Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

I rise to oppose the Migration Amendment Bill 2013 on behalf of the Greens and to record our shame and disgust that Labor is now supporting a position that will see people who may have done nothing wrong at all locked up for years on end.

This is Kafka on steroids. If this legislation passes, it will mean that someone who comes here seeking our help and is told, 'No, we can't help you because there is a security assessment,' and who then says: 'I think that's not right, I want to challenge it. Tell me why you say I can't be here,' will be told, 'No, we can't tell you because that is a matter of national security.' When this was raised under the previous government, it was rightly acknowledged that there was a problem. It was acknowledged that this puts people in a legal limbo where they are denied the basic right that every other Australian citizen has, which is to know the case against you and to be able to have it challenged and reviewed independently. There were some steps taken—albeit, we would say, insufficient—to put in place a process of independent review so that someone who was in that legal limbo could at least have their case heard, if not bindingly determined. This legislation not only takes that away but puts people who are coming here seeking our help in a situation that no Australian citizen would ever want to be in: you end up in a situation where you do not know the case against you and you have no right to challenge it.

This legislation is an affront to the basic principles of the rule of law, and for a party that calls themselves 'liberal', this is reactionary. There is nothing liberal about saying that an individual, whether or not they are a citizen of the country, has no right to know the case against them, but that is exactly what this government is doing. This bill seeks to amend Australia's rigorous refugee determination process by overturning a number of High Court and Federal Court decisions, and the amendment is inconsistent with Australia's international obligations. It does not afford procedural fairness and it further entrenches the practice of indefinitely detaining men, women and children who have been found to be genuine refugees but who are deemed a 'security threat'.

There are currently about 50 refugees, including five children, who have been indefinitely detained as a result of this and the former government's practice. In August of last year, the UN Human Rights Committee found that Australia was in breach of its international obligations and had committed 143 human rights violations by indefinitely detaining 46 refugees, including children, due to adverse ASIO assessments. Rather than addressing these violations and improving our processes, this bill seeks to do exactly the opposite.

As I alluded to at the start of my speech, individuals who currently receive an adverse security assessment have some limited rights for appeal, and the Greens welcomes the announcement of the independent reviewer as an acknowledgement that, under Australian law, there is no fair legal process for refugees who receive a negative assessment. We acknowledge the work of the Honourable Margaret Stone in reviewing a number of ASIO assessments, but we remain concerned that the independent reviewers powers are not binding or compellable.

The Joint Select Committee on Australia's Immigration Detention Network last year resolutely rejected the indefinite detention of people without any right of appeal and recommended that the Australian government and ASIO establish and implement periodic reviews of adverse refugee security assessments to ensure that genuine refugees were not subject to indefinite detention. They went on to recommend that the Australian Security Intelligence Organisation Act be amended to allow the security appeals division of the Administrative Appeals Tribunal to review ASIO security assessments of refugees and asylum seekers. It remains our view that those recommendations should be adopted, but instead the approach of this government is to condemn potentially genuine refugees who have done nothing wrong to indefinite detention.

I do not know whether the minister has spoken to any of the people who are in this situation, but I have. I have spoken to and visited people who are in detention and who find themselves in this Kafkaesque legal limbo. One of them told me that he was in a country where there was a civil war going on. He happened to be in the wrong place at the wrong time and, together with other members of his extended family, was moved out of their home into another area and was directed to attend a certain school for a while. He told me that he got out of there as quickly as he could because he did not want to go to that school. What he wanted to do was go on and become an engineer, so he got out of there to find a place where he could go and study and become an engineer. He said he was coming to Australia because he thought that it could be that place. He also said that ASIO had told him: 'No, you were in that place at that school. We believe that that school has links with something objectionable under Australian law, so we are refusing your assessment.' Well, he was not even told that; that is what he interpolated, because he was told nothing, but that is what he assumed.

Was he right that he was someone who had done nothing wrong and deserved to be treated as a genuine refugee, or was ASIO right that that was just a front story for someone who in fact should not be here in Australia? I do not know. I do not know the answer to that, but it should be able to be tested. It should be able to be tested in exactly the same way as, if a government department has made a decision about an Australian citizen that has wrecked their life, that decision is able to be tested.

What this bill will do is say, 'It doesn't matter that that person might have actually been right; we will just take ASIO's word for it.' Maybe ASIO was being overcautious. Maybe ASIO did not know anything about the individual but was just making a generalised risk assessment about people who came from that place. But we will never know, and we may have just condemned someone—who could have gone on to become a valued Australian citizen and an engineer working for us—to a lifetime of indefinite detention, if not to being returned to a place where they might be killed. That is the effect of this government's bill. It is shameful that Labor is now supporting it. It is absolutely shameful. Come the first test, in this new year, of standing up to the brutality of the Abbott government and its willingness to use cruelty to gain votes, it is disgraceful that it looks like this bill will pass this House and potentially even this parliament.

