Laurie Ferguson (Reid, Australian Labor Party, Parliamentary Secretary for Multicultural Affairs and Settlement Services) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The Migration Legislation Amendment Bill (No. 1) 2008 is an omnibus bill that will make amendments across the Migration Act 1958, the Australian Citizenship Act 2007, Australian Citizenship (Transitionals and Consequentials) Act 2007 and the Customs Act 1901.

This will clarify and improve the effectiveness of the Migration and Citizenship legislation by addressing and rectifying a range of problems that have been identified in the legislation over the years. It will also ensure that the citizenship legislation is consistent with Australia’s obligations under the United Nations Convention on the Reduction of Statelessness 1961 and the United Nations convention relating to stateless people 1954.

The amendments in this bill are important and necessary and, in the case of the Migration Act, are long overdue.

The amendments to the Citizenship Act, which has now been in operation for over 12 months, rectify a number of issues that have been identified over that period. Rather than allow these issues to accumulate this government will deal with them now.

Since the introduction of the bill, some urgency has now arisen in relation to the amendments in schedule 4 that I will address as I am going through the bill.

As the bill will make over 100 amendments, spanning four acts, I will confine this speech to the more notable amendments in each schedule.

Schedule 1 of the bill will, amongst other things, amend the Migration Act to streamline the procedures for notifying parties of a decision of the Migration Review Tribunal, MRT, and the Refugee Review Tribunal, RRT, by removing the requirement for the tribunals to ‘hand down’ their decisions.

The handing down and current notification procedures have doubtful practical value and have been the source of considerable litigation over the years, often with far-reaching effects including, on occasion, the potentially unlawful detention of non-citizens. The amendments in schedule 1 will make the notification and merits review process simpler and reduce the risk of administrative error by removing the handing down requirement and providing that the tribunals’ review decisions, other than oral decisions, are taken to be made on the date of the tribunals’ written statement of the decision.

The amendments also provide that where two or more persons apply for review of a decision together, documents given by the tribunals to any of the applicants are deemed to have been given to all of them. This will avoid uncertainty regarding notification of review applicants who have made or sought to make a combined application, and is also consistent with subsection 52(3C) of the Migration Act, which applies to notification of visa decisions made by the minister or his delegate in the case of combined applicants.

Schedule 1 also includes amendments that will create a new position of deputy principal member for the MRT. Currently the RRT includes the position of deputy principal member but the MRT does not. As the tribunals operate administratively as a single agency, and the principal member and other members are cross-appointed to both the RRT and the MRT, it is anomalous for the position of deputy principal member to exist in one tribunal but not the other.

Schedule 2 of the bill contains measures to strengthen the provisions in the Migration Act and the Customs Act relating to border protection to ensure that the Commonwealth can take appropriate and unified action across departments when Australia’s border protection laws are contravened.

An important new measure in schedule 2 of the bill relates to the requirement for operators of aircraft and ships to report on passengers and crew prior to entering Australia. The amendments make it clear that an operator must report on each passenger and crew member individually. This is to ensure that operators take greater care in ensuring that every person on board the aircraft or ship is properly accounted for. The amendments also align reporting time frames in the migration legislation with those prescribed in the Customs legislation.

To ensure the government has in place practical methods for enforcing compliance with these reporting requirements, schedule 2 also establishes an infringement notice regime. This new regime is an alternative sanction to prosecution for failure to meet advance passenger and crew reporting requirements. This regime is expected to be less costly to administer and easier to implement, with the flow-on effect of increased compliance with reporting obligations.

Schedule 3 of the bill will make a number of minor amendments to the act to clarify and improve certain provisions relating to visas, including amendments to give greater certainty to the immigration status of non-citizen children born in Australia; amendments to ensure that a security may be imposed for compliance with visa conditions before grant; and a range of other amendments to clarify the operation of certain provisions relating to bridging visas.

Schedule 3 also includes amendments to clarify certain offence provisions in divisions 12 and 14A of part 2 of the act and clarify the operation of certain provisions after they were amended as part of the Criminal Code harmonisation changes with the Criminal Code.

As I flagged earlier, amendments in schedule 4 have now taken on some urgency. The amendments were initially included to address obiter comments in the May 2007 full Federal Court decision in Moore v Minister for Immigration and Citizenship [2007] FCA 626. The obiter comments cast doubt on whether the minister’s powers under section 501 of the Migration Act to cancel a visa on character grounds would apply to transitional visas.

Where a visa applicant or visa holder does not pass the character test, the minister has been given the discretion to refuse or cancel a visa. In exercising this power, the minister has a responsibility to the parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by noncitizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within Australia.

As part of what was a highly technical judgement, the full Federal Court in Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 on 17 July 2008 found that a transitional (permanent) visa cannot be cancelled on character grounds because it is a visa that is ‘held’ rather than ‘granted’. These transitional visas are held by operation of law post reforms to the Migration Act in 1994.

As a result of the court’s decision in Sales, 23 people, including Mr Sales, were released from immigration detention.

The department decided, on legal advice, not to appeal the judgement in the Sales case.

The amendments in schedule 4 to the bill address the Moore decision (and now the Sales decision) to ensure that the character cancellation provisions in the Migration Act apply to all temporary and permanent transitional visas, and provide validation of all past character cancellation decisions in relation to such visas. This maintains the minister’s ability to protect the Australian community.

Another measure in schedule 4 to the bill aims to increase protection for clients of the department who engage offshore migration agents. There is currently a comprehensive scheme in the Migration Act administered by the Migration Agents Registration Authority, MARA, for the registration and disciplining of migration agents operating in Australia, but it is impracticable and contrary to international law principles to extend this regulatory framework offshore and provide coercive powers to the authority to investigate actions taken overseas.

The amendments in schedule 4 therefore use the authorised recipient provisions to regulate the activities of offshore migration agents, by providing that, where an authorised recipient is giving immigration assistance and is not a registered migration agent, the minister or his delegate will not be compelled to communicate with them. This new power will provide the department with the power to refuse to communicate with offshore migration agents, most of whom are unregistered, when there are concerns about their professionalism, competence, conduct or character. The measures will also provide a disincentive for clients to use such agents when there are these concerns.

