Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Hansard source

I rise to speak in support of the Migration Legislation Amendment Bill (No. 1) 2014 and in saying that indicate to the House that the Labor opposition has determined to support this bill in full. This is a very technical and complex bill which has a number of schedules to it but which makes important amendments to update and housekeep, if you like, the Migration Act. It is on that basis that we are supporting this legislation. I do intend to go through the individual elements of the bill, but suffice to say that we do support it in full.

There are six schedules to the bill, each dealing with a different aspect of the Migration Act. The first schedule of the bill Labor supports. It seeks to amend sections 48, 48A and 501E of the act. Currently under the legislation persons who have had a visa rejected are blocked from seeking to apply for another visa, in order to prevent them from playing the system in a way that allows them to stay in Australia. The first part of schedule 1 seeks to make clear that persons who may have had a visa cancelled in the past, when they were in Australia on a separate occasion, do not have that history weighing upon them when they then seek to come to Australia on a different visa or when they are in Australia and seek to have a visa renewed. Obviously, that history does not form part of the behaviour in the present which would seek to play the system and to stay in Australia. That is an important amendment which clarifies a particular provision.

The second part of schedule 1 seeks to clarify the decision of Kim v Minister for Immigration. In this decision there seemed to be an ambiguity about the effectiveness of a visa application that had been refused in circumstances where the person on whose behalf the application was made was unaware that it was being made on their behalf. The circumstance that we are talking about here is that of a family member, who may be a juvenile or may have some mental impairment, who would not be aware whether or not a visa application has been made on their behalf. In this case, a person in such a situation was able to argue that, because they were unaware of the visa application that had been made on their behalf and had ultimately failed, this ought not to be held against them in circumstances where they then seek to apply for a new visa. The problem with that is that it treats different family members differently based on their level of awareness and has, as an underpinning assumption, the possibility that parents may seek to apply for visas on behalf of their children or dependants other than in those children or dependants' interests. That is not going to be the case.

We accept that the basic assumption that parents will act in their children's interest ought to be maintained and that when decisions are made in relation to a family group about whether a visa is accepted or not the consequences of an adverse decision ought to apply consistently to the entire family. To not amend the act so as to clarify the case of Kim v Minister for Immigration and Citizenshipwould lead to that differential outcome in relation to a decision made about a family who seek a visa on behalf of each member of the family. Schedule 1, therefore, will give rise to clarity in relation to that circumstance and we support it.

Schedule 2 deals with a situation where persons who apply for a bridging visa are able to avoid a circumstance where they are lawfully able to be removed from the country. The circumstance here is that a person may have exhausted various options under the Migration Act in terms of pursuing visas and, having exhausted those options, they are in a situation where it is now lawful for them to be removed from the country. In that circumstance, if the person applies for a bridging visa they are able to avoid that consequence. The intent of schedule 2 is to remove that as an option for a person in those circumstances.

To understand that, it is important to explain the point of a bridging visa. By and large, bridging visas are put in place to bridge a person over to the point of pursuing a substantive visa. The obvious example is where somebody seeks a permanent protection visa and they are issued a bridging visa until their refugee status determination can be made. Bridging visas are used to allow people to remain in the country until the substantive visa application is determined. There are some circumstances where a bridging visa will be issued without it necessarily connecting to a substantive visa—for example, a student who may have overstayed their visa and, when challenged about that, makes the point that they are going to leave the country in a week's time. In those circumstances, the normal course would be that such a person would be issued a bridging visa until the time of their flight, because that is the sensible thing to do. In circumstances where you could be removed from the country, bridging visas, being applied for in the absence of any substantive application, are able to avoid that removal. That is not the intent of the legislation. A rolling set of applications for bridging visas which do not lead to any substantive applications are ultimately playing the system. This schedule will remove that avenue for a person in that circumstance.

It is important to note that this amendment does not impinge on an individual's right to apply for any substantive visa. Further, to address potential concerns regarding Australia's human rights obligations, a provision has been added to the amendment after subsection 198(5) that will ensure that, despite the powers outlined in the amendment, protection visa applicants will not be considered for removal until either the visa application has been refused or the application has been finally determined. For these reasons, we support schedule 2.

