Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Foreign Affairs) Share this | Hansard source

I am pleased to rise in support of the passage of this bill, the Migration Legislation Amendment Bill (No. 1) 2014. As has been indicated by the shadow minister for immigration, Labor supports the contents of this bill and will vote accordingly.

The contribution of migrants to Australian society, culture and prosperity has been an important factor in shaping our nation. Since 1945, more than seven million people have come to Australia as new settlers. In the 2011 census, it was reported that one in four of Australia's 22 million people were born overseas. We all know that Australia's migration framework—its network—is often a complex web of evolving legislation, with legislative provisions and judicial decisions intertwined with policy decisions and intentions.

It is of vital importance that we continue to refine the legislation that underpins our system of migration. In many cases it is up to the legislature to respond to anomalies, to unfair decisions, particularly those that are identified by the courts. The purpose of this bill in many respects is for the House of Representatives and the Senate, the parliament, to act as a response to a number of inconsistencies and anomalies that have been identified through court decisions, through policy decisions over many years in respect of the migration legislation.

So the purpose of this Migration Legislation Amendment Bill (No. 1) 2014 is to amend the Migration Act to clarify the restriction and scope on applying for further visas. The bill will ensure that visa applications are considered on their merits. If a person has a visa violation dating from a previous visit to Australia and is now back in the country, then prior history will not bar that person from further application. This amendment will make it clear that the restriction on applying for a further visa applies only if a noncitizen has had a visa cancelled and, importantly, since last entering Australia. While the existing provisions contain a statement to this effect for the purpose of noncitizens who have had their visa refused since last entering Australia, those important additional words 'since last entering Australia' are missing from the equivalent provision relating to those who have had their visa cancelled. This suggests that a person who had their visa cancelled at any time would be subject to the prohibition in section 48 on applying for a further visa, which the department claims would be contrary to policy intent. So this amendment in schedule 1 in respect of the operation of section 48 of the act clarifies that position and ensures that the act operates according to its original intent.

Amendments contained in the bill will extend the operation of section 48 of the act to people that may have had a valid application lodged on their behalf. This is a result of a matter before the full Federal Court challenging the application of section 48 to a minor on whom an application was made on their behalf. It was argued in a particular case that section 48 would not operate to limit further applications by the minor if they did not know about or understand the nature of the visa application that was made on their behalf and subsequently refused. This could have unintended policy outcomes, particularly for families and minors in difficult situations.

I highlight the example that is outlined quite effectively, I think, by the Parliamentary Library in the Bills Digest of a 16-year-old girl who remains in conflict with her father due to family violence and remains living in a refuge with her mother. She is included on a non-meritorious visa application without her knowledge by her father, which is refused. Then when her mother includes her on a subsequent meritorious visa application as her dependent, she is informed that the application by the daughter is invalid due to the father's previous application. We all know that that is not the intent of this type of legislation. It is generally found to be beneficial legislation and should operate accordingly. To have situations where someone is a victim of family violence and could be refused an application for a visa due to an invalid previous application that was lodged without her knowledge is not the original intent of this legislation and, accordingly, needs to be amended. That is what this amendment will do. It puts beyond doubt that the bar will apply regardless of whether the applicant was unaware of the application being made. The fundamental point is that the system will assume that the parent acts in the best interests of the child with the visa application is made on their behalf.

The bill seeks to ensure that an application for a bridging visa does not prevent the removal of a detainee who is otherwise eligible for removal. The amendment will expressly clarify that, despite the power of removal under subsection 198(5), the department must not remove a noncitizen that has made a valid application for a protection visa that has not been refused and finally determined, even if the application was made outside of the time limit. So 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 powers outlined in the amendment, protection visa applicants will not be considered available for removal until either the visa application has been refused or the application has been finally determined. Again, that clarifies the position with respect to Australia's human rights obligations and the operations of that particular section of the act.

The bill also seeks to enable debt recovery from all persons convicted of people smuggling and illegal foreign fishing. We know just how awful and bad people smuggling has been not only to those seeking asylum to the north of Australia but also to regional relations between Australia and our nearest neighbours. It is an insidious trade, it is an immoral trade, and this amendment provides the opportunity for the government to recover from persons convicted of this insidious activity. These amendments are, of course, consistent with Labor's policy to combat people smuggling and illegal foreign fishers by providing a further financial disincentive to engage in such activities and builds upon some of the strong actions that were taken by Labor in government, particularly around in illegal fishing and people smuggling, where penalties were severely increased.

The bill amends the act to clarify that the role of an authorised recipient is to receive documents on behalf of an applicant, not to do things—not to act on their behalf. These amendments address the finding of the full bench of the Federal Court in the 2012 case of SZJDS v Minister for Immigration and Citizenship that the term 'applies for review' in the act means that an application must have been properly made under section 347 for the obligation of the tribunal to give documents to an authorised recipient or to be engaged. The amendments make it clear that no technicalities will make invalid an application to have an authorised recipient. As long as the person has expressed a desire to have an authorised recipient act on their behalf, it will not matter if the application is valid.

The bill will also amend the Australian Citizenship Act to enable greater use of material and information obtained through a search warrant, including making or assisting to make a decision to grant, cancel, revoke or refuse a visa or Australian citizenship, about the detention, removal or deportation of a non-citizen from Australia or cancel approval of citizenship. There are currently a number of cases in the department where they operate with the AFP and have uncovered highly sophisticated criminal networks that led to further migration fraud relating to current applications pending before the department. However, because there is currently no ability to share the information with the administrative side of the department, that information is not able to be used to question those applicants. Labor is satisfied that the amendments will not adversely impact upon applicants' ability to have decisions reviewed and to have procedural fairness and natural justice applied to those decisions. Those two important legal principles will continue to apply in such situations where the Crimes Act warrants are used in administrative decision making.

Finally, the amendments will bring all visa applications under the code of procedure—section 57 of the act, which currently only applies to visa applications made onshore, and Commonwealth procedural fairness applies to applications made offshore. It is appropriate that the definition of procedural fairness is consistent across all visa applications regardless of whether they are made onshore or offshore, and this particular provision will clarify that inconsistency. The amendment will also significantly reduce the risk of jurisdictional error arising from the failure to apply the common law test appropriately.

It is quite a complicated bill, a necessary one, that will improve and clarify the operation of a very important piece of legislation. It is one that governments must constantly reform and refer to in the wake of decisions being regularly made in the courts. That is what this bill does, and for those reasons Labor and I support the passage of the bill.

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