This new statutory power which provides a form of sanction for unacceptable behaviour is also designed to reinforce an administrative accreditation scheme that will be established to recognise offshore operators who deal professionally with clients of the department.

Schedule 4 also clarifies section 193 of the Migration Act to ensure that an illegal foreign fisher or environmental offender can be removed from Australia if they have previously been granted a criminal justice visa or bridging visa while in remand or serving a custodial sentence. This minor amendment ensures this provision is consistent with its original policy intention, that an illegal foreign fisher and more recently an environmental offender should be removed from Australia as soon as possible after they become an unlawful noncitizen.

The amendments in schedule 5 seek to clarify the meaning of certain provisions in the Australian Citizenship Act 2007 and the Australian Citizenship (Transitionals and Consequentials) Act 2007 and remove inconsistencies across the acts. The amendments also aim to ensure that Australian citizenship law is consistent with our international obligations under the United Nations Convention on the Reduction of Statelessness 1961 and the United Nations convention relating to stateless people 1954.

I commend the bill to the chamber.

Christopher Pyne (Sturt, Liberal Party, Shadow Minister Assisting the Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I rise to speak on the Migration Legislation Amendment Bill (No. 1) 2008. The coalition supports this legislation. The Migration Legislation Amendment Bill (No. 1) 2008 is a non-controversial omnibus bill that makes a range of amendments to the Migration Act 1958, the Australian Citizenship Act 2007, the Australian Citizenship (Transitionals and Consequentials) Act 2007 and the Customs Act 1901. These miscellaneous minor amendments provide consistency with other legislation, streamlining procedures, providing clarifications and so on.

I note that the bill was intended to include provisions to reinstate effective time limits for applying for judicial review of migration decisions. The current time limits in the Migration Act have been rendered redundant as a result of the April 2007 decision in the High Court in Bodruddaza v Minister for Immigration and Multicultural Affairs and the July 2007 full Federal Court decision in the Minister for Immigration and Citizenship v SZKKC. The government has removed these provisions from the bill on advice that the bill as drafted would not have worked appropriately. We understand that further consideration will be given to determine how best to reinstate these time limits. The opposition looks forward to the opportunity to review and consider what the government puts forward.

Senator Ellison, the shadow minister for immigration and citizenship, has outlined the opposition’s position in relation to this bill very clearly in the Senate, so I will now only speak briefly in relation to each of the specific schedules. Schedule 1 of the bill will streamline procedures for notifying parties of a decision of the Migration Review Tribunal and the Refugee Review Tribunal. The current notification procedures have been the source of considerable litigation over the years. Schedule 1 was also originally the section that would have dealt with time limits for applying for judicial review. As I said earlier, these are now being redrafted. Schedule 2 of the bill makes some clarifications in relation to the requirements of the Advance Passenger Processing System and establishes an infringement notice regime. The Advance Passenger Processing System was made compulsory after the September 11 terrorist attacks and requires each of the airlines and cruise lines on their way to Australia to provide information on their passengers to DIMA. Upon check-in at the country of origin, the passenger’s details are submitted to the Department of Immigration and Citizenship. If there is a problem that would prevent their entry to Australia, they are not allowed to board. The government’s amendments will insert a new subsection at the end of sections 64ACD of the Customs Act 1901 and 245N of the act to make it clear that an operator of an aircraft or ship is liable to separate prosecution under these offence provisions in relation to each individual passenger and crew rather than in relation to each journey.

As an aside, I should tell the House that recently I was in Washington, Boston and Denver in the United States and, as the shadow minister for justice and border protection and assisting in immigration, I did have cause to go to Washington Dulles International Airport and meet with the customs and immigration officials there. I can say with some pride that the Australian system was regarded as the state of the art in the world, and they wished that, in many respects, they could emulate—and they are trying to move towards emulating—what Australia has already introduced. So, while America has made leaps and bounds since September 11 in the way it manages the movement of people both in and around the country, Australia is certainly at the forefront of that regime—or was under the previous government certainly. I assume, and so far it seems, that the current government is continuing the same response and the same attitude towards the migration of people and the entrance of people through passenger movements on cruise ships and airlines.

Schedule 3 of the bill makes minor amendments to the act to clarify immigration clearance of non-citizen children born in Australia, in compliance with visa conditions and the operation of certain provisions relating to bridging visas. Schedule 4 aims to increase protection for clients of offshore migration agents. DIAC will be able to refuse to communicate with offshore migration agents in cases where there are concerns about their professionalism, competence, conduct or character. The opposition appreciates that this schedule must be passed in a timely fashion due to the full Federal Court’s decision of 17 July in Sales v Minister for Immigration and Citizenship. This decision gave effect to the obiter comments in Moore v Minister for Immigration and Citizenship in 2007. Schedule 4 anticipated difficulties such as those arising from these recent decisions, and will ensure that the character cancellation provisions apply to all temporary and permanent transitional visas and provide validation of all past character cancellation decisions in relation to such visas. As a result of the full Federal Court’s decision in Sales v Minister for Immigration and Citizenship, 23 people, including Mr Sales, were released from immigration detention. The coalition, while cautious in supporting such legislation, agrees with the government that this legislation must be passed quickly to address this situation caused by the full Federal Court’s decision.

Schedule 5 seeks to clarify certain provisions in the Australian Citizenship Act 2007 and the Australian Citizenship (Transitionals and Consequentials) Act 2007. The amendments also aim to ensure that Australian citizenship law is consistent with our international obligations under the United Nations Convention on the Reduction of Statelessness 1961. I am pleased to again confirm the opposition’s support for this bill, and I commend it to the House.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Migration Legislation Amendment Bill (No. 1) 2008 and the amendments put forward by the Minister for Immigration and Citizenship, and I acknowledge the support from the opposition as outlined by the member for Sturt. This bill makes a range of amendments to various migration and citizenship acts to clarify and improve the effectiveness of the legislation.

