Monday, 11 November 2019
Regulations and Determinations
Migration (Fast Track Applicant Class – Temporary Protection and Safe Haven Enterprise Visas) Instrument 2019; Disallowance
That the Migration (Fast Track Applicant Class – Temporary Protection and Safe Haven Enterprise Visas) Instrument 2019, made under the Migration Act 1958, be disallowed [F2019L00506].
This is a classic example of scope creep by this government. Having established the unfair, punitive, unjust fast-track arrangements that have caught so many people who arrived in our country by boat seeking asylum, they now want to expand that erosion of rights and apply it to a further cohort of people. This Senate quite rightly rejected such a move by this government in the last parliament, and I call on my colleagues today to hold the line, stand up for some of the most vulnerable, disadvantaged people in our community today and vote to disallow this instrument. Almost exactly a year ago, the Morrison government attempted to extend fast-track assessments to people who arrived by boat before 2014 and were already living in Australia. That expansion would have captured an extra 108 people.
I want to make one thing very clear about the fast-track process: it is neither fast nor fair. The fast-track assessment process removes access to the normal processes of the Administrative Appeals Tribunal and denies people their rights to a fair review of government decisions. People subjected to fast-track assessments are not given a fair opportunity to put forward their case for asylum, they're not given a fair opportunity to present new information in the review process, they're not given a fair opportunity to attend a face-to-face interview, they're not given a fair opportunity to respond to adverse information used in their assessment and they're not given a fair opportunity to request ministerial intervention for unique or compelling circumstances. The fast-track cohort cannot have negative decisions made by the government reviewed in the usual way by the Administrative Appeals Tribunal. Non-fast-track decisions are reviewed on the merits of the claim by the Migration and Refugee Division of the AAT. However, fast-track decisions are reviewed on the papers by the Immigration Assessment Authority. This is, in reality, a quality assurance process rather than a review of the merits of the claim, and it's conducted by a tribunal that was established specifically to review fast-track decisions and which does not hear directly from the applicant. This means that fast-track applicants who receive a negative decision will not have any access to any form of merits based review.
The fast-track assessment was introduced in 2014 by the Abbott government, to attempt to process a legacy case load of nearly 31,000 people. Five years later, more than a quarter of those people still have not had their applications finalised. So the idea that this is a fast process needs to be understood by all senators to be a crock. Some people have been here more than seven years and still do not have a final outcome. Many of these people are waiting and have been waiting in limbo for a period of time that is longer than the visa that they were actually applying for in the first place, and they still haven't had their applications finalised. Seven years, colleagues.
Also in 2014, the Abbott government abolished publicly funded legal assistance for most asylum seekers who'd arrived in Australia without a valid visa, which included a majority of the legacy case load. Then, in 2018, the Morrison government withdrew all income support for many of the legacy case load people. Now, without properly funded legal assistance, or access to work rights, social services or Medicare, people with limited or no English language skills and limited or no family or community support networks, many suffering post-traumatic stress disorder, are expected to fill out lengthy, legally complex applications, in English, without the right to a meaningful review if the application is rejected.
The fast-track assessment process creates different classes of people in Australia: some who have access to certain legal options and some who do not. People in the fast-track process are not given fair opportunity to put forward their case for asylum and respond to adverse information. People in the fast-track process are often blindsided by issues and evidence they knew nothing about. Without giving people an opportunity to respond to adverse information affecting their applications, this is a process that intentionally sets people up to fail. This process, the fast-track process, is a significant denial of natural justice and procedural fairness. It also significantly increases the risk that some people will be returned to persecution—in contravention, I might add, of our non-refoulement obligations under the refugee convention to which we remain a signatory, despite the bastardry that we have inflicted on so many tens of thousands of desperate people fleeing persecution, who held out a hand to our country and asked for our help.
