Thursday, 19 March 2015
Migration Amendment (Protection and Other Measures) Bill 2014; Second Reading
I thank my fellow senators for contributing to this important debate on the Migration Amendment (Protection and Other Measures) Bill 2014. This bill, together with the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, passed by the parliament in December last year, forms a package of legislative reforms required to increase efficiency and enhance integrity in the protection status determination process. Specifically, the measures in this bill respond to the challenges in the onshore component of Australia's humanitarian program and aim to reduce fraud, improve administrative processes and provide greater consistency and quality in protection assessment outcomes.
I would like to thank the Senate Legal and Constitutional Affairs Committee, the Parliamentary Joint Committee on Human Rights and the Scrutiny of Bills Committee for their consideration and reports on this bill. Following consideration of these reports and in response to concerns that have been raised by my fellow senators regarding certain measures in the bill, I can advise the Senate that the government has tabled an addendum to the explanatory memorandum to the bill which provides further detail on certain amendments made by schedules 1 and 4 of the bill. These measures relate to the identity and integrity measures in schedule 1 of the bill, specifically proposed sections 91W, 91W(a) and 43A; and to the Migration Review Tribunal and Refugee Tribunal integrity measures relating to providing oral statements of reasons following an oral decision.
I also foreshadow that at the committee stage I will be moving some amendments to the bill on behalf of the government. These amendments will amend schedule 3 to take into account the reintroduction of temporary protection visas by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, amend schedule 4 to increase the time frame from seven to 14 days in which an application for reinstatement may be made by a review applicant who fails to appear before the MRT or the RRT and whose application was subsequently dismissed as a result of that nonattendance, and add a new schedule 5 to the bill. This new schedule amends references to the bill in the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 and the Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 as the references currently refer to this bill as being enacted in 2014.
I thank the Senate Legal and Constitutional Affairs Committee for their report on the bill and note the additional comments from Labor senators and the Greens' dissenting report. I remind the chamber that with this bill the government is striking the right balance between fairness and supporting an effective and coherent protection determination process which responds to the evolving challenges in the asylum seeker caseload arising from judicial decisions and management of the backlog of illegal maritime arrivals. The government is also ensuring the system works more efficiently, therefore reducing costs and delay.
Implementation of this bill does not mean Australia will resile from its protection obligations; in fact, the government is seeking to restore the same threshold that was adopted by the Labor government for assessing Australia's complementary protection obligations.
I thank the Parliamentary Joint Committee on Human Rights for the comments in relation to this bill. The government's position is that the measures in this bill are reasonable, necessary and proportionate to achieve its legitimate objective, which I have already stated: to reduce fraud, improve administrative processes and provide greater consistency and quality in protection assessment outcomes. Decision makers are obliged to act in good faith to fully assess a protection visa application and afford procedural fairness to asylum seekers as required by the code of procedure in the Migration Act. A primary application information service will provide application assistance to those who are considered vulnerable.
I would also like to thank the Scrutiny of Bills Committee for its contribution to this bill. Former Minister Morrison and I have provided further information and advice as requested by the committee. I note the committee's comments in relation to guidance decisions and reiterate that this measure seeks to align and reduce inconsistencies in decision making. It is still for the tribunal to ensure that a correct and preferable decision is reached on the merits of a case.
I now remind the Senate of some of the key measures in this bill. While the Australian community has long accepted a responsibility to provide refuge to people who engage our protection obligations, the reciprocal responsibilities of people who seek protection in Australia were not clear in our law. The protection and other measures bill will state those responsibilities on the face of our legislation. If a person wants our help, that person is obliged to show good faith and honestly state their case as to who they are and why they need Australia's protection. As a result of this bill, applicants will need to provide documentary evidence of their identity, nationality or citizenship or have taken reasonable steps to do so in order to be granted a protection visa.
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 engage Australia's protection obligations. Identity in the global age is increasingly complex to determine, and many people hold dual or multiple nationalities or seek an advantage from not disclosing their genuine identity. Proposed sections 91W and 91W(a) empower decision makers to refuse applicants who provide bogus documents or destroy or discard documentary evidence of heir identity, nationality or citizenship. An applicant who does not give a reasonable explanation of these types of actions and does not provide or take reasonable steps to provide genuine proof of identity, nationality or citizenship will have their protection visa application refused. The same applies to an applicant who has destroyed or discarded identity documents or has caused that to happen at the hands of another person such as a people smuggler. It is appropriate to refuse a protection visa where an applicant fails or refuses to comply with a request to establish their identity where it is in fact possible for them to do so
Again I note that these measures are aimed at encouraging applicants to comply with these requirements. They do not mean Australia will resile from its protection obligations. These measures make it clear that Australians expect protection visa applications to be made in good faith and with full disclosure of identity. Cooperation is the key in these cases. The proposed changes also respect the fact that in some circumstances, including some cases where a person is stateless, it may not be possible for a protection visa applicant to provide documentary evidence of their identity, nationality or citizenship even if they want to and have taken all reasonable step to do so. The requirement that an applicant has taken reasonable steps has been included to accommodate these circumstances. Other instances that constitute having taken reasonable steps may include an applicant contacting family and friends in their home country to obtain existing documentary evidence of identity, nationality or citizenship; obtaining such evidence from the authorities of their home country in cases where an applicant is claiming harm from a nonstate actor, for example an organised criminal group; or obtaining such evidence from a safe third country where they may have previously resided. However, to be clear, there is no expectation on an applicant to approach the authorities of the country from which they fear state persecution.
