to face persecution purely because of adverse findings about identity documents. How can this be said to be consistent with Australia's non-refoulement obligations?
The fact that so much power resides with this minister is something I and others have previously taken issue with. I know the former minister was deeply troubled by this as well. The notion that a minister should play God instead of there being an administrative law based assessment goes to the core of this problem. This is a fundamental issue that must be addressed.
I also turn very briefly to schedule 4, and in particular to item 17, to raise a particular concern about those matters that are going to change in tribunal processes. Item 17 was touched on very effectively by the member for Kingsford Smith, and let me say this: I share his concerns that go to the difficulties of having oral reasons only in tribunal determinations, for three reasons. Firstly, applicants—many of whom do not speak English or do not speak English terribly well—may struggle to understand the reasons and then to obtain advice. Secondly, this would diminish transparency and accountability on the part of this important body. Thirdly, it would clearly have the effect of restricting rights to judicial review.
I echo the words of the member for Kingsford Smith, who in his contribution to this debate said that compassion, fairness and generosity should be the hallmark of our approach. It is clear that the bill before us does not meet those tests, and nor do they make a clearly stated case for change. This bill, as a whole, makes major changes which carry very significant—indeed, grave—consequences for asylum seekers. The impact on integrity and on efficiency is unclear to say the least, and I ask this: what are the markers for efficiency when the stakes are so high? I support the amendments moved by the member for Corio.
I rise to speak in support of the Migration Amendment (Protection and Other Measures) Bill 2014. Not having spoken on such matters in the past 12 months, I saw this as an opportunity. As the member for Canning pointed out, in 2007—for those who can remember back that far—there were only four people in detention in Australia. After six years of Labor and the Greens and 50,000 boat arrivals in this country, we are dealing with a situation and a legacy that was left to us during that infamous period in our history—the dismantling of proven policies that worked, and the situation that we now have. Indeed, it was a commitment that this government went to the Australian people with. We believed that we could stop the boats. We believed that we could, with the right policies in place, put the people smugglers' business out of operation. I guess that is what I have always struggled with: what gives somebody who has the capacity to pay a people smuggler $10,000, or whatever the going rate might be in Indonesia or somewhere else, more opportunity or more right, if you will, to start a new life in Australia compared with somebody who has spent 10 years in a refugee camp in the middle of Africa—in Darfur, for example, or in recent times in places like Syria or parts of the Middle East? I struggle with that, and it is in that context that I grapple with the notion that we could have dismantled policies that had a structure around our immigration intake into Australia.
I absolutely acknowledge that beyond this period when we have processed those people who are currently in detention that there is a serious discussion that needs to take place in this country about the numbers of and the proportion of immigration that we have in this country. I look at the demographic challenges that face us in this nation. In 1965 there were 10 Australians of working age for every person aged over 65; today there are five and in 2050 there will be 2.8. These are real challenges that we have, and our immigration policy is going to be one of those parts of the legislation of our nation that aims to deal with that.
But Australia is indeed a nation of immigrants. Many seek to become, but never succeed in becoming, citizens of this great country. The changes proposed to the Migration Amendment (Protection and Other Measures) Bill 2014 were indeed necessary when immigration minister Morrison introduced them back in June this year. Establishing the identity of someone seeking to become an Australian citizen would seem to most Australians of reasonable disposition to be not only a prerequisite but a fundamental and basic requirement. Perhaps the events of recent weeks are a reminder not only of the privilege it is to be a citizen of this great country but also of the obligation that comes with being an Australian citizen. It is truly dreadful to learn that more than 60 Australians are currently fighting with terrorist groups in Iraq and Syria, with more than 100 helping to finance these deadly acts. Today the Prime Minister has reiterated that Australians who join terrorist groups abroad are committing a serious crime, and if they return home they will be arrested, prosecuted and jailed.
In this climate, I think the immigration minister's moves to change the ways that asylum seekers are assessed have particular resonance. They will give the Australian public confidence in its government's capacity to assess all asylum seekers to our country with enhanced integrity through a range of enhanced measures. We need to feel confident that those who are found to be refugees are in fact who they say they are. These amendments will make it clearly the responsibility of a person who comes to this country seeking protection to establish their own claims to be a refugee and to do so at the beginning of the process. Under the amendment bill, which applies to all asylum seekers regardless of their mode of arrival, greater clarity will be given to the Migration Act 1958 that requires asylum seekers to provide and substantiate claims in relation to protection visas. It enables the Refugee Review Tribunal to draw an unfavourable inference about the credibility of claims or evidence raised by a protection visa applicant for the first time at the review stage. It enables the refusal of a protection visa when an applicant refuses or fails to establish their identity, nationality or citizenship and amends the framework in relation to unauthorised maritime arrivals and transitory people who can make a valid application for a visa.
The bill makes it clear that it is not the responsibility of the immigration department or the Refugee Review Tribunal to make a case on behalf of an asylum seeker. It will put Australia on par with other countries including the United States, New Zealand and the United Kingdom. The government acknowledges that there will always be a small number of vulnerable individuals, including unaccompanied minors, who might not be able to clearly present their claims without help. There will continue to be arrangements in place to help these particular individuals.
As part of these proposed reforms, provision will also be introduced to enable the Refugee Review Tribunal to question the credibility of a protection claim where an asylum seeker raises a claim for the first time without having a reasonable explanation about why the claims or evidence were not raised before the primary protection visa decision was made. Establishing an applicant's identity is a keystone of making a decision to grant or refuse any visa. This is especially the case for protection visa applicants because their identity, nationality or citizenship can have a direct bearing on whether they utilise Australia's protection obligations. Identity in the global age is increasingly complex to determine and many people hold dual or multiple nationalities or may seek an advantage from not disclosing their genuine identity. It is reasonable as a government to take a precautionary approach if an applicant is suspected of misleading authorities. Under these proposed reforms, presenting bogus documents for the purposes of establishing identity will result in refusal of a protection visa application unless the applicant has a reasonable explanation for presenting them and either provides documentary evidence or takes reasonable steps to do so.