In addition to the original fast-track cohort—that is, people who arrived by boat between 13 August 2012 and 31 December 2013—this instrument that the Greens are seeking to disallow today will cast the net even further. It will capture people who arrived by plane but were not immigration-cleared on entry—that is, they did not have a valid visa. I'll pause there to point out that the refugee convention is abundantly clear: it is entirely considered by the refugee convention that people who are fleeing persecution may not have the appropriate paperwork, such as travel documents or passports, and may not actually have valid visas for the countries to which they are fleeing. Nevertheless, the refugee convention imposes obligations on signatories, which, as I said, includes Australia.
This instrument that we're seeking to disallow will also capture people who arrived by boat before the introduction of the fast-track regime, including those who had their applications for permanent visas automatically converted to temporary visas when laws changed while their applications were still being processed. It will also catch those who were not permitted to apply for a visa at all for many years. Talk about shifting the goal posts, colleagues! We have people who had put in an application under one regime; the goal posts were shifted while their application was on foot inside the department; and, lo and behold, they're having the rules changed halfway through their engagement with the department.
If this disallowance is unsuccessful, this instrument will now also catch children born to anyone who holds or has held a temporary protection visa in any of those TPV categories. I might add here that many of these people have already been found to be genuine refugees—that is, they have a well-founded fear of persecution that they were fleeing from, and we, Australia, have agreed by our adoption of the refugee convention that they should have certain rights in this country. They are having those rights trampled by this government. These are desperate and vulnerable people.
Many of them have already been found to be genuine refugees, which means we owe them protection. But these people were already only eligible for temporary rather than permanent protection visas. That is something that also needs to change in our law, because we should not be offering temporary protection to people who successfully claim asylum in this country. We ought to be offering permanent protection to those people, with a pathway to citizenship of Australia, and we should be upholding all the things that we agreed to do when we signed the refugee convention. Temporary protection visas mean people found to have genuine claims of protection live in continual fear about being deported from Australia. Rather than being full and participating members of our community and rebuilding their lives for the long-term, they are forced to live day-to-day in this terrible, weighty fear of one day getting a knock on the door in the middle of the night, just like the family from Biloela did.
Now, at the expiry of a three- or five-year temporary visa, around 4,000 people will be required to reapply for another temporary visa, this time under the unfair fast-track assessment process. I want to make it abundantly clear that this process, as I said earlier, was designed to set people up to fail and it was designed to minimise the number of people who could successfully claim asylum in Australia. It is part of an ongoing and punitive campaign against refugees, against people seeking asylum, that is being waged by both major parties in this place; although I do acknowledge the Labor Party's previous support—and I hope their support today—for this disallowance motion.
This latest attempt by the LNP to expand fast-track assessments is simply a demonisation of people who seek asylum and of refugees in this country in order to extract electoral and political advantage. Last time the Morrison government tried this on, we were talking about 108 people. This time we are talking about the lives and the futures of around 4,000 people. That is 4,000 people whose future lies in the balance as we debate this instrument today. The discriminatory fast-track assessment process should be scrapped entirely, as should—as I said earlier—temporary protection visas. Until that day, the Senate should not allow the Morrison government to continually move the goalposts on this group of people who are living today in our community.
It is not just people living in our community who have suffered under the politicisation of migration, of refugees and of seeking asylum in Australia. There are still many hundreds of people in Papua New Guinea and Nauru who are about to clock up seven years in offshore detention. Just let that sink in, colleagues: seven years. Think about all you have been able to achieve in the last seven years. Think about all that your families and your children—if you have children—have been able to achieve in the last seven years. There is a group of about 350 or just over 400 people, because it changes every day, who are still in Papua New Guinea and Nauru, and there are many hundreds of that cohort who were in Australia for medical treatment or for other reasons as we debate this disallowance who still have no idea what their future will hold. They still have no idea whether they can get the freedom and safety they so desperately need and deserve.