I represent an electorate where one in three residents was born overseas—nothing like your electorate, Mr Deputy Speaker Scott, where I grew up. Instead, it is a completely different mix. The electorate of Moreton is an open, vibrant, multicultural community and, for the most part, we are tolerant and understanding of one another. However, not a day goes by in my electorate office that I am not contacted by somebody seeking help and support with an immigration matter for themselves or a family member. Immigration and the reality of having family members scattered throughout the world is something I am constantly reminded of in my job.

Setting aside the Indigenous population of Australia, obviously the other 97 per cent of Australians would have roots overseas. I myself am of Irish, Italian and French background, married to someone of English—although her family stress that it is Cornish—Germanic and Indian background. So, like most Australians, our roots are overseas. The decisions that members make relating to the legislation and policies that govern immigration should not be taken lightly, as these decisions, more than any other area of law, have the power to drastically impact on individuals and their families, especially the people in my electorate, because so many are from overseas.

The electorate of Moreton has a significant number of people who are Sudanese and from other places in Africa, including a lot of people from South Africa and Zimbabwe. It also has a large Indian population. There are many New Zealanders and people from the UK and Korea. But the most significant group in my electorate represents the Chinese diaspora—people who have come not only from China but also, significantly, from Taiwan, and also there are Papua New Guinean Chinese, Hong Kong Chinese and Malaysian Chinese.

I want to turn to that particular group, the Chinese diaspora, to tease out how important this idea of immigration and race is. Let us look at the history of Australia since Federation and the Australian view of China. When the Federation started, both sides of the House, or all three sides of the House, as it would have then been—there were three major parties—would have seen China as the land of the yellow peril. That was very much one of the motivating factors for Federation. That view evolved over the next 50 years into China becoming the land of the red menace. I guess now, 50 years on, we would see China as being the land of the golden opportunity. It has gone from yellow to red to gold—so much has changed in our understanding of China’s role in the world. This then reflects on Australians’ view of ourselves and what defines an Australian, and what immigration is about. Back when immigration decisions were first being made—some of the major decisions were made in 1908—basically what defined an Australian was that you were a British citizen; or, if you were not a British citizen, immigration law determined that you were not an Australian.

It is interesting that, 100 years on, in Sales v Minister for Immigration and Citizenship we are still making decisions about what constitutes an Australian, what defines an Australian and who decides what an Australian is. Race has been a significant factor in many elections in Australia—questions about who decides who stays here and what sort of person stays here. While doing some research related to the legislation before the House, I looked up John Christian Watson, the first Labor Prime Minister of Australia, and I was interested to read this in Wikipedia:

Watson maintained that his father was a British seaman called George Watson.

Being a British citizen was a prerequisite for being a parliamentarian. It goes on:

Records dispute this, however; they indicate that Watson’s father was a Chilean citizen of German descent, Johan Christian Tanck, and that Watson was born in Valparaiso, Chile. Records also show that his mother was a New Zealander … who had married Tanck in New Zealand.

So that was the very first Labor Prime Minister, and it is suggested in Wikipedia that he is the only Australian Prime Minister who was not either born in Britain or of Anglo-Celtic descent. I am not sure about the descent of Mr Rudd. I would suggest it is Anglo-Celtic but I have not discussed that with the Prime Minister. But Watson is the only Prime Minister in the 107-year history of our Federation who was not British or Anglo-Celtic. Interestingly, it is suggested that one of the other early MPs, King O’Malley, lied about his descent, but that is a story for another day. I think he has Tasmanian connections, Mr Deputy Speaker Adams, so I will leave that to someone with more knowledge of the history of Tasmania.

Race has obviously been a very powerful factor in Australian history and Australian politics. It was a factor in the 1996 election, when the Howard-Costello government was elected, unfortunately. It became a big factor in the Queensland state election soon after, when 11 One Nation MPs were elected. Race is certainly something that is significant in Australian history, and it was very significant in my election, because every now and then there are still troubles between races or religions or various groups. Thankfully we have an immigration minister who has a huge heart and a great mind and we have a Prime Minister who has always had that visionary view of Australia that we are a country that needs to keep fighting above its weight in leading the world as to how cultures, religions and races can live together harmoniously.

Unfortunately we can look at the policies of the previous government relating to the mandatory detention of illegal asylum seekers—and I acknowledge that there are Labor roots in those policies—to see how immigration laws can horribly disrupt people’s lives. That is why I welcome the reforms to Australia’s immigration detention system announced by the Minister for Immigration and Citizenship, Senator Chris Evans. Under the Rudd Labor government, detention in immigration detention centres will only be used as a last resort and for the shortest practicable time. The department will have to justify why a person should be detained. Once in detention, a detainee will have their case reviewed every three months to ensure that the further detention of the individual is justified.

Most importantly, children will not be detained in an immigration detention centre. Surely that is a great outcome for common sense. Irrespective of what laws a parent might have bent, it is ridiculous to think that young children should be put in detention centres. We should never have those situations again where we have young children thinking that the only way out is to sew up their lips. I say that particularly because my partner has worked in child protection for nearly 20 years, and when I hear of the abuse of children it is certainly something that motivates me a lot, especially with Child Protection Week coming up next week.

The bill before the House initially sought to reinstate effective time limits for applying to the courts for judicial review of migration decisions. However, subsequent amendments moved by the minister removed these changes as it is important that we nut out a comprehensive solution to ensure that time limits apply to all decisions reviewable by the courts, including decisions made offshore to refuse to grant a visa to an applicant who has applied for a visa outside the migration zone. This is the case for many of the African residents in my electorate. The overarching notion that will guide the minister will be that justice delayed is justice denied.

The minister has indicated that these time limits will be introduced in the parliament later. I think that most people will be pretty relaxed about that because we all want to ensure that we get the provisions right. The measures in schedule 2 of the bill are about strengthening Australia’s border controls. These amendments seek to provide for airline and shipping carriers to be liable for separate prosecution for each and every individual not reported prior to arriving in Australia. This is about bringing the shipping industry in line with the airline industry and ensuring that the government is aware of all people entering our country. It is obviously a very commonsense approach. The further amendments introduced by the minister provide greater clarity on this matter and ensure that the reporting obligations on aircraft and shipping carriers under migration and customs legislation apply in relation to each individual passenger and crew member and not the voyage or flight generally. They will also provide for operators to be liable to separate prosecution for each passenger or crew member not reported. We can have strong border controls without depriving people of their dignity and humanity.