People may also remember the case of the woman from Sri Lanka that got significant media attention. She and her children spent many years in the Villawood detention centre because of an adverse security assessment. She did not know why she was facing indefinite detention, but she knows that her children, one of whom was born in detention, are suffering. This bill further entrenches that practice, meaning that refugees like Ranjini and her children are being locked in detention for the rest of their lives, despite being found to be in genuine need of Australia's protection.

It would be appalling if the Australian government treated an Australian citizen in this way or if a foreign government treated an Australian citizen in this way. We are effectively saying that some people are more equal than others—that some people have the right to go to court and have adverse decisions against them tested and independently reviewed to work out whether they were rightly or wrongly made, but, if you happen to have the misfortune of fleeing civil war, fleeing persecution, fleeing torture and coming here seeking our help, we will not give you that support.

When I spoke to one of those people who was in indefinite detention, he was more than a week into a hunger strike. He said to me, 'I am very fear to die.' That was the second time I spoke to him personally. As I spoke to him, he was fighting back tears. He said he just could not understand why he did not know the case against him. Why could he not respond to these unknown claims about why he would not be a good member of Australian society? He struggled to understand his predicament. He said, and he repeated, that all he ever wanted to do was to complete his engineering studies and not be a threat to anyone.

As I say, I do not know whether that is right or wrong. What the minister is saying is that he knows in the case of everyone who comes here seeking help. He knows absolutely that they all deserve to be sent back. He expects he will win a few votes out of it. He expects it will show this government up as being brutal and uncaring and that that will work to its advantage.

We have in this parliament the opportunity to stop a major plank of cruelty from this Abbott government. Really, now, the light turns onto Labor as to whether they are prepared to do that or whether they will be complicit. For people like Ranjini and like the young man that I spoke to who was in detention, it is now up to Labor as to whether they will lock those people up indefinitely and perhaps send them back to a life where they risk fear and persecution.

Lastly, there is much debate in this place and around this country about asylum seekers and about boat people, about people who come here seeking our help. Can I say to you, Mr Deputy Speaker, that if I were in a situation where my life was threatened, where my family's life was threatened, where people I cared about were at risk of being killed or persecuted or tortured, and I was caught up in the middle of a civil war and forced to be in places that I did not want to be, I would jump on a boat to get out, and I reckon everyone else here would as well.

I would do whatever I could to bring myself and my family to safety. And I would hope that if I landed in a rich, developed nation they would look at my case. They would not just say, 'You came from a place where there are potential terrorist activities going on, so you must be a terrorist yourself.' If those things were not going on in that place, they would not be fleeing in the first place. Of course there are always going to be these issues. But I would hope that if I landed here my claim would be independently assessed, and that if there was a case against me I would have the right to argue it in front of a court. If I lost then you would accept the decision. But to not even have that basic right to know the case against you, to be condemned to a Kafkaesque legal limbo for your whole life because you are told you are a national security risk but you cannot be told what the case against you is for national security reasons, is something that we should all be deeply ashamed of. I just hope that if I was in that situation I would be treated better than the current minister is proposing to treat everyone else who comes here seeking our help.

Scott Morrison (Cook, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I thank members for their contributions to this important debate. The Migration Amendment Bill 2013 amends the Migration Act 1958 to remedy three distinct issues resulting from recent court and tribunal decisions that significantly affect the operations of my department, particularly its capacity to process visa applications and to be clear when a person is available for removal from Australia. The bread and butter of my department's work is facilitating the movement of people across our borders for commerce, tourism, trade and study, and one of the department's most important roles is nation-building through a targeted immigration program. The role is also rooted in a matter of national security and the protection of that national security, and the decisions that are made carry important consequences and an important responsibility for those who have to make decisions in government in this country.

One important responsibility is to enable legitimate visa holders with a genuine purpose to travel and conduct business here whilst ensuring that those persons who are a threat to national security or are seeking to abuse the system are prevented from entry or removed from Australia when they have no permission to remain. It is critical that Australian legislation supports the work and decisions made by Immigration and Customs and Border Protection officials on our front line and enforces the integrity of these processes. We are committed to restoring integrity and confidence in our immigration program. That is fundamental to having a successful immigration program that Australians have confidence in and Australians support and that enables us to continue to run an immigration program which is the cornerstone to so much of both economic and social success in what I describe as an immigration nation of Australia.

