Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

This legislation was introduced in the Senate by me on behalf of the Australian Democrats nearly two years ago and reinstated to the Notice Paper after the recent federal election. It proposes the establishment of a new category of visa, known as a complementary protection visa. It seeks to significantly improve the efficiency and effectiveness of a significant category of visa applications under the Migration Act. There are around 150 different visa classes and subclasses, and I am on record calling for a significant rationalisation and reduction of them—so it might seem a bit strange that I am proposing legislation to add a new category of visa to the existing ones, but this mechanism would deal with what is a serious ongoing inefficiency and, I might say, a very non-transparent process that affects thousands of people each year.

The purpose of a complementary protection visa is to deal with those claims made in Australia by people whose circumstances do not meet the refugee convention definition of a refugee but nonetheless have compelling humanitarian or safety reasons why they cannot return to their country of origin and do not have any other place or any other country that they can go to. This gap is due to the fact that the protection of the refugee convention does not cover every possible humanitarian situation. So, whilst in general parlance we might use the term ‘refugee’ to mean somebody who has fled a dangerous circumstance, in a legal sense the definition of ‘refugee’ under our Migration Act, as reflected in the refugee convention, is actually fairly narrow. It does not necessarily deal, for example, with cases where people are stateless, cases of people who have come from a country enveloped in civil war, cases of people who have been subject to gross violations of their human rights for reasons other than those in the refugee convention, cases where people would face torture upon returning to their country, or other sorts of circumstances where people have come from a country where general law and order no longer exist. All of those circumstances can apply without somebody falling into the category of ‘refugee’ under the convention.

I believe, and the Democrats believe, that a clearly defined statutory model of complementary protection would provide a fairer, far more consistent, far more transparent, far cheaper, far more efficient and much quicker system for determining and resolving the situations of people in Australia who have clear and strong humanitarian reasons why they cannot be returned to their country of origin. It should also be emphasised that, particularly at a time when we still have mandatory detention existing under the Migration Act, it is people in this category that have often been amongst those who have been in long-term detention. I note the new Minister for Immigration and Citizenship, Senator Evans, has, to his great credit, indicated his desire to finalise and resolve the circumstances and claims of people who have been in detention for prolonged periods of time. He identified 61 people who have currently been in detention for a period longer than two years—not all of them are in this situation, I might say; but some of them are.

In addition to those, there are many others out there in the community—on return pending bridging visas, removal pending bridging visas and other forms of bridging visas—whose refugee claims have not been successful but who are, nonetheless, not realistically able to be returned. This includes people who are stateless. I know of some circumstances of people who have been in detention for four, five or six years, and who have been refused—correctly, in a legal sense—a protection visa because they have not met the refugee convention criteria but nonetheless clearly cannot be returned to their country of origin. These people are stateless and have nowhere else they can go. We know that. They know that. They have actually said, ‘We will go anywhere—any country that will take us, please.’ But there is nowhere that will take them. So, as a consequence, they have stayed in detention for very long periods of time. Some of those people are now out in the community, but they are still in the community on temporary visas—temporary humanitarian visas, bridging visas, removal pending visas. All of these sorts of visas have differing entitlements attached to them but have one thing in common, and that is a lack of security, a lack of certainty, and they leave the circumstance unresolved. This is particularly stressful for the person but it is also unsatisfactory for the department and our migration system, because it leaves a case that is still pending. It is inefficient, it is expensive, and it is frankly inadequate.

The other big problem with the existing system is that all of these people have no direct, clear process to make an application to deal with their circumstances. Even people who know they do not fit the refugee criteria, and who are quite honest about that but believe they have a compelling humanitarian case—people who, for example, may face torture for other reasons if they are sent back—have no alternative but to apply for a visa they know they are not entitled to. They do this—even where they know they are not entitled to the visa —so that their application can be rejected and they have to appeal to the tribunal. At that stage, they can put in a specific request for the minister to make a personal intervention. This is because, under the current legislation, the minister cannot intervene to make a decision about a visa until somebody has had their application for a specific reason rejected, and had it rejected again on appeal to the Refugee Review Tribunal or the Migration Review Tribunal.