This bill also seeks to bring Australia into line with our international obligations under the 1961 United Nations Convention on the Reduction of Statelessness. It amends the Australian Citizenship Act to ensure that the good character requirement applies to applicants for citizenship by descent who do not fall within the definition of a stateless person. Further amendments proposed by the minister ensure that applicants for citizenship who are not a stateless person, such as war criminals, are subject to the good character requirement. This will allow the minister to refuse an application for citizenship by descent if satisfied that the applicant is not of good character because of crimes against humanity or war crimes.

The recent Federal Court decision in Sales v Minister for Immigration and Citizenship found that a transitional permanent visa cannot be cancelled on character grounds because it is a visa that is held rather than granted. As a result of that decision, some 23 people, including convicted murderer Mr Sales, were released from immigration detention. It is obviously important that we get the character grounds definitions right so that we know where and when to draw the line in terms of the sort of Australia we want to take forward into the future. The amendments in schedule 4 anticipated this difficulty and ensure that the character grounds cancellation provisions apply to all temporary and permanent transitional visas and provide validation of all past character ground cancellation decisions in relation to such visas. Obviously this is an important area of law. We are talking about the very heart of this country and what we are as a nation. The legislation before the House today goes some way to sorting out these concerns. I commend the bill to the House.

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

When I looked at the Migration Legislation Amendment Bill (No. 1) 2008 I decided to concentrate on aspects of the Migration Review Tribunal and the visa provisions. The thrust of what I was going to say—and I will say it later—relates to a case I intend to raise and the judgement of the Department of Immigration and Citizenship about a visa application based on the 2008 rules as opposed to the conditions, rules, forms and applications that applied in 2007. It is very interesting that the member for Moreton should talk about mandatory detention from what I perceive is a very 2008 perspective. There was a time in our history when people in some parts of the world would decide to leave their home country and cross a border, hop on a plane and fly to Kuala Lumpur or maybe Jakarta. From there they would go to a place where they could pay, perhaps hundreds or thousands of dollars, to jump on a leaky boat. In so doing, they put their children in circumstances of such danger that their lives were at risk. I do not think anyone would say that that was a great situation. It is now 2008 and we do not have a stack of boats carrying such people arriving on our doorstep from other parts of the world. For whatever reason, we do not have people taking those sorts of risks with their lives and the lives of their children.

It is important to realise why we no longer have that situation. It is a result of the strong and unequivocal message that former Prime Minister John Howard sent to the world. I will never back away from that past and those decisions. They were hard and unpopular, but sometimes these things just need to be done. I pay tribute to former Prime Minister John Howard for his leadership and for the efforts that he and the former coalition government made to stop people-trafficking, this boat trade, by sending clear messages. They may have saved the lives of people who eventually realised there was no point in taking those risks with their lives or the lives of their children. We are going through a historical revisionist period in which certain persons in this place are applying 2008 circumstances to more difficult times and are judging the former government on that basis.

It is important to move on and I would like to speak about this bill as it relates to a migration application that I am aware of. There are often quite great periods between an appeal being lodged with the Migration Review Tribunal and the matter being heard. Given the significant workload of the MRT, I think it is desirable that cases not go there unless they truly need to. I am concerned that there are times when flexibility and a full consideration of the facts and circumstances of an immigration matter may come second to a rigid and narrow application of the migration regulations. I would never advocate that the law should ever be put aside or that the rules should be bent, but the facts and circumstances should be considered against the situation at the time of the application, not just against the situation at the time of the hearing.

I will offer an example of this and the sort of problem that impacts on the areas dealt with by the MRT. I have recently become aware, through a constituent of mine, of a case where a South African family appear to have been unfairly treated by the department with their visa application. This is the case of Mr Steven Patrick, an electrical engineer in Durban. His wife, Lisa, has a Bachelor of Arts which actually includes three top subjects in English. They have three daughters: Hannah, 9; Robyn, 13; and Kerry, 17. I have read their skilled independent migrant visa subclass 175 application and I believe all the information is there. It is an outstanding application. The family have skills. They have qualifications. They definitely have the English language. The couple have children—always good for the future of this great country—and, ultimately, a very clear commitment to Australia, should they be allowed to come here. I have no doubt that this is a family who would add great value to this country.

Unfortunately, their application was rejected. I have written to the State Director of the Department of Immigration and Citizenship on this specific issue and I hope to have a reply soon. The Patrick family’s visa application was rejected basically because the goalposts were moved after their application was submitted and because the departmental official did not take that into consideration. I will get into the detail of the reason they were rejected. The date that they lodged their visa application was 9 October 2007, but at that time they had not submitted evidence of their English language ability. They had indicated on their visa application that they had a test booked for 1 December 2007, about two months after the application was lodged. Once Mr Patrick had undertaken that test on 1 December, the result was forwarded. The result was an 8.5 on the overall band score, which I understand is pretty good and more than satisfies the requirement. Unfortunately, in a letter dated 8 July 2008 from an official at the General Skilled Migration Processing Centre, their application was rejected. A portion of the letter reads:

... you must submit evidence of your English ability at the time you apply. As the results of your IELTS test dated 1 December 2007 indicates that you do not have the IELTS test result before the day on which your application was lodged on 9 October 2007.

So they are saying: ‘You did not prove that you can speak English to the required level at the time you applied on 9 October and your test dated 1 December is proof that you did not apply and that you did not have the ability tested at that point.’ They go on to say:

As you did not provide evidence of your English ability at time of application as specified in Migration Regulation 175.213 and 1.15C you consequently do not satisfy the requirements of clause 175.213 ...

Some would say that such a decision was inflexible, yet if the rules are there, if these clauses say that, maybe there is no room for flexibility and common sense. Maybe we do not actually need electrical engineers, just for the sake of maintaining the strict parameters of these regulation clauses.