The same applies to an applicant who has destroyed or discarded identity documents—which has been a common practice among those who have entered Australia illegally in recent years. Under the current government, an applicant who destroys documentation could reasonably expect a significant delay in the processing of their application—something which I think Australians would understand and see as quite reasonable. It is appropriate to refuse a protection visa when an applicant fails, or refuses to comply with a request, to establish their identity where it is possible for them to do so. But, again, these new measures also respect the fact that in some circumstances it may not be possible for a protection visa applicant to provide documentary evidence of their identity, nationality or citizenship. These changes will acknowledge, understand and respect such circumstances.
This bill will repeal the 90-day rule which has been in effect since 12 December 2005. It will remove both the 90-day time limit for deciding a protection visa application before the department and the Refugee Review Tribunal as well as associated requirements for reports to be tabled in parliament giving explanations for those decisions which were not made within the prescribed time-frame. Without wanting to put too fine a point on this, the burden in recent times on our departmental processes has, as most Australians understand, been compromised as a result of 50,000 people choosing to take dangerous boat trips to Australia over the past six years.
The new bill also makes it very clear that an application for a protection visa by a member of the same family unit that already has an existing protection visa cannot be granted a protection visa just because he or she is a member of the same family. It clarifies at last that a person who marries a protection visa holder years after the time they were granted their visa will not be granted the same visa. Family migration will be the appropriate path in cases like that.
The government remains committed to prioritising individuals who are, on initial assessment, at the greatest risk. This bill will broaden the criteria for unauthorised maritime arrivals. As Immigration Minister Morrison has stated in this place before, this bill deserves the support of all parties. We need the tools to ensure public confidence in Australia's capacity to assess claims for asylum in the interests of this country and against the interests of those who act in bad faith. We are, as I have said, a nation of immigrants. Australians are fair-minded people. We have always welcomed those who wish to come to this country to help build this nation. We have always held out a generous and caring hand to those people in genuine need. Long may that be the case. But also fair-minded Australians feel like they have been taken advantage of at times when due process has been circumvented, documents in many cases being deliberately destroyed, and the whole notion of what it means to become Australian and have a fair go has been undermined. The measures in this bill go to the integrity of the system, and I encourage support for the bill from those opposite. It is important to recognise also that all of our obligations in respect of human rights under international law are also met with the amendments made by this bill. I commend the bill to the House.
I rise to speak in support of the Migration Amendment (Protection and Other Measures) Bill. The overriding objective of the amendments in the bill is to enhance the integrity of Australia's immigration system. This is an incredibly important thing. This is a subject close to my heart. It is my firm and abiding belief that many of the inherent and distinctive features of our country have been forged on the enormous and longstanding success of our immigration system. This system has helped us to be great, has made us the lucky country that has made its own luck, and has meant that people from all over the world want to live here. Our immigration system has also supported our renowned fairness, openness and tolerance as a society, making us proud to be Australian. But, just as importantly, it has underpinned our extraordinary economic success. Since the end of the Second World War, our generous and open immigration system has welcomed huge waves of new Australians from all over the world. Moreover, Australia's immigrants have made lasting contributions whilst rapidly becoming Australian in every meaningful sense. Our ability to do this, so successfully, and for decades and decades on end, is unparalleled across the world.
Australians have not only welcomed migrants for a very long time; we have also, for a very long time, collectively recognised that strong migration has been critical to our success as a nation. I have no doubt that most, if not all, people in this place, across both sides of the House, believe that strong and sustained migration remains critical to our future. It is critical to our economic success and to our identity. Key to understanding the historical success story—and I would argue essential to its continuing success—is a relentless focus on skilled immigration. From the Snowy Scheme through to the present day, our guiding principle has been a visa system which encourages and incentivises migrants who fill critical skill gaps. It is not to say that we accept only those whose skills we need. Consistent with our international and humanitarian obligations and also because we are a generous people, we will always welcome many people who do not have skills, and we do this for many and varied reasons. So we will always welcome into this country people who are fleeing persecution. That commitment has been central to our ethos and it should never be in doubt.
But our ability to do our fair share amongst those nations in the world who can and who are able to continue to give refuge to truly displaced people—people fleeing persecution from circumstances that are unimaginable to most of us—rests absolutely on an ability to maintain integrity in our immigration system. By 'integrity' I mean and the government means truth and honesty. This aspiration is unremarkable. It means that those who qualify for a visa for whatever reason—whether it is a visa which recognises a person's skills or a visa that recognises protection under the refugee convention—should have such a visa. The quid quo pro, of course, as in any system which has integrity, is that those who do not qualify for a visa should not get one.
As I said, the overriding purpose of a great number of the amendments before us is to maintain and, indeed, enhance the integrity of our immigration system. It is vital that genuine claims are processed as quickly as possible so that those who are entitled to stay can stay and get on with becoming great Australians; but it is equally vital that those claims which are not genuine are rejected. Why is that? Because the historical integrity of our immigration system has made us a truly great immigrant society. Our ability to do this—to welcome those who have grounds to stay and, at the same time, to say 'no' to those who do not—is what sets us apart from other immigrant nations. It is crucial to understand that there has always been an underlying economic rationale for this approach to immigration, which stems back to Federation and well before. Fortunately, we moved well beyond the White Australia policy, and our current immigration policy is and should be blind to race and religion. But we should never forget that there has been a longstanding consensus between Left and Right in Australian politics that immigration needs to be controlled.
Indeed, Paul Kelly points out that this need to control immigration was central to what he described as the 'Australian settlement'. He has pointed out that the union movement was always a strong supporter of controlled immigration, particularly for unskilled immigrants, driven by its desire to avoid creating a low wage underclass. The other side of the House forgets this point at its peril. Martin Parkinson, the outgoing Treasury secretary, has recently pointed out that Australia has been unusual in its ability to maintain relatively high wages for the unskilled. I believe that we should be proud of that fact, but a shift to an uncontrolled intake would endanger the egalitarian and tolerant ethos which is so central to being Australian.
