Senate debates

Wednesday, 14 May 2014


Migration Amendment Bill 2013; Second Reading

12:01 pm

Photo of Michaelia CashMichaelia Cash (WA, Liberal Party, Assistant Minister for Immigration and Border Protection) Share this | Hansard source

I thank senators for their contributions to this important debate. The Migration Amendment Bill 2013 amends the Migration Act 1958 to remedy three distinct issues resulting from recent court and tribunal decisions that significantly affect the operations of the Department of Immigration and Border Protection, particularly its capacity to process visa applications and to be clear when a person is available for removal from Australia. The bread and butter of the department's work is facilitating the movement of people across our borders for commerce, tourism, trade and study, and one of the department's most important roles is nation building through a targeted immigration program.

The role is also rooted in a matter of national security and the protection of that national security, and the decisions that are made carry important consequences and an important responsibility for those who have to make decisions in government in this country. One important responsibility is to enable legitimate visa holders with a genuine purpose to travel and conduct business here whilst ensuring that those persons who are a threat to national security or are seeking to abuse the system are prevented from entry or removed from Australia, where they have no permission to remain. It is critical that Australian legislation supports the work and decisions made by the Immigration and Customs and Border Protection officials on our front line and enforces the integrity of these processes. We are committed to restoring integrity and confidence in our immigration program. That is fundamental to having a successful immigration program that Australians have confidence in and Australians support and that enables us to continue to run an immigration program which is the cornerstone to so much of both economic and social success in what I describe as an immigration nation.

The measures contained in this bill before the Senate today go towards achieving that purpose by clarifying and remedying matters that have arisen in a series of recent court decisions. The first schedule to the bill will put beyond doubt that the decision on review or visa refusal, cancellation or revocation decision by the minister or his delegate is taken to be made on the day and at the time when a record of it is made and not when the decision is notified or communicated to the applicant or the former visa holder. The amendments address the decision of the full Federal Court in the case of the Minister for Immigration and Citizenship v SZQOY of 2012 that the RRT's decision-making power in respect of review is not exercised or spent until the review decision is notified irrevocably and externally. The amendment also addresses the full Federal Court's decision in the Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY of 2013 in which the full Federal Court extended the judgement in SZQOY and found that an application is finally determined that is no longer subject to a form of merits review only when the review decision of the RRT is notified to both the review applicant and the secretary of the Department of Immigration and Border Protection according to law. It was immaterial that the review decision had been notified externally and that the review applicant has actually been notified of the review decision despite any error in the notification itself. These findings cause potential difficulties and risks in the administration of the act. For example, the concept of an application being finally determined is crucial to liability for removal under section 198 of the act. These amendments are critical, as they will remove any doubt as to when the decision by the minister, delegate or tribunal is taken to be finally made and when an application is finally determined.

The second schedule of the bill clarifies that a person in the migration zone who has previously been refused a protection visa or who held a protection visa that was cancelled is prohibited from making a further protection visa application. This applies regardless of the basis on which the earlier protection visa application was made or granted and regardless of the basis upon which the further protection visa application purportedly relies. The amendment addresses the decision of the full Federal Court on 3 July 2013 in SZGIZ v the Minister for Immigration and Citizenship. In that case the full Federal Court found that section 48A of the Migration Act only prohibited the making of a further protection visa application that relied on the same ground or criterion as the previously refused protection visa application. That means that, for example, if a noncitizen previously made a protection visa application raising claims under the refugee convention, section 48A of the Migration Act would not prohibit a new protection visa application based on complementary protection claims. By restoring the intended operation of the statutory bar in section 48A of the act, the amendment will preserve the integrity of Australia's protection visa program and avoid its abuse, by preventing noncitizens without meritorious claims for protection from delaying their departure from Australia by making protection visa applications on different grounds each time.

The third schedule of the bill addresses the decision by the High Court in Plaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46. In October 2012 the High Court of Australia found that the use of public interest criterion 4002 in the Migration Regulations 1994 was not a valid criterion for the purposes of a protection visa application. Public interest criterion 4002 states that the applicant is not to be assessed by the Australian Security Intelligence Organisation, ASIO, to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act. In the absence of public interest criterion 4002, the protection visa assessment process for persons with an adverse security assessment is currently problematic, as each case requires individual consideration as to whether the person does or does not pass the character test in section 501 of the Migration Act. This bill will amend section 36 of the Migration Act to insert a new specific criterion for a protection visa that the applicant is not assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act. The new criterion in section 36 reflects the terms of public interest criterion 4002.