I will make no further comment on the inflexibility of the department in this case. The important point is that the application forms for these visas have actually changed in the last 11 months. When the Patrick family filled in the form in October 2007, the question regarding language requirements was question 30; now it is question 29. That is no big deal unless the words and layout of the question also changed with the number. This then becomes the point: the skilled migration centre knocked back the Patrick family based on the rules now, not on the rules that applied when they filled out the visa application. I call that unfair.

The difference in the questions is very important. The original form required you to have booked a test and to provide evidence of that booking, and the results then had to be sent on later. That, of course, was all done by the Patrick family; it was all complied with. I have seen the forms. They say that the family had booked the test; there is a printout with the date of the booking. It is all there. Unfortunately, the 2008 form, upon which the department has judged this application, has a note on it which says, ‘If you are applying for a subclass’—including 175—‘you must provide evidence of your English ability at the time you apply.’ That is what I call goalpost shifting. A 2007 application was submitted and complied with to the letter of the law. In 2008, this family, and this opportunity for our future and theirs, has been judged on a new set of rules. To just reject the application is pretty inflexible.

The point here is that the goalposts have shifted. The rules have changed and no flexibility was employed to delineate between the two different sets of rules. This seems a very bureaucratic decision, and I would hate to think that this country will miss out on the contribution of the Patrick family because of the ridiculous application of 2008 rules to a 2007 application.

Today I have provided just one example of inflexible and counterproductive decision making. It is my hope that the state director of the department of immigration will remedy the situation, that he will see reason and that he will help out. However, what this situation shows us is that when the rules change there can be great disadvantage for real people. I wonder, then, how much of the MRT’s time is taken up with cases where regulation changes may have been applied in such a way. It is in our national interest to seek to improve this country by allowing skilled migration. The rules are not there just to be blindly followed without due regard for such highly relevant information, as the Patrick case shows. Indeed, perhaps the MRT would have fewer cases to work through and could move through them more quickly if the department’s officials were more careful with such cases as the Patricks’ visa application and, no doubt, other cases that directly involve the MRT.

I welcome this bill to fix up the problems identified in the Migration Act, the two citizenship acts and the Customs Act. But I urge the department to be very careful in the manner in which it prosecutes the legislative and regulatory changes. Attention to detail is required, as is a consideration of the circumstances at the time of the application being lodged. They need to be fair and balanced—that should always be a consideration when dealing with the lives and futures of people. I look forward to the response from the WA state director of the department, the reconsideration of this matter and the right and appropriate response that will see the Patrick family granted their visas.

I would like to finish by going back to an aspect raised by the previous speaker, the member for Moreton. I am sure that all members of parliament are familiar with going door to door pre- or post election. Sometimes you encounter people who want to tell you their views on immigration policy. It is one of those things that, let’s face it, everyone has a view on in various ways. Sometimes people can make disparaging comments or can air their views with regard to the race or religion of people that they would particularly like to see not come to this country. Picking up from what the member for Moreton said, race should never be a part of politics. I do not really see the things that happened in the last six or seven years as being a matter of race. The good thing about this country is that, if someone wants to come here, make a positive contribution and work for a living, then they are welcome. But they must do those things and they must have respect for the traditions and the institutions of this society. The good thing about Australia is that the colour of your skin or the religion that you do or do not practice does not matter. If you want to come here, work hard and respect the institutions and traditions of our society then you are welcome. That is a great thing about Australia. I do not think it is anything to do with race; I think it is something to do with attitude. I support this bill and I look forward to its implementation. I thank the House for the opportunity to speak today.

Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Link to this | Hansard source

The Migration Legislation Amendment Bill (No. 1) 2008 seeks to clarify and improve the effectiveness of the Migration Act, the Australian Citizenship Act, the Australian Citizenship (Transitionals and Consequentials) Act and the Customs Act. There are a range of amendments proposed by the bill; I want to speak to only a few aspects of those amendments.

Before I do, I would note the major changes that the government has made towards a fairer and more just immigration system. Amongst these are changes to the detention system recently announced by the Minister for Immigration and Citizenship, Senator Chris Evans. The Rudd Labor government has made reforms to ensure that detention will be the last resort and will be for the shortest practicable time. Other changes have included the ending of the so-called Pacific solution, the abolition of the temporary protection visa regime, increasing the minimum salary levels for 457 visa holders and increasing the humanitarian and refugee intakes.

I was sorry to hear the member for Cowan this morning persisting in the defence of the brutal immigration regime of the former government. I was sorry also to hear the member for Cowan persisting in the demonisation of those seeking refuge in this country. The Rudd Labor government has put the immigration regime of the former government behind us. We are no longer going to imprison children of those seeking refuge. We are no longer going to remove people seeking refuge to the middle of the Pacific at huge cost to this nation—even before one considers the emotional and physical cost to the people concerned. We are going to use a just and humane approach to immigration matters—one that Australians can be proud of rather than ashamed of, as so many Australians were of the approach of the former government to immigration questions.

I want to specifically deal with one of the reforms introduced by this legislation, and it is the abolition of the handing down procedure that has been used by the Migration Review Tribunal and the Refugee Review Tribunal until now. This is something that is dealt with in items 6 to 9 and items 19 to 22 of schedule 1 of the bill, by which those handing down procedures are going to be abolished. The abolition of these handing down procedures in both the Migration Review Tribunal and the Refugee Review Tribunal makes good practical sense. They reflect the current processes found within the Administrative Appeals Tribunal at the Commonwealth level, the Veterans Review Board, the Social Security Appeals Tribunal, and, in my home state, the Victorian Civil and Administrative Tribunal.

I should refer to a letter that was written by Jillian Segal, who has done tremendous work in the service of the Commonwealth as President of the Administrative Review Council. What Jillian Segal wrote about the handing down process was that it was ‘administratively costly with no apparent benefit to the applicant’. With only 22 per cent of review applicants attending the handing down of their decisions, it was also a very artificial procedure.