The proposed section 5AAA clarifies a noncitizen's responsibility regarding their protection claims by legislating that it is the asylum seeker's responsibility to specify all particulars of their claim and to provide sufficient evidence to establish that claim. This measure formalises a reasonable expectation and is consistent with practices in the United States, the United Kingdom and New Zealand. It does not change the decision maker's duty to evaluate and ascertain all of the relevant facts—it simply clarifies that it is not the decision maker's role to advocate on behalf of the applicant. Notwithstanding this amendment, the government acknowledges that there will be always a small number of vulnerable individuals, including unaccompanied minors, who may not be able to clearly present their claims without assistance.
The government will continue to have arrangements in place to provide funded application assistance to a small number of the most vulnerable individuals, including unaccompanied minors, through a primary application information service. Section 5AAA works in tandem with the new section 423A to encourage protection visa applicants to provide all of their claims and supporting evidence as soon as possible. It sends a clear message that if claims can be presented and supported at the initial application stage, they should be. Section 423A does not empower the Refugee Review Tribunal to disregard new claims or evidence but, rather, to draw an inference unfavourable to the credibility of claims or evidence presented before the tribunal for the first time unless the applicant provides a reasonable explanation to justify why the claims or evidence were not raised before the primary decision was made by the department. The Refugee Review Tribunal will be required to notify an applicant and give them a reasonable period in which to respond if they propose to draw an inference unfavourable to the applicant due to presenting new claims or evidence. This measure will also work in conjunction with the Refugee Review Tribunal's already existing legal obligations under case law and procedural fairness requirements under the Migration Act.
I note that questions have been raised about the meaning of 'reasonable explanation'. Decision makers are bound to act in good faith to fully assess protection visa applications and afford procedural fairness to visa applicants in accordance with the codes of procedure in the migration act. A reasonable explanation is generally credible and does not run counter to or at variance with generally known facts. The bill also brings in measures that affect the Migration Review Tribunal and the RRT. These measures will improve efficiency and provide greater consistency of outcomes for review applicants without affecting the independence of the merits review process. The principal member of the MRT-RRT will be empowered to issue practice directions about review procedures and processing practices, as well as issue guidance decisions to tribunal members, although individual tribunal members will continue to have sole responsibility for making their decisions independently according to the merits of each case. The tribunals will also have the discretionary power to provide an oral rather than written statement of reasons following an oral decision, but a written one will be available on request within 14 days. It is not anticipated that oral decisions and statements will be made in complex cases but will be reserved only for a review of cases involving simple facts and very straightforward statutory interpretation where the relevant case law is well settled.
The bill as currently drafted also legislates the same threshold for assessing complementary protection claims that was originally put in place by the Labor government. Under the bill, Australia's non-refoulement obligations under the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment will be engaged if it is found to be more likely than not that a person seeking protection would suffer a significant harm if returned to a receiving country. The 'more likely than not' threshold was initially adopted by the Labor government when the complementary protection provisions were first introduced into the Migration Act in March 2012 but was stated in policy rather than on the face of the legislation. This threshold was lowered by subsequent full Federal Court decisions which adopted the 'real chance' test that applies to the refugees convention. The government does not accept that the real chance threshold adopted by the full Federal Court accurately reflects Australia's obligations under the ICCPR and the CAT. The real chance threshold is considered by the High Court to be less than a 50 per cent chance of harm and it could be as low as a 10 per cent chance. The government considers the more likely than not threshold—the same threshold adopted by the Labor government, and considered to be a greater than 50 per cent chance—to be more appropriate and an acceptable position open to Australia under international law. However, to be clear, decision makers do not need to calculate a risk of harm according to a mathematical formula or in statistical terms. The individual circumstances and merits of each case are considered before a decision is made. Expressing the risk threshold as a percentage is simply an explanatory tool. The government still maintains the more likely than not threshold is the most appropriate. Having said this, the government recognises the voting intention of the majority of senators and expects that schedule 2 will be removed at the committee stage.
In summary, the bill deserves the support of all parties. This bill is about enhancing integrity in Australia's protection visa determination process. It incorporates the expectations of the Australian community and internationally accepted principles of refugee status determination in Australia's domestic law. I commend the bill to the Senate. I also table an addendum to the explanatory memorandum.