Scott Morrison (Cook, Liberal Party, Minister for Immigration and Border Protection) Share this | Hansard source

I move:

That this bill be now read a second time.

The Migration Amendment (Protection and Other Measures) Bill 2014 amends the Migration Act to make changes to the way asylum seekers are assessed, irrespective of their mode of arrival. These are necessary changes required to effectively respond to the evolving challenges in the asylum seeker caseload arising from recent judicial decisions and management of the backlog of illegal maritime arrivals. These changes will enable the Australian public to have confidence in the Australian government's capacity to assess all asylum seekers in Australia using enhanced integrity measures and increased processing efficiency consistent with our election commitments.

These changes to the current protection determination system will improve the integrity of decision making. Australians need to be confident that those who are found to be refugees are in fact who they say they are. If asylum seekers do not cooperate with the government to establish their identity they should not be given the benefit of a protection visa. These amendments will make it clearly the responsibility of a person who comes to this country seeking protection to establish their own claims to be a refugee and to do so at the beginning of the process. It is also time to stop compromising the overall integrity of the visa system by allowing exploitation of the merits review system by applicants who are not genuinely pursuing a protection claim but only interested in extending their time in Australia.

Schedule 1 of the bill improves integrity within the protection status determination process, starting with an amendment which sends a clear message that the ultimate responsibility lies with the asylum seeker to establish their claims for protection and to provide sufficient evidence to support those claims. The bill makes it clear that it is not the responsibility of the department or the Refugee Review Tribunal (the RRT) to make a case for protection on behalf of an asylum seeker. This change will put Australia on a par with like-minded countries including the United States, New Zealand and the United Kingdom. This responsibility will apply to any asylum seeker making claims for protection regardless of whether it is for the purposes of an application for a protection visa or for the purposes of an assessment undertaken as part of an administrative process such as a request for me to consider the exercise of my public interest powers. This responsibility will apply to any asylum seeker making claims for protection regardless of whether it is for the purposes of an application for a protection visa or for the purposes of an assessment undertaken as part of an administrative process such as a request for me to consider the exercise of my public interest powers.

Notwithstanding this amendment, the government acknowledges that there will always be 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 in order to assist these specific individuals.

In tandem with this, the government is introducing a provision to allow the RRT to draw an adverse inference about the credibility of a protection claim, where an asylum seeker raises a claim or provides evidence at the RRT for the first time, without having a reasonable explanation about why the claims or evidence were not raised before the primary protection visa decision was made. This provision makes it clear that asylum seekers must have a reasonable explanation for presenting claims and evidence during the review process which they could and should have provided earlier. The goal is for all claims to be presented at the earliest opportunity to enable timely, efficient and quality protection outcomes, and to limit any unnecessary delays in finalising assessments. This change will not prevent asylum seekers raising late claims where there were good reasons why they could not do so earlier. What this amendment seeks to prevent are those non-genuine asylum seekers who attempt to exploit the independent merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to be refugees by the department. In the past, this behaviour has led to considerable delay while new claims are explored. To make it clear, the purpose of this amendment is to ensure that any claim that can be presented at the initial application stage is presented at that stage.

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. This bill introduces amendments that enhance the process of establishing identity for protection visa applicants, and addresses the ways in which that process has been frustrated in the past. Changes to section 91W of the Migration Act, and the introduction of a new section 91WA, introduce a power to refuse the grant of a protection visa unless the applicant provides documentary evidence of their identity, nationality or citizenship when requested to do so, or has taken reasonable steps to do so. Presenting bogus documents for the purpose of establishing identity will result in refusal of a protection visa application unless the applicant has a reasonable explanation for presenting them and either provides documentary evidence of their identity, nationality or citizenship, or has taken reasonable steps to do so. The same applies to an applicant who has destroyed or discarded identity documents, which has been a common practice of those who have entered Australia illegally, 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 this. These measures make it clear that Australians expect protection visa applications to be made in good faith, and with full disclosure of identity. However, 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 steps to do so. These changes understand and respect that position. Cooperation in these matters is the key in these cases.

This bill will also repeal the 90-day rule, which has been in effect since 12 December 2005. The amendment will remove both the 90-day time limit for deciding a protection visa application before the department and the RRT, as well as associated requirements for reports to be tabled in parliament giving explanations for those decisions which were not made within the prescribed period.

The bill also inserts section 91WB into the Migration Act. This section puts beyond doubt that an applicant for a protection visa, who is a member of the same family unit of an existing protection visa holder, cannot be granted a protection visa simply on the basis of being a member of the same family. It clarifies, for example, that a person who marries a protection visa holder years after the time they were granted their visa, will not, and should not, be granted that same visa. Family migration is the appropriate pathway in that case. The change also discourages family members of protection visa holders from arriving in Australia, particularly illegally, expecting to be granted a protection visa on the basis of being a family member. This amendment does not change the definition of a 'member of the same family unit'. Nor does it affect the existing ability of a member of the same family unit to apply together with, or have their application combined with, the eventual holder of a protection visa when they are present in Australia at the same time. This amendment simply encourages members of the same family unit of a protection visa holder to use established pathways for family reunion.