What these amendments will do is to allow the tribunal to simply give the applicant and the secretary of the department a copy of the decision within 14 days of the decision being made. This reflects the current processes found for those in immigration detention and also unifies the notification procedures. This simplification will reduce the risk of administrative error and prevent additional needless expense. It will also limit the source of a significant amount of litigation which the department has faced due to uncertainties in the notification and handing down procedures. The abolition will also expedite the notification processes by ensuring that decisions can be speedily delivered and, hence, any potential appeal or additional submission of materials can only occur after a certain date.

I want to mention briefly the question of time limits because these were originally dealt with when this bill was introduced to the Senate in June. In the form in which this bill was introduced in the Senate, it contained amendments to reinstate appropriate and effective time limits for judicial review, and those provisions were found in schedule 1 in the form introduced. The existing sections 477 for the Federal Magistrates Court, 477A for the Federal Court and 468A for the High Court provide extra time limits on the time frames required for applications in immigration matters to be lodged with those courts.

In the decision in Bodrudazza v Minister for Immigration and Multicultural Affairs, the High Court held that such provisions were inconsistent with the powers provided by section 75(v) of the Constitution. In a joint judgement made by Chief Justice Gleeson sitting with Justices Gummow, Kirby, Hayne, Heydon and Crennan, the court stated that section 468A could not be read down or severed to preserve its validity. The later decision of the High Court in Plaintiff S157 confirmed that any time limits must be truly regulatory in nature and not remove the constitutional right to recourse to the court. In that decision, Justice Callinan suggested that a 35-day time limit accompanied by a power to extend time would be acceptable.

After the introduction of this bill to the parliament, a concern was raised that the amendments might not cover all decisions that are judicially reviewable and which should be subject to time limits. This included decisions made offshore to refuse to grant a visa to an applicant who has applied for a visa outside the migration zone and is not sponsored by an Australian permanent resident or citizen, and decisions to cancel a visa held by such a person while outside the migration zone.

Due to the urgency in passing the amendments found elsewhere in the bill in schedule 4—and this relates to the decision of the full Federal Court in Sales, which I will come to in a moment—and as more detailed consideration is required to ensure that the amendments to reinstate effective time limits for judicial review will operate in the way intended, the government withdrew the amendments relating to time limits in government sponsored amendments in the House. I understand that the Minister for Immigration and Citizenship has indicated that he will seek to introduce amendments dealing with time limits in a separate bill later in the spring or autumn legislative program.

As I have already mentioned, this bill has been given very considerable urgency by the decision on 17 July 2008 of the full Federal Court in Sales v Minister for Immigration and Citizenship. That decision in effect built on comments that had been made by Justice Weinberg in an earlier decision, Moore v Minister for Immigration and Citizenship. What these decisions deal with, particularly what the decision in Sales deals with, is section 501(2) of the Migration Act, which reads:

The Minister may cancel a visa that has been granted to a person if:

(a)

the Minister reasonably suspect that the person does not pass the character test; and

(b)

the person does not satisfy the Minister that the person passes the character test.

Under the subsection, ministerial discretion exists for a visa that has been granted to be cancelled on character grounds.

In the Sales decision, the Federal Court found that visas that are ‘held’ by operation of law rather than ‘granted’ cannot be cancelled under the character cancellation provisions of the Migration Act. As a result of that judgement on 17 July in which Mr Charles Sales’s appeal against a decision of the former minister to cancel his transitional permanent visa on character grounds was upheld, Mr Sales was released from immigration detention. I should point out that Mr Sales was convicted of a particularly brutal murder in 1989 and had been serving a term of imprisonment until 2006.

As a further result of the judgement some 22 other people were released from immigration detention: 14 were released from detention on 21 July 2008, six were released on 24 July 2008, one was released on 28 July and another was released on 30 July. Sixteen were released from Villawood, four from Perth and three from Maribyrnong in Melbourne. These people are all noncitizens who had served terms of imprisonment for their convictions for a variety of crimes. Those crimes cannot be detailed for privacy reasons, but the convictions include armed robbery, serious drug trafficking, sexual assault—including of minors—manslaughter and murder. It is of course the case that had they been Australian citizens each of these people would have been released into the community at the conclusion of their sentences. As noncitizens they had all been assessed as not passing the character test.

The Migration Act provision to which I have already referred contains a ministerial discretion to refuse or cancel a visa where a visa applicant or visa holder does not pass the character test. In exercising this power, there is a responsibility to the parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas to or cancel visas held by noncitizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within Australia. Their visas having been cancelled under section 501, the group of people who were released had been detained upon their release from prison and were awaiting removal from our country. As a result of the court’s decision in Sales, there were no grounds on which to continue to detain them and they were released from immigration detention.

Turning to the specific amendments that are designed to deal with this problem that has arisen, it needs to be made clear that there can be no suggestion that it was ever intended that the holders of transitional permanent visas would be exempt from having their visas cancelled on character grounds—like other noncitizens. What schedule 4 to this bill does is amend the Migration Act so that the character cancellation provisions apply to all temporary and permanent transitional visas and provide validation of all past character cancellation decisions in relation to such visas. There is no reason at all why this group of visas should have been exempted as a group.

The amendment makes clear what could only have been parliament’s original intention—that the holders of permanent and temporary transitional visas would be subject to the same character cancellation provisions as any other visa holder. The bill validates the cancellation power in relation to previous cancellations of transitional visas—that is, it is not a wholesale validation of the cancellation decisions in all respects; it deals with the critical technical issue of whether the visa was granted.

The amendments as drafted will effectively and automatically reinstate the cancellation decisions under which many of these people were detained. Following the commencement of these amendments, the majority of the people who have been released from immigration detention as a result of the Sales decision may then be liable for re-detention, depending on their circumstances. For those not automatically covered by the legislation, the department will be considering their individual circumstances to decide what further action may be appropriate. This legislation will deal promptly and effectively with the consequences of the Federal Court’s decision in the Sales case. I commend the bill to the House.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

It is always a pleasure to join the debate in the Parliament of Australia. In particular, it is a pleasure today to be able to speak on the Migration Legislation Amendment Bill (No. 1) 2008. This bill amends, as an omnibus bill, a number of pieces of legislation, including the Migration Act 1958, the Australian Citizenship Act 2007, the Australian Citizenship (Transitionals and Consequentials) Act 2007 and the Customs Act 1901.

