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

I rise to speak on the Migration Amendment (Protection and Other Measures) Bill 2014. Australia has a proud tradition of offering humanitarian protection to those who face persecution and danger in their home countries. To ensure that Australia is able to offer protection to those in need, we need to have a robust and efficient framework for governing the way in which we make decisions about who qualifies as or who is established to be a genuine refugee. It is important that we continue to look at that process, update it and make sure that it is as tight as possible, which is what this bill seeks to do. In the process, it is also important that this should be done in a way which does not distinctly disadvantage those who have genuine claims to protection. This bill seeks to address various aspects of the protection framework embodied in the Migration Act 1958. In principle, Labor supports the bulk of this bill. But Labor does have concerns regarding some of the proposals contained within this bill, which will lead us to make amendments when this is dealt with in consideration in detail.

Firstly, the proposed changes in schedule 2 to the existing complementary protection framework lowers the threshold and potentially puts people at risk of being returned to a situation where they may face serious harm or death. In our view, this is an unacceptable proposition which Labor cannot support, and on that basis we will be moving an amendment to remove schedule 2 from this bill. Secondly, in schedule 4, the provisions in item 17 are a distinct watering down of the current requirement of the Refugee Review Tribunal to give a written decision whenever an oral decision has been given. This puts the applicant in a position of needing to request a written decision and, therefore, in a position of a distinct disadvantage within that system. While we support the bulk of the bill, as long as these provisions remain within it, we will not be able to support the bill as a whole.

In saying that, I want to go through the specifics of the bill to indicate Labor's position. The bill has four schedules. The first schedule, in turn, contains four broad provisions dealing with the regime around making decisions on people's refugee status. The first issue, which is dealt with in schedule 1, goes to the applicant's responsibility in relation to protection claims. Schedule 1 inserts a new section 5AAA. This makes it clear that the onus of proving a claim for refugee status lies firmly with the asylum seeker applicant. Currently, there is no provision within the Migration Act that explicitly states the onus of proof when a claim is made, and it does not specifically provide that that onus of proof lies with the applicant, although, in effect, that is how the system has always acted in practice. It is, of course, in the best interests of the applicant to provide as much information as possible to substantiate their claim for protection. Making that an explicit requirement makes eminent sense.

The second area which seeks to be changed in schedule 1 relates to the consequences applying to those who fail to establish their identity or, indeed, use bogus documentation. Schedule 1 will amend section 91W and insert a new section 91WA. As the legislation stands, a decision maker can draw an adverse inference where no documentary evidence of an applicant's identity is available. However, it is not currently a ground for refusal. The amendments provided in this bill will impose a duty on the minister to refuse an application for a protection visa if the applicant refuses or fails to comply with a request to provide documentary evidence and does not have a reasonable explanation for refusing or failing to comply with that request. Similarly, if an applicant provides bogus documentation around evidence of their identity, nationality or citizenship, or if the minister is satisfied that the applicant has destroyed or disposed of that documentary evidence, the minister is obligated to refuse the application, unless the applicant has a reasonable explanation.

It is important to note in this particular part of the bill that the refusal power will not apply where the applicant does have a reasonable explanation—for example, where an applicant is stateless—and either provides documentary evidence of their identity or has taken reasonable steps to obtain such documents. Provisions around the establishment of identity is important. Provisions around providing genuine material is important in the system as well. We accept that this is a proposition which is worthy of support.

The third area which this schedule seeks to deal with is the question of application for protection visas by family members. Schedule 1 inserts a new section 91WB to put 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, unless they apply before the protection visa has been granted to the original protection visa applicant. As the act currently provides, a family member of a protection visa holder has an automatic ability to be considered to be owed protection simply by virtue of being a member of the same family without having to be assessed individually. But this new section will amend this so that if a person seeking protection does not apply at the same time as the primary applicant, or at least before the primary applicant's claim for a protection visa is itself granted, then they will have to lodge an application for protection in their own right or go through the process of family reunion, as would occur with any permanent visa holder. For example, if someone marries a protection visa holder years after the time they were granted protection, under the proposed changes they will not be considered to be in need of protection by virtue of the fact that their partner has a protection visa. It is important to note that these changes only apply to applicants who are already in Australia. Again, that is a proposition which we see as having merit to be supported.

The fourth aspect in which schedule 1 seeks to amend the Migration Act is in relation to the consequences which exist when information is not raised in relation to all evidence at the earliest opportunity. Schedule 1 inserts a new section 423A which encourages all information to be provided at the earliest opportunity. When an applicant seeks to raise new evidence, section 423A requires the Refugee Review Tribunal to draw an inference unfavourable to the credibility of new evidence where the applicant does not have a reasonable explanation to justify why the evidence was not presented to the primary decision maker. That, in Labor's view, is a fair proposition. Again, this is not a substantial change from current practice. As we understand it, the change will restore this to the original legislative intent and put Australia in line with other like-minded countries including the US, New Zealand and the UK.

As I have outlined, in supporting the measures contained in schedule 1, we do have one caveat and that is to examine the process, which is being undertaken by the Senate in relation to this bill, and to look at the way in which each of these provisions applies. Subject to that, our view is that schedule 1 deserves support. However, as I indicated at the outset we are concerned about schedule 2.

