Melissa Parke (Fremantle, Australian Labor Party, Shadow Assistant Minister for Health) Share this | Hansard source

Just when you thought there was nothing further this government could do to make our migration and visa system more obscure, difficult and unfair, it has done it again. While the most egregious provisions are already law via amendments to the Migration Act through the Migration Amendment (Character and General Visa Cancellation) Act 2014, this bill exacerbates the damage to our system of rule of law and justice. I therefore speak against the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 and urge colleagues to reject it as yet another exercise in cynical, nasty, dog whistling against those who are 'other'.

The Law Council of Australia has branded this bill a departure:

… from accepted rule of law and procedural fairness standards, and as a result, may adversely affect protection claims made by asylum seekers, in some circumstances risking refoulement.

The concerns which led the Law Council to recommend against passage of the bill in its current form include: retrospective amendments to the Migration Act, the minister assuming the role of the courts in assessing criminal conduct, the extension of certain visa cancellation provisions to new groups and the disclosure of information in relation to the cancellation and character provisions.

With regard to retrospectivity in the bill, the Law Council explains that this may mean:

… visa holders may have their visa cancelled for previous actions or omissions that did not give rise to a cancellation at the time. This gives rise to risk of refoulement of people with a genuine need for protection.

One example the Law Council gives is:

… where a person serving a sentence of imprisonment may have failed to make representations to the Minister or Minister's delegate about the refusal or cancellation of their visa as stipulated in section 501CA, not realising that the failure to do so would lead to their removal pursuant to the proposed amendments to section 198(2A).

The Asylum Seeker Resource Centre has expressed its concern:

… about the use of a broad, discretionary power where the Minister may overturn a decision of a review tribunal. The Minister's power is exempt from the rules of natural justice … and will be exercised to 'trump' the considered decision on the merits of a review tribunal. The ASRC believes that a lawful decision of a Tribunal should be subject only to judicial review, which is an option available to the Minister, rather than a use of a discretionary power. The amendments proposed in this Bill would extend the Minister's cancellation powers even further, and are unnecessary in light of the broad powers which already exist in the Migration Act, which provide for the Minister to cancel a person's visa in the national interest …

The proposed amendments in this Bill would mean that those subject to the Minister's cancellation power could be detained if there is a mere 'reasonable suspicion' that their visa will be subject to cancellation under the Minster's power. Like the amendments ushered in by the Character Act, this section effectively makes a determination that a person has been involved in criminal conduct despite the absence of a criminal conviction. Section 501CA(3) of the Migration Act effectively allows the Minister to assume the role of the court in assessing criminal conduct, replacing a proper criminal court process with an administrative process.

The present bill extends the application of subsection 193(1)(a)(v) of the Migration Act to persons serving a sentence of imprisonment who are not thereby required to be informed that they have only two working days to apply for a visa after they have had their visa cancelled personally by the minister under section 501BA.

The Law Council observes that this could result in the deportation of a person who is serving a sentence of imprisonment and whose visa was cancelled before they had the opportunity to seek judicial review of the cancellation. The Law Council notes the justification set out in the explanatory memorandum for this denial of procedural fairness is that a person will generally have had their visa cancelled by a delegate and would have been informed at that point. The council:

… considers that this does not appear to be a sufficient justification for denying a person in this situation a fundamental aspect of their right to procedural fairness ...

(a) it is not onerous for the Department to provide a detainee with notice of timeframes within which they can apply for a further visa and information pertaining to the duration of their detention, and this would guarantee procedural fairness; and

(b) some detainees may have difficulty in understanding their legal options and rights for various reasons, such as restricted access to information and/or legal advice and representation while in detention, lack of familiarity with the legal system, or unfamiliarity with the English language. This is further compounded by the strict limits on timeframes for applications in detention and lack of access to legal advice.

Similarly, the Parliamentary Joint Committee on Human Rights has concluded that it is unclear how this amendment is necessary or reasonable. It said:

The committee notes that no specific explanation is provided for why the Bill includes amendments that a noncitizen who has had a visa cancelled by the minister personally under section 501BA does not need to be informed that they may only apply for a visa within 2 working days. Moreover, given the time critical nature of a person's response to cancellation, no justification is provided as to how it is sufficient that such information will have been provided previously in a different context, particularly given the very serious consequences for the individual concerned and given their pre-existing vulnerability as a person in detention.

The Asylum Seeker Resource Centre has noted:

Given the potentially life-threatening consequences of removal if no other application is lodged, asylum seekers should not be intentionally deprived of information relating to the further options open to them and should have a full opportunity to exercise the rights available to them. It is not onerous for the Department to inform people of their rights: the stated justification in the Explanatory Memorandum is disproportionate to the potential consequences. People in detention must be advised about their rights to apply for any visas, otherwise they may be detained or their detention continued because they were not informed of their options.

With regard to the issue of extension of visa cancellation provisions to new groups, I note that the previous amendments to the Migration Act through the Character Act already dangerously extended visa cancellation powers by, among other things, lowering the threshold from 'significant risk' to 'risk' of a person engaging in criminal conduct or harassment or where a person represents a danger to the Australian community or risks being involved in activities disruptive to the Australian community.