This is a dark chapter in our country's story. It's a terrible blot on our national history and there will be a royal commission into offshore detention and onshore immigration detention at some stage in the future. I'm not naive enough to stand here today and predict when that will happen, because history shows that the primary architects of the issues which ultimately lead to royal commissions need to leave the parliament and leave public life before a royal commission is established. But that will happen one day. Some of the primary architects have gone; some of them still remain in this chamber and the other chamber. When they go, the Greens will be here again, calling for and demanding a royal commission so that we can come to an understanding of how low we've sunk as a country, so we can come to an understanding of how we could have let this dark period occur, and, most importantly, so we can come to an understanding that this kind of thing should never happen again in a so-called civilised society.
The instrument that the Greens are seeking to disallow represents yet more scope creep by this government. It represents a continued and expanded demonisation of refugees, migrants and people who sought asylum in this country. It represents a moving of the goalposts—in many cases, halfway through a previously established lawful assessment process that's considering a live visa application. We can do better, colleagues, than what this government is presenting us with today, and one of the ways we can do better, one of the ways that we can genuinely start to make amends for the terrible actions that we've committed on refugees and people seeking asylum in the last 20 years, is to support this disallowance motion today. I commend it to the chamber.
Centre Alliance supports this disallowance for the simple reason that this instrument will otherwise strip temporary protection visa holders and safe haven enterprise visa applicants of due process simply to ease the workload of the Department of Home Affairs and the Administrative Appeals Tribunal. If this latest fast-track instrument is allowed to stand, it will redirect appeal cases away from the AAT, which is struggling to manage its workload, and put them before the Immigration Assessment Authority, which effectively only reviews cases using information shared by the department. A fast-track appeal is pretty much a tick-and-flick review process. The IAA does a quick paper review that does not allow for additional or new information except in exceptional cases, and it has no obligation whatsoever to hear directly from the visa applicant. It would mean all temporary protection visa and safe haven enterprise visa applicants, as well as holders of these visas who seek to renew their TPVs or SHEVs, will no longer have access to the full and independent merits review process. This creates a real risk that refugees in need will be wrongly denied protection. It means they can be returned to persecution or other serious harm. This is highlighted by research from the University of Technology Sydney that shows that the Immigration Assessment Authority, unlike other review tribunals, upholds the vast majority of decisions. As I said, it's very much a tick-and-flick exercise. The UTS research found the IAA has upheld 87 per cent of decisions since 2015. After undertaking its limited reviews, the Immigration Assessment Authority came to the same finding as the department in almost nine out of 10 cases, effectively being a rubber-stamp organisation. This compares to appeals made under the former Refugee Review Tribunal process, in which about 65 per cent of decisions were upheld. In its report, Lives on hold, the Human Rights Commission paints an even starker picture. It said that, between June 2009 and June 2013, merits reviewers upheld decisions for only 20 per cent of asylum seekers who arrived by boat.
Last month I read a very good piece on The Conversation titled, 'There's no airport border "crisis", only management failure of the Home Affairs department'. This piece detailed the staffing and management problems in the department and how poor decision-making at the primary level was causing backlogs in the AAT. The article made the case that government favouritism in stacking the AAT with political allies lacking the proper expertise had led to more errors by the AAT, more appeals to the courts and delays in finalising cases. The chaos within the department and inappropriate AAT appointments are not problems that should be shifted to clients. It's a mess the government needs to clean up without impacting the people who have a right to have their cases properly heard.
The fast-track process was set up for a limited purpose, which was to help the department clear a backlog of maritime arrival cases, and legislation was required to make this process happen. In late 2014 former senator Nick Xenophon agreed to support the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, which introduced fast-tracking processing, but he did so on the basis that it would only apply to the intended cohort of asylum seekers who arrived between August 2012 and January 2014. He made that expressly clear at the time. But we've all seen how this government likes to take advantage of every inch it is given. Since then, the government has used delegated legislation such as the instrument we are now debating to steadily expand the fast-track process to more and more categories of visa holders. Many, by no means all, of the current cohort of TPV and SHEV holders belong to the original legacy case load who had their claims assessed under the fast-track process. Their claims were obviously found to have merit at the time. They will likely continue to be found to have merit. In cases where the department challenges or rejects their claim, they and any other TPV or SHEV applicant should very much be permitted a proper and independent review process.