Schedule 2 seeks to insert a new section 6A which makes clear that the threshold for complementary protection claims would shift from people proving they have a real chance of significant harm if they are to be returned to the country from which they have fled to a test where they would be more likely than not to experience harm. That is obviously a higher threshold that needs to be achieved in order to invoke the complementary protection provisions of the legislation. In our view that could potentially result in people being returned to a situation in their home country where they do face persecution. On that basis, Labor will not support a weakening of this threshold where death or serious harm could result in the event of someone being returned to their home country.

We should remember that the complementary protection legislation regime deals with people who would not otherwise qualify as refugees, pursuant to the definition which is in our legislation by virtue of the refugee convention, but may qualify for protection based on other international instruments to which Australia is a party, such as the convention against torture. The sorts of instances which have been cited as invoking complementary protection that would not otherwise invoke the protection that is provided under the refugee convention are circumstances where people may face honour killings or where women may be returned to a situation where they could become subject to female genital mutilation.

When we are talking about consequences as significant as that, we believe that increasing the threshold before being able to invoke the provisions of that legislation is a concern. The changes proposed in this schedule are of such concern to Labor that we will not be supporting this bill while the changes to the complementary protection regime in schedule 2 remain a part of this legislative package. We will seek to amend this bill when it is considered in detail.

Schedule 3 deals with an amendment relating to the statutory bars that preclude the making of visa applications. The changes in this schedule are intended to streamline the operation of statutory bars and support the management of visa applications and, in the process, support the way in which our detention facilities are managed and, indeed, people are managed into community detention.

Changes to section 46 ensure that an unauthorised maritime arrival in Australia who is an unlawful non-citizen, a bridging-visa holder or holder of a temporary visa will be prevented from making a valid application for a visa unless the minister determines it is in the public interest to do so.

The explanatory memorandum to this bill states:

Most unauthorised maritime arrivals and some transitory persons who arrived in Australia before 19 July 2013 have been granted a temporary safe haven visa and a Bridging …visa … under section 195A of the Migration Act.

Under the current framework, anyone with these visas would be subject to three provisions that prevent them from making a valid application for a visa. These are: section 46A that applies to unauthorised maritime arrivals, generally; section 46B for transitory persons; and section 91K that applies to those with a temporary safe-haven visa. This change will ensure that unauthorised arrivals will only be caught by the section 46A bar and not both the section 46A and section 91K bar.

This has not been a problem in the past; however, temporary safe-haven visas have been used by the department, most recently, instead of issuing permanent-protection visas. This will streamline the operation of statutory bars applicable to unauthorised maritime arrivals and transitory persons. Importantly, these changes do not expand or change the minister's existing powers, under section 46A or 46B of the act, to make it a determination to lift the application bar in relation to an unauthorised maritime arrival or a transitory person. The changes only affect applications made by unauthorised maritime arrivals and transitory persons after the amendments commence. They do not affect the validity of applications already lodged with the department.

The effect of these provisions will be to streamline the way in which this process operates, in respect of those people who are here awaiting their refugee-status determinations to occur. It will more efficiently enable the system to deal with those who are in refugee-detention centres and in community detention. For that reason, Labor believes there is merit in the amendments contained in this schedule.

Schedule 4 relates to the Migration Review Tribunal and the Refugee Review Tribunal processes and administration. The changes will enable the principal member of the tribunal to issue practice directions to applicants and their representatives and issue guidance directions to other members of the tribunals. It is important to note this is consistent with practices in other Commonwealth merits review tribunals—for example, the Administrative Appeals Tribunal. It will also enable the tribunals to dismiss an application when an applicant fails to appear after being invited to do so, although it is important to note that the tribunals will have a power to reinstate the case if requested by the applicant within a specified period and, indeed, it is appropriate to do so.

In schedule 4, however, Labor does have a specific concern with item 17, which relates to circumstances where the tribunal's decisions are given orally. Right now, there is a requirement when a decision is given orally to subsequently provide a written decision to an applicant. Item 17 will have the effect of amending the legislation to make that requirement only applicable when there has been a request by the applicant for a written copy of the decision.

Labor will not support this change, because we believe this effectively is a watering down of the current requirements of the tribunal and may even potentially deny procedural fairness to applicants during the tribunal process. This is particularly the case where we have people who do not necessarily understand English and where advice may be difficult to obtain. On that basis, we believe it is absolutely essential that there is, as a right, an ability for every applicant to have at least the decision around their refugee-status determination provided to them in writing so that they have the best opportunity to take whatever steps they may want to within our system.

In conclusion, while Labor does support the general intention of this bill, in seeking to streamline and improve the processing efficiencies within the Migration Act—and we do believe that much of the bill will achieve that end and is worthy of support—we will not be supporting the bill in its current form so long as it includes both schedule 2 and item 17 of schedule 4. On that basis, we will be opposing the bill at the second reading speech but will be seeking to amend the bill, to remove those provisions, when it is considered in detail.

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