So we are forcing people to apply for visas they are not eligible for, forcing them to appeal to a tribunal when they know they are not eligible for it, wasting the resources of the department, wasting the resources of the tribunal, and then going into a ministerial discretion process that is completely arbitrary, totally nontransparent and unpredictable. This process is also grossly overloaded for precisely this reason—or at least in part for this reason. People have no other avenue.

It is an absurdly inefficient system and one that is not codified, which leaves a real risk of it being inconsistently applied, and not transparent with regard to the reasons behind why some applications are accepted and others are rejected. I can certainly attest to that fact, as can a number of parliamentarians who make requests to ministers. There are many people in the community who make requests to ministers to intervene in humanitarian cases. They have been doing this sort of thing for years—as I have—and have no idea why one person is successful and another person is not. At least, with a normal visa statutorily defined, if you are rejected you will get reasons why you were rejected and you can see if the reasons make sense. If they have any errors of fact, you can appeal if necessary on the basis of a mistake, an error in law—any of those sorts of things. You cannot do that with ministerial discretion; it is completely at the discretion of the minister. It is not appealable, not compellable and not transparent. It is a very inefficient system.

I should emphasise that this is not a new problem; this is not some recent frolic or little quirk that the Democrats are trying to identify. This has been identified a number of times in Senate committee inquiries. As long ago as June 2000, a report entitled A sanctuary under review: an examination of Australia’s refugee and humanitarian determination process was tabled in this chamber by the Senate Legal and Constitutional References Committee. The committee, which was then chaired by Senator Jim McKiernan from Western Australia, a Labor senator, brought down an almost unanimous report; it was certainly unanimous in this regard. It recommended that the government examine the most appropriate means by which Australia’s laws could be amended so as to explicitly incorporate the non-refoulement obligations of the convention against torture and the International Convention on Civil and Political Rights into domestic law. I was a member of that committee and the rationale behind that recommendation was, in part, because of the inefficiencies of having to go the circuitous and opaque route of ministerial discretion. That was, as I said, a unanimous report, including from the Liberal Party members of the committee, which at that time were Senator Payne and Senator Coonan. It also included me and three Labor senators, one of whom was Senator Ludwig, who has now gone on to greater things.

I urge the new Minister for Immigration and Citizenship, Senator Evans, to examine that report and, even more so, to examine the report of the Senate Select Committee into Ministerial Discretion in Migration Matters, which reported in 2004. By that stage, sadly, migration issues had become much more partisan and politicised, so the Liberal members of that committee did not sign on to the recommendations, but nonetheless the Labor and Democrat members did sign on. That committee was chaired by the aforementioned Senator Ludwig, as well as having Senator Wong and Senator Sherry—and those three Labor members are all now senior members of the ministry. The report included a recommendation that the government consider adopting a system of complementary protection to ensure that Australia no longer relies solely on the minister’s discretionary powers to meet its non-refoulement obligations under various international conventions, such as the convention against torture, the Convention on the Rights of the Child and the International Convention on Civil and Political Rights. For those who are not aware, ‘non-refoulement’ basically means ‘non-return’—not returning people to face torture, persecution or other serious circumstances.

The report—and, again, I urge the minister to examine the material and the rationale put forward in that report, supported by all of the Labor members of the committee, all of whom are now ministers in the new government—examined and agreed that we needed a system of complementary protection. From pages 138 onwards of that report is evidence from the human rights commission proposing these sorts of things. Other material was put forward that pointed to the proposals by the Executive Committee of the United Nations High Commissioner for Refugees program, EXCOM, talking about the need to operate and have an effective system of complementary protection. The Refugee Council of Australia put forward proposals in that regard and had a paper presented to the inquiry, entitled ‘Complementary protection: the way ahead’. I know that some of those bodies working in this area—the Refugee Council of Australia, A Just Australia and others—are continuing to explore and propose ways to implement a system of complementary protection.

This legislation is based on a recognition of a longstanding need to improve the efficiency and fairness, quickness and transparency of our migration system. I do believe that it is a simple and effective way of doing it. I know the new minister is examining, as is understandable, the way the Migration Act as a whole works now and areas where he can make improvements. I understand that he wants to take time to do that and to look at the best ways to do it, so I urge him to look at the model that it is put forward in this legislation and some other similar models.