Compare us with the United States and many European nations. Many years ago they either relinquished or lost control of their immigration systems. Indeed, in the US, this was institutionalised early in its history via slavery; but, more recently, it has struggled to control its southern border, with the result that uncontrolled Hispanic immigration is putting continual downward pressure on unskilled wages. Worse still, parts of America and Europe have seen swathes of illegal non-citizens living in ghettos, with no rights to citizenship or health and education services. This creates increasing disadvantage, puts massive downward pressure on unskilled wages and, therefore, increases inequality across all of society. That we have amongst the highest real wages in the world and, therefore, one of the highest living standards makes us absolutely distinctive. It makes us fairer. It makes us more unified, less class conscious, and it therefore makes us more tolerant. Controlled immigration is central to Australia as we know it today, and most of us envisage it in the future.
So that we can continue doing what we have always done—welcoming those who truly need our help and those whose help we really need—we must be vigilant about maintaining integrity in the system. Under the last government, we must understand that the integrity in the system was under serious strain. Our onshore processing was overwhelmed and buckling. In recent years—right through the last government's tenure—we have had and continue to have unprecedented numbers of people, tens of thousands of people, coming or trying to come to Australia. Some have come by boat but a great number have also come on airplanes, with passports and visas of many kinds, from all over the world. They are students, travellers and relatives of Australian residents. Many of these people wanted to come to Australia to stay. Applications became backlogged, and departmental staff and merits reviews under the relevant tribunals charged with oversight of these claims are still under enormous strain. The backlog has been substantially caused by the arrival of more than 800 boats and the more than 50,000 people who arrived on those boats.
The department has been required to spend millions and millions of taxpayers' dollars in simply administering these claims. The process has become unwieldy and slow because the system is overwhelmed. This policy disaster not only cost lives and about $12 billion; it also diverted attention from our regular migration programs and impacted on our humanitarian intake. In other words, the previous government's incompetence not only permitted the unauthorised arrival of more than 50,000 people, it threw our ordinary immigration processes into chaos. It threatened the longstanding integrity of the immigration program that we had become so proud of and that is so central to our history.
This government has put a stop to those outcomes. But the backlog that remains as a result of that incompetence is enormous and continues to cost millions. And while the boats are stopping, there are still many people who arrive on planes with passports and visas that appear to be legitimate, who then make protection and other visa claims. These amendments in large part apply to these applications. The amendments before the House will help to ensure that those who are entitled to a visa get one, and those who are not entitled do not.
Departmental officers and tribunal members currently experience great difficulty in making decisions when visa applicants lose or deliberately misplace identity documents, or simply refuse to provide them. Likewise, the tribunal encounters difficulties with the manufacture by applicants of falsified documents to support protection visa claims. The review process often becomes laboured when claims differ markedly between the application stage and the review stage in the tribunal. These changes in claims can be about identity, background and even substantive claims concerning persecution. The amendments to the act provide the tribunal with to the means to reject claims in these circumstances. In doing so the bill before us provides incentives to applicants to tell the truth, the whole truth and nothing but the truth at all stages of the process. The amendments go a long way towards preventing exploitation by applicants who are not genuine. This not only enhances the integrity of the entire process, but also enhances the integrity of the outcome.
There are a number of other amendments that will enable decision makers in both the Refugee Review Tribunal and the Migration Review Tribunal to improve processing times and efficiency, such as being able to dismiss applications in respect of people who simply do not turn up at their allotted time for review proceedings, and also being able to deliver oral, rather than written reasons. Currently, tribunal proceedings can get delayed and bogged down by applicants whose objective is to do exactly that. These amendments will help the tribunal put a stop to this. It will help get the tribunals get through their horrendous backlogs. Of course, it will also accelerate long-awaited genuine cases and ensure they happen much faster. Importantly, the principal members of both tribunals support these amendments. Again, they are an example of the government's commitment to enhancing the integrity of our immigration system.
But, consistent with the government's commitment to fairness, the amendments contain protections for vulnerable applicants and for applicants who are children. With these new commitments, and with new provisions in place to encourage timely decision making, genuine applicants, vulnerable applicants and child applicants have absolutely nothing to fear. The applications of those who are exploiting the system can be more readily and appropriately dealt with. These are outcomes that we all want, and which we should have in a system with integrity.
One dividend of the success of our system is a generous humanitarian intake, which I emphasised in my first speech. Refugees have played an extraordinary role in the history of our country, and we should accept as many as we can without unwinding our immigration system and without threatening our extraordinary history of social cohesion. As we regain control of our immigration system after the disastrous experiences under the last government, this humanitarian dividend and intake should increase. We must get the timing right, but we will have the scope to do just that.
I am confident that as we regain control of our borders, we will be in a position to dramatically reduce, and ultimately even see the end of onshore detention. Again, the timing is critical, and we should never adopt any policy that risks returning to the disasters of the last government. But we also know that onshore detention is far less important in deterring people smugglers, if it is impossible to arrive illegally in the first place. This would be an added dividend from our successful policies.
The strength and integrity of our immigration system is a central feature of our history and prosperity. It is a feature that we cannot celebrate enough. It has been an economic success and a humanitarian success. Our great country has been a unique case study into social and cultural cohesion across many cultures and races, and we should do everything we can to preserve that cohesion. I commend the bill to the House.
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.
The Migration Amendment (Protection and Other Measures) Bill 2014 is an important piece of legislation which will help to ensure our government continues to keep our borders secure. Under the very strong leadership of the Minister for Immigration and Border Protection, Scott Morrison, and through Operation Sovereign Borders, we are building integrity and efficiency into a process that was long neglected under the previous government. I am rising in support of this bill because I believe in what this government is doing to keep our borders secure. But I am also speaking in support of this bill because the people in my electorate of Robertson on the New South Wales Central Coast have got a particular concern about and awareness of the importance of strong borders and a secure Australia.
The people of Robertson want to have even more confidence in the Australian government's management of the processes that we have put in place in relation to people seeking asylum in Australia. That is what this bill does, by enhancing the integrity of the process so that Australians can be sure that those who are found to be refugees are, in fact, who they say they are. It aims to build on the measures we are already taking in assessing asylum seeker claims so that we can efficiently process illegal maritime arrivals.