Schedule 3 proposes amendments to section 262 to put in place debt recovery provisions to people who have been detained for people-smuggling or illegal foreign fishing activities. Under the current provisions of the act, a person is not liable for costs arising from their detention and removal when they are no longer detained because of section 250, because they were granted a visa or because they were not in Immigration detention at the time of their conviction. The amendments empower the Australian government to recover detention debts from people smugglers and illegal foreign fishers. This does not apply to asylum seekers, and that is a very important point for this House to understand. For that reason, these amendments are consistent with Labor's policy to combat the scourge of people-smuggling and illegal foreign fishing by providing a further financial disincentive to engage in such activities.

Schedule 4 deals with the role of authorised recipients as defined under the act. This schedule seeks to amend section 379G in order to clarify the role of authorised recipients. Authorised recipients are authorised by a person in an immigration matter to receive legal documents associated with that matter. An authorised recipient may be a family member or they could be somebody who has a better fluency in English. There are a whole range of reasons why people may be appointed as authorised recipients by a person engaged in a matter.

There appeared to be some commentary in the case of MZZDJ v Minister for Immigration and Border Protectionwhich suggested that authorised recipients may have a broader role than simply the receipt of documents. This amendment will make clear that that is not the case and that authorised recipients, having been appointed as such, only have the role of being a recipient of legal documents and cannot act in any other form of agency in the context of an immigration matter. This is important because to not do this runs the risk of allowing authorised recipients to assume a broader role than was contemplated under the legislation. When you think that we have a system of regulated migration agents, it would ultimately undermine that scheme of regulation if you allowed persons who are simply appointed to receive documents to assume some greater role. It is an important amendment which makes sense.

There is a second amendment within schedule 4, which seeks to deal with the case, SZJDS v Minister for Immigration and Citizenshipwhere, by virtue of an imperfect application in relation to the substantive immigration matter, will not of itself invalidate the appointment that a person involved in that matter may have made in relation to an authorised recipient. The case to which I have just referred suggested that, if you do not get the substantive application correct, then that voids the appointment of the authorised recipient; that can then have the obvious consequence that a lot of notice might then be given around the fact that you got the application wrong in the first instance and so cannot validly be provided to you, because your authorised recipient is no longer authorised. That is obviously an absurd outcome, which the amendment seeks to deal with, and we support it.

Schedule 5 is perhaps the most substantively important schedule within this bill. This seeks to insert a new section 51A of the Australian Citizenship Act 2007 that will provide administrative access to and use of material and information obtained under a search warrant issued under the Crimes Act 1914. It will also insert a new section, 488AA, into the Migration Act, which mirrors the provision in the Australian Citizenship Act, to provide administrative access to and use of material and information obtained under a similar search warrant. There are often circumstances in which the Department of Immigration will have been the main driver of a case which is seeking to investigate a person who may have been involved in large scale breaches of the Migration Act. In doing so they use as their partner the Australian Federal Police who is the holder of the search warrant. Circumstances are arising where raids that are made by the Australian Federal Police in pursuit of such a warrant gain information which not only applies to the person who is the subject of the warrant but also provides a whole lot of information on other people who may be in breach of their visas and may be in circumstances where, had that information been known, they would not have been provided with visas and not given access to Australia. This will allow that information to be used, whereas at the moment we have the almost ridiculous situation where there are certain people within the Department of Immigration who are involved in that investigative and prosecutorial activity who are unable to release that information to other parts of the Department of Immigration, who, if they had that information, would then be able to act accordingly and cancel visas or act in some other administrative way. This will allow that information to be shared, and that is a very important measure in the context of maintaining the integrity of the Migration Act.

Finally, schedule 6 deals with the code of procedure within the Migration Act, currently in section 57, which codifies common law procedural fairness. At present section 57 only applies to applications that are made onshore, whereas for determinations made outside of Australia the common law definition of procedural fairness is applied. There is an obvious inconsistency in that: where we are applying common law procedural fairness offshore and we have a codified version that is used for onshore applications. It makes no sense, and so this tidies that up to make clear that the codified common law procedural fairness, as it is currently contained in the act, would apply to administrative decisions made either onshore or offshore so that there is consistency.

The Labor opposition believes all six schedules enhance the integrity of the Migration Act and associated pieces of legislation. They are obviously, as can be determined from the information I have just provided, highly technical but they are nevertheless very important, and we have great pleasure in supporting them so that the Migration Act can continue to evolve and keep pace with decisions and to perform the important work that it does within our system of law.

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