Additionally, the amendments introduced by the bill will put beyond doubt that the Migration Review Tribunal, the Refugee Review Tribunal and the Administrative Appeals Tribunal will not have the powers to review a decision to refuse to grant or to cancel a protection visa on the basis of an adverse security assessment by ASIO that the applicant for, or holder of, a protection visa is directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act. The amendments will also reflect current paragraph 500(4)(c) of the Migration Act by confirming that the Refugee Review Tribunal does not have the power to review a decision to refuse to grant or to cancel a protection visa made on the basis of one or more of articles 1F, 32 or 33(2) of the refugee convention, or paragraphs 36(2C)(a) or 36(2C) (b) of the Migration Act. Paragraph 500(1)(c) provides that only the Administrative Appeals Tribunal has the jurisdiction to conduct a merits review of those decisions.

To meet community expectations, the government must have the ability to act decisively and effectively, wherever necessary, to protect the Australian community. The government must also have the legislative basis to refuse a protection visa, or to cancel a protection visa, for those noncitizens who are a security risk. We must prevent and deter any threats posed by those who are a risk to the security of our nation and must implement legislative amendments such as those proposed in this bill to ensure the security and safety of the Australian community. The best thing a government can do to support our agencies that work on the front line in immigration and border protection and who make these decisions is to equip them with the resources that they need and provide clarity through legislation so that they can do their jobs to the best of their ability, in Australia's interests. In that regard, I welcome the support of the opposition for this bill.

I will now briefly address the points raised by Senator Macdonald in relation to the report of the Legal and Constitutional Affairs Legislation Committee into the Migration Amendment Bill 2013. In relation to recommendation 2, Senator Macdonald is correct. The minister has provided a response to the Senate Scrutiny of Bills Committee in relation to their queries on the Migration Amendment Bill 2013. The position of the government is as stated in that letter to Senator Polley. The minister stated as follows:

The adequacy of review mechanisms for adverse security assessments from the Australian Security Intelligence Organisation and whether it would be more appropriate for an independent review process to be placed on a statutory basis are issues that are not appropriate to address within the Migration Act 1958. Placing the independent review process on a statutory basis is beyond the policy intent of the bill, which is to address the number of recent court and tribunal decisions that significantly affect the operations of the Department of Immigration and Border Protection, including the processing of visa applications made by asylum seekers and other noncitizens.

In my summing-up speech, I have referred to those decisions, which this bill is seeking to address. The minister goes on to further say in his response to the Scrutiny of Bills Committee:

The Australian government respects the professional judgement of ASIO. At the same time, the government supports appropriate oversight arrangement of our intelligence and security agencies. The Inspector-General of Intelligence and Security, an independent statutory office holder, plays a primary and comprehensive oversight role, complementing parliamentary committees such as the Parliamentary Joint Committee on Intelligence and Security. As the committee is aware, there is also the Independent Reviewer of Adverse Security Assessments, who examines all the materials relied on by ASIO, including classified material, and provides her opinion and any recommendation to the Director-General of Security.

In answer, ultimately, to Senator Macdonald's query on what is the government's position at this point in time in relation to this bill, the minister states:

The government does not consider it appropriate or necessary that the Independent Reviewer of Adverse Security Assessments be established on a statutory basis.

But, as I said, in any event, the minister is of the opinion that it is not appropriate to address that particular issue in this bill, because this bill itself seeks to remedy certain defects that have resulted from a number of High Court decisions that have been handed down and which I addressed in my summing up speech.

In relation to Senator Macdonald's comments on recommendation 1 of the committee report and in particular where it states 'the rare situations where the department or a tribunal fails to correctly notify the applicant': in that particular case I am advised that the time frame for seeking merits review does not begin to run if the notification is defective. But I would say to Senator Macdonald that I do acknowledge your comments that this bill is a way forward for the government in relation to ensuring that we have the appropriate tools to make decisions. These amendments themselves remove any doubt as to when the decision by the minister, delegate or tribunal is taken to be finally made and when an application is finally determined. That is the clear policy intent of this bill.

Finally, the Department of Immigration and Border Protection employs over 10,000 people. The people who work at the department have always demonstrated extraordinary passion and professionalism. There is no doubt that they have a deep care and a deep interest in the work that they do and that it is shared by many of the other agencies that serve our nation well, including, of course, ASIO, who have an extremely difficult job in making these decisions. But that is the job that we the government give them to do on our behalf in the national interest. Such commitment is an asset that has guided us through incredibly difficult times and will continue to do so in the future. In support of them and the work they do on our behalf we need to ensure that they have an immigration program and particularly a refugee and humanitarian program that has integrity and that maintains the support of the Australian community. I commend the bill to the Senate.


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