This bill seeks to ensure that Australia can do all that it can to meet its responsibilities and obligations under the United Nations Convention on the Reduction of Statelessness 1961. These modifications could be regarded as housekeeping, but that would diminish the importance of the legislation impacted by this bill and would also diminish the importance placed on the vigilance required to ensure that our migration laws are protective of Australia while also meeting internationally accepted standards.

Like many other pieces of legislation, it is supported by both sides of the House. The bill is noncontroversial. The community is often not aware that most pieces of legislation introduced to the parliament—regardless of which side of the House is in government—are supported by both sides. The only things we read about parliament are about when the parties vigorously disagree.

It is important that our migration laws are updated and reviewed from time to time, because it is an important sector of government responsibility. It was one of those areas passed to the new Australian government when Federation occurred in 1901. It is vital that, while making sure that we have internationally accepted standards, the government of the day continues to protect our borders and our way of life. It is important to recognise our own citizens and it is important, of course, always to recognise that there are people who want to cross Australian borders for many legitimate reasons.

The bill streamlines the process by which those most impacted by decisions of the Migration Review Tribunal and the Refugee Review Tribunal are able to access those decisions. In the past, parties often had to wait until the decision had been formally handed down, but, with the passage of this bill, this requirement will be removed. This streamlining ensures that those whose lives may be placed in limbo as a result of the usual length of time taken to process immigration issues are potentially given somewhat of a reprieve. It does not represent a reduction or a softening of the security measures, but it does enable a reduction in the time taken in the normal processes of judicial review and analysis of immigration cases.

Schedule 2 of the bill introduces measures relating to better monitoring of passengers on ships and aircraft, including the introduction of infringement notices that take the place of more lengthy prosecution for those operators who fail to meet their obligations of providing passenger and crew reports in advance of their arrival in Australia. Currently there are set time frames and specific deadlines for the provision of these passenger and crew information reports. The passage of this bill will see the introduction of provisions that allow the prescribing of time frames that are deemed suitable for individual cases. As you would appreciate, Mr Deputy Speaker, this enables improved flexibility in this aspect of border protection. Supplementary amendments clarify that the operators of these ships and aircraft are liable for prosecution for each individual passenger who is not properly reported on in line with the requirements rather than facing one charge per journey as is currently the case. It means operators must place greater emphasis on actually supplying the passenger and crew reports; otherwise they will face greatly increased penalties. Where in the past an operator would have faced a maximum amount no matter if there were one or 50 passengers not properly reported on, the passage of this bill will make it in their best interests to diligently attempt to provide reports for every single passenger. This means that the penalty that will be imposed on them is commensurate with the level of their dereliction of duty.

Schedule 3 of the bill deals with changes to legislation that deal with non-citizen children born in Australia and also introduces a condition that a security may be imposed to ensure compliance with visa conditions before the visa is granted. The amendment aims to give greater certainty to immigration status. It also clarifies the requirement that reports must include certain details of each individual passenger and crew member. The bill also affords the establishment of a new position of deputy principal member for the Migration Review Tribunal. This position currently exists only within the Refugee Review Tribunal so this bill will introduce a similar officeholder to the migration tribunal. As I said at the outset, this bill is supported by the Liberal and National Party opposition. I am very pleased therefore to be able to commend it to the chamber.

Louise Markus (Greenway, Liberal Party, Shadow Parliamentary Secretary for Immigration and Citizenship) Share this | Link to this | Hansard source

I rise to speak on the Migration Legislation Amendment Bill (No. 1) 2008. The coalition is supporting this legislation. The bill is an omnibus bill that makes a range of amendments to several acts, including the Migration Act 1958, the Australian Citizenship Act 2007, the Australian Citizenship (Transitionals and Consequentials) Act 2007 and the Customs Act 1901. Schedule 1 of the bill will streamline and simplify the procedures of notifying parties with regard to a decision of the Migration Review Tribunal and the Refugee Review Tribunal. The current notification procedures have been the source of litigation and lengthy time before courts for families and individuals affected by this for many years, and, in many cases, decades. As has already been mentioned, this has been a concern for both sides of the House for several years, particularly when families and individuals have had to put their lives on hold. Children of parents who are applicants have had to wait decades to actually plan for their future. One would hope that these amendments will actually improve that situation.

The coalition notes that schedule 1 of the bill was also intended to reinstate effective time limits for applying to courts for judicial review of migration decisions. The current time limits in the act have been made largely ineffective, particularly following the April 2007 High Court decision of Bodruddaza v the Minister for Immigration and Multicultural Affairs and the July 2007 full Federal Court decision of the Minister for Immigration and Citizenship. The government’s new amendments will effectively remove a schedule 1 of the bill as it has come to light that the bill as drafted would not have worked appropriately with regard to decisions to which no merits review rights attach. The coalition understands that further consideration is required to determine how best to reinstate effective time limits for all judicially reviewable cases.

Items 7 and 20 provide that tribunals will be required to notify an applicant of a decision other than an oral decision by giving the applicant and the secretary a copy of the decision within 14 days after the day on which the decision is taken to have been made. Items 6 and 19 provide that a decision other than an oral decision is taken to have been made on the date of the decision. This new formulation largely reflects the notification procedure that currently applies to persons in immigration detention.

According to the second reading speech, the proposed new method for notifying parties of the tribunal’s decision will be a lot simpler, thereby reducing the risk of error, particularly administrative errors. This suggests that handing down procedure that was introduced in 1999 to create certainty of dispatch has not, in retrospect, achieved its purpose.

Schedule 2 of the bill clarifies the requirement for operators of aircraft and ships to report on passengers and crew prior to entering Australia—the Advance Passenger Processing system—and also establishes an infringement notice regime. The government’s amendments make it clear that aircraft and ship operators are liable to separate prosecution under these offence provisions in relation to each individual passenger and crew rather than with regard to each journey not reported on prior to arrival in Australia.