People on the Central Coast tell me every day how much they appreciate our strong leadership and what we are doing to stop the boats. They know that when we came to office we inherited a border protection shambles from Labor. One of the reasons they voted for us at the last election was to stop the boats. These are people who are some of the most generous and welcoming in our nation. I attend many of the Gosford City Council's citizenship ceremonies, and they are a fantastic opportunity to welcome proud new members of our Australian community. Along with the many families and friends who attend to support and welcome new citizens, I am always impressed by the support that our new Australians receive from residents in our community. It is particularly encouraging when I look around and see so many leaders of our voluntary clubs, sporting organisations, social groups and churches attending our citizenship ceremonies simply to express their support and welcome for our newest Australians or 'coasties', as they might be affectionately known on the Central Coast.
The people of Robertson support immigration, but they also believe it needs to be done the right way. For example, I was speaking with a young family in Kariong recently and they told me how glad they are that our government are not only stopping the boats but ensuring that we have a border and immigration protection system that assists the most vulnerable while ensuring proper safeguards for all Australians. I heard recently from a senior Australian in Umina who is also appreciative of the fact that we are stopping the boats because, with every boat that has been stopped, we have seen an end to the tragic loss of life at sea.
Just to give you an indication of the size of the challenge that we faced coming into government, in one month alone last year there were almost 50 people-smuggling ventures. There were 33 search-and-rescue operations—on average, more than one a day. Eighteen people lost their lives, including an infant. This was, indeed, a shameful period. The decision by Labor in government to take away the coalition's effective border protection policy—a policy that had worked well under the previous coalition government, led by Prime Minister John Howard—led to more than 50,000 illegal arrivals, including more than 8,000 children, on more than 800 boats. The number of children in held detention peaked at almost 2,000. Tragically, under the former Labor government, there were almost 1,200 deaths at sea.
This government pledged to stop the boats and fix this mess. And that is what we are doing, and this bill is part of the job that we are getting on with. To start with, the bill considers the responsibilities of asylum seekers. If they do not cooperate with the government to help establish their identity then they should not be given the benefit of a protection visa. The amendments outlined in the bill before the House will mean that any person who comes to this country seeking protection will have a responsibility to establish their own claims to be a refugee. They must also do this at the start of the process.
This bill will improve the integrity of the process by helping to prevent any potential exploitation of the merits review system. It will send a clear message that the ultimate responsibility lies with the asylum seeker to establish their claims for protection, and they must provide sufficient evidence to support these claims. This will apply to any asylum seeker making a claim for protection regardless of whether it is for an application for a protection visa or part of another administrative process. Under the legislation, it will not be the responsibility of the department or the Refugee Review Tribunal to make a case for protection on behalf of an asylum seeker. This practice is already seen in the United States, New Zealand and the United Kingdom.
There are also elements to the bill that is before the House tonight about establishing an applicant's identity. I am advised that the department encounters many people who hold dual or multiple nationalities and who may even seek an advantage from not disclosing their genuine identity. Changes to section 91W of the Migration Act, and the introduction of a new section 91WA, introduce a power to refuse the granting of a protection visa unless the applicant provides documentary evidence of their identity, nationality or citizenship when requested to do so or has taken reasonable steps to do so. This goes to the heart of why this bill should be supported. It should be supported because it adds integrity to this important process. People who destroy documents and those who do not engage in good faith about their identity will not be able to gain entry to our system.
Unfortunately, the previous Labor government's attempts at a solution led to a cost blow-out of more than $11.5 billion. Under this government, more than $2.5 billion has already been saved by stopping the boats, and we are closing the detention centres the former Labor government opened. This means that people are no longer waiting offshore to access our humanitarian program because their places have already been taken by those who have come illegally by boat.
This bill builds on the work that we are already doing by inserting section 91WB into the Migration Act. This proposed section puts 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 just because they are a member of the same family. The change also discourages family members of protection visa holders from arriving in Australia illegally and expecting to be granted a protection visa simply on the basis of being a family member.
We are also looking to prevent exploitation of the review process. In the past, non-genuine asylum seekers have presented new claims or evidence later in the independent merits review process in an attempt to bolster their original unsuccessful claims. This would happen only after they learnt why they were not found to be refugees by the department. In the past, I am advised that this behaviour led to considerable delays while new claims were explored. To make this process clear, the bill includes an amendment to ensure that any claim that can be presented at the initial application stage is handed over at the very start of the process. Of course, there will always be a small number of vulnerable individuals, such as unaccompanied minors, who may not be able to clearly present their claims without assistance. I am assured that this government will continue to have arrangements in place for these cases and there will continue to be cooperation so that decision makers act in good faith.
This bill is also consistent with Australia's international obligations under the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention Against Torture. The Minister for Immigration and Border Protection has also outlined to the House other important elements of this bill, namely amendments to clarify the threshold for assessing Australia's non-refoulement obligations and amendments to streamline the operation of the current statutory bars placed on illegal maritime arrivals. I also welcome and support the amendments in Schedule 4 that aim to improve processing and administration of both the Refugee Review Tribunal and the Migration Review Tribunal.
This bill is important because the changes to legislation contained therein uphold the integrity our borders. We know that in the more than 12 months since the election there has been a dramatic transformation. Firstly, there have been no deaths at sea; the boats are stopping. There has been just one venture in the past nine months to make it to Australia. All of those passengers are now on Nauru. A total of 45 ventures have been stopped before they even set sail and 12 more have been turned back at sea, as we promised we would do consistent with our policies and our commitments that we made in the lead-up to the last election to the people of Australia and to the people of my electorate of Robertson on the Central Coast. The number of children held in detention is also now down by more than 40 per cent. As the Minister for Immigration and Border Protection has said, 'The people smugglers have crawled back under the rocks they came from.'
But the work is far from over and this government will not rest and let the people smugglers wrestle back any momentum. This is why this bill is crucial in adding integrity and efficiency to the system. This is what we committed to in opposition and we are doing what we said we would do. It is an honour to commend the bill to the House.
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.
