Zoe Daniel (Goldstein, Independent) Share this | Hansard source

I move amendment (3) as circulated in my name:

(3) Schedule 2, item 160, page 67 (lines 1 to 6), omit the item.

This amendment is not dissimilar in theme or tone to the previous amendment from the member for Clark or the amendment moved by the member for North Sydney. However, this amendment goes to information that is required or not required to be given to an applicant for comment.

I did move the amendment. Thank you for the advice, Attorney-General. I did move the amendment as circulated in my name.

This amendment goes to the issue that, under this legislation, the ART is not required to notify the applicant of information that it intends to rely on to affirm the decision under review if this information is included in the original decision. Arguably, this is a significant departure from procedural fairness requirements where the tribunal is required to notify applicants of adverse information in the decision under review which it intends to rely on. As written, the legislation will permit the ART to refuse an application based on material mentioned in the applicant's department decision, even where this material wasn't relied on by the department in making its decision, without providing any notice to the applicant that it intends to rely on this material in a different manner to the department.

There are several issues with this. One is the potentially unjust outcome for applicants who will be denied an opportunity to comment on that adverse information before a tribunal decision is made. Also, it forces applicants into a position where they will have to address every single issue in their department decision without knowing which bit of that decision is or is not being relied on to make an adverse decision. This will mean more lengthy submissions, voluminous materials to the tribunal, and potentially higher legal fees for the preparation of these materials. So there's potentially an inefficiency factor for the tribunal.

By way of case study—and I am in part, like the previous speakers, relying on advice from the ASRC, which has done amazing work in providing examples and case studies of people who have been affected by these sorts of rules—this case study goes to Jibrail, a Hazara man from Afghanistan, who sought asylum in Australia and applied for a protection visa but was refused one by the Department of Home Affairs. Jibrail sought a review of his department decision. As the department accepted he couldn't return to his hometown or Mazar-i-Sharif, Jibrail focused his submissions to the tribunal on why he could not return to Kabul. The tribunal then notified Jibrail that it considered he could safely return to Mazar-i-Sharif, and Jibrail had an opportunity to address this matter before the tribunal. If the subsection as written in this new iteration of the legislation had been in place, arguably Jibrail would have been denied the opportunity to respond to the adverse information the tribunal intended to rely on regarding relocation to Mazar-i-Sharif as the matter was considered in the department decision, even though the department reached a different finding.

The issue I'm trying to get to here is that these are life-and-death decisions for people. I know that the Attorney-General understands that, and that that's the whole point of what we're trying to do here, but the crux of the matter is that these are some of the most vulnerable people in our community who are facing immense pressure, immense anxiety, financial issues, language issues and a whole range of barriers as they work through these processes. These issues of procedural fairness are really critical, and we need to get this right.

I will finish by saying that, in conversations with the Attorney-General, he has made the point about not wanting to overlegislate in order to give the tribunal the flexibility to do its job. I hear that completely. But we also don't want to underlegislate when what we're trying to do is protect due process for some of the most vulnerable people who interact with the system.

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