Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

In response to the amendment from the member for Clark, I can say directly that the government does not support this amendment, which would remove the new clause 367A from the Migration Act.

The new section 367A replicates the effect of the existing section 423A of the Migration Act. It requires the tribunal to draw an adverse credibility inference if a protection visa review applicant raises a new claim in the tribunal without a reasonable explanation as to why the claim was not raised before the primary decision-maker. I will repeat that. It's important that it be understood that it doesn't prevent a protection visa review applicant from raising a new claim. What it does is require the tribunal to draw an adverse credibility inference if that new claim is raised without a reasonable explanation as to why it wasn't raised before the primary decision-maker.

The context for this is that it's relatively unusual for a new claim to be raised in this kind of proceeding. Bear in mind that, importantly, applicants are able to put forward an explanation as to why the claim hadn't been raised earlier or why the evidence wasn't presented earlier. The tribunal may choose to accept that explanation and not make the adverse inference.

The purpose of provisions like this is to contribute to the integrity of the onshore protection status determination process. Protection visa applicants are required, at the time that they apply for a visa, to make specific claims about why Australia's protection obligations are satisfied in their case. This section sets a clear expectation that protection applicants raise all claims and present all available evidence at the earliest possible stage. That's to ensure that the decision made by the primary decision-maker is as accurate as possible.

Of course there are going to be circumstances in which a late raised claim is explicable or late raised evidence is explicable. It'll be explanations such as, 'I couldn't find a witness,' 'I couldn't find a document' or 'I wasn't able to get the document.' That allowance is made in this provision.

Retaining section 367A reduces opportunities for exploitation of the migration system and supports expedient resolution of reviews and decisions. It does so in a way that preserves rights and recognises the degree of difficulty that, very often, applicants are faced with in getting their material together.

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