I am very pleased to have the opportunity to speak on these important amendments to the broader suite of migration legislation that we have in this parliament. It is important to reflect a bit at the outset on why immigration is so important and fundamental to our society. More than half of my electorate of Banks has at least one parent born overseas. People in Banks come from all parts of the world. Banks has the largest number of people of Chinese background of any electorate in Australia, as well as people from the Middle East, Europe and many other places. The diversity is one of the things that makes our community so great and one of the things that makes Australia such a great place. Your country of origin or your religion does not matter; the only things that really matter in this country is that you participate in our society, that you play by the rules and that you make the most of your citizenship. That is why our immigration program has been so successful.
Immigration, I think, comes down to two sets of policy priorities. One is national self-interest; by driving a strong immigration policy we help to improve our economy. There are many areas of the economy where immigration has helped to build industries—as far back as the Snowy Mountains scheme and IT is a more recent and prime example. The other one is the humanitarian aspect. As a wealthy country we do have an obligation and a responsibility to help people from some of the most devastated places in the world. We have a strong tradition of doing just that. In order to provide compassionate relief for people who are fleeing some of the worst places on earth you need to have control over the system, because at the point where you throw your hands in the air and say, 'This is all too difficult to control,' you lose the integrity of the system, you lose public support for the system and you lose the capacity to effectively manage your own borders. That is something that this government will never allow.
We have been in office for just on one year, and I thought it would be useful to reflect on some of the achievements in that time—and they have been substantial. As I said before, to have confidence in the system we need to have confidence in the integrity of our borders. We did see under the previous government extraordinary mismanagement—one of the greatest examples of the mismanagement of the Rudd-Gillard-Rudd government was the failure on our borders. In the 12 months prior to the last election, we had 400 boats arrive on our shores. Let's not pretend for one minute that there is any humanitarian benefit from such a system, because we know that under such a system people place their lives in peril at the hands of unscrupulous people smugglers. We know that the vast majority of those journeys ended in heartbreak and despair. We also know that people who were in camps and other locations overseas waiting for a refugee place were directly disadvantaged by those boat arrivals. I will come to the Special Humanitarian Program in a minute.
Since we have been in office and since the start of Operation Sovereign Borders, only one boat has reached Australian shores—400 in the last 12 months of the Labor government, and one since December last year. That is a very substantial difference, and it is something that this government is justifiably proud of.
There is an important economic benefit too: when you have control over your borders, your requirement to detain people in detention is obviously reduced. As a consequence, we have been able to close down four immigration detention centres: Scherger in Queensland, Port Augusta in South Australia, Leonora in Western Australia, and, of course, Pontville in Tasmania. The benefit to doing that is close to $100 million per year. It is about $90 million—that is the economic benefit of closing down those detention centres. Nobody wants detention centres in operation. We all want a situation where people are not arriving illegally, where they are having their applications assessed on their merits, and where, consequently, detention centres become less and less relevant. We have already seen that benefit with four of them closed down; a benefit of about $90 million a year.
The other point is the very important humanitarian dividend that we have seen from the activities of the government in the past 12 months. Of course, Mr Deputy Speaker, you are familiar with the special humanitarian category of visa. This is for people who do not quite comply with the strict definition of a refugee under the refugee convention, but nonetheless are often in desperate circumstances—often waiting in refugee camps, in the Middle East and other places. Perhaps for technical reasons, they do not comply with the rules for being a refugee but they are nonetheless really in a very bad way. Under the previous government, because the refugee intake was so overwhelmed by illegal boat arrivals, the number of people who came in on special humanitarian visas had dropped to a trickle—less than 500 a year. These are people who are following the correct process and waiting, often in a refugee camp, in an appalling situation but who for some reason do not quite comply with the definition of a refugee. Those people were very badly done by under the Labor government—that group of admissions had slowed to a trickle because the places were taken by illegal boat arrivals. We have changed that now, and it is back up to 4,000 per year under the special humanitarian process. That is something which is a great humanitarian benefit.
It is important to reflect on what the opposition thought about the government's border protection policies when those policies were implemented. If we cast our minds back about 10 months ago, to about November—you will recall at the time, Mr Deputy Speaker, there was a lot of discussion about whether the government's border security policies could work; whether it was possible to stop the flow of unlawful boat arrivals; and whether it was possible—logistically, technically and legally—to turn boats around, as we had said we would do. If we go back to 9 November last year, the shadow immigration minister said: 'We have had Indonesia from day one saying they won't accept tow-backs…it was inevitably going to fail'. And that is what we saw yesterday. That was in relation to turning boats back around. And on the same day, the Leader of the Opposition said: 'There is no doubt in my mind that the coalition's boat-person policy is just absolutely not working.' That was on 9 November 2013. I suspect he would revise those comments, were he to make them today. But they do demonstrate why leadership is so important in this area—because the government did take some very difficult decisions, but they have been very successful, and they have had a humanitarian benefit.
We know the record—or lack thereof—of the opposition in this space: an $11 billion blow-out in border security costs; 8,000 unlawful arrivals in the 2011-12 financial year, at a cost of almost $180,000 each—so that is a huge number of people coming in because of the porous border security policy that we had in place; and there was inefficient management once they arrived. The cost to taxpayers was $180,000 each—just completely unacceptable. We should never, ever forget—and this is a mark of shame on the previous government—that they then spent $2 million advertising their border security policies, supposedly to people smugglers, including in our regional newspapers and radio stations around the country—where, I suspect, not many people smugglers were active. That is a huge contrast: clear failure by the previous government, and clear success from this one.
We are going to add to that success with some important changes which are proposed in the bill before us this evening, the Migration Amendment (Protection and Other Measures) Bill 2014. The first change is in relation to protection visas. This is to make clear a fundamental principle and a fundamental point of law—that is, that in applying for protection the onus is on the applicant to make their case. So the applicant for asylum needs to demonstrate, to the best of their ability, why they comply with the relevant criteria of the visa that they are seeking to be granted, and then advocate the reason why they believe they should be allowed to receive that visa. And the bill makes clear that it is not the role of the government or the departmental decision maker to advocate on behalf on the applicant; because there is, of course, a conflict involved in being both the decider of the outcome and also the person who is advocating on behalf of the applicant. These proposed changes make it very clear that it is the responsibility of the applicant to put forward their case. Of course, provisions are made for people who are unable to advocate on their own behalf, such as children and people with other significant disadvantages. But the general principle is that if you are seeking asylum, it is incumbent upon you to advocate on your own behalf. That is entirely as it should be.
