Andrew Wilkie (Clark, Independent) Share this | Hansard source

I move the amendment circulated in my name:

(1) Schedule 2, item 170, page 68 (lines 11 to 24), omit section 367A.

This amendment simply removes section 367A from the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Bill 2023, and the reason for this amendment is also simple: section 367A goes against the very principles of natural justice. Indeed, as drafted, section 367A would replace section 423A of the Migration Act, thereby maintaining a process which has always been unfair to refugees and asylum seekers. In essence, the provision would require the newly formed Administrative Review Tribunal to draw an unfavourable inference as to the credibility of the claim or evidence provided by an applicant if such information was not raised in the primary decision in circumstances where the tribunal is satisfied the applicant does not have a reasonable explanation for the delay. The provision only applies to applicants seeking a review of protection decisions, meaning it will create a disproportionate and unfair disadvantage to refugees and asylum seekers.

There are many reasons protection applicants might not include certain information within their original claims—for example, asylum seekers and refugees often face language barriers when completing applications, which is especially problematic when considering that applications must be completed in English. Moreover, with inadequate government funding for translation and interpreting services as well as limited availability for funding for legal services in this area of law it's unsurprising that some asylum seekers don't provide all relevant information in their original application. Hence, it might only be after an original application is refused that they seek legal advice and find that they should have included additional evidence. Yet, if the section is included in the bill, the tribunal may not be able to consider this additional information.

Furthermore, it is well established that people seeking asylum typically experience trauma both before and during their arrival in the country they are seeking protection from, and as the Refugee Advice and Casework Service explains in its submission to the Standing Committee on Social Policy and Legal Affairs inquiry into this bill:

Studies have revealed that trauma, particularly of the kind experienced by people seeking asylum, often leads to memory loss or gaps, loss of concentration, impairment in cognitive function and the deterioration of mental health.

The RACS goes on to note:

For some people seeking asylum, the need to cope with past traumas may lead to avoidance, suppressing memories, or dissociation when prompted to recount their experience of these traumatic events. This can explain why there may be a lack of detail, incoherence or gaps in an applicant's retelling of an event …

Additionally, some asylum seekers may not include vital information in their initial application because of stigma, shame or a fear of authorities. For example, people seeking asylum because of their diverse sexual orientation, gender identity, gender expression or sex characteristics may be hesitant to include such important information in their initial application for fear of retribution. Indeed, some asylum seekers come from countries where they can be imprisoned or even executed simply for being gay, so this hesitance is not surprising.

As you can see, there are a myriad of reasons why applicants may not have included vital information in their initial application, and, despite the fact that they may have a strong case for review, the way that section 367A is drafted has the potential to deny them access to protection and ultimately justice. Indeed, under subsection (2), unless the tribunal is satisfied there is a 'reasonable explanation' for the applicant's delay in providing the information or evidence, the tribunal is required to draw an unfavourable inference to the credibility of the claim. Here we come to the next problem, because reasonable explanation is not defined in the legislation. So, if an applicant were to rely on any of the examples I have spoken about, there is no guarantee that these valid explanations would be accepted by the tribunal. This is simply unconscionable and reflective of the way successive governments have continued to treat refugees and people seeking asylum appallingly in this country.

The removal of section 367A is supported by many leading organisations, including the United Nations High Commissioner for Refugees, the Law Council of Australia, the Asylum Seeker Resource Centre and the Refugee Advice and Casework Service. Experts in this area have made strong recommendations for the government to remove this provision from the legislation, and I echo these calls because every person, including those significantly vulnerable, such as refugees and asylum seekers, should have a right to justice in this country.

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