This government remains committed to ensuring it abides by the non-refoulement obligations under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights(the ICCPR) and schedule 2 of the bill contains amendments to clarify the threshold for assessing Australia's non-refoulement obligations under these treaties. In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33the full Federal Court found that the threshold for assessing complementary protection claims is whether there is a 'real chance' of significant harm, the same low threshold that applies to the assessment of claims under the Refugee Convention. A 'real chance' can be as low as a 10 per cent chance of harm occurring. It is the government's position that the risk threshold applicable to the non-refoulement obligations under the Convention Against Torture and the ICCPR is 'more likely than not'. 'More likely than not' means that there would be a greater than fifty percent chance that a person would suffer significant harm in the country they are returned to.

Accordingly, this bill inserts a new section 6A into the Migration Act which makes it clear that this higher threshold is required to engage Australia's non-refoulementobligations. This is an acceptable position which is open to Australia under international law and reflects the government's interpretation of Australia's obligations. This new threshold applies to all assessments of complementary claims related to the Convention Against Torture and the ICCPR. The threshold will also be reflected in the complementary protection provisions under section 36(2)(aa) of the Migration Act until such time as the Migration Amendment (Regaining Control Over Australia's Protection Obligations) Bill 2013 is passed by the parliament. The bill also ensures that all complementary protection assessments are made with regard to a country of return that is relevant to the person seeking protection.

Schedule 3 of the bill will introduce amendments to streamline the operation of the current statutory bars placed on illegal maritime arrivals. It is inefficient and administratively complex for a person to be subject at different times to different provisions that prevent them from making a valid application for a visa when one would suffice. These amendments will significantly reduce complexity without impacting on the practical effect of the existing arrangements. Statutory bars are an essential mechanism which supports the orderly management of applications from illegal arrivals.

The amendments will broaden the statutory bar in section 46A of the Migration Act so it will apply to unauthorised maritime arrivals who hold bridging visas or other prescribed temporary visas in addition to unauthorised maritime arrivals, as they are known within the act, who are unlawful. The amendments will also ensure that where section 46A of the act applies to an unauthorised maritime arrival, section 91K of the act will no longer apply.

Finally, the amendments in this schedule make the statutory bar in section 46B of the Migration Act, which applies to transitory persons, consistent with the amended bar in section 46A, to ensure that transitory persons are treated consistently with unauthorised maritime arrivals.

Schedule 4 of the bill contains amendments to improve processing and administration of both the RRT and the Migration Review Tribunal. The principal member will be able to issue practice directions to applicants at review and their representatives, including migration agents and legal practitioners, regarding the procedures and processing practices to be followed for reviews. The principal member will also be able to issue guidance decisions to tribunal members to reduce inconsistencies across decisions. The tribunal must comply with the guidance decisions unless a tribunal member is satisfied that the facts or circumstances of the decision under review are clearly distinguishable from the facts or circumstances in the guidance decision. The tribunals will also have a discretionary power to make an oral statement of reasons where there is an oral decision without the need for a written statement of reasons. This change has the potential to significantly reduce the administrative burden on the tribunals. However, a review applicant may, within a specified period, request a written statement of reasons to be provided to them.

The tribunals will also be able to dismiss an application where an applicant fails to appear before the tribunal after being invited to do so. This will stop applicants from using the merits review process to delay their departure from Australia. However, the government recognises that a review applicant may have a genuine reason for not attending a hearing and the tribunals will have the power to reinstate an application that has been dismissed for non-attendance where the tribunal considers it appropriate to do so, in the circumstances where the applicant has applied to the tribunal for reinstatement of the application within seven days after receiving notice of the decision to dismiss the application.

I note that in relation to the 90-day rule, which I referred to earlier, it was the intention of the government to bring that forward in this bill. I note, though, that that proposal has been postponed and that matter will not be addressed in this bill. But the government will be returning to consider that matter after reviewing the High Court decision of last week, and leaves the option open to pursue that change in a subsequent piece of legislation that we would seek to bring before this House.

This bill deserves the support of all parties. We need the tools to ensure public confidence in Australia's capacity to assess claims for asylum in the interests of this country, and against the interests of those who show bad faith. These changes uphold the importance of integrity, the establishment of identity, and increased efficiency in our protection processing system. This bill acts on the commitments that this government, when in opposition, made to ensure that those who destroy documents and those who do not engage in good faith of their identity will not be able to gain entry to our system.

I commend the bill to the House.

Debate adjourned.

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