The other point about the non-refoulement obligation is important too. You will recall, Mr Deputy Speaker, that a moment ago I was speaking about the special humanitarian visa category. These are, as I said, people who do not comply with the formal definition under international law of a refugee, but nonetheless are in desperate circumstances. This group was heavily disadvantaged under Labor, because there were no spots left for them because of unlawful boat arrivals. But we have now got that group back up to about 4,000 a year, which is a significant intake.
This bill provides a clarification which says that the task for the minister and for the department to consider, in assessing one of these applications, is whether it is more likely than not that, should that person be returned to their home country, they would suffer serious difficulties and significant harm. That was the test under the 2012 legislation that was introduced and it is the same test that applies in the United States, Canada and various other places.
The Federal Court last year in the SZQRB case changed the standard to what they described as a 'real chance' of significant harm, and that could be as little as a 10 per cent chance. So you can imagine from an assessment perspective, if the requirement is that there is only a 10 per cent chance of significant harm occurring, that makes it very difficult to differentiate between who should be granted a special humanitarian visa and who should not. By going back to the original intention, which is more likely than not—so effectively 50 per cent plus one—we reinstate that integrity into the system and we say if it is more likely than not that you will suffer significant harm then you comply under these provisions.
Other important changes relate to some technical matters about unauthorised arrivals applying for visas. There were some technical distinctions where an applicant who was on a bridging visa would in some circumstances have to apply under a different regime than someone who was also here unlawfully but was not on a bridging visa. That did not add any value to the legislation; it just created confusion. The change here means that in the vast majority of cases unlawful maritime arrivals, when they go through that visa application process, will follow the same process, the same piece of legislation, the same documents and so on.
Finally, there are some important administrative changes to the MRT and the RRT processes that were requested by the tribunals themselves. They go to things such as the ability to give an oral statement rather than it being required to be given in writing, to be able to dismiss an applicant's matter if that applicant fails to show up when they have been given full warning that the matter is to be heard and various administrative provisions which are important.
Building on an exceptional track record of success, these changes will take our immigration system forward further. I commend the bill to the House.
I rise to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. What self-congratulatory twaddle from those opposite! What self-serving hypocrisy from those who seek to rewrite history, to ensure that history records events in their disputed way and to ensure that they do not accept any responsibility for their actions in the last term of parliament.
The member for Banks spoke about a mark of shame. Through you, Chair, let me tell the member for Banks about a mark of shame: when your side refused to back our attempts to get an agreement with Malaysia, the then leader of the opposition, now Prime Minister, maligned the Malaysia government and then apologised later—as is his wont. His wont is to go out, make his political line—it does not matter who he offends—and seek forgiveness later. He maligned the entire Malaysian government and the Malaysian people over the arrangements over there and, as a result, he ensured that we were unable to get an agreement in place that would have helped to break down the way in which people smugglers were plying their trade. What happened as a result when we did not get the Malaysia agreement up? Six hundred and eighty-nine people lost their lives. If you want to talk about a mark of shame, when will they step up and apologise for the fact that they were culpable in voting down a system that would have ensured that we would have less people arriving here?
The hypocrisy is astounding. When we put the Malaysia agreement up, the then opposition, the coalition, claimed that it was not right to put in an agreement in place with a country that was not a signatory to the UN convention dealing with refugees. So we then put an agreement in place with Papua New Guinea that has allowed, singularly, the greatest reduction in the number of boat arrivals. But when we first brought down the details of an agreement in July 2013, it was resisted by those opposite. In fact, the then opposition foreign affairs spokesperson suggested that we were completely outsourcing our decision-making processes and our foreign aid to Papua New Guinea only to have the then leader of Papua New Guinea, Peter O'Neill, forcefully repudiate that claim. Those opposite worked so hard to prevent that agreement from getting in place. Now that is in place, they want to claim all the political kudos for something that has been effective—and demonstrably effective—in slowing those arrivals and in ensuring that people smugglers do not have the ability to lure people to take the dangerous two-day trip from Indonesia to Australia.
Speaker after speaker opposite have tried to claim that the government have been able to stop the boats as a result of their policies. What stopped the boats, principally, has been the PNG agreement. It has not been the way in which those opposite have been able to hold press conferences. Instead of being up-front and transparent about what is going on, they hide all the evidence about what has happened.
Mr Tudge interjecting—
The member opposite, the parliamentary secretary, asks whether we have apologised. Go to the records. You voted in support of those changes. Why do you not ever get up and say, 'We did vote for those changes in 2008-09 when they were put through'? The member for Aston wants to try and rewrite history yet again and try and airbrush their voting record. Sorry, champion, you cannot do that, because the record is clear: you voted for the dismantling of those laws as well.
In voting down the Malaysia agreement, you also did a deal with the Greens. You have this love-hate relationship with the Greens: one minute you love them, one minute you hate them. You did a deal with the Greens and, as part of that deal to stop the Malaysian agreement from going ahead, you agreed that you would lift the humanitarian intake from 13,000 to 20,000. That is what you agreed. You got your vote, and you got your way. As a result of us not getting the Malaysia agreement in place, 689 people lost their lives at sea as a result of what was going on.
Having been to Christmas Island myself and having spoken in this chamber a number of times about the way in which that episode moved my entire approach and view of the way we needed to manage this issue, and having said that we needed to do what we did to ensure that people did not make that trip, we then had the situation where the lure of going from a humanitarian intake of 13,000 to 20,000 was put in place as a deal. What was the first thing the government did when they got into office? They reneged on the deal. Along with the Greens, they reneged on the deal to lift the humanitarian intake. They talk now about how they are prioritising and looking after people that are waiting for humanitarian entry. Why didn't they stick to the deal to grant more people access and why won't they, to this day, support the opposition's calls to lift the number of people allowed in from 13,000 to 20,000? They simply will not.