I rise in support of Senator McKim's disallowance motion. Labor supports Operation Sovereign Borders. This means boat turnbacks where it is safe to do so, regional resettlement and offshore processing. But Labor believe that we can be strong on borders without losing our humanity. The instrument we seek to disallow today will make no contribution to strong borders. What this instrument does is push people who have already been found to be refugees, through Australia's standard refugee status determination process, and who are on temporary protection visas into the Morrison government's so-called fast-track process.
The fast-track process was first introduced by the Abbott government in 2013 in an attempt to more quickly process refugee applications, primarily of asylum seekers who arrived in Australia by boat between 13 August 2012 and 31 December 2013. Through this instrument, as the visas of TPV and SHEV holders expire, rather than having their TPV or SHEV extended through the existing processes a refugee will instead be forced through this fast-track process. Labor's consistent position has been that this so-called fast-track process is neither fast nor fair. This process prevents vulnerable refugees from accessing independent reviews and instead forces them to rely on a paper based review by the Immigration Assessment Authority, which is little more than a rubber stamp for the decisions of the Department of Home Affairs.
We know that Peter Dutton's home affairs department is racked with tired and overworked officials who don't have the resources they need to do their jobs.
Home Affairs was recently ranked last of all 97 Australian Public Service agencies for staff engagement, with one in three departmental officials wanting to quit and more than half of the department believing they don't have the tools and resources they need to do their jobs. In this kind of poisonous atmosphere, how can we expect Home Affairs officials, who are making so-called fast-track decisions, to get it right every single time? But this is what Minister Dutton and Minister Coleman are asking us to believe. Under the Dutton-Coleman fast-track review, refugees have little chance of mistakes by Home Affairs officials ever being corrected.
In fact, we know that this legislation has nothing to do with Operation Sovereign Borders. Instead, this instrument is yet another misstep by this tired and apathetic third-term government, and another instance of Peter Dutton's incompetent management of the Department of Home Affairs.
Certainly, Mr Acting Deputy President Bernardi. While the actions of former Prime Minister, Mr Kevin Rudd, and the current Prime Minister, Mr Scott Morrison, stopped the boats, the current minister, Minister Dutton, has overseen nearly 100,000 people arrive by airplane and claim asylum in Australia. Over 90 per cent of these people have been found not to be refugees. The egregious exploitation those people face when they're in Australia includes being paid as little as $4 an hour or being forced into sexual servitude. There are the record-breaking 230,000 people on bridging visas in Australia, and citizenship and spouse visa processing times are blowing out to two to three years.
Labor will not support stripping even more rights away from people who are in Australia and who have already been declared refugees. These people have already had their claims for protection approved by the government, and if the government insists their status be reviewed then those reviews should be subject to the right safeguards and oversights to ensure that vulnerable people are not returned to prosecution. As such, Labor will be supporting this motion.
By supporting this Greens led motion today, Labor is proving once again why it cannot be trusted to protect the integrity of our humanitarian and border protection programs. The effect of this disallowance is that a person who arrived in Australia as an illegal maritime arrival, an IMA, before 13 August 2012, or as an unauthorised air arrival, a UAA, who lodges an application for a subsequent subclass 785 temporary protection visa, a TPV, or a subclass 790 safe haven enterprise visa, will not have their claims for protection assessed through the fast-track assessment process. This will result in the assessment of their application blowing out from 23 days on average to 504 days. By supporting the disallowance motion, 4,000 illegal maritime arrivals will not be considered fast-track applicants, delaying the time it will take to finalise their protection claims and increasing the cost to the Australian taxpayer.