The Law Council notes that these amendments have led to a significant number of people being placed in detention even before charges have been determined by the courts, and, in some instances, the person has been later found not to have been guilty of the offence. In some cases, the person has been found not to have been guilty of the offence and has nevertheless been kept in detention.

Significant concerns about the Character Act were also raised by the Refugee Council of Australia and the Australian Human Rights Commission, among others. These concerns have included the considerable risk of prolonged indefinite detention, especially in relation to refugees who cannot be removed to their country of origin due to the risks that they may face persecution or other forms of serious harm in their country of origin and stateless people, who have no country which is obliged to accept them. They also include: the mandatory nature of the visa cancellation powers, which significantly decreases the capacity of the system to consider the individual circumstances of a case before a person is detained; the very low thresholds for visa cancellation which trigger visa cancellations even in the absence of a real risk to the community; and the continued trend towards increasing the personal discretionary powers of the minister, including to reverse carefully made decisions by merits review tribunals.

As the Refugee Council observes:

These concerns have increased since the introduction of the Character Act. There has been a very significant increase in the number of people being detained as a result of visa cancellations. This has included people on permanent refugee visas as well as on bridging visas, and stateless people, all of whom are now at risk of indefinite detention. As at 31 January 2016, there are 549 people being detained as a result of visa cancellations.

The Refugee Council of Australia has surveyed its members to gather initial information on this rapid increase in visa cancellations. The council commented:

Significant concerns so far raised include:

We have already seen these visa cancellation provisions result in a death in Yongah Hill, with a refugee whose visa had been cancelled burning himself to death. There are also concerns that the mixing of detainees with visa cancellations contributed to the death of another young asylum seeker in August 2015.

The bill also expands the definition of character concerns so that a wider range of noncitizens may be required to disclose personal identifiers, including noncitizens who have been found not fit to plead in relation to an offence and noncitizens who are reasonably suspected of association with criminal groups or persons involved in criminal conduct. The Law Council notes that the amendments in this bill build on the problematic section 501 of the Migration Act, which essentially allows the minister or a delegate to make a determination that a person has been involved in criminal conduct despite the absence of a criminal conviction. There are no criteria in the act to determine criminal conduct and no definition of what is meant by association.

The Law Council observes that the act and these amendments are likely to legitimise 'a process of guilt by association'. It therefore considers that conferring a broad executive discretion for the minister to determine that a particular group or organisation is involved in criminal conduct is unacceptable, particularly in circumstances where the consequences are to limit freedom of association and to expose noncitizens to the possibility of being deemed of character concern.

This bill further provides that character concern may be based on a risk assessment by ASIO. Given that only citizens can access AAT merits review of an adverse security assessment by ASIO, this is of serious concern. I have spoken in this place before about the cruelty and unfairness inherent in a system that can allow an unaccountable security agency to make a security assessment of a person based on facts or allegation that the person is not allowed to know.

For those persons who have been assessed to be refugees and therefore cannot be returned to their home country, the result of a negative security assessment is indefinite detention. In March 2012 the Joint Select Committee on Australia's Immigration Detention Network, chaired by Daryl Melham MP, recommended that alternatives to indefinite detention, such as control orders, be developed for refugees in this situation who cannot be repatriated, but so far this has not occurred. The committee also recommended that refugees and asylum seekers have access to merits review in the AAT.

The former Labor government introduced a limited system of review by a retired judge of negative security assessments, but the outcome for a refugee whose negative security assessment is upheld remains indefinite detention. In my view, noncitizens should have access to the AAT as citizens do. It is simply not sustainable for a country that professes to believe in human rights and rule of law to keep refugees who have been convicted of no offence in the dark indefinitely about why they are assessed to be a security risk and to keep them in detention indefinitely. I venture to say it is Kafkaesque.

Finally, it is useful to look at the Parliamentary Joint Committee on Human Rights' conclusions regarding the following rights and obligations that are engaged by the amendments in this bill. First, non-refoulement obligations: the Minister for Immigration and Border Protection's non-compellable powers are insufficient protection against non-refoulement, and international law is very clear that administrative arrangements are insufficient to protect against unlawful refoulement. Second, the right to liberty: the bill reduces important procedural safeguards. Third, the right to freedom of movement: this freedom applies to both citizens and permanent residents who have lived in Australia for a long time and regard Australia as their own country. Fourth, the obligation to consider the best interests of the child: certain provisions, such as those relating to the discretionary visa revocation process and mandatory visa cancellation, do not appear to provide for consideration of the best interests of the child. Fifth, the right to equality and nondiscrimination: the mandatory visa cancellation of individuals sentenced to 12 months or more in prison is likely to disproportionately affect individuals with mental health concerns, which establishes prima facie that there may be indirect discrimination.

In its submission, the New South Wales Council of Civil Liberties made some recommendations in relation to the act and this bill's amendments, which I fully support:

In summary, this bill is yet another example of the lack of transparency and accountability that are hallmarks of the immigration department and this government as a whole. I urge colleagues to reject it and to call for a review of the entire legislative framework governing the character provisions of the Migration Act.

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