As is always the case with those opposite, particularly through the tawdry display we saw in the last term of this parliament, they put their political interests ahead of the national interest. They put their own political gain ahead of us being able to have a system in place that would stop this. From their perspective, they did not want to see a slowdown at all. They did not want to see us stop the boats—their mantra when they were in office. They wanted to be able to do whatever they could to thwart our ability to stop this. It is a shameful period. I am not going to have members opposite get up and say it is a mark of shame against us. What is a mark of shame is the complete frustration that they were happy to see happen as a result of blocking arrangements that we put in place. It is worthwhile noting the chatter that was picked up through the intelligence community—people had basically turned up to people smugglers wanting their money back when they heard that the Malaysia agreement was being proposed. Those opposite saw the numbers drop and knew that this was going to have an impact. The coalition knew that the Malaysia agreement was going to have an impact and that is why they worked so hard to stop it.
Mr Tudge interjecting—
I come back to the point that you supported it as well, because, member for Aston, you picked up the community view about that, but you try to airbrush it as so many things—you try to airbrush that out.
The key thing that needs to be remembered is that we were prepared to take these steps in the national interest. They were important. When the High Court made its decision, we attempted to make changes, which then saw the coalition do everything they could to frustrate our ability to do so. Unlike when we were in opposition, under the Howard government, when we worked with those opposite on elements of this, they refused to extend the same commitment to work with us.
What do we have from those opposite? What we have is a refusal to be up-front with the Australian people about what is going on. We have to wait for High Court decisions, as we did with the 158 Sri Lankan nationals sitting on a vessel in the middle of the Indian Ocean. Those opposite were refusing to provide those details, saying that it was an on-water operation and that they did not regard it as being in the domain of the Australian people to know what was going on. They refused to provide facts about what was going on. That is despite the fact that, in every question time, the immigration minister was at the dispatch box claiming credit for what had gone on, when in fact the foundation stone of that result was the Papua New Guinea agreement. The immigration minister was suddenly MIA when it came to explaining why we had 158 nationals sitting out in the Indian Ocean. There was no response, no explanation as to what was going on, what was happening with these people. They were sitting there for over four weeks. I think it was six or seven weeks before they were transferred. The government was attempting to get agreements with India and other nations to accept the people on that vessel. It was completely hidden from view. There was no transparency, no openness, no fact, no detail. If there is an opportunity to get to the dispatch box and claim credit for something or to try to extract some sort of political gain, they are there; but if it is about being up-front with people then they are completely invisible and refuse to answer questions. It is simply not good enough.
Rightfully, there are questions to be asked and answered about the way in which the management of these facilities overseas is being conducted, to ensure that there are proper processes in terms of investigation, and again we do not see that happen at all. There is certainly lightning-fast movement to try to extract some sort of political gain, but there is not an equivalent response in accepting responsibility for the decisions that are made. From our perspective, if the nation's parliament is to work together truly on these issues, it should work on them; it should prioritise the protection of people's lives, it should prioritise the orderly movement of people and it should prioritise the integrity of the system. But it should certainly not abrogate its responsibilities in the quest for political gain on this issue. When we were trying to deal with these very difficult issues, to have those opposite run the way that they did was a complete mark of shame on them and a complete failure on their part to prioritise what needed to be done at that point in time.
I know that I speak on behalf of the member for Wakefield and certainly the member for Moreton—who, along with me, were involved in investigating the tragedy that occurred on Christmas Island in 2010—in saying that we changed our views on these matters. We thought we needed to work together to stop that, but clearly those opposite were not interested. Now we have this procession of self-congratulation, with a failure to accept responsibility for what they have done and a failure to acknowledge that principally the big moves in being able to stop and to stem that tide have come from the Papua New Guinea agreement and the resettlement agreements that we have over there, and that should be acknowledged. As much as some of the decisions that we took in government may have caused grief, and certainly were not necessarily met with widespread agreement by Labor supporters—I understand why people would feel like that—from my perspective I have always thought the priority should have been the maintenance of life, the protection of life, and to ensure that people did not drown, but that we also found a way to liberate people from camps where they had been stuck for years. People have reflected on constituents living in their electorates who have gone to citizenship ceremonies and have made very productive and positive contributions to Australian society.
From my own point of view, I have spoken with people who had been stuck in camps where they had seen 10 years of their lives pass completely by and had no prospect of being picked up, liberated and given a second chance. I have seen them in my area, where some of their proudest moments as new communities have been to congratulate others—for example, the first amongst them to get driver's licences, the first amongst them to get mortgages or the first amongst them to see their children accepted into schools and into higher education. These are moments of great pride for them, and we have been able to see them come here and be saved from the despair of those camps. That is what we needed to prioritise, and certainly it should be the way in which we work. I would hope, too, that we would be able to find, for instance, an ability to free people who are stuck in Lebanon at the moment and who have no prospect of returning to Syria. And why would you force them back to that quagmire and that terrible situation? We should be able to find a greater place for them in our humanitarian intake. And as the opposition leader has rightly said, and I think a lot of us support it, we should lift the intake so that we can extend to them the ability to get out of there and have a positive start in our country.
There are ways we can move forward on this, ways we should move forward on this. But, again, it also requires those opposite to accept responsibility for what they had done, for their part in thwarting our ability to improve the situation, to stop people losing their lives at sea. We should not have seen that happen, and they should accept their part in it.
I am very pleased to be speaking in favour of the Migration Amendment (Protection and Other Measures) Bill 2014 today. It is a bill that is part and parcel of the coalition's plan to secure our borders and to protect the integrity of our special humanitarian program. It was a core commitment of the coalition team to restore certainty, confidence and security to our migration and border protection arrangements. Australians want to know that the government is handling the case load of asylum seekers with integrity and efficiency. They want assurance that it is not possible to manipulate the system or to use it for purposes other than generally presenting a claim for protection. The coalition government is the only government that can provide the Australian people with this assurance. In my conversations with them, the people of my electorate have communicated to me that the foundational principles of our immigration system should be fairness and robustness. The people of Barton want to see strong borders and strong principles of fairness and generosity. Australians do not want to see the immigration system overrun with insincere applications for refuge or unpredictable and regular breaches of our borders. When we work to maintain the integrity of the visa system as a whole, Australians can be more confident in our ability to manage the complex case load and evolving difficulties associated with identity and verifiability, and vulnerable people all across the world can have more confidence in our ability as a nation to reserve resettlement for those most in need.