I note from today’s Age newspaper that the minister is looking at trying to streamline and fast-track the operation of the temporary skilled worker visa program. I very much support him in doing that and making it work more efficiently and effectively—not putting in place lots of pointless red tape that costs enormous amounts of money and makes the whole system work less effectively and makes it harder. This is one of the key reasons for these things; I think it is often forgotten. It is against our own interests as a nation to make it harder for people to get a clear, quick, understandable, consistent decision on a visa application. The same principle applies whether you are talking about a visa application for a skilled worker, an engineer coming here from India or somebody who is already here and seeking a decision on whether or not they can stay on humanitarian grounds.

It is in the public interest to have quick decisions made and to have them made fairly, consistently and openly. That saves enormous amounts of money. It means that people who do get a successful decision are able to contribute economically and socially to the Australian community much more effectively. We all know that the longer people live in a state of uncertainty, the longer they have to struggle on without proper opportunities to get support, the harder it is for them to settle. They develop difficulties in regard to mental health issues and the like from the stress and that diminishes their potential for contributing effectively to the Australian community.

It is not just some bleeding heart measure to say, ‘We need to help these poor people; let’s be nice to them.’ It is not just to make us feel good. It is actually in our own interests economically, as much as anything else, to have people receive quick, open, fair decisions so that those that are accepted on valid grounds are able to contribute effectively as quickly as possible in the Australian economy, community and culture and those that are rejected are given clear reasons why. They do not have to go round and round in circles and then get a letter back from the minister saying, ‘I just choose not to exercise my discretion,’ but giving no reasons. Then nobody is clear why this person is rejected and the other person is not. It is precisely the sort of uncertainty that leaves people in a situation where they keep fighting, dragging it out year after year at great stress to themselves and great cost to the taxpayer.

Overall, it does not really help the effectiveness and coherence of our migration system and laws. If people get a decision with clear reasons as to why they are rejected, they are much more likely to say: ‘Okay, I’m not happy but I understand; I’ll look for other options. I’ll return, if that’s possible, or I’ll do other things’. I am not saying that will happen automatically all of the time, but the evidence shows that that is what happens. If people are actually given open, clear reasons that they can test, they feel like they have had at least a fair go and a fair hearing and they are much more likely to accept the decision than if they feel they are getting the run-around.

I support the new Minister for Immigration and Citizenship in his attempts to streamline the skilled visa program and expand it. I support the minister for, as it says here, considering allowing climate refugees to resettle in Australia and allowing unskilled workers from Pacific islands as well. It might seem like it is a separate issue but it all links to having a clear and coherent system based on rational reasons which operates as quickly and as clearly as possible.

I might say in regard to climate refugees that that is another example where we use the word ‘refugees’ in a general sense. We all know what it means, but it is actually not and it is never going to be part of the refugee convention. There is no way the refugee convention is going to be reopened and redefined to include climate change refugees. It does not come under the current criteria of the refugee convention, not surprisingly. But it does come under precisely the sort of criteria that would apply in regard to complementary protection. This would actually be a very clear-cut, simple way for climate change refugees, as we use the term in the general sense of the word, to be accepted in Australia. There are clear humanitarian circumstances where people cannot return as a direct consequence of severe environmental degradation, for example, and they could fit under this category. That would be much better than having to just use ministerial discretion or have set up some specific things just for climate change refugees. It allows flexibility within the context of a clear set of statutorily defined guidelines.

I support the minister in what he is doing in the Migration Act more broadly whether it is in the area of skills or other areas. But I would also urge him to look at it in regard to this area. Even under the previous government a number of ministers clearly acknowledged that the ministerial discretion system is broken. It is not the job of the migration minister to be micromanaging thousands of individual migration visa requests. You employ a department to assess claims. There is a whole section set up that deals with these now but the power can only be exercised by the minister, and dealing with individual claims is not what our migration minister should be doing.

This legislation would significantly reduce the dysfunctionality of the ministerial discretion system that currently operates, and that is needed. I think all sides of politics would agree on that. It puts in place a scheme that is clearly defined and therefore contained. It does not just open up open slather for anyone we feel sorry for, but it removes the inconsistency and the lack of transparency that currently applies. Any change to the Migration Act that means it will operate at less taxpayer cost, at greater efficiency and quickness and with fairness is something that we should seriously consider and I hope the government and the new minister does.