Schedule 3 of the bill makes a number of minor amendments to the act to again make it clearer with regard to immigration clearance of non-citizen children born in Australia, compliance with visa conditions and the operation of certain provisions relating to bridging visas. Immigration clearance is vitally important for a number of reasons. It affects a noncitizen’s access to visas, especially bridging visas, under the Migration Regulations. It affects immigration detention. An unlawful noncitizen—that is, a noncitizen in the migration zone without a visa—must be detained and a lawful noncitizen may be detained if they hold a visa that may be cancelled. An immigration cleared noncitizen may only be detained if they are likely to attempt to evade or otherwise not cooperate with Immigration officers. It also affects access to visas in relation to safe third-country rules. If a noncitizen is covered by an agreement between Australia and a safe third country, their access to visas will be essentially diminished. It also affects the cancellation of visas and the review rights. Generally, the MRT may not review a decision to refuse to grant or to cancel an offshore visa if that decision was made before the person was immigration cleared.

The purpose of the measures in schedule 4 is to increase protections, particularly for clients who engage offshore migration agents. This gives DIAC the capacity to refuse to communicate with offshore migration agents, particularly when there are concerns about their professionalism, competence, conduct or character. Many of us on both sides of the chamber have seen many of our constituents come to us regarding this. As a result of poor advice or excess charging by migration agents—the list goes on—their future capacity to actually migrate or obtain a visa is limited. Often these individual applicants are unable to obtain a visa for decades because of the impact of this advice and the way that migration agents overseas have, in some cases, handled their case.

Schedule 4 of the bill was not initially considered to be urgent, particularly when the bill was introduced. However, the legislation must be passed quite quickly due to the decision on 17 July of the full Federal Court in Sales v Minister for Immigration and Citizenship. This decision gave effect to the obiter comments in Moore v Minister for Immigration and Citizenship. The amendments contained in schedule 4 of the bill already anticipated such problems and difficulties, but these amendments will help to ensure that the character cancellation provisions will apply to all temporary and permanent transitional visas and provide validation of all past character cancellation decisions in relation to such visas.

Throughout the history of immigration in this nation, Australians have felt strongly about Australia deciding who is to come to this country. One of the foundation principles has been the importance of character and how that impacts on the decision to grant someone’s application for a visa. As a result of the Federal Court’s decision in Sales v Minister for Immigration and Citizenship, some 23 people, including Mr Sales, were released from immigration detention. The coalition, while careful and cautious in supporting such legislation, agrees with the government that this must be passed quickly to address the situation caused by the decision of the full Federal Court.

Schedule 5 seeks to clarify the meaning of certain provisions of the Australian Citizenship Act 2007 and the Australian Citizenship (Transitionals and Consequentials) Act 2007. The purpose of the amendments is to ensure that Australian citizenship law is consistent with our international obligations under the United Nations Convention on the Reduction of Statelessness of 1961. This bill aims to address and rectify challenges in the areas of judicial and merits review, border protection, visa integrity, Australian citizenship and other miscellaneous matters. I commend the bill to the House.

Laurie Ferguson (Reid, Australian Labor Party, Parliamentary Secretary for Multicultural Affairs and Settlement Services) Share this | Link to this | Hansard source

in reply—As indicated earlier in the debate, the Migration Legislation Amendment Bill (No. 1) 2008 is an omnibus bill that makes amendments across the Migration Act 1958, the Australian Citizenship Act 2007, the Australian Citizenship (Transitionals and Consequentials) Act 2007 and the Customs Act 1901. This will clarify and improve the effectiveness of the migration and citizenship legislation by addressing and rectifying a range of problems that have been identified in the legislation over the years. It will also ensure that the citizenship legislation is consistent with two United Nations conventions: the Convention on the Reduction of Statelessness 1961 and the Convention relating to the Status of Stateless Persons 1954.

The amendments in this bill are important, necessary and, in the case of the Migration Act, long overdue. As was highlighted in my second reading speech, the bill has some urgency in relation to amendments in schedule 4. Some of the amendments in this schedule were included initially to address obiter comments in the May 2007 full Federal Court decision of Moore v Minister for Immigration and Citizenship (2007) FCA 626 and the full Federal Court decision in Sales v Minister for Immigration and Citizenship (2008) FCAFC 132 on 17 July 2008. They affirmed the obiter reasoning in Moore and further found that a transitional permanent visa cannot be cancelled on character grounds, because that visa is held rather than granted. The amendments in schedule 4 of the bill address the Moore decision, and now the Sales decision, to ensure that the character cancellation provisions in the Migration Act apply to all temporary and permanent transitional visas and they provide validation of all past character cancellation decisions in relation to such visas. This maintains the minister’s ability to protect the Australian community.

I now turn to matters raised in the debate and thank those who have contributed. I refer to comments by the member for Sturt. They were generally supportive of the legislation; however, it is very ironic that, on the morning after the night on which the opposition thanked the previous Prime Minister for his contribution to this country’s politics, the member for Sturt has come in here and, in a way, slighted the contribution of the previous Prime Minister. Prime Minister Howard, historically, showed himself to be a major critic and opponent of multiculturalism, but the member for Sturt has come in here today and referred to the department as DIMA; that department’s name was changed in January 2007. Changing the name of the department was a major accomplishment of the previous Prime Minister, but the member for Sturt has come in here today and, perhaps accidentally or perhaps deliberately, referred to a department by a name that has long gone.

I take note of the comments that were made by the member for Cowan in relation to the Patrick family. We are certainly happy to look at that case and try to resolve the problems referred to. That member made some additional comments, unfortunately, regarding the history of migration detention in this country. Clearly, the Australian electorate recognised the need for overdue significant changes regarding the long-festering issue of temporary protection visas—the fact that people were in limbo land, unclear about where they were going. That has been rectified and, as I said earlier, welcomed by a broad constituency well beyond the conventional refugee advocacy movement. We have the situation where offshore detention sites have been ended and what has been termed the ‘Pacific solution’ has been terminated.

It is perhaps unfortunate, given the crusade by a small number of members of the previous government against that government’s legislation and activities on detention, that we have this member today still harking back—in a sense, in the way they do regarding Australian workplace agreements—to a now rejected history of detention of individuals for long periods. I conclude by commending the bill to the House.

Question agreed to.

Bill read a second time.