Australia's humanitarian program is an integral part of our nation's identity as a culture of welcoming and compassionate people. One example of this program well and truly at work is the 1,000 places that our immigration minister has advised were provided last year to those affected by the Syrian conflict. The decision of the government to offer refuge to 4,000 members of the Christian and Yazidi minorities fleeing persecution in Syria and Iraq is a resounding indicator that this government is serious about extending refuge to those desperately in need. It is the deadly turmoil unfolding in places like Iraq and Syria that really brings home my understanding of the special humanitarian program's purpose. These 4,000 places form a resounding and fitting example of what is possible when you contain fraud, inefficiency and irregular entry to Australia so that places may be freed up for those offshore awaiting our help. It renews the government's resolve to provide refuge to those who genuinely need it. And it is through protection and special humanitarian programs against fraud and those operating in bad faith that it can be preserved for those who both warrant our protection and desperately need it.
The measures of this bill aim to address complex challenges that have arisen within the humanitarian program so that we can make integrity, efficiency and the establishment of identity a priority. Maintaining stringency around proof of identity in the context of border security for those coming into and out of Australia is more important than ever given this government's determination to secure Australia against threats to the integrity of our immigration system and our national security as a whole. If individuals are unwilling to take reasonable steps to establish their identity or are clearly acting in bad faith, Australians do not want to see those individuals rewarded with the benefits of a protection visa. The government's humanitarian program exists for the purposes of protecting the genuinely vulnerable from serious persecution, not for the purposes of extending an individual's stay in Australia or protecting individuals with no established identity whose grounds for protection are insubstantial. There is no good reason that a genuinely vulnerable individual fleeing persecution and conflict would engage in fraudulent or seriously dishonest conduct in the process of making a claim to Australia's protection. The open-hearted nature of our community to those who are fleeing persecution must not be taken advantage of by those who seek to rort the system. Strengthening the process to establish an applicant's identity is a central element of this bill. Indeed, openness and honesty in establishing one's identity is a core indicator of good faith. The bill will ensure that dishonest or fraudulent conduct in relation to the presentation of identifying documents is taken into account in decisions to grant protection visas and that those applicants who have provided the department or the tribunal with bogus documents will have their claims dismissed.
The bottom line is that Australians do not want to see individuals who are operating in bad faith or who are unwilling to provide evidence of their identity taking advantage of our humanitarian programs. Australians expect the government to take the necessary steps to weed out practices of document disposal, fraud and vexatious claims to preserve the integrity of this important humanitarian program. This government knows that applicants for an Australian visa are responsible for bringing their own claims and for providing the material necessary to substantiate them. The ultimate responsibility for providing evidence of claims to protection status is theirs. The decision making process that the department and the tribunal undertake should not be conflated with a process of assistance or substantiation on the part of government staff. As such, schedule 1 of this bill reasserts the role of the Refugee Review Tribunal as involving the consideration claims which are brought before it. It is clearly not the role of the tribunal to produce or defend those claims. The same applies to staff of the Department of Immigration and Border Protection.
This government is firm in its resolve to prevent the misuse of our system by those who do not in their own minds believe they are a person in respect of whom Australia has protection obligations—those individuals who believe that lodging a claim for protection and the subsequent likely rejections and reviews through the Refugee Review Tribunal will give them further time in Australia. The serious and costly consideration of a claim to Australia's protection must not be treated as an avenue to further time spent visiting, working or living in Australia by those who know they are not fleeing dangers offshore. The backlog of illegal maritime arrivals is a complex factor which can often have ramifications for the entire caseload of asylum seekers worldwide, including those registered with the UN High Commissioner for Refugees. The way in which asylum seekers arrive in Australia, and the manner in which they conduct themselves with respect to their application process, should never impede the department's ability to process the claims of asylum seekers fleeing a site of conflict offshore, waiting for their claims to be considered through regular channels of migration. Marriage and family relationships do not constitute an entitlement to a protection visa; regular channels of family migration must be pursued in the case of a spouse or relative of a person in respect of whom Australia has protection obligations.
Schedule 2 clarifies Australia's obligations in regard to nonrefoulement. The nonrefoulement threshold of 'more likely than not' is made clear. It is a realistic and reasonable measure that recognises the gravity and weight with which the government considers an official refugee status. Put simply, refugees are those fleeing seriously dangerous and traumatic situations. This threshold is well and truly open to Australia as an option and within international requirements. It is the individuals, families, and children fleeing from these kinds of situations that our humanitarian visa programs should protect.
One measure in schedule 4 of this bill which will particularly improve the efficiency of our processing system from a practical perspective is the ability for principal decision makers on the Refugee Review Tribunal to issue guidance decisions. This measure, coupled with the ability for the tribunal to make oral rather than written decisions, will resolve several challenges to the efficient and simple operation of our humanitarian visa process. The bill also streamlines the role of the Refugee Review Tribunal, rendering its operations more efficient and taking the applicant's attendance at the tribunal seriously. These amendments also simplify the standard of evidence associated with the initial application and review tribunal respectively. As an integrity measure, an applicant must justify why a serious claim is raised at the tribunal but not at the initial application stage, and explain why evidence is presented at the review stage but not within the initial application. This is a simple but effective way to ensure that applicants act with integrity and good faith at all times so that our humanitarian programs are dedicated to the protection of those in respect of whom we have international obligations.
Ultimately, this bill tightens up the integrity and efficiency of the humanitarian visa system so that as a nation we can render efficient assistance to those individuals operating in good faith who are most in need of our protection.
In cooperation with the stellar work of our border protection officers, the good judgement of the Minister for Immigration and the processes already in place with the department of immigration and the Refugee Review Tribunal, this government will ensure that our system is the best it can be and is working towards the protection of the most vulnerable individuals all around the world. As the great former Prime Minister John Howard so aptly expressed it, 'We will decide who comes to this country and the circumstances in which they come.' These measures will keep Australia's immigration system accountable and consistent, providing us with true control over the processing of claims and securing our ability to offer resettlement to those truly in need. I commend the bill to the House.
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.