The measures contained in this bill before the House today go towards achieving that purpose by clarifying and remedying matters that have arisen in a series of recent court decisions. The first schedule to the bill will put beyond doubt that the decision on review or visa refusal, cancellation or revocation decision by the minister or his delegate is taken to be made on the day and at the time when a record of it is made and not when the decision is notified or communicated to the applicant or the former visa holder. The amendments address the decision of the full Federal Court in the case of the Minister for Immigration and Citizenship v SZQOY of 2012 that the RRT's decision-making power in respect of review is not exercised or spent until the review decision is notified irrevocably and externally. The amendment also addresses the full Federal Court's decision in the Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY of 2013 in which the full Federal Court extended the judgement in SZQOY and found that an application is finally determined that is no longer subject to a form of merits review only when the review decision of the RRT is notified to both the review applicant and the secretary of the Department of Immigration and Border Protection according to law. It was immaterial that the review decision had been notified externally and that the review applicant has actually been notified of the review decision despite any error in the notification itself. These findings cause potential difficulties and risks in the administration of the act. For example, the concept of an application being finally determined is crucial to liability for removal under section 198 of the act. These amendments are critical, as they will remove any doubt as to when the decision by the minister, delegate or tribunal is taken to be finally made and when an application is finally determined.

The second schedule of the bill clarifies that a person in the migration zone who has previously been refused a protection visa or who held a protection visa that was cancelled is prohibited from making a further protection visa application. This applies regardless of the basis on which the earlier protection visa application was made or granted and regardless of the basis upon which the further protection visa application purportedly relies. The amendment addresses the decision of the full Federal Court on 3 July last year in SZGIZ v the Minister for Immigration and Citizenship. In that case the full Federal Court found that section 48A of the Migration Act only prohibited the making of a further protection visa application that relied on the same ground or criterion as the previously refused protection visa application. That means that, for example, if a noncitizen previously made a protection visa application raising claims under the Refugee Convention section 48A of the Migration Act would not prohibit a new protection visa application based on complementary protection claims. By restoring the intended operation of the statutory bar in section 48A of the act the amendment will preserve the integrity of Australia's protection visa program and avoid its abuse by preventing noncitizens without meritorious claims for protection from delaying their departure from Australia by making repeat protection visa applications on different grounds each time.

The third schedule of the bill addresses the decision by the High Court in Plaintiff M47/2012 v the Director-General of Security and Ors. In October 2012 the High Court of Australia found that the use of Public Interest Criterion 4002 in the Migration Regulations 1994 was not a valid criterion for the purposes of a protection visa application. Public Interest Criterion 4002 states that the applicant is not to be assessed by the Australian Security Intelligence Organisation, or ASIO, to be directly or indirectly a risk to security within the meaning of section 4 of the Australian Security Intelligence Organisation Act. In the absence of PIC 4002 the protection visa assessment process for persons with an adverse security assessment is currently problematic, as each case requires individual consideration as to whether the person does or does not pass the character test in section 501 of the Migration Act.

This bill will amend section 36 of the Migration Act to insert a new specific criterion for a protection visa that the applicant is not assessed by ASIO to be directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act. The new criterion in section 36 reflects the terms of PIC 4002. Additionally, the amendments introduced by the bill will put beyond doubt that the Migration Review Tribunal, the Refugee Review Tribunal and the Administrative Appeals Tribunal will not have the power to review a decision to refuse to grant or to cancel a protection visa on the basis of an adverse security assessment by ASIO that the applicant for or holder of a protection visa is directly or indirectly a risk to security within the meaning of section 4 of the ASIO Act.

The amendments will also reflect current paragraph 504(1)(c) of the Migration Act by confirming that the Refugee Review Tribunal does not have the power to review a decision to refuse to grant or to cancel a protection visa made on the basis of one or more of articles 1F, 32 or 33(2) of the refugee convention or paragraphs 36(2C)(a) or 36(2C)(b) of the Migration Act. Paragraph 501(c) provides that only the AAT has the jurisdiction to conduct a merits review of those decisions. To meet community expectations, the government must have the ability to act decisively and effectively wherever necessary to protect the Australian community. The government must also have the legislative basis to refuse a protection visa or to cancel a protection visa for those noncitizens who are a security risk. We must prevent and deter any threats posed by those who are a risk to the security of our nation and must implement legislative amendments such as those proposed in this bill to ensure the security and safety of the Australian community.

The best thing a government can do to support our agencies that work on the front line in immigration and border protection and who make these decisions is to equip them with the resources they need and provide clarity through legislation so they can do their jobs to the best of their ability in Australia's interests. The Department of Immigration and Border Protection employs over 10,000 people. The people who work in the department have always demonstrated extraordinary passion and professionalism. They have a deep care and interest in the work they do that is shared by the many other agencies that serve our nation well, including, of course, ASIO, who have an extremely difficult job in making these decisions. But that is the job we have given them to do—on our behalf, in the national interest. Indeed, many have dedicated almost all of their professional lives to this great work they do. Such commitment is an incredible asset that has guided us through incredibly difficult times and will continue to do so in the future. In support of them—the work they do on our behalf to ensure that we have an immigration program and particularly a refugee and humanitarian program that has integrity and that maintains the support of the Australian community—I commend this bill to the House.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

The question is that this bill be now read a second time.

A division having been called and the bells having been rung—

As there are fewer than five members on the side of the noes in this division, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr Bandt, Ms McGowan and Mr Wilkie voting no.

Bill read a second time.